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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA,
) ) Plaintiff, ) ) vs. ) ) TOWN OF COLORADO CITY, ARIZONA; ) CITY OF HILDALE, UTAH; ) TWIN CITY POWER; and ) TWIN CITY WATER AUTHORITY, INC., ) ) Defendants. ) ___________________________________)
No. 3:12-cv-8123-HRH (Prescott Division)
O R D E R Motion for Change of Venue 1 Defendants City of Hildale, Utah, Twin City Power, and Twin City Water Authority, Inc. (herein the “Hildale defendants”), defendants”),
move
for an order changing venue from the District of Arizona to the District of Utah pursuant pursuant to 28 U.S.C. § 1404(a). been
joined
in
by
defendant
Town
of
Colorado
The motion has City,
Colorado City summarily adopts the Hildale Hildale arguments. arguments. is opposed by plaintiff.
Arizona. 2 The motion
Oral argument was requested and has been
heard.
1
Docket No. 24.
2
Docket No. 32.
ORDER – Motion for Change of Venue
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Section
1404(a)
provides
for,
and
the
defendants
seek,
a
transfer of venue to the District of Utah for the convenience of the parties and witnesses and in the interest of “logistical efficiency.”3
In fact, Section 1404 is a bit broader, calling upon the
court to consider the convenience of the parties and witnesses and “the interest of justice.”
Section 1404 provides for transfers to
any district or division where the action might have been brought. Here there is no question but that the action could have been brought in the District of Utah as well as in Arizona. Arizona.
The parties
disagree over the convenience of the parties and witnesses and interest of justice factors. The City of Hildale and co-defendant Town of Colorado City, Arizona,
are
adjacent
communities.
They
are
divided
by
the
Arizona-Utah state border; however, the parties’ arguments as well as a publicly available map of the two towns strongly suggest that they are are really a single single community. community. land between the two communities. into the other.
There is apparently no open
Streets continue continue from one town
Of the two towns, Colorado City is substantially substantially
the larger and more populous. in the past served both both towns.
The defendant utilities do or have The water authority is organized
under the laws of the State of Utah, and the power company is alleged to have been an inter-governmental entity of both towns. Most of the land in both towns is owned by the United Effort Plan Trust (the “Trust”) which, until 2005, is alleged to have been controlled by the Fundamentalist Church of Jesus Christ of Latter-
3
Docket No. 24 at 1.
ORDER – Motion for Change of Venue
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day Saints (“FLDS”).
The Trust is alleged to be a charitable
institution under under the laws of the State of Utah.
In 2005, courts
of the State of Utah took over administration of the Trust and appointed a special fiduciary fiduciary for the Trust.
For purposes of the
instant motion, it is not disputed that the Colorado City marshal’s office, fire department, and water plant serve both towns.
Arizona
has caused the Mohave County sheriff’s office to intervene in law enforcement in Colorado City. Plaintiff’s complaint asserts three causes of action. first
cause
of
action
is
based
upon
42
U.S.C.
§
The
14141(a)
and
alleges that the towns have engaged in practices violative of the First,
Fourth,
and
Fourteenth
Amendments
to
the
United
Constitution based upon conduct of the the marshal’s marshal’s office.
States Plain-
tiff’s second cause of action is brought pursuant to 42 U.S.C. §
3614(a),
a
provision
of
the
Federal
Housing
Act.
Plaintiff
alleges a pattern of resistance to full implementation of the act or
denial
of
Fair
Housing
Act
rights
to
a
group
of
persons.
Plaintiff’s third cause of action is a contention that the towns have violated 42 U.S.C. § 2000b by depriving individuals of the right to equal utilization of public facilities, the park and zoo in Colorado City, allegedly operated or managed by
the towns. 4
Judging from the factual allegations of plaintiff’s complaint, all of the matters of which plaintiff complains have taken place within the towns and through employees or instrumentalities of the towns.
4
The court has granted a Rule 12(b)(6), Federal Rules of Civil Procedure, dismissal of plaintiff’s third cause of action with leave to renew. ORDER – Motion for Change of Venue
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Convenience of the Parties Plaintiff is the United United States Government.
The United United States
is bringing this action through the Civil Rights Division of the Department of Justice in Washington, Washington, D.C. D.C.
The Hildale Hildale defendants defendants
are inanimate entities, creatures of the State of Utah, represented by counsel from Salt Lake City, Utah. an
Arizona
municipality
represented
The Town of Colorado City is by
counsel
from
Phoenix,
Arizona. If and to the extent that the convenience of counsel and/or the cost of litigation generally might be considered, transferring this case from Arizona to Utah would only marginally favor the Hildale defendants but not the Town of Colorado City inasmuch as the former are represented by Salt Lake City counsel and the latter is represented by Phoenix counsel.
