alamed a federal motion to change venue

8/8/2019 Alamed a Federal Motion to Change Venue

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MOTION TO DISMISS OR TRANSFER FOR IMPROPER VENUE – CASE NO. SACV10-01171 CJC(RNBX)

DAVID B. NEWDORF, State Bar No. [email protected] F. VAN FLEET, State Bar No. [email protected] LEGAL 220 Montgomery Street, Suite 1850San Francisco, California 94104-4238Telephone: (415) 357-1234Facsimile: (866) 954-8448

GEOFFREY L. ROBINSON, State Bar No. [email protected] H. MURPHY, State Bar No. [email protected] MCCUTCHEN LLP3 Embarcadero Center

San Francisco, California 94111-4067Telephone: (415) 393-2000Facsimile: (415) 393-2286

Attorneys for DefendantsCITY OF ALAMEDA, ALAMEDA REUSEAND REDEVELOPMENT AUTHORITY, andCOMMUNITY IMPROVEMENT COMMISSIONOF THE CITY OF ALAMEDA

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

SOUTHERN DIVISION

SCC ALAMEDA POINT, LLC, a limitedliability company,

Plaintiff,

vs.

CITY OF ALAMEDA, a municipalcorporation; ALAMEDA REUSE ANDREDEVELOPMENT AUTHORITY, aJoint Powers Authority; COMMUNITYIMPROVEMENT COMMISSION OFTHE CITY OF ALAMEDA, a publicbody corporate and politic; and DOES 1through 10, inclusive,

Defendants.

Case No. SACV10-01171 CJC (RNBx

DEFENDANTS’ NOTICE OFMOTION AND MOTION TODISMISS OR TRANSFER FORIMPROPER VENUE, OR IN THEALTERNATIVE TO TRANSFER

FOR CONVENIENCE

Date: November 22, 2010

Time: 1:30 p.m.

Place: Courtroom 9B

Judge: Hon. Cormac J. Carney

Case 8:10-cv-01171-CJC -RNB Document 11 Filed 10/13/10 of 24 Page ID #:249



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1MOTION TO DISMISS OR TRANSFER FOR IMPROPER VENUE – CASE NO. SACV10-01171 CJC(RNBX)

N E W D O R F L E G A L

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NOTICE OF MOTION

TO: PLAINTIFF AND ITS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that at 1:30 p.m. on November 22, 2010, before the

Honorable Cormac J. Carney, United States District Judge, in Courtroom 9B of the

of the above-entitled court located at 411 West Fourth Street, Santa Ana, California

Defendants City of Alameda, Alameda Reuse and Redevelopment Authority, and

Community Improvement Commission of the City of Alameda (collectively the

“City” or “Alameda”) will and hereby do move for an order dismissing or

transferring the action to the Northern District of California for improper venue, or

in the alternative, transferring the action to the Northern District of California for thconvenience of the parties and witnesses and in the interest of justice. This motion

is brought pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. §§ 1404(a) and 1406.

This motion is based on this Notice of Motion and Motion, the Memorandum

of Points and Authorities that follows, on the declarations of Jennifer Ott, Katherine

Debski and David B. Newdorf, and on all the papers and records on file in this

action, and on such other oral and/or documentary material as may be presented in

support of the motion at or before the hearing of the motion.

Dated: October 13, 2010

BINGHAM MCCUTCHEN LLP

GEOFFREY L. ROBINSON

ALAN H. MURPHY

NEWDORF LEGAL

DAVID B. NEWDORF

VICKI F. VAN FLEET

By:/s/ David B. Newdorf

DAVID B. NEWDORF

Attorneys for Defendants




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iMOTION TO DISMISS OR TRANSFER FOR IMPROPER VENUE – CASE NO. SACV10-01171 CJC(RNBX)


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TABLE OF AUTHORITIES ...................................................................................... ii

MEMORANDUM OF POINTS & AUTHORITIES ..................................................

INTRODUCTION .......................................................................................................

STATEMENT OF FACTS ..........................................................................................

ARGUMENT ............................................................................................................... 3

I. PLAINTIFF BEARS THE BURDEN OF SHOWING THIS LAWSUIT WAS

PROPERLY FILED IN THIS JUDICIAL DISTRICT. ........................................ 3

II. VENUE FOR SUNCAL’S FEDERAL CLAIM DOES NOT LIE IN THE

CENTRAL DISTRICT OF CALIFORNIA. .........................................................

A. Defendants Are Public Entities Located Outside of this District. .............. 4

B. The Events or Omissions Giving Rise to the Federal Claim All Occurred

Outside of this District. ...............................................................................

