Alamed A Federal Motion To Change Venue

Case 8:10-cv-01171-CJC -RNB Document 11 Filed 10/13/10 Page 1 of 24 Page ID #:249
1 DAVID B. NEWDORF, State Bar No. 172960

david@newdorf.com
2 VICKI F. VAN FLEET, State Bar No. 164598
3 vicki@newdorf.com
N EWDORF L EGAL
4 220 Montgomery Street, Suite 1850
San Francisco, California 94104-4238
5 Telephone: (415) 357-1234
6
Facsimile: (866) 954-8448
7 GEOFFREY L. ROBINSON, State Bar No. 112997

geoffrey.robinson@bingham.com
8 ALAN H. MURPHY, State Bar No. 262844
alan.murphy@bingham.com
9 BINGHAM MCCUTCHEN LLP
10 3 Embarcadero Center
San Francisco, California 94111-4067
11 Telephone: (415) 393-2000
Facsimile: (415) 393-2286
12
13
Attorneys for Defendants
CITY OF ALAMEDA, ALAMEDA REUSE
14 AND REDEVELOPMENT AUTHORITY, and
COMMUNITY IMPROVEMENT COMMISSION
15 OF THE CITY OF ALAMEDA
16
IN THE UNITED STATES DISTRICT COURT
17
FOR THE CENTRAL DISTRICT OF CALIFORNIA
18
SOUTHERN DIVISION
19
SCC ALAMEDA POINT, LLC, a limited Case No. SACV10-01171 CJC (RNBx)
20 liability company,
DEFENDANTS’ NOTICE OF
21 Plaintiff, MOTION AND MOTION TO
DISMISS OR TRANSFER FOR
22 vs. IMPROPER VENUE, OR IN THE
23 ALTERNATIVE TO TRANSFER
CITY OF ALAMEDA, a municipal FOR CONVENIENCE
24 corporation; ALAMEDA REUSE AND
REDEVELOPMENT AUTHORITY, a Date: November 22, 2010
25 Joint Powers Authority; COMMUNITY
26
IMPROVEMENT COMMISSION OF Time: 1:30 p.m.
THE CITY OF ALAMEDA, a public
27 body corporate and politic; and DOES 1 Place: Courtroom 9B
through 10, inclusive,
28 Defendants. Judge: Hon. Cormac J. Carney
MOTION TO DISMISS OR TRANSFER FOR IMPROPER VENUE – CASE NO. SACV10-01171 CJC(RNBX)
1
NOTICE OF MOTION
2
TO: PLAINTIFF AND ITS ATTORNEYS OF RECORD:
3
PLEASE TAKE NOTICE that at 1:30 p.m. on November 22, 2010, before the
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Honorable Cormac J. Carney, United States District Judge, in Courtroom 9B of the
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of the above-entitled court located at 411 West Fourth Street, Santa Ana, California,
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Defendants City of Alameda, Alameda Reuse and Redevelopment Authority, and
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Community Improvement Commission of the City of Alameda (collectively the
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“City” or “Alameda”) will and hereby do move for an order dismissing or
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transferring the action to the Northern District of California for improper venue, or
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in the alternative, transferring the action to the Northern District of California for the
11
convenience of the parties and witnesses and in the interest of justice. This motion
220 Montgomery St. #1850
12
San Francisco, CA 94104
is brought pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. §§ 1404(a) and 1406.
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This motion is based on this Notice of Motion and Motion, the Memorandum
14
of Points and Authorities that follows, on the declarations of Jennifer Ott, Katherine
15
Debski and David B. Newdorf, and on all the papers and records on file in this
16
action, and on such other oral and/or documentary material as may be presented in
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support of the motion at or before the hearing of the motion.
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Dated: October 13, 2010
20 GEOFFREY L. ROBINSON
ALAN H. MURPHY
21
22 N EWDORF L EGAL
23
DAVID B. NEWDORF
VICKI F. VAN FLEET
24
25 By:/s/ David B. Newdorf

DAVID B. NEWDORF
26
27
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1
1
TABLE OF AUTHORITIES ......................................................................................iii
2
MEMORANDUM OF POINTS & AUTHORITIES .................................................. 1
3
4 INTRODUCTION ....................................................................................................... 1
5 STATEMENT OF FACTS .......................................................................................... 1

6 ARGUMENT ............................................................................................................... 3
7
I. PLAINTIFF BEARS THE BURDEN OF SHOWING THIS LAWSUIT WAS
8
PROPERLY FILED IN THIS JUDICIAL DISTRICT. ........................................ 3
9
II. VENUE FOR SUNCAL’S FEDERAL CLAIM DOES NOT LIE IN THE
10
CENTRAL DISTRICT OF CALIFORNIA. ......................................................... 3
11
A. Defendants Are Public Entities Located Outside of this District. .............. 4
12
B. The Events or Omissions Giving Rise to the Federal Claim All Occurred
NEWDORF LEGAL
13 Outside of this District. ............................................................................... 5

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14 C. This Lawsuit Concerns the Development of Property Located Outside this
District. ....................................................................................................... 7
15
D. The Catch-all Provision of the Venue Statute Does Not Apply Because
16 No Defendant Can Be Found in the Central District. ................................. 7
17
III. THE DEFECTIVE VENUE OF THE SOLE FEDERAL CLAIM CANNOT BE
18
SAVED BY REFERENCE TO THE PENDENT STATE LAW CLAIMS......... 8
19
IV. THOUGH IMMATERIAL, VENUE IS ALSO LACKING AS TO THE STATE
20
LAW CLAIM FOR BREACH OF CONTRACT. ................................................ 9
21
22 V. IN THE ALTERNATIVE, THIS ACTION SHOULD BE TRANSFERRED
23 FOR THE CONVENIENCE OF THE PARTIES AND WITNESSES AND IN
24 THE INTEREST OF JUSTICE. ......................................................................... 11
25 A. This Case Could Have Been Brought Initially In The Northern District Of
California. ................................................................................................. 12
26
B. Local Interest In The Controversy Weighs Very Heavily In Favor of
27 Transfer. .................................................................................................... 12
28 C. Convenience Of The Witnesses Favors Transfer. .................................... 13
i
1 1. The Majority of Witnesses Reside In Northern California. ........... 14

