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Wiggins v. Seeley

United States District Court, D. Nevada

March 13, 2017

MATTHEW WIGGINS, Plaintiff,
v.
ANDREW SEELEY, RICHARD OOMS, and TIFFANY OOMS SEELEY, Defendants.

          ORDER

         Before the court is defendants Andrew Seeley, Richard Ooms and Tiffany Seeley's motion to dismiss for improper venue or transfer. (ECF No. 6). Plaintiff responded (ECF No. 12) and defendants replied (ECF No. 14).

         Also before the court is plaintiff's motion to remand. (ECF No. 13). Defendants responded (ECF No. 16) and plaintiff replied (ECF No. 17).

         I. Background

         This dispute arises out of a contract entered into on May 26, 2016. (ECF No. 2 at 6). According to the complaint, defendants failed to make the full payments as agreed upon under the contract. (Id. at 7). As a result, plaintiff alleges that defendants owe him $79, 316.39. (Id. at 8).

         On September 22, 2016, plaintiff filed a complaint for breach of contract in Ninth Judicial District in and for the State of Nevada. (ECF No. 2 at 6-9). On November 7, 2016, defendants removed the action to this court pursuant to 28 U.S.C. § 1332(a). (ECF No. 2).

         Defendants move to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) or to transfer the case to the Southern District of California pursuant to 28 U.S.C. § 1404. (ECF No. 6). Plaintiff moves to remand the action to Douglas County, Nevada in accordance with the forum selection clause set forth in the Private Investment Agreement. (ECF No. 13). The court addresses each motion in turn.

         II. Motion to Dismiss for Improper Venue

         Defendants move the court to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(3) for improper venue. Venue of removed actions is governed by 28 U.S.C. § 1441(a). See Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665-66 (1953) (holding that 28 U.S.C. § 1391 has no application in removed actions). Section 1441(a) provides that, when an action is removed from state court, venue is automatically proper in the federal district court where the state action was pending. 28 U.S.C. § 1441(a). There is only one official federal judicial district in the state of Nevada. Therefore, venue is proper in this court. Defendants' motion to dismiss for improper venue is denied.

         III. Motion to Transfer

         Defendants also request the court transfer the action to the Southern District of California for the convenience of the parties and witnesses. Section 1404 establishes that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a).

         In determining whether transfer is appropriate in a particular case, the court is required to weigh multiple factors. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). The court may consider the following factors:

(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.

         Id. at 498-99. The presence of a forum selection clause is also a “significant factor” in the court's § 1404(a) analysis. Id. A “defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (citation omitted).

         Defendants request the court to transfer venue of this case to the Southern District of California. As an initial matter, defendants assert that the matter may be properly brought in the Southern District of California as all defendants are California residents and live in San Diego. See 28 U.S.C. 1391(b)(1). In support of transfer, defendants state that, other than plaintiff, all parties encumbered by the Private Investment Agreement reside in California, travel to Nevada would be a hardship on defendants, defendants may call some witnesses who are residents in California, any documents that relate to the operations of Getaway San Diego will be located in California, and that nearly all operative facts occurred in ...


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