1 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Pomegrante Holdings LLC, et al., No. CV-21-02137-PHX-SMB
10 Petitioners, ORDER
11 v.
12 Seyyed Valiallah Nasr, et al.,
13 Respondents. 14 15 Pending before the Court is Respondents’ Motion for Change of Venue. (Doc. 14.) 16 Petitioners filed this action to confirm an arbitration award for $1.4 million and for entry 17 of judgment against Respondents. The arbitration was held in Orange County, California, 18 and Respondents ask this Court to transfer this action to the Central District of California. 19 Respondents argue that transfer is appropriate under Section 9 of the Federal Arbiration 20 Act (“FAA”) and 28 USC § 1404. Petitioners oppose the transfer. (See Doc. 17.) The 21 Motion is fully briefed, (see Docs. 14; 17; 19), and the Court will deny the motion for the 22 reasons explained below. 23 I. Federal Arbitration Act 24 Respondents argue that 9 U.S.C. § 9 requires an arbitration award be confirmed in 25 the jurisdiction where it was awarded. However, that section actually provides: “If no court 26 is specified in the agreement of the parties, then such application may be made to the United 27 States court in and for the district within which such award was made.” 9 U.S.C. § 9. 28 Respondents acknowledge that, here, there is no agreement specifying which Court will be 1 used to confirm the arbitration; therefore, Petitioners are free to seek confirmation in the 2 Central District of California but are not limited to that Court. See Cortez Byrd Chips, Inc. 3 v. Bill Harbert Const. Co., 529 U.S. 193, 195 (2000) (holding that the venue provisions of 4 the FAA are “permissive,” permitting a motion to confirm, vacate, or modify an arbitration 5 award “either where the award was made or in any district proper under the general venue 6 statute”). 7 II. 28 USC § 1404 8 Next, Respondents argue that, as a matter of convenience and fairness, the Court 9 should transfer this case to the Central District of California. Petitioners argue that transfer 10 is not appropriate given the strong presumption in favor of plaintiff’s choice of forum. 11 Pursuant to 28 U.S.C. § 1404(a), a district court—for the convenience of the parties 12 and witnesses, and in the interest of justice—may transfer a civil action to any district 13 where the case may have originally been brought. The burden is on the movant to establish 14 “that venue is proper in the transferor district; that the transferee district is one where the 15 action might have originally been brought; and that transfer will serve the convenience of 16 the parties and witnesses and will promote the interests of justice.” Vu v. Ortho-McNeil 17 Pharm., Inc., 602 F. Supp. 2d 1151, 1155–56 (N.D. Cal. 2009) (quoting Goodyear Tire & 18 Rubber Co. v. McDonnell Douglas Corp., 820 F. Supp. 503, 506 (C.D. Cal. 1992)). In 19 determining whether to transfer a case, there is a “strong ‘presumption in favor of plaintiff’s 20 choice of forums’” that the Court will not lightly disturb. Gherebi v. Bush, 352 F.3d 1278, 21 1303 (9th Cir. 2003) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)), vacated 22 on other grounds by 542 U.S. 952 (2004). “Transfer under § 1404(a) ‘should not be freely 23 granted,’” and is not appropriate where the moving party merely seeks to “shift the 24 inconvenience to the party resisting the transfer.” Id. (quoting Van Dusen v. Barrack, 376 25 U.S. 612, 646 (1964)); see also In re Nine Mile, Ltd., 692 F.2d 56, 61 (8th Cir. 1982)). The 26 purpose of transfer is to move to “a more convenient forum, ‘not to a forum likely to prove 27 equally convenient or inconvenient.’” Gherebi, 352 F.3d at 1303 (quoting Van Dusen, 376 28 U.S at 646). 1 In determining whether a transfer is appropriate in a particular case, the court may 2 consider the following: 3 (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 4 choice of forum, (4) the respective parties' contacts with the forum, (5) the 5 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 6 compulsory process to compel attendance of unwilling non-party witnesses, 7 and (8) the ease of access to sources of proof. 8 Jones v. GNC Franchising, Inc., 211 F.3d 495, 498–99 (9th Cir.2000). Each of the factors 9 are discussed below. 10 A. Location where relevant agreements negotiated and executed 11 Respondents cite to their employment agreement as the relevant document that was 12 negotiated and executed in Orange County, California. Petitioners claim that the 13 employment agreement was executed in Washington, where the employer was located at 14 the time the document was executed. Neither side presented any evidence to support a 15 finding for their respective arguments. Accordingly, the Court finds this factor is neutral. 