2 2. Southern California Witnesses. ...................................................... 15
3 D. Convenience of the Parties Favors Transfer. ............................................ 16
4 E. Ease of Access to the Evidence Favors Transfer...................................... 16
F. Plaintiff’s Choice Of Forum Should Be Given Little Weight. ................. 17
5
G. Relative Court Congestion Is a Neutral Factor......................................... 17
6
H. The Interests of Justice Favor Transferring This Action to the Northern
7 District Of California. ............................................................................... 17
8 CONCLUSION.......................................................................................................... 18
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ii
2 TABLE OF AUTHORITIES
3 Cases
4 A.J. Industries, Inc. v. United States Dist. Ct.
503 F.2d 384 (9th Cir. 1974) .......................................................................... 13
5 Accord Perales v. City of Buena Park, Cal.
6 2009 WL 1885702 (E.D. Cal. June 25, 2009) ................................................... 6
Allegiance Healthcare Corp. v. London Int’l Group
7 1998 WL 328624 (N.D. Cal. June 17, 1998) .................................................. 18
8 Argueta v. Banco Mexicano, S.A.
87 F.3d 320 (9th Cir. 1996) ............................................................................... 3
9 Backcountry Against Dumps v. Abbott
10 2010 WL 2349194 (S.D. Cal. June 9, 2010) ............................................. 13, 15
Basile v. Walt Disney Co.
11 __ F Supp.2d __, 2010 WL 2383782 (S.D.N.Y. June 14, 2010) ..................... 9
Cain v. New York State Board of Education
12
630 F. Supp. 221 (E.D.N.Y. 1986).................................................................... 4

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13 City of New York v. Cyco.Net, Inc.

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14 383 F. Supp. 2d 526, 544 (S.D.N.Y. 2005) ..................................................... 10

Commodity Futures Trading Comm’n v. Savage
15 611 F.2d 270 (9th Cir. 1979) ........................................................................... 12
16 Coons v. American Horse Show Ass’n
533 F.Supp. 398 (S.D. Tex. 1982) .................................................................. 18
17 Cottman Transmission Systems, Inc. v Martino
18 36 F3d 291, 294 (3d Cir 1994) ........................................................................ 11
Davis v. American Society of Civil Engineers
19 290 F. Supp. 2d 116, 123 (D.D.C. 2003) .......................................................... 9
20 Decker Coal v. Commonwealth Edison
805 F.2d 834 (9th Cir. 1985) .................................................................... 13, 18
21 Ervin v. Judicial Council of California
22 2007 WL 14892555 (N.D. Cal. May 18, 2007) ................................................ 6
Ezell v. Franklin County Children Services
23 2008 WL 2852247 (C.D. Cal. July 23, 2008) ................................................... 7
24 Garrell v. NYLCare Health Plans, Inc.
1999 WL 459925, *4 (S.D.N.Y. June 29, 1999)............................................. 10
25 GCG Austin Ltd. v. City of Springboro, Ohio
26 284 F. Supp.2d 927, 930 (S.D. Ohio 2003)....................................................... 5
Hoffman v. Blaski
27 363 U.S. 335 (1960) ....................................................................................... 14
28 Holmes v. Barker
2008 WL 5101825 (D. Ariz. Nov. 26, 2008) .................................................... 7
iii
1 King v. Russell
2 963 F.2d 1301 (9th Cir.1992) ............................................................................ 4
Lamptey v. County of Orange Cal.
3 2009 WL 4017186 (E.D. Cal. Nov. 16, 2009) .................................................. 6
4 Leon C. Baker, P.C. v. Bennett
942 F.Supp. 171 (S.D.N.Y. 1996) ..................................................................... 3
5 Matt v. Baxter Healthcare Corp.
6 74 F.Supp.2d 467 (E.D.Pa. 1999) ................................................................... 17
Moultry v. Holiday Inns, Inc.
7 1994 WL 597689 (E.D. Pa. Nov. 1, 1994) ........................................................ 9
8 O’Neill v. Battisti
472 F.2d 789 (6th Cir. 1972) ............................................................................. 4
9 Pacific Car and Foundry Co. v. Pence
10 403 F.2d 949 (9th Cir. 1968) .......................................................................... 19
Peteet v. Dow Chem. Co.
11 868 F.2d 1428 (5th Cir. 1989) ......................................................................... 12
Piedmont Label Co. v. Sun Garden Packing Co.
12
598 F.2d 491 (9th Cir.1979) .............................................................................. 3

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13 Sadighi v. Daghighfekr
(415) 357-1234
14 36 F. Supp.2d 267 (D.S.C. 1999) .................................................................... 10

Weiss v. Shoshone County Clerk and Recorders Office, Wallace, Idaho
15 2008 WL 4449632 (D. Mont. Sept. 30, 2008) .................................................. 8
16 Statutes
17 28 United States Code
§ 1404(a)............................................................................................................ 1
19 § 1406(a)............................................................................................................ 4
28 United States Code
20 § 84 .................................................................................................................... 4
§1391(b) ................................................................................................... passim
22
Other Authorities
23 15 C. Wright et al., Federal Practice and Procedure
24 § 3847 (1986) .................................................................................................. 13
15 C. Wright et al., Federal Practice and Procedure
25 § 3851, at 415 (1986) ..................................................................................... 15
26
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iv
1
MEMORANDUM OF POINTS & AUTHORITIES
2
INTRODUCTION
3
Plaintiff has chosen a court in its own backyard to the detriment of both
4
defendants and Alameda citizens, who are vitally interested in the outcome of this
5
litigation over redevelopment of a closed Naval Air Station on the San Francisco
6
Bay. The rules for venue do not permit this. By statute, this action may only be
7
maintained in a district where the defendants reside, the events occurred, or the
8
property is located. See 28 U.S.C. §1391(b). All of these factors dictate dismissal
9
of the action or, at the discretion of the Court, transfer to the Northern District of
10
California. Even if venue were proper in this district, the convenience of the parties
11
and witnesses and the interests of justice require sending this case to the Northern
12
District of California. See 28 U.S.C. § 1404(a).