C. This Lawsuit Concerns the Development of Property Located Outside thi

District. ....................................................................................................... 7

D. The Catch-all Provision of the Venue Statute Does Not Apply Because

No Defendant Can Be Found in the Central District. ................................. 7

III. THE DEFECTIVE VENUE OF THE SOLE FEDERAL CLAIM CANNOT BE

SAVED BY REFERENCE TO THE PENDENT STATE LAW CLAIMS. ........ 8

IV. THOUGH IMMATERIAL, VENUE IS ALSO LACKING AS TO THE STATE

LAW CLAIM FOR BREACH OF CONTRACT. ................................................ 9

V. IN THE ALTERNATIVE, THIS ACTION SHOULD BE TRANSFERRED

FOR THE CONVENIENCE OF THE PARTIES AND WITNESSES AND IN

THE INTEREST OF JUSTICE. ......................................................................... 1

A. This Case Could Have Been Brought Initially In The Northern District Of

California. ................................................................................................. 12

B. Local Interest In The Controversy Weighs Very Heavily In Favor of

Transfer. .................................................................................................... 12

C. Convenience Of The Witnesses Favors Transfer. .................................... 1




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iiMOTION TO DISMISS OR TRANSFER FOR IMPROPER VENUE – CASE NO. SACV10-01171 CJC(RNBX)


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1. The Majority of Witnesses Reside In Northern California. ........... 14

2. Southern California Witnesses. ...................................................... 1

D. Convenience of the Parties Favors Transfer. ............................................ 16

E. Ease of Access to the Evidence Favors Transfer. ..................................... 16

F. Plaintiff’s Choice Of Forum Should Be Given Little Weight. ................. 17

G. Relative Court Congestion Is a Neutral Factor. ........................................ 17

H. The Interests of Justice Favor Transferring This Action to the Northern

District Of California. ............................................................................... 1

CONCLUSION .......................................................................................................... 1




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iiiMOTION TO DISMISS OR TRANSFER FOR IMPROPER VENUE – CASE NO. SACV10-01171 CJC(RNBX)


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TABLE OF AUTHORITIES

Cases A.J. Industries, Inc. v. United States Dist. Ct.

503 F.2d 384 (9th Cir. 1974) .......................................................................... 13 Accord Perales v. City of Buena Park , Cal.

2009 WL 1885702 (E.D. Cal. June 25, 2009) ................................................... 6

Allegiance Healthcare Corp. v. London Int’l Group

1998 WL 328624 (N.D. Cal. June 17, 1998) .................................................. 1

Argueta v. Banco Mexicano, S.A.

87 F.3d 320 (9th Cir. 1996) ............................................................................... 3

Backcountry Against Dumps v. Abbott

2010 WL 2349194 (S.D. Cal. June 9, 2010) ............................................. 13, 15

Basile v. Walt Disney Co.__ F Supp.2d __, 2010 WL 2383782 (S.D.N.Y. June 14, 2010) ..................... 9

Cain v. New York State Board of Education 630 F. Supp. 221 (E.D.N.Y. 1986) .................................................................... 4

City of New York v. Cyco.Net, Inc.

383 F. Supp. 2d 526, 544 (S.D.N.Y. 2005) ..................................................... 10

Commodity Futures Trading Comm’n v. Savage

611 F.2d 270 (9th Cir. 1979) ........................................................................... 12

Coons v. American Horse Show Ass’n

533 F.Supp. 398 (S.D. Tex. 1982) .................................................................. 1

Cottman Transmission Systems, Inc. v Martino36 F3d 291, 294 (3d Cir 1994) ........................................................................ 1

Davis v. American Society of Civil Engineers

290 F. Supp. 2d 116, 123 (D.D.C. 2003) .......................................................... 9

Decker Coal v. Commonwealth Edison

805 F.2d 834 (9th Cir. 1985) .................................................................... 13, 1

Ervin v. Judicial Council of California

2007 WL 14892555 (N.D. Cal. May 18, 2007) ................................................ 6

Ezell v. Franklin County Children Services

2008 WL 2852247 (C.D. Cal. July 23, 2008) ................................................... 7Garrell v. NYLCare Health Plans, Inc.

1999 WL 459925, *4 (S.D.N.Y. June 29, 1999) ............................................. 10

GCG Austin Ltd. v. City of Springboro, Ohio

284 F. Supp.2d 927, 930 (S.D. Ohio 2003) ....................................................... 5

Hoffman v. Blaski

363 U.S. 335 (1960) ....................................................................................... 14

Holmes v. Barker

2008 WL 5101825 (D. Ariz. Nov. 26, 2008) .................................................... 7




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ivMOTION TO DISMISS OR TRANSFER FOR IMPROPER VENUE – CASE NO. SACV10-01171 CJC(RNBX)


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King v. Russell 963 F.2d 1301 (9th Cir.1992) ............................................................................

Lamptey v. County of Orange Cal.

2009 WL 4017186 (E.D. Cal. Nov. 16, 2009) .................................................. 6

Leon C. Baker, P.C. v. Bennett

942 F.Supp. 171 (S.D.N.Y. 1996) ..................................................................... Matt v. Baxter Healthcare Corp.

74 F.Supp.2d 467 (E.D.Pa. 1999) ................................................................... 17

Moultry v. Holiday Inns, Inc.

1994 WL 597689 (E.D. Pa. Nov. 1, 1994) ........................................................ 9

O’Neill v. Battisti

472 F.2d 789 (6th Cir. 1972) ............................................................................. 4

Pacific Car and Foundry Co. v. Pence

403 F.2d 949 (9th Cir. 1968) .......................................................................... 19

Peteet v. Dow Chem. Co.868 F.2d 1428 (5th Cir. 1989) ......................................................................... 12

Piedmont Label Co. v. Sun Garden Packing Co.

