United States District Court, D. Oregon, Portland Division
KENNETH A. FOX, Plaintiff,
U.S. GOVERNMENT, Defendant.
OPINION AND ORDER
Yim You United States Magistrate Judge
United States has filed a Motion to Transfer Venue, ECF #16,
in this case and another case that plaintiff filed in this
district, Fox v. U.S. Government, No.
3:19-cv-00874-YY. Plaintiff, who is appearing pro
se, has not filed a response to either motion. For the
reasons discussed below, the motion is GRANTED.
case, plaintiff asserts a claim under the Federal Tort Claims
Act, alleging that he was deceived into signing a written
refusal of hip surgery while incarcerated at Lompoc Federal
Correctional Institution in 2017. Compl., ECF # 1. This case
is one of three cases that plaintiff has filed in federal
court, all arising from events that occurred during his
incarceration at Lompoc, which is located in the Central
District of California. In Fox v. U.S. Government,
No. 3:19-cv-00874-YY, also pending in this district,
plaintiff alleges that a Lompoc corrections officer shot him
in the face with a pepper ball gun and the prison deprived
him of medical care for his injuries. In Fox v. Bureau of
Prisons, et al., No. 2:19-cv-00567-MAA (C.D. Ca.), filed
in the Central District of California, plaintiff alleges
Eighth Amendment Bivens claims for the very same
actions underlying his District of Oregon cases-i.e., that he
was deceived into signing a written refusal of hip surgery
and suffered injuries from being shot in the face.
moves the court to transfer venue to the Central District of
California under 28 U.S.C. § 1404(a). Section 1404
“partly displaced” the doctrine of forum non
conveniens, Miskow v. Boeing Co., 664 F.2d 205, 207
(9th Cir. 1981), and provides 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). “Section
1404(a) reflects an increased desire to have federal civil
suits tried in the federal system at the place called for in
the particular case by considerations of convenience and
justice.” Van Dusen v. Barrack, 376 U.S. 612,
616 (1964). The purpose of section 1404(a) is to
“prevent the waste of time, energy, and money to
protect litigants, witnesses and the public against
unnecessary inconvenience and expense.” Id.
(internal citations and quotation marks omitted).
Section 1404(a), the court has “discretion . . . to
adjudicate motions for transfer according to an
‘individualized, case-by-case consideration of
convenience and fairness.'” Stewart Org., Inc.
v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van
Dusen, 376 U.S. at 622). “A motion to transfer
under § 1404(a) thus calls on the district court to
weigh in the balance a number of case-specific
non conveniens considerations are helpful in deciding a
§ 1404 transfer motion.” Decker Coal Co. v.
Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir.
1986). In the forum non conveniens analysis, the court
“must balance the preference accorded plaintiff's
choice of forum with the burden of litigating in an
inconvenient forum.” Id. “[T]he court
should consider private and public interest factors affecting
the convenience of the forum.” Id.
“Private factors include the relative ease of access to
sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance
of willing, witnesses; possibility of view of premises, if
view would be appropriate to the action; and all other
practical problems that make trial of a case easy,
expeditious and inexpensive.” Id. (quoting
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947))
(internal quotation marks omitted). “Public factors
include the administrative difficulties flowing from court
congestion; the local interest in having localized
controversies decided at home; the interest in having the
trial of a diversity case in a forum that is at home with the
law that must govern the action; the avoidance of unnecessary
problems in conflict of laws, or in the application of
foreign law; and the unfairness of burdening citizens in an
unrelated forum with jury duty.” Id. (quoting
Piper Aircraft, 454 U.S. 235, 241 n.6 (1981))
(internal quotation marks omitted). If a forum selection
clause exists, that is a “significant factor” in
the analysis. Jones v. GNC Franchising, Inc., 211
F.3d 495, 498-99 (9th Cir. 2000).
a “defendant must make a strong showing of
inconvenience to warrant upsetting the plaintiff's choice
of forum.” Decker, 805 F.2d at 843. However,
“[t]he degree to which courts defer to the
plaintiff's chosen venue is substantially reduced where
the plaintiff does not reside in the venue or where the forum
lacks a significant connection to the activities alleged in
the complaint.” Fabus Corp. v. Asiana Exp.
Corp., No. C-00-3172 PJH, 2001 WL 253185, at *1 (N.D.
Cal. Mar. 5, 2001).
there is no dispute that this matter could be filed in the
Central District of California. In fact, plaintiff has
related litigation pending there already. On the civil cover
sheet for this case, plaintiff acknowledges that this case is
“related” to the case he filed in the Central
District of California. ECF #1-1. The Central District of
California would have subject matter jurisdiction, as
plaintiff alleges a claim under federal law, i.e., the
Federal Tort Claims Act. See 28 U.S.C. § 1331.
Moreover, venue is proper in that district, as a
“substantial part of the events or omissions giving
rise to the claim occurred” there. 28 U.S.C. §
relevant private and public factors also weigh heavily in
favor of transfer. All of the purported events occurred in
the Central District of California, where all of the
witnesses, except for plaintiff, are located. In light of
those circumstances, the financial and logistical impediments
to trying this case in Oregon versus California are obvious.
Moreover, there is no local interest in this case and no
point in unfairly burdening Oregon citizens to serve as
jurors on this case. This case has no connection to the
District of Oregon. Indeed, plaintiff himself does not even
reside in this district.
plaintiff's choice of forum does not count heavily here.
As noted, plaintiff has filed another case involving the same
underlying events in the Central District of California. In
fact, he filed that case on January 24, 2019, before filing
his other cases in this district in June 2019. Thus, in
essence, plaintiff has chosen two forums, and it does not
serve the interests of justice to allow him to proceed in
Motion to Transfer Venue (ECF #16) is GRANTED, and this case
shall be transferred to the United States District Court ...