ORDER DENYING DEFENDANT'S MOTION TO DISMISS FOR IMPROPER VENUE BUT GRANTING MOTION TO TRANSFER CASE UNDER 28 U.S.C. § 1404 Re: ECF No. 12

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

Plaintiff Ismael Agasino, who does not live in California and does not allege any connection to California, brings this lawsuit against defendant American Airlines, Inc., which is not a citizen of California, for injuries he suffered on a flight that had no connection to California. American Airlines moved to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3) or, in the alternative, to transfer the case under 28 U.S.C. § 1404.

The court can decide this motion without oral argument. N.D. Cal. Civ. L.R. 7-1(b). The court denies American Airlines's motion to dismiss but finds that transfer is appropriate under 28 U.S.C. § 1404 and transfers this case to the Northern District of Texas.

STATEMENT

Plaintiff Ismael Agasino is a citizen and resident of the United States.1 Mr. Agasino does not allege that he is a citizen or resident of California.2 Mr. Agasino does not allege that he has any connection to California.3

Defendant American Airlines is a citizen of Texas, where it maintains its principal business offices.4 More specifically, American Airlines maintains its principal offices in Fort Worth, Texas.5 Fort Worth is in the Northern District of Texas.

Mr. Agasino booked a flight on American Airlines Flight 60, flying on June 1, 2018.6 Flight 60 flew from Tokyo, Japan to Dallas, Texas.7 Dallas is in the Northern District of Texas. On that flight, a bag fell from an overhead storage compartment and hit Mr. Agasino in the head.8 Mr. Agasino lost consciousness and suffered injuries, including a concussion, cervical strain, and cognitive impairment.9 Mr. Agasino makes a claim under the Convention for the Unification of Certain Rules for International Carriage by Air, Treaty No. 106-45 (the "Montreal Convention"), against American Airlines for not less than $400,000.10

Mr. Agasino does not allege that he booked his flight from California.11 Mr. Agasino does not allege that the flight departed from, arrived in, had a layover in, or otherwise had any connection to California.12 Mr. Agasino alleges that American Airlines generally operates numerous flights into and out of San Francisco International Airport ("SFO"), leases space at SFO, has hundreds of employees at SFO, and regularly solicits business from citizens in the Northern District of California13 — but he does not allege that he, his flight, or any allegations relating to his claim have any connection to California.14

ANALYSIS

1. Montreal Convention

Mr. Agasino contends that venue for this case is governed by the Montreal Convention. He argues that the Convention contains its own venue rules and that those rules supersede the general venue statute, 28 U.S.C. § 1391.15 Not so. The Convention does not govern venue within the United States.

The Convention states:

Montreal Convention ch. 3, art. 33. Courts have held that the Montreal Convention (and its predecessor, the Warsaw Convention) does not govern venue within a signatory "State Party." Avalon Techs., Inc. v. EMO-Trans, Inc., No. 14-14731, 2015 WL 1952287, at *5 (E.D. Mich. Apr. 29, 2015) ("Numerous courts have considered the proper interpretation of Article 33 of the Montreal Convention and its predecessor under the Warsaw Convention. The consensus appears to be that Article 33 confers jurisdiction on the courts of a nation-state, rather than a particular court within that nation-state.") (citing cases). As the Ninth Circuit explained in connection with the Montreal Convention's predecessor, the Warsaw Convention,16 the Convention "does not . . . affect whether venue is proper and convenient in a particular federal court" or "alter a federal court's power to transfer a case within the United States pursuant to 28 U.S.C. § 1404(a)." Hosaka v. United Airlines, Inc., 305 F.3d 989, 1004 (9th Cir. 2002) (emphasis in original) (citing In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1161 n.21 (5th Cir. 1987) (en banc), vacated on other grounds sub nom. Pan Am. World Airways, Inc. v. Pampin Lopez, 490 U.S. 1032 (1989)). A "`[p]laintiff's choice of forum within [a] country is governed by the internal law [of that country], with all its intricacies and complexities, not by the [] Convention. Once a plaintiff files suit in a country with jurisdiction over his or her claims, that country's procedural rules govern venue.'" Avalon, 2015 WL 1952287, at *5 (quoting Mertens v. Flying Tiger Line, Inc., 341 F.2d 851, 855 (2d Cir. 1965), abrogated on other grounds by Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989)).

The Montreal Convention does not vest venue in this district.17

2. 28 U.S.C. § 1391

Venue is nonetheless proper in this district under the United States's standard procedural rules.

Within the United States, venue for civil actions filed in federal court is governed by 28 U.S.C. § 1391, which states in relevant part that:

A federal civil action may be brought in:

28 U.S.C. § 1391(b). For the purposes of venue, a corporate entity like American Airlines "shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question[.]" 28 U.S.C. § 1391(c)(2).