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13
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STATEMENT OF FACTS
14
Alameda Point Redevelopment
15
The Alameda Naval Air Station was decommissioned in 1997, providing an
16
opportunity for the City of Alameda to redevelop the waterfront property for other
17
uses. The City of Alameda, the Alameda Reuse and Redevelopment Authority
18
(“ARRA”), and the Community Improvement Commission (“CIC”) (collectively
19
“Alameda” or the “City”) selected Irvine-based SunCal Companies to enter into
20
exclusive negotiations for the right to become the master developer of a mixed-use
21
project at Alameda Point. SunCal and the City entered into an Exclusive
22
Negotiation Agreement (“ENA”) on July 18, 2007. The parties twice extended the
23
ENA, with the last extension ending July 20, 2010. (Declaration of Jennifer Ott
24
[“Ott Decl.”] ¶¶ 2-3.)
25
During negotiations as to the form and content of proposed agreements for
26
submission to Alameda, the parties had numerous meetings, all of which occurred in
27
Alameda. The City’s primary contacts with SunCal representatives were with its
28
executives based in Northern California at offices in Oakland and Roseville. The
1
1
City and SunCal also convened numerous meetings, hearings, and workshops in
2
Alameda attended by thousands of City residents. (Ott Decl. ¶¶ 4, 7.)
3
An initiative measure that SunCal had qualified for the ballot was put before
4
the voters in February 2010. SunCal’s “Alameda Point Revitalization Initiative”
5
(Measure B) asked voters to approve a Charter Amendment, General Plan
6
Amendment, Zoning Amendment, Specific Plan and Development Agreement for
7
the developer’s proposed Alameda Point project. Measure B was rejected by more
8
than 85 percent of the voters. In addition to pursuing approval from the voters,
9
SunCal had submitted an Optional Entitlement Application to the City and, after the
10
defeat of Measure B, a Modified Optional Entitlement Application (“Entitlement
11
Application”). The Entitlement Application sought City approval for amendments
12
to the General Plan and zoning ordinance, and adoption of an Alameda Point
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13
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Community Plan, Alameda Point Master Plan, and a Development Agreement. On

14
July 20, 2010, the Alameda City Council (meeting at City Hall in Alameda) denied
15
the Entitlement Application by a 4-0 vote (with one abstention). (Ott Decl. ¶¶ 10-
16
12.)
17
The Lawsuit
18
On August 4, 2010, SunCal filed this lawsuit. It filed a First Amended
19
Complaint on August 27, 2010. The First Amended Complaint (“FAC”) contains
20
claims for relief for (1) breach of contract; (2) violation of the Contract Clause of
21
the U.S. Constitution; (3) injunctive relief/specific performance; and (4) declaratory
22
relief.
23
The sole federal claim is for impairment of contract under the Contract
24
Clause. Under this claim, SunCal seeks a declaration that the July 20, 2010 vote to
25
deny the Entitlement Application was improper and unconstitutional, and that the
26
vote be declared null and void and set aside. (FAC at 26 [Prayer 2].) The FAC also
27
includes a pendant state claim for breach of contract which seeks an order requiring
28
Alameda to (i) negotiate a Finalized Navy Term Sheet in good faith; (2) work
2
1
cooperatively with SunCal to prepare the project pro forma; (3) ensure the
2
continuity of City staff throughout the life of the project; (4) respond to SunCal’s
3
document submissions within a reasonable time and process the project
4
entitlements; and (5) undertake the environmental review in good faith and complete
5
CEQA review. (FAC at 26 [Prayer 3].) The complaint seeks attorney’s fees, but no
6
damages.
7
ARGUMENT
8
I. PLAINTIFF BEARS THE BURDEN OF SHOWING THIS LAWSUIT
9 WAS PROPERLY FILED IN THIS JUDICIAL DISTRICT.
10 After venue has been challenged by a motion pursuant to Federal Rule of
11 Civil Procedure 12(b)(3), plaintiff bears the burden of showing that venue is proper.
Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir.1979).
12
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13 A motion under Rule 12(b)(3) does not require that the pleadings be accepted as
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14 true, and thus the court is permitted to consider facts outside of the pleading on the
15 issue of venue. Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996).
16 The requirement of proper venue “serves the purpose of protecting a
17 defendant from the inconvenience of having to defend an action in a trial that is
18 either remote from the defendant’s residence or from the place where the acts
19 underlying the controversy occurred.” Leon C. Baker, P.C. v. Bennett, 942 F.Supp.
20 171, 175 (S.D.N.Y. 1996). If the court determines that venue is improper, it may
21 dismiss the case, or, if it is in the interest of justice, transfer it to any district in
22 which it properly could have been brought. 28 U.S.C. § 1406(a). The decision to
23 transfer rests in the discretion of the district court. King v. Russell, 963 F.2d 1301,
24 1304 (9th Cir.1992).
25 II. VENUE FOR SUNCAL’S FEDERAL CLAIM DOES NOT LIE IN THE
CENTRAL DISTRICT OF CALIFORNIA.
26
Venue for this action is governed by 28 U.S.C. § 1391(b) because plaintiff
27
invokes the Court’s federal question jurisdiction based on a claim of violation of the
28
Contract Clause of the U.S. Constitution. (See FAC ¶ 86.) Under section 1391(b),
3
Case 8:10-cv-01171-CJC -RNB Document 11 Filed 10/13/10 Page 10 of 24 Page ID
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1
this lawsuit may only be brought in a judicial district:
2
1. where any defendant “resides”;
3
2. in which “a substantial part of the events or omissions giving rise to the
4
claim occurred” or “a substantial part of the property that is the subject of the action
5
is situated”; or
6
3. in which any defendant “may be found, if there is no district in which
7
the action may otherwise be brought.” (28 U.S.C. § 1391(b).)
8
Venue is not proper in this district under any of these bases for venue.
9
A. Defendants Are Public Entities Located Outside of this District.
10
The City of Alameda and the related public entity defendants reside in the
11
Northern District of California. 28 U.S.C. § 84 (Northern District comprises, among
12
others, Alameda County.) Public entities and their officials reside for purposes of
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venue where they carry out their official duties. Cain v. New York State Board of
14
Education, 630 F. Supp. 221, 225 (E.D.N.Y. 1986); accord O’Neill v. Battisti, 472
15
F.2d 789, 791 (6th Cir. 1972). The Alameda defendants carry out their official
16
duties in the Northern District of California (Jennifer Ott Declaration (“Ott Decl.”)
17
¶ 13), and accordingly do not reside in this district.
18
The case of GCG Austin Ltd. v. City of Springboro, Ohio, 284 F. Supp.2d
19
927, 930 (S.D. Ohio 2003), dealing with intradistrict venue, is instructive because
20
the lawsuit challenged a land-use decision and there were two competing venues:
21
where the city commission vote occurred and where the affected property was
22
located. The owners of a 54-acre parcel sought to build a Walmart Supercenter and
23
Kohl’s department store. After the city planning commission rejected the plaintiff’s
24
general plan amendment, the owners sued the city for violations of equal protection,
25
due process, and the Takings Clause of the Fifth Amendment. Id. at 928.
26
The venue dispute arose from the unusual circumstances that the city limits of
27
Springboro encompassed parts of two different counties. The city offices (where the
28
vote took place) were located in Warren County, which is within the portion of the
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Western Division served by the courthouse in Cincinnati, Ohio. The land was
2
situated in Montgomery County, which is within the region covered by the Dayton,
3
Ohio, courthouse. The dispositive question was whether the City of Springboro
4
“resided” in more than one judicial district because its official actions had effects in
5
different districts. The court held as follows:
6
[A]lthough Plaintiffs’ claims concern property located in
7 Montgomery County, its claims against the City of Springboro
8
arise out of the official actions of its governing bodies, which
perform their duties in Warren County. Under these
9 circumstances, the Court concludes that Defendants are residents
10
of Warren County alone.
11 GCG Austin, 284 F. Supp.2d at 930.