598 F.2d 491 (9th Cir.1979) .............................................................................. 3

Sadighi v. Daghighfekr

36 F. Supp.2d 267 (D.S.C. 1999) .................................................................... 10

Weiss v. Shoshone County Clerk and Recorders Office, Wallace, Idaho

2008 WL 4449632 (D. Mont. Sept. 30, 2008) ..................................................

Statutes 28 United States Code§ 1404(a) ............................................................................................................

28 United States Code

§ 1406(a) ............................................................................................................ 4


§ 84 .................................................................................................................... 4


§1391(b) ................................................................................................... passim

Other Authorities 15 C. Wright et al., Federal Practice and Procedure § 3847 (1986) .................................................................................................. 13

15 C. Wright et al., Federal Practice and Procedure

§ 3851, at 415 (1986) ..................................................................................... 15




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MEMORANDUM OF POINTS & AUTHORITIES

INTRODUCTION

Plaintiff has chosen a court in its own backyard to the detriment of both

defendants and Alameda citizens, who are vitally interested in the outcome of this

litigation over redevelopment of a closed Naval Air Station on the San Francisco

Bay. The rules for venue do not permit this. By statute, this action may only be

maintained in a district where the defendants reside, the events occurred, or the

property is located. See 28 U.S.C. §1391(b). All of these factors dictate dismissal

of the action or, at the discretion of the Court, transfer to the Northern District of

California. Even if venue were proper in this district, the convenience of the partiesand witnesses and the interests of justice require sending this case to the Northern

District of California. See 28 U.S.C. § 1404(a).

STATEMENT OF FACTS

Alameda Point Redevelopment

The Alameda Naval Air Station was decommissioned in 1997, providing an

opportunity for the City of Alameda to redevelop the waterfront property for other

uses. The City of Alameda, the Alameda Reuse and Redevelopment Authority

(“ARRA”), and the Community Improvement Commission (“CIC”) (collectively

“Alameda” or the “City”) selected Irvine-based SunCal Companies to enter into

exclusive negotiations for the right to become the master developer of a mixed-use

project at Alameda Point. SunCal and the City entered into an Exclusive

Negotiation Agreement (“ENA”) on July 18, 2007. The parties twice extended the

ENA, with the last extension ending July 20, 2010. (Declaration of Jennifer Ott

[“Ott Decl.”] ¶¶ 2-3.)

During negotiations as to the form and content of proposed agreements for

submission to Alameda, the parties had numerous meetings, all of which occurred in

Alameda. The City’s primary contacts with SunCal representatives were with its

executives based in Northern California at offices in Oakland and Roseville. The




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City and SunCal also convened numerous meetings, hearings, and workshops in

Alameda attended by thousands of City residents. (Ott Decl. ¶¶ 4, 7.)

An initiative measure that SunCal had qualified for the ballot was put before

the voters in February 2010. SunCal’s “Alameda Point Revitalization Initiative”

(Measure B) asked voters to approve a Charter Amendment, General Plan

Amendment, Zoning Amendment, Specific Plan and Development Agreement for

the developer’s proposed Alameda Point project. Measure B was rejected by more

than 85 percent of the voters. In addition to pursuing approval from the voters,

SunCal had submitted an Optional Entitlement Application to the City and, after the

defeat of Measure B, a Modified Optional Entitlement Application (“EntitlementApplication”). The Entitlement Application sought City approval for amendments

to the General Plan and zoning ordinance, and adoption of an Alameda Point

Community Plan, Alameda Point Master Plan, and a Development Agreement. On

July 20, 2010, the Alameda City Council (meeting at City Hall in Alameda) denied

the Entitlement Application by a 4-0 vote (with one abstention). (Ott Decl. ¶¶ 10-

12.)

The Lawsuit

On August 4, 2010, SunCal filed this lawsuit. It filed a First Amended

Complaint on August 27, 2010. The First Amended Complaint (“FAC”) contains

claims for relief for (1) breach of contract; (2) violation of the Contract Clause of

the U.S. Constitution; (3) injunctive relief/specific performance; and (4) declaratory

relief.

The sole federal claim is for impairment of contract under the Contract

Clause. Under this claim, SunCal seeks a declaration that the July 20, 2010 vote to

deny the Entitlement Application was improper and unconstitutional, and that the

vote be declared null and void and set aside. (FAC at 26 [Prayer 2].) The FAC also

includes a pendant state claim for breach of contract which seeks an order requiring

Alameda to (i) negotiate a Finalized Navy Term Sheet in good faith; (2) work




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cooperatively with SunCal to prepare the project pro forma; (3) ensure the

continuity of City staff throughout the life of the project; (4) respond to SunCal’s

document submissions within a reasonable time and process the project

entitlements; and (5) undertake the environmental review in good faith and complet

CEQA review. (FAC at 26 [Prayer 3].) The complaint seeks attorney’s fees, but no

damages.