If plaintiff is not assisted by
local U.S. attorneys (and even if it is), about the same amount of travel and associated expense will be incurred in staffing a trial of this case, irrespective of the site chosen. No doubt it will be necessary for the parties to engage in substantial discovery in this case. pensive.
No doubt discovery will be ex-
It appears to the court, court, and no one has convincingly
argued to the contrary, that discovery in this case (requiring travel by attorneys and witnesses) will take place in or near St. George, Utah, irrespective of whether the defendants’ motion for change of venue is granted or denied.
Accordingly, discovery discovery
considerations do not affect the balance of concerns for purposes of venue.
ORDER – Motion for Change of Venue
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No doubt there will be ongoing motion practice in this case. As with the instant motion, briefing will take place by means of CM/ECF filings and service. service.
Oral argument argument on the instant motion
was heard with counsel for the parties in their respective offices (in Washington, D.C., Salt Lake City, and Phoenix), all of whom were heard in the court’s Anchorage, Anchorage, Alaska, courtroom.
The court
has no doubt that essentially the same pretrial process would obtain if this case were transferred to the District of Utah. Accordingly, motion practice considerations do not affect the balance of concerns for purposes of venue. While plaintiff argues that its choice of forum is entitled to paramount consideration, it is the court’s perception that such a contention overstates the kind of balancing which the court does on a motion to transfer venue.
The plaintiff’s plaintiff’s choice is a factor
which gets put in the balance; but beyond that, it will be no more inconvenient for the plaintiff to prosecute this action in the District of Utah than in the District of Arizona. are in a similar position.
The defendants
Like the plaintiff, the Hildale defen-
dants and the Town of Colorado city are represented by counsel who are at a considerable distance from the towns.
The Hildale defen-
dants’ contention that proceeding with this case in Arizona is inconvenient is undercut by the court’s knowledge that the Hildale defendants recently sought and were granted leave to intervene in another Arizona case, No. 3:11-cv-8037, Town of Colorado City v. United Effort Plan Trust, presently pending at Prescott, Arizona. The court concludes that Prescott is not an inconvenient venue for any of the parties to this case. ORDER – Motion for Change of Venue
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Interest of Justice The court may properly consider public and private factors as a part of its interest of justice analysis.
Defendants argue that
those considerations include court congestion, having local controversies decided at home, conflict of laws issues, and the possible burdens of jury duty upon the citizens of an unrelated district. In this instance, the foregoing considerations are not particularly helpful. There is a substantial public interest with respect to this case in both the District of Utah and the District of Arizona. However, the court concludes that those interests are evenly balanced.
Both Arizona and Utah have taken action aimed at ameliorat-
ing the concerns which resulted in the bringing of this action by the plaintiff. plaintiff.
The State of Utah has taken over the Trust and
imposed an administrator.
Arizona has caused the Mohave County
sheriff’s office to intervene in law enforcement in the town of Colorado City. Turning suggest,
it
to has
the not
other
public
been
shown
factors that
which
court
the
defendants
congestion
in
the
District of Arizona would stand in the way of the timely development and trial of this this case.
The District of Arizona is is undeniably
a very busy court; but it has adequate facilities and staff and is assisted by a considerable number of district judges from other districts,
including
the
judge
presently
managing
this
case.
Certainly there is a public interest in having local controversies decided “at home” – but plainly this controversy is one which has found a home in both the District of Arizona and the District of ORDER – Motion for Change of Venue
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Utah.
Because there is a public interest and an appropriate nexus nexus
between the District of Arizona and the allegations of plaintiff’s complaint with respect to the defendants, this case does not present an unfair burden on Arizona jurors.
Finally, because plain-
tiff’s three causes of action are founded upon federal law and alleged violations of the Constitution, the court does not perceive that there are conflict of laws issues which are relevant to a choice of venue for this case. Summing up the foregoing discussion of the convenience of the parties and interest of justice, the court is unpersuaded that public interest concerns or convenience of the parties substantially favor a transfer of this case from the District of Arizona to the District of of Utah.
Defendants have not made a showing of
inconvenience sufficiently strong to justify negating plaintiff’s choice of forum. Convenience of Witnesses The
defendants
and
plaintiff
appropriately
direct
their
primary arguments at the convenience and availability of witnesses. In light of what is presently before the court, it appears that the majority
of
the
witnesses
who
are
likely
to
be
called
by
all
parties will come from the Town of Colorado City area in Arizona. The
bulk of
the plaintiff’s witnesses
are likely to
reside in
Colorado City, Arizona, and if not there then at unknown locations potentially at considerable distance from either possible trial site.