California federal courts reach the same result in deciding venue for actions
12
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13 based on governmental conduct. For example, in Lamptey v. County of Orange,

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14 Cal., 2009 WL 4017186 (E.D. Cal. Nov. 16, 2009), the district court noted that for
15 purpose of venue in a §1983 claim against Orange County, that county “resides in
16 the Central District of California, and not in the Eastern District of California.”
17 Accord Perales v. City of Buena Park, Cal., 2009 WL 1885702 (E.D. Cal. June 25,
18 2009) (transferring § 1983 civil rights case to the Central District of California,
19 where the municipal defendant resided); Ervin v. Judicial Council of California,
20 2007 WL 14892555 (N.D. Cal. May 18, 2007) (holding that the Sacramento
21 Superior Court resided in the Eastern District of California for purposes of federal
22 venue statute).
23 B. The Events or Omissions Giving Rise to the Federal Claim All
24 Occurred Outside of this District.
SunCal bases its claim for relief under the Contract Clause on actions by the
25
Alameda defendants that occurred in the Council Chambers inside City Hall. It
26
alleges as follows:
27
96. Acting under color of state law, Alameda has caused SCC
28
Alameda to suffer a substantial deprivation of its contract rights
5
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1 in violation of the federal constitution. By voting to deny the

2 entire Entitlement Application prematurely and while the
Exclusivity Agreement is in effect, Alameda destroyed SCC
3 Alameda’s contractual rights.
4 97. By voting to deny the Entitlement Application, Alameda
5
has interfered with and destroyed its own contract, subjecting its
actions to heightened scrutiny and more stringent examination
6 under the Contract Clause than with laws affecting contractual
7 relationships between private parties.
98. The July 20, 2010 vote to deny the Entitlement
8
Application was unconstitutional; and as such, it is, and should
9 be declared, null and void.
10 The sole federal claim necessarily focuses on the City Council’s vote because
11 the Contract Clause, Article 1, section 10, clause 1 of the U.S. Constitution, is
12 directed specifically to legislative action. The clause states, in relevant part: “No
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13 State shall . . . pass any . . . Law impairing the obligation of contracts.”1

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14 Similarly, in other types of civil rights claims targeting government conduct,

15 venue lies where the challenged government conduct took place – which is typically
16 the place where the entity resides and its officials carry out their duties. See Holmes
17 v. Barker, 2008 WL 5101825 (D. Ariz. Nov. 26, 2008) (transferring action to the
18 Eastern District of Tennessee based on improper venue because “the alleged civil
19 rights violations occurred in Anderson County, Tennessee . . . and all Defendants
20 reside in Tennessee.”); Ezell v. Franklin County Children Services, 2008 WL
21 2852247 (C.D. Cal. July 23, 2008) (“Because the alleged misconduct of Defendants
22 [under § 1983] occurred in Ohio, and Defendants apparently reside in Ohio, the
23 matter should have been filed in the United States District Court for the Southern
24
25 1
The full text of the clause deals with other matters of no interest in this lawsuit. It
26 states in full: “No State shall enter into any Treaty, Alliance, or Confederation;
grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any
27
Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of
28 Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant
any Title of Nobility.”
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District of Ohio.”)
2
Even if SunCal were to claim (contrary to its pleadings) that the federal claim
3
is based on acts or omissions in addition to the City Council’s vote, the result would
4
be the same. Staff preparation for the vote and alleged “bad faith” acts and
5
omissions of the City Manager with respect to the project all occurred in Alameda.
6
(See, e.g., FAC ¶¶ 57, 68, 97-98.)
7
In the present case, the judicial district where the “events or omissions . . .
8
occurred” is the same district in which the Alameda defendants reside for venue
9
purposes: the Northern District of California.
10
C. This Lawsuit Concerns the Development of Property Located
11 Outside this District.
12 The First Amended Complaint concerns SunCal’s efforts to become the

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13 master developer of Alameda Point, “a master-planned development consisting of