ARGUMENT

I. PLAINTIFF BEARS THE BURDEN OF SHOWING THIS LAWSUIT

WAS PROPERLY FILED IN THIS JUDICIAL DISTRICT.

After venue has been challenged by a motion pursuant to Federal Rule of

Civil Procedure 12(b)(3), plaintiff bears the burden of showing that venue is proper.

Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir.1979).

A motion under Rule 12(b)(3) does not require that the pleadings be accepted as

true, and thus the court is permitted to consider facts outside of the pleading on the

issue of venue. Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996).

The requirement of proper venue “serves the purpose of protecting a

defendant from the inconvenience of having to defend an action in a trial that is

either remote from the defendant’s residence or from the place where the acts

underlying the controversy occurred.” Leon C. Baker, P.C. v. Bennett , 942 F.Supp

171, 175 (S.D.N.Y. 1996). If the court determines that venue is improper, it may

dismiss the case, or, if it is in the interest of justice, transfer it to any district in

which it properly could have been brought. 28 U.S.C. § 1406(a). The decision to

transfer rests in the discretion of the district court. King v. Russell, 963 F.2d 1301,

1304 (9th Cir.1992).

II. VENUE FOR SUNCAL’S FEDERAL CLAIM DOES NOT LIE IN THE

CENTRAL DISTRICT OF CALIFORNIA.

Venue for this action is governed by 28 U.S.C. § 1391(b) because plaintiff

invokes the Court’s federal question jurisdiction based on a claim of violation of the

Contract Clause of the U.S. Constitution. (See FAC ¶ 86.) Under section 1391(b),




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this lawsuit may only be brought in a judicial district:

1. where any defendant “resides”;

2. in which “a substantial part of the events or omissions giving rise to the

claim occurred” or “a substantial part of the property that is the subject of the action

is situated”; or

3. in which any defendant “may be found, if there is no district in which

the action may otherwise be brought.” (28 U.S.C. § 1391(b).)

Venue is not proper in this district under any of these bases for venue.

A. Defendants Are Public Entities Located Outside of this District.

The City of Alameda and the related public entity defendants reside in theNorthern District of California. 28 U.S.C. § 84 (Northern District comprises, amon

others, Alameda County.) Public entities and their officials reside for purposes of

venue where they carry out their official duties. Cain v. New York State Board of

Education, 630 F. Supp. 221, 225 (E.D.N.Y. 1986); accord O’Neill v. Battisti, 472

F.2d 789, 791 (6th Cir. 1972). The Alameda defendants carry out their official

duties in the Northern District of California (Jennifer Ott Declaration (“Ott Decl.”)

¶ 13), and accordingly do not reside in this district.

The case of GCG Austin Ltd. v. City of Springboro, Ohio, 284 F. Supp.2d

927, 930 (S.D. Ohio 2003), dealing with intradistrict venue, is instructive because

the lawsuit challenged a land-use decision and there were two competing venues:

where the city commission vote occurred and where the affected property was

located. The owners of a 54-acre parcel sought to build a Walmart Supercenter and

Kohl’s department store. After the city planning commission rejected the plaintiff’s

general plan amendment, the owners sued the city for violations of equal protection,

due process, and the Takings Clause of the Fifth Amendment. Id. at 928.

The venue dispute arose from the unusual circumstances that the city limits o

Springboro encompassed parts of two different counties. The city offices (where th

vote took place) were located in Warren County, which is within the portion of the

Case 8:10-cv-01171-CJC -RNB Document 11 Filed 10/13/10 of 24 Page ID#:258



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Western Division served by the courthouse in Cincinnati, Ohio. The land was

situated in Montgomery County, which is within the region covered by the Dayton,

Ohio, courthouse. The dispositive question was whether the City of Springboro

“resided” in more than one judicial district because its official actions had effects in

different districts. The court held as follows:

[A]lthough Plaintiffs’ claims concern property located in

Montgomery County, its claims against the City of Springboro

arise out of the official actions of its governing bodies, which

perform their duties in Warren County. Under these

circumstances, the Court concludes that Defendants are residents

of Warren County alone.

GCG Austin, 284 F. Supp.2d at 930.

California federal courts reach the same result in deciding venue for actions

based on governmental conduct. For example, in Lamptey v. County of Orange,

Cal., 2009 WL 4017186 (E.D. Cal. Nov. 16, 2009), the district court noted that for

purpose of venue in a §1983 claim against Orange County, that county “resides in

the Central District of California, and not in the Eastern District of California.”

Accord Perales v. City of Buena Park , Cal., 2009 WL 1885702 (E.D. Cal. June 25,

2009) (transferring § 1983 civil rights case to the Central District of California,

where the municipal defendant resided); Ervin v. Judicial Council of California,

2007 WL 14892555 (N.D. Cal. May 18, 2007) (holding that the Sacramento

Superior Court resided in the Eastern District of California for purposes of federal

venue statute).

B. The Events or Omissions Giving Rise to the Federal Claim All

Occurred Outside of this District.