16 B. State most familiar with the governing law 17 The FAA governs the confirmation of an arbitration award. This factor is neutral 18 as both California and Arizona courts are familiar with the governing law. 19 C. Plaintiff’s choice of forum 20 Petitioners chose Arizona, and Respondents are residents of Arizona. This factor 21 weighs against transfer. 22 D. Respective Parties’ Contacts With The Forum 23 Respondents reside in Arizona but argue this factor favors transfer because they 24 used to live in California. Petitioners are located in California but chose the Arizona forum. 25 This factor weighs against transfer. 26 E. Contacts Relating to Plaintiff’s Cause of Action in the Chosen Forum 27 The cause of action in this forum relates solely to confirming the arbitration award. 28 Yet, Respondents argue that this factor weighs in favor of transfer because the issues in the 1 arbitration occurred in California. The information related to the underlying arbitration 2 would be have minimal relevance, if any, given there are very limited circumstances under 3 which an arbitration award can be vacated, and discovery is rarely granted in post- 4 arbitration judicial proceedings. See Collins v. D.R. Horton, Inc., 361 F. Supp. 2d 1085, 5 1092 (D. Ariz. 2005) (“[T]he FAA sets out four very narrow grounds upon which courts 6 may vacate commercial arbitration awards.”), aff'd, 505 F.3d 874 (9th Cir. 2007); Empresa 7 Constructora Contex Limitada v. Iseki, Inc., 106 F. Supp. 2d 1020, 1024 (S.D. Cal. 2000) 8 (“[T]he right to obtain discovery in an action to overturn an arbitral decision is strictly 9 limited.”). This factor weighs against transfer. 10 F.
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1 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Pomegrante Holdings LLC, et al., No. CV-21-02137-PHX-SMB
10 Petitioners, ORDER
11 v.
12 Seyyed Valiallah Nasr, et al.,
13 Respondents. 14 15 Pending before the Court is Respondents’ Motion for Change of Venue. (Doc. 14.) 16 Petitioners filed this action to confirm an arbitration award for $1.4 million and for entry 17 of judgment against Respondents. The arbitration was held in Orange County, California, 18 and Respondents ask this Court to transfer this action to the Central District of California. 19 Respondents argue that transfer is appropriate under Section 9 of the Federal Arbiration 20 Act (“FAA”) and 28 USC § 1404. Petitioners oppose the transfer. (See Doc. 17.) The 21 Motion is fully briefed, (see Docs. 14; 17; 19), and the Court will deny the motion for the 22 reasons explained below. 23 I. Federal Arbitration Act 24 Respondents argue that 9 U.S.C. § 9 requires an arbitration award be confirmed in 25 the jurisdiction where it was awarded. However, that section actually provides: “If no court 26 is specified in the agreement of the parties, then such application may be made to the United 27 States court in and for the district within which such award was made.” 9 U.S.C. § 9. 28 Respondents acknowledge that, here, there is no agreement specifying which Court will be 1 used to confirm the arbitration; therefore, Petitioners are free to seek confirmation in the 2 Central District of California but are not limited to that Court. See Cortez Byrd Chips, Inc. 3 v. Bill Harbert Const. Co., 529 U.S. 193, 195 (2000) (holding that the venue provisions of 4 the FAA are “permissive,” permitting a motion to confirm, vacate, or modify an arbitration 5 award “either where the award was made or in any district proper under the general venue 6 statute”). 7 II. 28 USC § 1404 8 Next, Respondents argue that, as a matter of convenience and fairness, the Court 9 should transfer this case to the Central District of California. Petitioners argue that transfer 10 is not appropriate given the strong presumption in favor of plaintiff’s choice of forum. 11 Pursuant to 28 U.S.C. § 1404(a), a district court—for the convenience of the parties 12 and witnesses, and in the interest of justice—may transfer a civil action to any district 13 where the case may have originally been brought. The burden is on the movant to establish 14 “that venue is proper in the transferor district; that the transferee district is one where the 15 action might have originally been brought; and that transfer will serve the convenience of 16 the parties and witnesses and will promote the interests of justice.” Vu v. Ortho-McNeil 17 Pharm., Inc., 602 F. Supp. 2d 1151, 1155–56 (N.D. Cal. 2009) (quoting Goodyear Tire & 18 Rubber Co. v. McDonnell Douglas Corp., 820 F. Supp. 503, 506 (C.D. Cal. 1992)). In 19 determining whether to transfer a case, there is a “strong ‘presumption in favor of plaintiff’s 20 choice of