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14 approximately 918 acres of prime water-front land on the east side of San Francisco
15 Bay with views of the Golden Gate Bridge and the downtown San Francisco
16 skyline.” (FAC ¶ 17.) The complaint thus concerns rights related to the
17 development of property located outside this district. See 28 U.S.C. § 1391(b)(2);
18 see also Weiss v. Shoshone County Clerk and Recorders Office, Wallace, Idaho,
19 2008 WL 4449632 (D. Mont. Sept. 30, 2008) (transferring federal question lawsuit
20 to District of Idaho because “the respondent is an Idaho County Clerk and Recorders
21 Office [and the] . . . property at issue is all located in Idaho”).
22
D. The Catch-all Provision of the Venue Statute Does Not Apply
23 Because No Defendant Can Be Found in the Central District.
24 The last basis for venue of federal claims under § 1392(b), the catch-all
25 provision, permits an action to be filed where any defendant “may be found” if
26 “there is no other district in which the action may otherwise be brought.” This
27 provision provides no basis for plaintiff’s choice of venue. In the present case, all of
28 the defendants (the City of Alameda and related public entities) can only be found
7
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outside the Central District. Moreover, the catch-all provision does not apply here
2
because there is a judicial district in which this action could have been filed: the
3
Northern District of California.
4
The lack of venue in this district can scarcely be debated since the Northern
5
District – not the Central District – is the place where (i) the defendants reside,
6
(ii) the City’s vote occurred, and (iii) the subject property is located.
7
III. THE DEFECTIVE VENUE OF THE SOLE FEDERAL CLAIM
8 CANNOT BE SAVED BY REFERENCE TO THE PENDENT STATE
9
LAW CLAIMS.
SunCal must establish venue for its federal claim in order to establish that
10
venue is proper for any other claim. See Davis v. American Society of Civil
11
Engineers, 290 F. Supp. 2d 116, 123 (D.D.C. 2003). SunCal relies on allegations
12
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related to its state law breach of contract claim to support the filing of this complaint
13
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in the Central District. It alleges that SunCal conducted negotiations with Alameda
14
“primarily from Orange County” and that “[s]ignificant performance under the
15
Exclusivity Agreement took place in Orange County, including project planning and
16
pre- and post-contract negotiations.” (FAC ¶ 87.)2 These allegations are both false,
17
as shown by the declarations submitted with this motion, and irrelevant because they
18
go solely to venue of the pendent state law contract claim.
19
Venue is determined claim by claim. Basile v. Walt Disney Co., __ F Supp.2d
20
__, 2010 WL 2383782 (S.D.N.Y. June 14, 2010). In analyzing venue under
21
§ 1391(b) (which applies to cases with both state and federal claims), the court must
22
find a properly venued federal claim in order to find that venue is proper in the
23
24
2
SunCal also alleges that many of its employees and consultants are potential
25
witnesses who are located in Orange County. At least as to consultants, this is not
26 true; but location of witnesses is irrelevant. “Although the number and location of
witnesses are considerations under a motion to transfer on forum non conveniens
27
grounds pursuant to § 1404(a), they are not factors to be considered when
28 determining venue under § 1391(b) and § 1406.” Moultry v. Holiday Inns, Inc.,
1994 WL 597689 (E.D. Pa. Nov. 1, 1994).
8
#:263
1
district. “Venue for the state law claim is clearly a function of venue for the federal
2
claim and, in the court’s discretion, pendent venue may be found over the state law
3
claim to enable adjudication of that claim together with the federal claim.” City of
4
New York v. Cyco.Net, Inc., 383 F. Supp. 2d 526, 544 (S.D.N.Y. 2005) (quoting
5
Garrell v. NYLCare Health Plans, Inc., 1999 WL 459925, *4 (S.D.N.Y. June 29,
6
1999).)
7
As specifically noted by the district court in Sadighi v. Daghighfekr, 36 F.
8
Supp. 2d 267, 278 (D.S.C. 1999), a properly venued state-law claim does not save a
9
complaint that includes a federal claim. “Although the claims against the . . .
10
Defendants are related to each other, the case law does not support an assertion of
11
venue over the principal, federal law claim pursuant to the doctrine of ‘pendent
12
venue’ based upon a finding of proper venue over the pendent state law claims. . . .
NEWDORF LEGAL
13
(415) 357-1234
Consequently, this court declines to find venue proper as to the RICO claim based
14
on the doctrine of ‘pendent venue’ based upon a finding of proper venue over the
15
pendent state law claims.” Id. at 278.
16
Venue for the state-law claim (which, as noted below, is also improper)
17
cannot keep this action in the Central District absent a properly-venued federal
18
claim.
19
IV. THOUGH IMMATERIAL, VENUE IS ALSO LACKING AS TO THE
20 STATE LAW CLAIM FOR BREACH OF CONTRACT.
21 Plaintiff contends that venue is proper as to its breach of contract claim based
22 on allegations that SunCal conducted negotiations with Alameda “primarily from
23 Orange County” and that “[s]ignficant performance under the Exclusivity
24 Agreement took place in Orange County, including project planning and pre- and
25 post-contract negotiations.” (FAC ¶ 87.)
26 This is immaterial, but in any event, not true. It is immaterial because, as
27 plaintiff’s own complaint shows, this lawsuit has little to do with SunCal’s
28 performance under the ENA. All of the alleged “events and omissions giving rise to
9
#:264
1
[SunCal’s] claim” under state law occurred outside of this district. Plaintiff alleges
2
that Alameda breached the ENA by:
3
(1) failing and refusing to negotiate a Finalized Navy Term Sheet
4 in good faith; (2) repudiating the pro forma previously agreed to
5
by the parties and then refusing to work cooperatively with SCC
Alameda to prepare the project pro form; (3) failing and refusing
6 to ensure the continuity of its [City] staff throughout the life of
7
the project; (4) failing and refusing to respond to SCC Alameda’s
document submissions within a reasonable time; and (5) refusing
8 to undertake the environmental review in good faith and failing
9 to complete the CEQA review and entitlement process. (FAC
¶ 89.)
10
SunCal’s own performance under the ENA bears little, if any, weight in the
11
venue analysis because it does not involve events or omissions giving rise to its
12
claim. “Events or omissions that might only have some tangential connection with
NEWDORF LEGAL
13
(415) 357-1234
the dispute in litigation are not enough” to establish venue. Cottman Transmission
14
Systems, Inc. v Martino, 36 F.3d 291, 294 (3d Cir. 1994).
15
In addition, SunCal’s performance under the ENA occurred in substantial part
16
outside of this district, as established by the declarations submitted with this motion.
17
The City of Alameda’s primary contacts with SunCal were through its employees
18
Bill Myers (in the earlier days of the project), Pat Keliher, and Nick Kosla, all of
19
whom were based in Northern California. Mr. Myers was in Roseville, Calif. and
20
Messrs. Keliher and Kosla were based in SunCal’s San Francisco Bay Area regional
21
office located in Oakland, Calif.3 (Ott Decl. ¶ 4.) There were numerous face-to-
22
face meetings between representatives of SunCal and Alameda, all of which took
23
place in or near Alameda. (Ott Decl. ¶ 7.) SunCal and the City negotiating teams
24
typically sat down to meet every two weeks.4 (Ott Decl. ¶ 8.)
25
3
26 SunCal had been pursuing development projects in Oakland and Dublin, Calif., in
the Bay Area at the same time that it was negotiating to become the master
27
developer of Alameda Point. (Ott Decl. ¶ 6.)
4
28 Alameda also dealt with Amy Freilich, at the time an in-house land use attorney
for SunCal, who had an office in Irvine. Toward the end of the term of the
10
#:265
1
Finally, of the 61 consultants paid by SunCal, at least 49 were located outside
2
of the Central District – mainly in Northern California. (Declaration of Katherine
3
Debski [“Debski Decl.”] ¶ 6 & Ex. A.)
4
V. IN THE ALTERNATIVE, THIS ACTION SHOULD BE
5 TRANSFERRED FOR THE CONVENIENCE OF THE PARTIES AND
6
WITNESSES AND IN THE INTEREST OF JUSTICE.
Even if venue were proper in the Central District, “[f]or the convenience of
7
the parties and the witnesses, in the interest of justice, a District Court may transfer
8
any civil action to any other district or division where it might have been brought.”
9
28 U.S.C. §1404(a). The trial court has substantial discretion in deciding to transfer
10
a case. Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir.
11
1979).
12
NEWDORF LEGAL
In exercising its discretion, a trial court should consider “all relevant factors
13
(415) 357-1234
to determine whether or not on balance the litigation would more conveniently