American Airlines moved to dismiss for improper venue but did not move to dismiss for lack of personal jurisdiction.18 It therefore has waived any personal-jurisdiction arguments and is subject to personal jurisdiction here with respect to this case. Fed. R. Civ. P. 12(g)(2), (h)(1)(A). Because American Airlines is subject to personal jurisdiction, venue is also proper under 28 U.S.C. § 1391(b)(1) and (c)(2). Cf. Ward v. Certain Underwriters at Lloyd's of London, No. 18-cv-07551-JCS, 2019 WL 2076991, at *4 (N.D. Cal. May 10, 2019) ("As far as this Court is aware, every court to consider the issue has held that personal jurisdiction even based on waiver is sufficient to establish `residency' for the purpose of § 1391(c)(2).") (citing cases); AT&T Corp. v. Teliax, Inc., No. 16-cv-01914-WHO, 2016 WL 4241910, at *2 (N.D. Cal. Aug. 11, 2016) ("A party waives a defense based on lack of personal jurisdiction by omitting it from its first Rule 12(b) motion. . . . [B]ecause [defendant] did not contest personal jurisdiction, it is therefore `subject to personal jurisdiction' in this district for the purposes of establishing venue.") (citing cases and treatise); Markel Am. Ins. Co. v. Pac. Asian Enters., Inc., No. C-07-5749 S.C. 2008 WL 2951277, at *2 (N.D. Cal. July 28, 2008) ("[Defendants], each having brought a Rule 12 motion without challenging personal jurisdiction, have waived that defense. As each of the Defendants is subject to personal jurisdiction in this district, each is considered to reside here for the purposes of venue.") (citations omitted).

3. 28 U.S.C. § 1404

While venue is proper under 28 U.S.C. § 1391, the court nonetheless transfers this case to the Northern District of Texas under 28 U.S.C. § 1404.

3.1 Governing Law

"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).

"A motion under section 1404(a) must first show that the transferee district is one where the action might have been brought." EEOC v. United Airlines, Inc., No. C 09-2469 PJH, 2009 WL 7323651, at *1 (N.D. Cal. Dec. 3, 2009) (citing 28 U.S.C. § 1404(a)). "The movant must demonstrate that the alternate district would have subject matter jurisdiction, personal jurisdiction, and proper venue." Id. (citing Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960)). "If the transferee district is one in which the action might have been brought, the court assesses various factors related to convenience and the interests of justice." Id. (citing Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000)). "Courts apply a multi-factor balancing test to determine if transfer would serve the convenience of the parties and witnesses, and would be in the interests of justice." Id. (citing Jones, 211 F.3d at 498-99). Factors relevant to this case that the court may consider include:

Id. (citing Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)).

3.2 Application

This case could have been brought in the Northern District of Texas. The Northern District of Texas has as much subject-matter jurisdiction over a claim brought under the Montreal Convention as this court does, and American Airlines is headquartered in the Northern District of Texas and thus is subject to personal jurisdiction there (which means that venue is proper there as well).

Additionally, all but one of the factors in the multi-factor balancing test weigh favor transfer to the Northern District of Texas (or are neutral).

The one factor that could even partially weigh against transfer is the plaintiff's choice of forum. But where, as here, "a plaintiff does not reside in the forum, . . . . the operative facts have not occurred within the forum of original selection[,] and that forum has no particular interest in the parties or the subject matter, the plaintiff's choice is entitled to only minimal consideration." Stambanis v. TBWA Worldwide, Inc., No. 19-cv-00821-TSH, 2019 WL 1979949, at *3 (N.D. Cal. May 3, 2019) (quoting Pac. Car & Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968)).

The convenience-of-the-parties factor favors transfer. American Airlines is headquartered in the Northern District of Texas, and it would be more convenient for it to litigate there. Mr. Agasino argues that American Airlines can fly its employees from Texas to this district to litigate this case.19 "[T]he fact that [American Airlines] operates an airline does not eliminate the expense and disruption associated with having to transport witnesses to California." Cf. United Airlines, 2009 WL 7323651, at *3. "[E]very seat taken by a witness is one that cannot be sold to a customer." Cf. id. "Moreover, the company would likely suffer a loss of productivity and disruption due to the time it would take for each employee to travel to California." Cf. id. "In addition, [American Airlines] would be forced to pay for other travel expenses, such as hotels, taxis, and meals." Cf. id. By contrast, the Northern District of Texas is no less convenient than this district is for Mr. Agasino. Mr. Agasino does not live here and, in filing this case here, made the choice to litigate outside his home district. He affirmatively says he has no objection to traveling to this district to litigate this case.20 If he can travel here, he can travel there as well.

The convenience-of-the-witnesses and the relative-ease-of-access-to-the-evidence factors favor transfer. American Airlines is headquartered in the Northern District of Texas. The flight where Mr. Agasino was injured landed in the Northern District of Texas. There may be relevant witnesses and evidence in the Northern District of Texas. By contrast, there has been no showing that there is a single witness or a single piece of evidence in this district, which has no connection to any fact in this case.21

The familiarity-of-each-forum-with-the-applicable-law factor is neutral. The Northern District of Texas is equally familiar with federal law as this court is.

The feasibility-of-consolidation-with-other-claims factor is inapplicable and thus neutral.

The local-interest-in-the-controversy factor favors transfer. American Airlines is headquartered in the Northern District of Texas. The flight where Mr. Agasino was injured landed in the Northern District of Texas. The Northern District of Texas may have a local interest in the controversy. By contrast, this district has no relation to and no local interest in the controversy.

Neither party has made a showing regarding the relevant court congestion and time to trial, and this factor appears neutral.22

As all factors (other than the minimal weight given to Mr. Agasino's choice in filing this case in a district where he does not live and that has no relation to this case) are either neutral or weigh in favor of transfer, the court grants American Airlines's motion to transfer this case.

CONCLUSION

The court denies American Airlines's motion to dismiss but grants its motion to transfer and transfers this case to the Northern District of Texas.

IT IS SO ORDERED.