RICHARD W. ROBERTS, District Judge.
The government, by relator Aaron J. Westrick, filed a complaint against defendants Second Chance Body Armor, Inc. and related entities (collectively "Second Chance"), Toyobo Co., Ltd., Toyobo America, Inc. (collectively "Toyobo"), and individual defendants Thomas Bachner, Jr., Richard Davis, Karen McCraney, and James "Larry" McCraney, alleging violations of the False Claims Act ("FCA"), 31 U.S.C. §§ 3729-33, as well as common law claims in connection with the sale of Zylon body armor. The individual defendants have moved to transfer venue to the Western District of Michigan.
The background of this case is discussed fully in United States ex rel. Westrick v. Second Chance Body Armor, Inc., 685 F.Supp.2d 129 (D.D.C.2010). Briefly, the
In November 2005, defendants Larry and Karen McCraney filed a motion to dismiss or, in the alternative, to transfer venue to the Western District of Michigan. In January 2006, they withdrew their motion and stipulated that venue was proper in this district. Toyobo filed a motion to dismiss, discovery began while that motion was pending, and the motion to dismiss was later denied. Westrick, 685 F.Supp.2d at 142. Toyobo unsuccessfully moved for reconsideration, United States ex rel. Westrick v. Second Chance Body Armor, Inc., 709 F.Supp.2d 52 (D.D.C.2010), and a scheduling conference was held at which the close of discovery was set for January 2012. In July 2010, the individual defendants moved to transfer venue, arguing that continuing to defend the suit in this district would impose on them financial hardship and inconvenience. (Defs.' Mem. of Law in Supp. of Their Mot. for Change of Venue ("Defs.' Mem.") at 1-2.) The government and the relator oppose the motion, arguing that transferring the case would inconvenience the other parties and witnesses and waste judicial resources.
A case may be transferred to another venue under 28 U.S.C. § 1404(a) "[f]or the convenience of parties and witnesses, in the interest of justice[.]" See also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). The moving party carries the burden of showing that a transfer is appropriate. Montgomery v. STG Int'l, Inc., 532 F.Supp.2d 29, 32 (D.D.C.2008); Onyeneho v. Allstate Ins. Co., 466 F.Supp.2d 1, 3 (D.D.C.2006). Because "`it is perhaps impossible to develop any fixed general rules on when cases should be transferred[,]' . . . the proper technique to be employed is a factually analytical, case-by-case determination of convenience and fairness." SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C.Cir.1978) (quoting Starnes v. McGuire, 512 F.2d 918, 929 (D.C.Cir.1974) (en banc)).
"Any transfer under § 1404(a) is restricted to a venue where the action `might have been brought.'" Robinson v. Eli Lilly & Co., 535 F.Supp.2d 49, 51 (D.D.C.2008) (quoting 28 U.S.C. § 1404(a)). A plaintiff may bring a claim under the FCA "in any judicial district in which . . ., in the case of multiple defendants, any one defendant can be found,
After determining that venue in the proposed transferee district would be proper, a court then "must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to [the] private concerns [of the parties], come under the heading of `the interest of justice.'" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 30, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988).
The public factors to assess include "1) the local interest in making local decisions about local controversies, 2) the potential transferee court's familiarity with applicable law, and 3) the congestion of the transferee court compared to that of the transferor court." Demery v. Montgomery Cnty., Md., 602 F.Supp.2d 206, 210 (D.D.C.2009). All federal courts are presumed equally familiar with the law governing the plaintiffs' FCA claims, and this factor does not weigh either for or against transfer. See Montgomery, 532 F.Supp.2d at 34.
The other two factors, however, weigh against transfer. Since millions of dollars in allegedly false claims were submitted in the District of Columbia (Gov't Opp'n at 19), this district has a significant interest in providing a forum for these allegations of fraud. See Dooley v. United Techs. Corp., 786 F.Supp. 65, 73 (D.D.C. 1992) (involving Racketeer Influenced and Corrupt Organizations Act claims), abrogated on other grounds by FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1099 (D.C.Cir. 2008). With respect to the third factor, there may be a shorter median disposition time for cases in the Western District of Michigan than for cases in this district. (See Defs.' Mem. at 16 (comparing median disposition time of 26.4 months in the Western District of Michigan to a median disposition time of 33.1 months in this district).) Nonetheless, the risk of injecting unnecessary delay in resolving this case may be greater if this seven-year-old
The private factors to assess include
Demery, 602 F.Supp.2d at 210.