14
proceed and the interest of justice be better served by transfer to a different forum.”
15
Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989) (quoting 15 C.
16
Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3847, at 370
17
(1986)).
18
The relevant factors include: (1) plaintiffs’ choice of forum; (2) convenience
19
of the witnesses; (3) convenience of the parties; (4) ease of access to the evidence;
20
(5) familiarity of each forum with the applicable law; (6) feasibility of consolidation
21
of other claims; (7) any local interest in the controversy; and (8) the relative court
22
congestion in each forum. See Decker Coal Co. v. Commonwealth Edison Co., 805
23
F.2d 834, 843 (9th Cir.1986). Among these, the convenience of the material
24
witnesses is generally regarded as the most important factor. A.J. Industries, Inc. v.
25
United States Dist. Ct., 503 F.2d 384, 386-87 (9th Cir. 1974).
26
It is also relevant that the voters of Alameda have a strong interest in the
27
28 Exclusive Negotiation Agreement, Alameda had contacts with SunCal President

Stan Brown (based in Irvine, Calif.). (Ott Decl. ¶ 4-5.)
11
#:266
1
future development of Alameda Point, which occupies one third of the City’s area.
2
As a voter opinion poll recently conducted by SunCal shows, the development of
3
Alameda Point is among the highest civic priorities of Alameda voters, second only
4
to education, educational funding and schools. (Declaration of David B. Newdorf
5
[“Newdorf Decl.”] Ex. A.) These voters deserve easy access to the Court that may
6
decide the future of Alameda Point. Backcountry Against Dumps v. Abbott, 2010
7
WL 2349194 (S.D. Cal. June 9, 2010) (transferring case “in the interest of justice”
8
to the court with “the greatest connection to the citizens, the lands, the resources,
9
and environmental interests impacted by” the proposed construction project).
10
A. This Case Could Have Been Brought Initially In The Northern
11 District Of California.
12 The threshold requirement for a discretionary transfer under § 1404(a) is that

NEWDORF LEGAL
13 the case could have been filed initially in the Northern District of California. See
(415) 357-1234
14 Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960). Venue would be proper in that
15 district under § 1391(b) based on – among other factors – the residence of all three
16 public entity defendants in that district.5 In addition to proper venue, the transferee
17 court must also have personal jurisdiction over the defendants and subject matter
18 jurisdiction over the claim. Id. The Northern District of California satisfies all these
19 requirements.
20
B. Local Interest In The Controversy Weighs Very Heavily In Favor
21 of Transfer.
22 Of the reasons in favor of a transfer, the local interest by Alameda and Bay
23 Area citizens is by far the most crucial factor in this case. The Northern District’s
24 interest in this controversy far outweighs that of the Central District. Alameda
25 Point’s 918 acres represent the largest area of potential development in the City of
26
5
In addition, as previously detailed, a “substantial part of the events or omissions
27
giving rise to the claim occurred” and all of “the property that is the subject of the
28 action is situated” in the Northern District. See 28 U.S.C. § 1391(b).
12
#:267
1
Alameda and one of the largest development sites in the urban core of the Bay Area.
2
SunCal gathered signatures to place its development proposal on the ballot, where it
3
lost with a “no” vote of 85 percent in February 2010. SunCal is itself fueling local
4
interest in this dispute by spending freely during the fall campaign season, sending a
5
“hit piece” targeting the City Manager and comparing her to the City Manager of
6
Bell, Calif., who is facing criminal corruption charges. (Newdorf Decl. Ex. B.)
7
Alameda Point and SunCal have remained foremost on voter minds during the
8
November 2010 local elections.
9
One district court explained the nature of community interest that justified
10
transferring an action:
11
Here, all land and real property . . . and the transmission corridor
12 for the Sunrise Project are located entirely within the Southern
NEWDORF LEGAL
13
District. . . . The residents of that district are most impacted by
(415) 357-1234
this controversy [.] . . . The Sunrise Project has been the subject
14 of extensive public input and involvement in the Southern
15
District over a more than three-year period of time, and public
input is still being received today. Between October 2005 and
16 August 2008, the California Public Utilities Commission
17 (“CPUC”), the BLM, and SDG & E conducted nearly 50 public
meetings on the Sunrise Project in San Diego, involving tens of
18 thousands of people in the Southern District. . . . Clearly, the
19 interested public is located primarily in the Southern District.
20 Backcountry Against Dumps v. Abbott, 2010 WL 2349194, at *4 (S.D. Cal. June 9,