SunCal bases its claim for relief under the Contract Clause on actions by the

Alameda defendants that occurred in the Council Chambers inside City Hall. It

alleges as follows:

96. Acting under color of state law, Alameda has caused SCC

Alameda to suffer a substantial deprivation of its contract rights




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in violation of the federal constitution. By voting to deny the

entire Entitlement Application prematurely and while the

Exclusivity Agreement is in effect, Alameda destroyed SCC

Alameda’s contractual rights.

97. By voting to deny the Entitlement Application, Alamedahas interfered with and destroyed its own contract, subjecting its

actions to heightened scrutiny and more stringent examination

under the Contract Clause than with laws affecting contractual

relationships between private parties.

98. The July 20, 2010 vote to deny the Entitlement

Application was unconstitutional; and as such, it is, and should

be declared, null and void.

The sole federal claim necessarily focuses on the City Council’s vote because

the Contract Clause, Article 1, section 10, clause 1 of the U.S. Constitution, is

directed specifically to legislative action. The clause states, in relevant part: “No

State shall . . . pass any . . . Law impairing the obligation of contracts.”1

Similarly, in other types of civil rights claims targeting government conduct,

venue lies where the challenged government conduct took place – which is typically

the place where the entity resides and its officials carry out their duties. See Holmes

v. Barker , 2008 WL 5101825 (D. Ariz. Nov. 26, 2008) (transferring action to the

Eastern District of Tennessee based on improper venue because “the alleged civil

rights violations occurred in Anderson County, Tennessee . . . and all Defendants

reside in Tennessee.”); Ezell v. Franklin County Children Services, 2008 WL

2852247 (C.D. Cal. July 23, 2008) (“Because the alleged misconduct of Defendants

[under § 1983] occurred in Ohio, and Defendants apparently reside in Ohio, the

matter should have been filed in the United States District Court for the Southern

1The full text of the clause deals with other matters of no interest in this lawsuit. It

states in full: “No State shall enter into any Treaty, Alliance, or Confederation;

grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any

Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of

Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant

any Title of Nobility.”




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District of Ohio.”)

Even if SunCal were to claim (contrary to its pleadings) that the federal claim

is based on acts or omissions in addition to the City Council’s vote, the result would

be the same. Staff preparation for the vote and alleged “bad faith” acts and

omissions of the City Manager with respect to the project all occurred in Alameda.

(See, e.g., FAC ¶¶ 57, 68, 97-98.)

In the present case, the judicial district where the “events or omissions . . .

occurred” is the same district in which the Alameda defendants reside for venue

purposes: the Northern District of California.

C. This Lawsuit Concerns the Development of Property LocatedOutside this District.

The First Amended Complaint concerns SunCal’s efforts to become the

master developer of Alameda Point, “a master-planned development consisting of

approximately 918 acres of prime water-front land on the east side of San Francisco

Bay with views of the Golden Gate Bridge and the downtown San Francisco

skyline.” (FAC ¶ 17.) The complaint thus concerns rights related to the

development of property located outside this district. See 28 U.S.C. § 1391(b)(2);

see also Weiss v. Shoshone County Clerk and Recorders Office, Wallace, Idaho,

2008 WL 4449632 (D. Mont. Sept. 30, 2008) (transferring federal question lawsuit

to District of Idaho because “the respondent is an Idaho County Clerk and Recorder

Office [and the] . . . property at issue is all located in Idaho”).

D. The Catch-all Provision of the Venue Statute Does Not Apply

Because No Defendant Can Be Found in the Central District.

The last basis for venue of federal claims under § 1392(b), the catch-all

provision, permits an action to be filed where any defendant “may be found” if

“there is no other district in which the action may otherwise be brought.” This

provision provides no basis for plaintiff’s choice of venue. In the present case, all o

the defendants (the City of Alameda and related public entities) can only be found




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outside the Central District. Moreover, the catch-all provision does not apply here

because there is a judicial district in which this action could have been filed: the

Northern District of California.

The lack of venue in this district can scarcely be debated since the Northern

District – not the Central District – is the place where (i) the defendants reside,

(ii) the City’s vote occurred, and (iii) the subject property is located.

III. THE DEFECTIVE VENUE OF THE SOLE FEDERAL CLAIM

CANNOT BE SAVED BY REFERENCE TO THE PENDENT STATE

LAW CLAIMS.

SunCal must establish venue for its federal claim in order to establish that

venue is proper for any other claim. See Davis v. American Society of Civil

Engineers, 290 F. Supp. 2d 116, 123 (D.D.C. 2003). SunCal relies on allegations

related to its state law breach of contract claim to support the filing of this complain

in the Central District. It alleges that SunCal conducted negotiations with Alameda

“primarily from Orange County” and that “[s]ignificant performance under the

Exclusivity Agreement took place in Orange County, including project planning and

pre- and post-contract negotiations.” (FAC ¶ 87.)2

These allegations are both false,

as shown by the declarations submitted with this motion, and irrelevant because they

go solely to venue of the pendent state law contract claim.