forums’” that the Court will not lightly disturb. Gherebi v. Bush, 352 F.3d 1278, 21 1303 (9th Cir. 2003) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)), vacated 22 on other grounds by 542 U.S. 952 (2004). “Transfer under § 1404(a) ‘should not be freely 23 granted,’” and is not appropriate where the moving party merely seeks to “shift the 24 inconvenience to the party resisting the transfer.” Id. (quoting Van Dusen v. Barrack, 376 25 U.S. 612, 646 (1964)); see also In re Nine Mile, Ltd., 692 F.2d 56, 61 (8th Cir. 1982)). The 26 purpose of transfer is to move to “a more convenient forum, ‘not to a forum likely to prove 27 equally convenient or inconvenient.’” Gherebi, 352 F.3d at 1303 (quoting Van Dusen, 376 28 U.S at 646). 1 In determining whether a transfer is appropriate in a particular case, the court may 2 consider the following: 3 (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 4 choice of forum, (4) the respective parties' contacts with the forum, (5) the 5 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 6 compulsory process to compel attendance of unwilling non-party witnesses, 7 and (8) the ease of access to sources of proof. 8 Jones v. GNC Franchising, Inc., 211 F.3d 495, 498–99 (9th Cir.2000). Each of the factors 9 are discussed below. 10 A. Location where relevant agreements negotiated and executed 11 Respondents cite to their employment agreement as the relevant document that was 12 negotiated and executed in Orange County, California. Petitioners claim that the 13 employment agreement was executed in Washington, where the employer was located at 14 the time the document was executed. Neither side presented any evidence to support a 15 finding for their respective arguments. Accordingly, the Court finds this factor is neutral. 16 B. State most familiar with the governing law 17 The FAA governs the confirmation of an arbitration award. This factor is neutral 18 as both California and Arizona courts are familiar with the governing law. 19 C. Plaintiff’s choice of forum 20 Petitioners chose Arizona, and Respondents are residents of Arizona. This factor 21 weighs against transfer. 22 D. Respective Parties’ Contacts With The Forum 23 Respondents reside in Arizona but argue this factor favors transfer because they 24 used to live in California. Petitioners are located in California but chose the Arizona forum. 25 This factor weighs against transfer. 26 E. Contacts Relating to Plaintiff’s Cause of Action in the Chosen Forum 27 The cause of action in this forum relates solely to confirming the arbitration award. 28 Yet, Respondents argue that this factor weighs in favor of transfer because the issues in the 1 arbitration occurred in California. The information related to the underlying arbitration 2 would be have minimal relevance, if any, given there are very limited circumstances under 3 which an arbitration award can be vacated, and discovery is rarely granted in post- 4 arbitration judicial proceedings. See Collins v. D.R. Horton, Inc., 361 F. Supp. 2d 1085, 5 1092 (D. Ariz. 2005) (“[T]he FAA sets out four very narrow grounds upon which courts 6 may vacate commercial arbitration awards.”), aff'd, 505 F.3d 874 (9th Cir. 2007); Empresa 7 Constructora Contex Limitada v. Iseki, Inc., 106 F. Supp. 2d 1020, 1024 (S.D. Cal. 2000) 8 (“[T]he right to obtain discovery in an action to overturn an arbitral decision is strictly 9 limited.”). This factor weighs against transfer. 10 F. Differences in Costs of Litigation 11 Respondents argue that all counsel are California licensed attorneys, but that is not 12 true. Petitioners’ counsel are Arizona licensed attorneys. Transfer under §1404(a) is not 13 appropriate where the moving party merely seeks to “shift the inconvenience to the party 14 resisting the transfer.” Gherebi, 352 F.3d at 1303 (quoting Van Dusen, 376 U.S. at 646). 15 This factor weighs against transfer. 16 G. Availability of Compulsory Process and Ease of Access to Proof 17 Both parties agree that these factors are inapplicable. 18 H. Weighing all Factors 19 The burden is on the movant to establish that “transfer will serve the convenience 20 of the parties and witnesses and will promote the interests of justice.” Vu, 602 F. Supp. 2d 21 at 1155–56 (quoting Goodyear Tire & Rubber Co., 820 F. Supp. at 506). Weighing the 22 above factors, the Court finds the transfer to the United States District Court for the Central 23 District of California is not merited. 24 … 25 … 26 … 27 … 28 … 1 II. Conclusion 2 Accordingly, 3 IT IS ORDERED that the Respondents’ Motion for Change of Venue, (Doc. 14), 4|| is denied. 5 6 Dated this 11th day of February, 2022. 7 8 a . ~P 9 SO
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