21 2010).
22 The interest of justice would best be served by transferring the case to the
23 venue where the project and its neighbors are located.
24 C. Convenience Of The Witnesses Favors Transfer.
25 “Probably the most important factor, and the factor most frequently
26 mentioned, in passing on a motion to transfer under 28 U.S.C. §1404(a) is the
27 convenience of witnesses.” 15 C. Wright et al., Federal Practice and Procedure,
28 § 3851, at 415 (1986). Further, the convenience of witnesses not employed by
13
#:268
1
either party should be given even greater weight because their attendance cannot
2
easily be compelled. Jarvis v. Marietta Corp., 1999 WL 638231, *5 (N.D. Cal.
3
Aug. 12, 1999). Here, the convenience of the witnesses would be served by
4
litigating this action in the Northern District of California.
5
Nearly all of the issues raised by the First Amended Complaint will turn on
6
the testimony of the various people involved in planning and negotiations
7
concerning the redevelopment of Alameda Point, almost all of whom are located in
8
Northern California.
9
1. The Majority of Witnesses Reside In Northern California.
10
The litigation is at an early stage, but at this point key witnesses in this case
11
from Northern California may be:
12
 City witnesses. The First Amended Complaint refers to alleged

NEWDORF LEGAL
13
(415) 357-1234
conduct of Interim City Manager Ann Marie Gallant, the five City Council
14
members, City Attorney Teresa Highsmith, and unnamed staff members who
15
authored various staff reports. Other key City witnesses would include Deputy City
16
Manager Jennifer Ott, Public Works Director Matt Naclerio, and Planning Services
17
Manager Andrew Thomas.
18
 Alameda citizen witnesses. The First Amended Complaint refers
19
to an unnamed citizen (or possibly more than one) attending an Alameda Chamber
20
of Commerce meeting who said “Gallant even indicated she had a ‘secret plan’ for
21
development of the project.” FAC ¶ 64.
22
 City consultants. The First Amended Complaint specifically
23
identifies Fehr & Peers, traffic consultants with offices in San Francisco and Walnut
24
Creek, as a City consultant involved in matters relevant to SunCal’s claims. (FAC
25
¶¶ 74-80.) Other key outside consultants for Alameda include: Economic &
26
Planning Systems (Berkeley); Harris & Associates (Concord, Calif.); Russell
27
Resources, Inc. (San Rafael); and Ruggeri Jensen Azar (Pleasanton). (Ott Decl.
28
¶ 14.)
14
#:269
1
 SunCal witnesses: Pat Keliher, Nick Kosla, Bill Meyers and
2
Susan Chavez are current or past SunCal employees involved in the Alameda Point
3
project who live and work in the Northern District. Messrs. Keliher, Kosla and
4
Meyers were the key points of contact between SunCal and Alameda.
5
 SunCal consultants. A complete list of SunCal’s consultants is
6
submitted as Exhibit A to the Declaration of Jennifer Ott. An analysis of the
7
location of these witnesses shows that 39 of 61 are located in Northern California.
8
(Debski Decl. Ex. A.)
9
2. Southern California Witnesses.
10
Likely witnesses from Southern California include:
11
 SunCal witnesses. SunCal President Stan Brown (Irvine) and
12
former in-house SunCal attorney Amy Freilich (Los Angeles).6

NEWDORF LEGAL
13
(415) 357-1234
 U.S. Navy witnesses. One of SunCal’s contentions is that

14
Alameda interfered with SunCal’s ability to finalize a term sheet for the transfer of
15
Alameda Point. (FAC ¶¶55.) Alan Lee, the Navy’s Base Closure manager, is
16
located in San Diego.
17
 SunCal consultants. Six SunCal consultants are based in
18
Southern California. See Chart (Debski Decl.)
19
In sum, because the key witnesses, in terms of number and importance, reside
20
in Northern California, the convenience of the witnesses factor weighs heavily in
21
favor of transferring this case to the Northern District of California. See Jarvis,
22
1999 WL 638231, at *5.
23
24
25
26
6
Ms. Freilich is currently retained outside counsel for SunCal. “[T]he convenience
27
of counsel is not a factor that is relevant in deciding a motion brought under 28
28 U.S.C. § 1404(a).” Matt v. Baxter Healthcare Corp., 74 F.Supp. 2d 467, 469 (E.D.
Pa. 1999).
15
#:270
1 D. Convenience of the Parties Favors Transfer.

2 The Northern District of California would be vastly more convenient for
3 nearly all concerned. Neither Defendants nor the acts giving rise to this case have
4 any connection to the Central District of California. Nearly all of the party
5 representatives (except for two SunCal witnesses, one of whom is a retained lawyer)
6 and the non-party witnesses (except for a Navy witness) reside in Northern
7 California. The Northern District would therefore be a far more convenient forum
8 for this case.
9 E. Ease of Access to the Evidence Favors Transfer.
10 The greater ease of access to the evidence in the Northern District is also an
11 important factor strongly in favor of transfer to the Northern District of California.
12 Decker Coal v. Commonwealth Edison, 805 F.2d 834, 843 (9th Cir. 1985). The
NEWDORF LEGAL
13 majority of documents bearing on the claims asserted in this case and relevant to the
(415) 357-1234
14 negotiation and planning for Alameda Point are located in the Northern District. For
15 example, city documents, public records, consultants’ drawings, plans, and
16 entitlement applications, among others, are located at the offices of the various
17 witnesses identified in section V.C.1 above.
18 Furthermore, the cost and difficulty of obtaining the attendance of witnesses
19 would be much higher in the Central District of California than in the Northern
20 District of California because a vast majority of the key witnesses reside and work
21 in the Northern District. See Allegiance Healthcare Corp. v. London Int’l Group,
22 1998 WL 328624, *3 (N.D. Cal. June 17, 1998).
23 Transfer to the Northern District of California will increase the ease and
24 reduce the expense of obtaining documents, as well as significantly reduce the cost
25 and inconvenience involved with obtaining key witness testimony. Accessibility to
26 evidence is one more factor which strongly supports Defendants’ alternative motion
27 to transfer.
28
16
#:271
1 F. Plaintiff’s Choice Of Forum Should Be Given Little Weight.