Venue is determined claim by claim. Basile v. Walt Disney Co., __ F Supp.2d

__, 2010 WL 2383782 (S.D.N.Y. June 14, 2010). In analyzing venue under

§ 1391(b) (which applies to cases with both state and federal claims), the court must

find a properly venued federal claim in order to find that venue is proper in the

2SunCal also alleges that many of its employees and consultants are potential

witnesses who are located in Orange County. At least as to consultants, this is not

true; but location of witnesses is irrelevant. “Although the number and location of

witnesses are considerations under a motion to transfer on forum non conveniens

grounds pursuant to § 1404(a), they are not factors to be considered when

determining venue under § 1391(b) and § 1406.” Moultry v. Holiday Inns, Inc.,

1994 WL 597689 (E.D. Pa. Nov. 1, 1994).




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district. “Venue for the state law claim is clearly a function of venue for the federal

claim and, in the court’s discretion, pendent venue may be found over the state law

claim to enable adjudication of that claim together with the federal claim.” City of

New York v. Cyco.Net, Inc., 383 F. Supp. 2d 526, 544 (S.D.N.Y. 2005) (quoting

Garrell v. NYLCare Health Plans, Inc., 1999 WL 459925, *4 (S.D.N.Y. June 29,

1999).)

As specifically noted by the district court in Sadighi v. Daghighfekr, 36 F.

Supp. 2d 267, 278 (D.S.C. 1999), a properly venued state-law claim does not save a

complaint that includes a federal claim. “Although the claims against the . . .

Defendants are related to each other, the case law does not support an assertion of venue over the principal, federal law claim pursuant to the doctrine of ‘pendent

venue’ based upon a finding of proper venue over the pendent state law claims. . . .

Consequently, this court declines to find venue proper as to the RICO claim based

on the doctrine of ‘pendent venue’ based upon a finding of proper venue over the

pendent state law claims.” Id. at 278.

Venue for the state-law claim (which, as noted below, is also improper)

cannot keep this action in the Central District absent a properly-venued federal

claim.

IV. THOUGH IMMATERIAL, VENUE IS ALSO LACKING AS TO THE

STATE LAW CLAIM FOR BREACH OF CONTRACT.

Plaintiff contends that venue is proper as to its breach of contract claim based

on allegations that SunCal conducted negotiations with Alameda “primarily from

Orange County” and that “[s]ignficant performance under the Exclusivity

Agreement took place in Orange County, including project planning and pre- and

post-contract negotiations.” (FAC ¶ 87.)

This is immaterial, but in any event, not true. It is immaterial because, as

plaintiff’s own complaint shows, this lawsuit has little to do with SunCal’s

performance under the ENA. All of the alleged “events and omissions giving rise to




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[SunCal’s] claim” under state law occurred outside of this district. Plaintiff alleges

that Alameda breached the ENA by:

(1) failing and refusing to negotiate a Finalized Navy Term Sheet

in good faith; (2) repudiating the pro forma previously agreed toby the parties and then refusing to work cooperatively with SCC

Alameda to prepare the project pro form; (3) failing and refusing

to ensure the continuity of its [City] staff throughout the life of

the project; (4) failing and refusing to respond to SCC Alameda’s

document submissions within a reasonable time; and (5) refusing

to undertake the environmental review in good faith and failing

to complete the CEQA review and entitlement process. (FAC

¶ 89.)

SunCal’s own performance under the ENA bears little, if any, weight in the

venue analysis because it does not involve events or omissions giving rise to its

claim. “Events or omissions that might only have some tangential connection with

the dispute in litigation are not enough” to establish venue. Cottman Transmission

Systems, Inc. v Martino, 36 F.3d 291, 294 (3d Cir. 1994).

In addition, SunCal’s performance under the ENA occurred in substantial par

outside of this district, as established by the declarations submitted with this motion

The City of Alameda’s primary contacts with SunCal were through its employees

Bill Myers (in the earlier days of the project), Pat Keliher, and Nick Kosla, all of

whom were based in Northern California. Mr. Myers was in Roseville, Calif. and

Messrs. Keliher and Kosla were based in SunCal’s San Francisco Bay Area regiona

office located in Oakland, Calif.3

(Ott Decl. ¶ 4.) There were numerous face-to-

face meetings between representatives of SunCal and Alameda, all of which took

place in or near Alameda. (Ott Decl. ¶ 7.) SunCal and the City negotiating teams

typically sat down to meet every two weeks.4

(Ott Decl. ¶ 8.)

3SunCal had been pursuing development projects in Oakland and Dublin, Calif., in

the Bay Area at the same time that it was negotiating to become the master

developer of Alameda Point. (Ott Decl. ¶ 6.)4

Alameda also dealt with Amy Freilich, at the time an in-house land use attorney

for SunCal, who had an office in Irvine. Toward the end of the term of the




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Finally, of the 61 consultants paid by SunCal, at least 49 were located outside

of the Central District – mainly in Northern California. (Declaration of Katherine

Debski [“Debski Decl.”] ¶ 6 & Ex. A.)

V. IN THE ALTERNATIVE, THIS ACTION SHOULD BETRANSFERRED FOR THE CONVENIENCE OF THE PARTIES AND

WITNESSES AND IN THE INTEREST OF JUSTICE.

Even if venue were proper in the Central District, “[f]or the convenience of

the parties and the 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). The trial court has substantial discretion in deciding to transfer

a case. Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir

1979).