A plaintiff's choice of forum is entitled to deference, unless that forum has no meaningful relationship to the plaintiffs' claims or to the parties. See Veney v. Starbucks Corp., 559 F.Supp.2d 79, 84 (D.D.C.2008). Because the United States is the real party in interest in a qui tam action filed by a relator, the United States' choice of forum is entitled to principal deference. See United States ex rel. Penizotto v. Bates E. Corp., No. CIV.A. 94-3626, 1996 WL 417172, at *2 (E.D.Pa. July 18, 1996) (surveying other courts). Here, the government and the relator have chosen the same forum, as the relator filed suit in this district and the government did not disturb that choice when it elected to intervene. (Gov't Opp'n at 24; Pl.-Relator's Opp'n at 5.) The individual defendants carry a weighty burden to demonstrate that the plaintiffs' forum choice should be disturbed in favor of the individual defendants' choice. Since there is at least some meaningful relationship between the plaintiffs' claims and the parties and this district, see infra II(B), the individual defendants have not carried that burden.
The individual defendants argue that the plaintiffs' claims arose in Michigan because Second Chance was a Michigan corporation, and it developed and tested its vests in Michigan. (Defs.' Mem. at 9.) Where "`most of the relevant events occurred elsewhere,'" deference to the plaintiff's choice of forum is weakened. Aftab v. Gonzalez, 597 F.Supp.2d 76, 80 (D.D.C. 2009) (quoting Hunter v. Johanns, 517 F.Supp.2d 340, 344 (D.D.C.2007)). However, the government alleges that multiple
A court may consider whether litigating in a particular forum would cause a party to suffer a hardship, such as from significant expense. Kotan v. Pizza Outlet, Inc., 400 F.Supp.2d 44, 50 (D.D.C. 2005). The party requesting transfer should provide documented proof of financial hardship. See Daly, 2006 WL 6190699, at *5. However, "`[u]nless all parties reside in the selected jurisdiction, any litigation will be more expensive for some than for others.'" Kotan, 400 F.Supp.2d at 50 (quoting Moses v. Bus. Card Express, Inc., 929 F.2d 1131, 1139 (6th Cir. 1991)). Thus, for this factor to weigh in favor of transfer, litigating in the transferee district must not merely shift inconvenience to the plaintiffs, but rather should lead to an overall increase in convenience for the parties. See Daly, 2006 WL 6190699, at *5.
The individual defendants assert that continuing to litigate in this district "will translate into ever mounting expenditures for flights, hotel accommodations, food, and other miscellaneous expenses[.]" (Defs.' Mem. at 11.) In support of their argument, the individual defendants cite defendant Bachner's proof of claim filed on December 1, 2009 in the Second Chance Bankruptcy action in the Western District of Michigan. That proof of claim estimated $1,000,000 in future legal fees for Bachner to defend himself through trial and $40,000 in anticipated travel fees. (Defs.' Reply, Ex. 1 at 10.) The individual defendants base their argument that continuing to litigate the case in this district is prohibitively expensive on travel and miscellaneous costs alone; they do not argue and have not provided evidence that litigating in Michigan will reduce their legal fees. Since the individual defendants' estimated travel expenses make up only a small fraction of the costs they expect to incur litigating the suit in this district, they have not shown that transferring this case will result in more than marginal relief from any financial hardship they may be suffering. Thus, they have not shown that transferring the case will lead to a net increase in convenience for all parties. This factor, therefore, does not weigh in favor of transfer.
When considering the convenience of witnesses, a court must pay particular
The individual defendants have not shown that a transfer to the Western District of Michigan is in the interests of justice. Accordingly, it is hereby
ORDERED that the individual defendants' motion [237] to transfer venue be, and hereby is, DENIED. It is further
ORDERED that the individual defendants' motion [245] for a hearing be, and hereby is, DENIED.
Second, the government notes that a court in the Western District of Michigan dismissed under the forum non conveniens doctrine another action against defendant Toyobo, see German Free State of Bavaria v. Toyobo Co., Ltd., 480 F.Supp.2d 948, 957 (W.D.Mich. 2007), and speculates that there may be additional procedural litigation if Toyobo moves to dismiss on those grounds in the Western District of Michigan should the motion to transfer be granted. (Gov't Opp'n at 9-10 & n. 7.) However, a forum non conveniens dismissal has no bearing on whether venue was proper in the dismissing jurisdiction, see id. at 951-52, and there is no question that the FCA authorizes venue in the Western District of Michigan. See 31 U.S.C. § 3732(a).