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Premier Community Bank v. First American Title Insurance Co.

United States District Court, D. Oregon

September 25, 2014



PAUL PAPAK, Magistrate Judge.

Plaintiff Premier Community Bank ("the Bank") brings this action against defendant First American Title Insurance Company ("First American"), arising out of the alleged breach of a title insurance policy. Now before the court is First American's motion to transfer venue to the Western District of Washington (#16). For the reasons set forth below, the motion is granted.[1]


Premier Community Bank is an Oregon chartered bank and was formerly known as Columbia Community Bank. Amended Complaint, #5, ¶ 1. First American is a California corporation doing business in Oregon and Washington. Id. ¶ 2. First American is the successor by merger to Pacific Northwest Title Company ("Pacific Title"), a Washington corporation. Id.

In 2004, Newman Park, LLC ("Newman Park"), a Washington limited liability company, purchased real property in Thurston County, Washington. Columbia Community Bank v. Newman Park, LLC, 304 P.3d 472, 473-74 (Wash. 2013) (en banc); Ex. 1, Declaration of Jerry Kindinger ("Kindinger Decl."), #18-1, at 2. Newman Park is a development company owned by twelve members, including Landmark Development Ventures, a company owned by Joseph Sturtevant. Columbia Community Bank, 304 P.3d at 473-74. Newman Park purchased the Thurston County property using a $400, 000 loan from Hometown National Bank ("HNB"). Id. at 474. In 2008, Sturtevant sought a loan from the Bank for a different company that he owned, Trinity ("the Trinity loan"). Id. Unbeknownst to the other members of Newman Park, Sturtevant used the Thurston County property as collateral for the Trinity loan. Id. The Bank was aware of HNB's interest in the property and, thus, as a condition of the Trinity loan, the Bank required that Sturtevant use $400, 000 of the loan to pay off HNB. Id. In approximately February 2008, Landmark Development Ventures executed a deed of trust encumbering the Thurston County property and naming the Bank as the beneficiary. Id. ; see also Ex. 1, Kindinger Decl., #18-1, at 2. In connection with this transaction, the Bank sought a title insurance policy from Pacific Title, insuring against "loss or damage stemming from the invalidity or unenforceability of [the Bank's] deed of trust lien." Amended Complaint, #5, ¶ 4; see also Ex. 1, Kindinger Decl., #18-1, at 1. The policy was issued out of Thurston County Title in Olympia, Washington. See Ex. 1, Kindinger Decl., # 18-1, at 1.

Thereafter, Sturtevant's company, Trinity, defaulted on the loan and the Bank tried to foreclose on the Thurston County property. Columbia Community Bank, 304 P.3d at 474. The other members of Newman Park objected and sought to prevent the foreclosure. Id. A series of lawsuits were then filed in the Washington state courts. Id. The Bank tendered the lawsuit to Pacific Title, which retained Thomas Peterson, a Seattle attorney, to represent the Bank. Ex. 3, Kindinger Decl., #18-3, at 1-2; see also First American's Memo. in Support of Motion to Transfer Venue, #17, at 2. Ultimately, the Thurston County Superior Court found that the Bank's deed of trust was invalid, as Landmark Development Ventures lacked a sufficient membership interest to sign a deed of trust on behalf of Newman Park. Columbia Community Bank, 304 P.3d at 474. The trial court, however, found that, "because [the Bank] had paid off the $400, 000 loan from HNB to ensure a priority position for its security interest, [the Bank] was equitably subrogated to HNB's position and acquired an equitable lien on the... property in the amount of the $400, 000 loan from HNB." Id. at 474-75. The case ultimately made its way to the Supreme Court of Washington, which affirmed the trial court's conclusion that the Bank was equitably subrogated to HNB's position. Id. at 475.


The Bank filed the instant action on June 6, 2014, pleading claims for negligent misrepresentation, negligence, and breach of contract. The Bank seeks damages based on the diminution in value of the Thurston County property. On July 25, 2014, First American filed a motion to transfer venue to the Western District of Washington. See First American's Motion to Transfer Venue, #16. On August 12, 2014, the Bank filed a resistance. See Bank's Resistance, #20. First American filed a reply brief on August 22, 2014. See First American's Reply, #21. On September 4, 2014, the court heard oral argument on the motion. The matter is fully submitted and ready for decision.


"For 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 or to any district or division to which all parties have consented." 28 U.S.C. § 1404(a). When deciding a motion under 28 U.S.C. § 1404(a), a district court must engage in a two-step inquiry. See id. ; Safe Drain Inc. v. Vito, No. C-14-01867 DMR, 2014 WL 4088147, at *2 (N.D. Cal. Aug. 19, 2014). First, the district court must consider whether the action could have been brought in the proposed forum; that is, whether the proposed forum "would have had subject matter jurisdiction at the time the action was filed; [whether] defendants would have been subject to personal jurisdiction; and [whether] venue would have been proper." E. & J. Gallo Winery v. F. & P. S.p.A., 899 F.Supp. 465, 466 (E. D. Cal. 1994).

If the district court concludes that the action could have been brought in the proposed forum, it must then consider whether the convenience of the parties, the convenience of the witnesses, and the interest of justice weigh in favor of transferring venue to that forum. This step of the inquiry requires an "individualized, case-by-case consideration of convenience and fairness." Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). Factors bearing on this decision include:

(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 contracts 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 district court may also consider "the local interest in the controversy and the relative court congestion and time to trial in each forum." Safe Drain, 2014 WL 4088147, at *3 (citing Williams v. Bowman, 157 F.Supp.2d 1103, 1106 (N.D. Cal. 2001)).

The burden is on the defendant to establish that the balance of the factors supports transferring venue, as there is a strong presumption in favor of the plaintiff's chosen forum. See, e.g., id. ; see also Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) ("[G]reat weight is generally accorded plaintiff's choice of forum...."); Edwards v. Depuy Synthes Sales, Inc., No. C 13-6006 CW, 2014 WL 2194798, at *2 (N.D. Cal. May 22, 2014) ("As a general rule, the plaintiff's choice of forum is given significant weight and will not be disturbed unless other factors weigh substantially in favor of transfer."). The district court has great discretion in deciding whether the relevant factors warrant transfer of the action to another forum. See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 639 (9th Cir. 1988) ("Weighing of ...

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