In exercising its discretion, a trial court should consider “all relevant factors

to determine whether or not on balance the litigation would more conveniently

proceed and the interest of justice be better served by transfer to a different forum.”

Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989) (quoting 15 C.

Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3847, at 370

(1986)).

The relevant factors include: (1) plaintiffs’ choice of forum; (2) convenience

of the witnesses; (3) convenience of the parties; (4) ease of access to the evidence;

(5) familiarity of each forum with the applicable law; (6) feasibility of consolidation

of other claims; (7) any local interest in the controversy; and (8) the relative court

congestion in each forum. See Decker Coal Co. v. Commonwealth Edison Co., 805

F.2d 834, 843 (9th Cir.1986). Among these, the convenience of the material

witnesses is generally regarded as the most important factor. A.J. Industries, Inc. v.

United States Dist. Ct., 503 F.2d 384, 386-87 (9th Cir. 1974).

It is also relevant that the voters of Alameda have a strong interest in the

Exclusive Negotiation Agreement, Alameda had contacts with SunCal President

Stan Brown (based in Irvine, Calif.). (Ott Decl. ¶ 4-5.)




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future development of Alameda Point, which occupies one third of the City’s area.

As a voter opinion poll recently conducted by SunCal shows, the development of

Alameda Point is among the highest civic priorities of Alameda voters, second only

to education, educational funding and schools. (Declaration of David B. Newdorf

[“Newdorf Decl.”] Ex. A.) These voters deserve easy access to the Court that may

decide the future of Alameda Point. Backcountry Against Dumps v. Abbott , 2010

WL 2349194 (S.D. Cal. June 9, 2010) (transferring case “in the interest of justice”

to the court with “the greatest connection to the citizens, the lands, the resources,

and environmental interests impacted by” the proposed construction project).

A. This Case Could Have Been Brought Initially In The NorthernDistrict Of California.

The threshold requirement for a discretionary transfer under § 1404(a) is that

the case could have been filed initially in the Northern District of California. See

Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960). Venue would be proper in that

district under § 1391(b) based on – among other factors – the residence of all three

public entity defendants in that district.5

In addition to proper venue, the transferee

court must also have personal jurisdiction over the defendants and subject matter

jurisdiction over the claim. Id . The Northern District of California satisfies all thes

requirements.

B. Local Interest In The Controversy Weighs Very Heavily In Favor

of Transfer.

Of the reasons in favor of a transfer, the local interest by Alameda and Bay

Area citizens is by far the most crucial factor in this case. The Northern District’s

interest in this controversy far outweighs that of the Central District. Alameda

Point’s 918 acres represent the largest area of potential development in the City of

5 In addition, as previously detailed, a “substantial part of the events or omissions

giving rise to the claim occurred” and all of “the property that is the subject of the

action is situated” in the Northern District. See 28 U.S.C. § 1391(b).




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Alameda and one of the largest development sites in the urban core of the Bay Area

SunCal gathered signatures to place its development proposal on the ballot, where it

lost with a “no” vote of 85 percent in February 2010. SunCal is itself fueling local

interest in this dispute by spending freely during the fall campaign season, sending a

“hit piece” targeting the City Manager and comparing her to the City Manager of

Bell, Calif., who is facing criminal corruption charges. (Newdorf Decl. Ex. B.)

Alameda Point and SunCal have remained foremost on voter minds during the

November 2010 local elections.

One district court explained the nature of community interest that justified

transferring an action:Here, all land and real property . . . and the transmission corridor

for the Sunrise Project are located entirely within the Southern

District. . . . The residents of that district are most impacted by

this controversy [.] . . . The Sunrise Project has been the subject

of extensive public input and involvement in the Southern

District over a more than three-year period of time, and public

input is still being received today. Between October 2005 and

August 2008, the California Public Utilities Commission

(“CPUC”), the BLM, and SDG & E conducted nearly 50 publicmeetings on the Sunrise Project in San Diego, involving tens of

thousands of people in the Southern District. . . . Clearly, the

interested public is located primarily in the Southern District.

Backcountry Against Dumps v. Abbott , 2010 WL 2349194, at *4 (S.D. Cal. June 9,

2010).

The interest of justice would best be served by transferring the case to the

venue where the project and its neighbors are located.

C. Convenience Of The Witnesses Favors Transfer.

“Probably the most important factor, and the factor most frequently

mentioned, in passing on a motion to transfer under 28 U.S.C. §1404(a) is the

convenience of witnesses.” 15 C. Wright et al., Federal Practice and Procedure,

§ 3851, at 415 (1986). Further, the convenience of witnesses not employed by




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either party should be given even greater weight because their attendance cannot

easily be compelled. Jarvis v. Marietta Corp., 1999 WL 638231, *5 (N.D. Cal.

Aug. 12, 1999). Here, the convenience of the witnesses would be served by

litigating this action in the Northern District of California.

Nearly all of the issues raised by the First Amended Complaint will turn on

the testimony of the various people involved in planning and negotiations

concerning the redevelopment of Alameda Point, almost all of whom are located in

Northern California.