It is unclear that the witnesses likely to be called by the
town of Hildale reside in Hildale.
No doubt some do reside in
Hildale; however, Hildale appears to be more business-oriented, ORDER – Motion for Change of Venue
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while the Town of Colorado City is more residential.
Neither party
has provided the court with discrete names and residence addresses of likely likely witnesses.
(Given the nature of this case, it is not
surprising that the plaintiff is hesitant to identify its witnesses and their locations at this time, even though that will have to happen.)
However, many many of the Hildale witnesses are are likely to be
employees of the town; they will have no personal interest in where the case is tried.
No doubt, doubt, Hildale can provide provide transportation transportation
and require its employees to appear wherever necessary for trial, without resource to subpoenas. subpoenas. with
respect
to
plaintiff’s
The latter is not necessarily so
witnesses
inasmuch
as
most
of
the
complaining witnesses (whether willing or unwilling) are likely to reside in the State of Arizona where they will be subject to subpoena.5
Those same people may not be subject to subpoena across a
state line were the case transferred transferred to Utah. plaintiff’s
or
defendants’
witnesses
have
To the extent that
moved
away
from
the
towns, there may or may not be attendance difficulties for reluctant
witnesses,
irrespective
of
where
the
trial
is
sited.
On
balance, plaintiff is more likely to encounter witness attendance problems than defendants. In the end, the arguments made by the parties appear to boil down to the fact that St. George, Utah (a place where the District Court of Utah sits), is considerably closer to the towns than a
5
Defendants appear to argue that a trial subpoena issued for Prescott, Arizona, must be quashed because Colorado City is over 100 miles from Prescott. Not so. A trial subpoena can have statewide reach unless the court in its discretion orders otherwise. Rule 45(c)(3)(A)(ii) and (B)(iii). ORDER – Motion for Change of Venue
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possible Arizona trial site.6
The parties’ primary attention has
been directed to trial of this case at Prescott, Arizona, where it is presently designated, or at St. George, Utah, both of which cities have suitable court facilities. St. George, Utah, is approximately 45 miles and a one-hour drive from the towns.
Prescott, Arizona, is approximately 389
miles and a six- or seven-hour drive from the towns.
Obviously it
will take substantially more time for trial witnesses to travel to Prescott, Arizona, as opposed opposed to St. George, Utah. direct,
scheduled
Prescott, Arizona.
air
service
between
St.
There is no
George,
Utah,
and
Plainly it will cost the parties more money and
the witnesses more time for travel from the towns to Prescott as opposed to St. George.
But, when compared to the overall cost of
litigating
the
this
case,
additional
trial
cost
of
reaching
Prescott, Arizona, from the towns (as opposed to St. George) will surely border upon the insignificant.
Many of defendants’ wit-
nesses will likely be on the defendants’ payrolls irrespective of whether
they
travel
to
Prescott,
Arizona,
or
attend
to
other
6
The plaintiff initially suggested that Page, Arizona, might be a possible trial site; but the federal facility there is a park service ranger station, not a courthouse. It would not be possible to try this case at Page, Arizona. The parties have have also discussed discussed the possibility of Flagstaff, Arizona, as a trial site. The court’s inquiries as to the utility of the federal court facility at Flagstaff suggests that facility would be unsatisfactory for a jury trial of more than a few days’ duration involving at least three sets of lawyers. Laying aside Salt Lake, Utah, and Phoenix, Arizona – neither of which has been suggested – St. George, Utah, and Prescott, Arizona, are the only two viable alternatives. The court knows that the facility at Prescott is regularly used for district court trials, and inquiries suggest that the District of Utah has a suitable facility at St. George. ORDER – Motion for Change of Venue
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duties.
The court perceives no great inconvenience inconvenience to the defen-
dants’ witnesses in favoring plaintiff’s choice of forum. The Hildale defendants are in a position to cause necessary employee witnesses to appear for trial in Prescott in connection with their work.
The plaintiff is not so situated.
It may have to
deal with reluctant witnesses; and given the demographics of the towns,
plaintiff
will
be
in
a
better
position
to
require
the
attendance of witnesses from the towns or other places in Arizona than will be the case were the court case transferred to Utah. Conclusion Considering the availability of witnesses, considering the burdens on witnesses and the parties, and considering the interest of justice, the towns have failed to convince the court that a transfer of venue pursuant to 28 U.S.C. § 1404(a) is appropriate. Moreover, when the plaintiff’s choice of forum is put in the balance, all of the considerations as a whole favor retaining venue in the District of Arizona. The motion for change of venue is denied as to all of the defendants. DATED at Anchorage, Alaska, this 7th day of December, 2012.
/s/ H. Russel Holland United States District Judge
ORDER – Motion for Change of Venue
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