2 “[D]eference to a plaintiff’s choice of forum will be forsaken when the
3 location of the defendants and witnesses, evidence, and the locus of operative facts,
4 all point to a venue other than that selected by the plaintiff.” Coons v. American
5 Horse Show Ass’n, 533 F.Supp. 398, 400 (S.D. Tex. 1982). A plaintiff’s choice of
6 forum should be given “minimal consideration” if the operative facts did not occur
7 within the forum of selection and that forum has no particular interest in the parties
8 or the subject matter. Pacific Car and Foundry Co. v. Pence, 403 F.2d 949, 954
9 (9th Cir. 1968). Here, none of the actions alleged as giving rise to this action
10 occurred in the Central District of California. For that reason, SunCal’s choice of
11 forum is entitled to, in the words of the Ninth Circuit, “minimal consideration.”
12 G. Relative Court Congestion Is a Neutral Factor.

NEWDORF LEGAL
13 Neither the Northern District nor this Court has had any substantive
(415) 357-1234
14 involvement nor has either court attained any familiarity with the facts at issue.
15 Based on statistics issued for the year 2009 by the Administrative Office of the
16 Courts, the Northern District is more congested than this Court (613 pending cases
17 per judgeship in the Northern District vs. 439 pending cases per judgeship in this
18 Court). By this measure, the Northern and Central districts rank as the 2nd and 7th
19 most crowded dockets in the Ninth Circuit, respectively. This factor should be
20 relatively neutral in this Court’s consideration of Defendants’ Motion to Transfer.
21 As discussed above, however, the other factors weigh heavily in favor of the transfer
22 of this action to the Northern District of California.
23
H. The Interests of Justice Favor Transferring This Action to the
24 Northern District Of California.
25 No interest of justice would be promoted by hearing this case in the Central
26 District. As set forth above, the Central District’s connection to this case is dwarfed
27 by that of the Northern District. This case centers around a large redevelopment
28 project located in the Northern District. Together with the other factors discussed
17
#:272
1
above, the interests of justice will best be served by transferring this action to the
2
Northern District.
3
CONCLUSION
4
For the foregoing reasons, the Court should dismiss or transfer the case for
5
lack of venue or, in the alternative, transfer the case to the Northern District of
6
California for the convenience of the parties and witnesses and in the interests of
7
justice.
8
Dated: October 13, 2010
10 GEOFFREY L. ROBINSON
ALAN H. MURPHY
11
N EWDORF L EGAL
12
NEWDORF LEGAL
13
DAVID B. NEWDORF
(415) 357-1234
VICKI F. VAN FLEET

14
15 By:/s/ David B. Newdorf

DAVID B. NEWDORF
16
17
18
19
20
21
22
23
24
25
26
27
28
18

Alamed A Federal Motion To Change Venue

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Case 8:10-cv-01171-CJC -RNB Document 11 Filed 10/13/10 Page 1 of 24 Page ID #:249

1 DAVID B. NEWDORF, State Bar No. 172960

7 GEOFFREY L. ROBINSON, State Bar No. 112997

25 By:/s/ David B. Newdorf

5 STATEMENT OF FACTS .......................................................................................... 1

13 Outside of this District. ............................................................................... 5

22 V. IN THE ALTERNATIVE, THIS ACTION SHOULD BE TRANSFERRED

23 FOR THE CONVENIENCE OF THE PARTIES AND WITNESSES AND IN

24 THE INTEREST OF JUSTICE. ......................................................................... 11

1 1. The Majority of Witnesses Reside In Northern California. ........... 14

630 F. Supp. 221 (E.D.N.Y. 1986).................................................................... 4

13 City of New York v. Cyco.Net, Inc.

14 383 F. Supp. 2d 526, 544 (S.D.N.Y. 2005) ..................................................... 10

598 F.2d 491 (9th Cir.1979) .............................................................................. 3

14 36 F. Supp.2d 267 (D.S.C. 1999) .................................................................... 10

District of California. See 28 U.S.C. § 1404(a).

Community Plan, Alameda Point Master Plan, and a Development Agreement. On

11 GCG Austin, 284 F. Supp.2d at 930.

13 based on governmental conduct. For example, in Lamptey v. County of Orange,

1 in violation of the federal constitution. By voting to deny the

13 State shall . . . pass any . . . Law impairing the obligation of contracts.”1

14 Similarly, in other types of civil rights claims targeting government conduct,

12 The First Amended Complaint concerns SunCal’s efforts to become the

13 master developer of Alameda Point, “a master-planned development consisting of

to determine whether or not on balance the litigation would more conveniently

28 Exclusive Negotiation Agreement, Alameda had contacts with SunCal President

12 The threshold requirement for a discretionary transfer under § 1404(a) is that

20 Backcountry Against Dumps v. Abbott, 2010 WL 2349194, at *4 (S.D. Cal. June 9,

 City witnesses. The First Amended Complaint refers to alleged

former in-house SunCal attorney Amy Freilich (Los Angeles).6

 U.S. Navy witnesses. One of SunCal’s contentions is that

1 D. Convenience of the Parties Favors Transfer.

1 F. Plaintiff’s Choice Of Forum Should Be Given Little Weight.

12 G. Relative Court Congestion Is a Neutral Factor.

VICKI F. VAN FLEET

15 By:/s/ David B. Newdorf

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