1. The Majority of Witnesses Reside In Northern California.

The litigation is at an early stage, but at this point key witnesses in this casefrom Northern California may be:

City witnesses. The First Amended Complaint refers to alleged

conduct of Interim City Manager Ann Marie Gallant, the five City Council

members, City Attorney Teresa Highsmith, and unnamed staff members who

authored various staff reports. Other key City witnesses would include Deputy City

Manager Jennifer Ott, Public Works Director Matt Naclerio, and Planning Services

Manager Andrew Thomas.

Alameda citizen witnesses. The First Amended Complaint refer

to an unnamed citizen (or possibly more than one) attending an Alameda Chamber

of Commerce meeting who said “Gallant even indicated she had a ‘secret plan’ for

development of the project.” FAC ¶ 64.

City consultants. The First Amended Complaint specifically

identifies Fehr & Peers, traffic consultants with offices in San Francisco and Walnu

Creek, as a City consultant involved in matters relevant to SunCal’s claims. (FAC

¶¶ 74-80.) Other key outside consultants for Alameda include: Economic &

Planning Systems (Berkeley); Harris & Associates (Concord, Calif.); Russell

Resources, Inc. (San Rafael); and Ruggeri Jensen Azar (Pleasanton). (Ott Decl.

¶ 14.)




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SunCal witnesses: Pat Keliher, Nick Kosla, Bill Meyers and

Susan Chavez are current or past SunCal employees involved in the Alameda Point

project who live and work in the Northern District. Messrs. Keliher, Kosla and

Meyers were the key points of contact between SunCal and Alameda.

SunCal consultants. A complete list of SunCal’s consultants is

submitted as Exhibit A to the Declaration of Jennifer Ott. An analysis of the

location of these witnesses shows that 39 of 61 are located in Northern California.

(Debski Decl. Ex. A.)

2. Southern California Witnesses.

Likely witnesses from Southern California include: SunCal witnesses. SunCal President Stan Brown (Irvine) and

former in-house SunCal attorney Amy Freilich (Los Angeles).6

U.S. Navy witnesses. One of SunCal’s contentions is that

Alameda interfered with SunCal’s ability to finalize a term sheet for the transfer of

Alameda Point. (FAC ¶¶55.) Alan Lee, the Navy’s Base Closure manager, is

located in San Diego.

SunCal consultants. Six SunCal consultants are based in

Southern California. See Chart (Debski Decl.)

In sum, because the key witnesses, in terms of number and importance, reside

in Northern California, the convenience of the witnesses factor weighs heavily in

favor of transferring this case to the Northern District of California. See Jarvis,

1999 WL 638231, at *5.

6Ms. Freilich is currently retained outside counsel for SunCal. “[T]he convenience

of counsel is not a factor that is relevant in deciding a motion brought under 28

U.S.C. § 1404(a).” Matt v. Baxter Healthcare Corp., 74 F.Supp. 2d 467, 469 (E.D.

Pa. 1999).




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D. Convenience of the Parties Favors Transfer.

The Northern District of California would be vastly more convenient for

nearly all concerned. Neither Defendants nor the acts giving rise to this case have

any connection to the Central District of California. Nearly all of the partyrepresentatives (except for two SunCal witnesses, one of whom is a retained lawyer)

and the non-party witnesses (except for a Navy witness) reside in Northern

California. The Northern District would therefore be a far more convenient forum

for this case.

E. Ease of Access to the Evidence Favors Transfer.

The greater ease of access to the evidence in the Northern District is also an

important factor strongly in favor of transfer to the Northern District of California.

Decker Coal v. Commonwealth Edison, 805 F.2d 834, 843 (9th Cir. 1985). The

majority of documents bearing on the claims asserted in this case and relevant to the

negotiation and planning for Alameda Point are located in the Northern District. Fo

example, city documents, public records, consultants’ drawings, plans, and

entitlement applications, among others, are located at the offices of the various

witnesses identified in section V.C.1 above.

Furthermore, the cost and difficulty of obtaining the attendance of witnesses

would be much higher in the Central District of California than in the Northern

District of California because a vast majority of the key witnesses reside and work

in the Northern District. See Allegiance Healthcare Corp. v. London Int’l Group,

1998 WL 328624, *3 (N.D. Cal. June 17, 1998).

Transfer to the Northern District of California will increase the ease andreduce the expense of obtaining documents, as well as significantly reduce the cost

and inconvenience involved with obtaining key witness testimony. Accessibility to

evidence is one more factor which strongly supports Defendants’ alternative motion

to transfer.




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above, the interests of justice will best be served by transferring this action to the

Northern District.

CONCLUSION

For the foregoing reasons, the Court should dismiss or transfer the case for

lack of venue or, in the alternative, transfer the case to the Northern District of

California for the convenience of the parties and witnesses and in the interests of

justice.

Dated: October 13, 2010

BINGHAM MCCUTCHEN LLP

GEOFFREY L. ROBINSON

ALAN H. MURPHY

NEWDORF LEGAL

DAVID B. NEWDORF

VICKI F. VAN FLEET

By:/s/ David B. Newdorf

DAVID B. NEWDORF

Attorneys for Defendants


alamed a federal motion to change venue

Documents