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A federal discrimination case filed against a pair of towns dominated by followers of Warren Jeffs won't move to Utah, a judge ruled Monday.
Copy of ruling filed 12/10/12 in Arizona.
A federal discrimination case filed against a pair of towns dominated by followers of Warren Jeffs won't move to Utah, a judge ruled Monday.
Copy of ruling filed 12/10/12 in Arizona.
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A federal discrimination case filed against a pair of towns dominated by followers of Warren Jeffs won't move to Utah, a judge ruled Monday.
Copy of ruling filed 12/10/12 in Arizona.
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Attribution Non-Commercial (BY-NC)
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Скачайте в формате PDF, TXT или читайте онлайн в Scribd
UNITED STATES OF AMERICA, ) ) Plaintiff, ) ) vs. ) ) TOWN OF COLORADO CITY, ARIZONA; ) CITY OF HILDALE, UTAH; ) TWIN CITY POWER; and ) TWIN CITY WATER AUTHORITY, INC., ) No. 3:12-cv-8123-HRH ) (Prescott Division) Defendants. ) ___________________________________) 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), move for an order changing venue from the District of Arizona to the District of Utah pursuant to 28 U.S.C. 1404(a). The motion has been joined in by defendant Town of Colorado City, Arizona. 2
Colorado City summarily adopts the Hildale arguments. The motion is opposed by plaintiff. Oral argument was requested and has been heard. 1 Docket No. 24. 2 Docket No. 32. ORDER Motion for Change of Venue - 1 - Case 3:l2-cv-08l23-HRH Document 4l Filed l2/l0/l2 Page l of l0 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 effi- ciency. 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. 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 really a single community. There is apparently no open land between the two communities. Streets continue from one town into the other. Of the two towns, Colorado City is substantially the larger and more populous. The defendant utilities do or have in the past served both towns. 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 - 2 - Case 3:l2-cv-08l23-HRH Document 4l Filed l2/l0/l2 Page 2 of l0 day Saints (FLDS). The Trust is alleged to be a charitable institution 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 for the Trust. For purposes of the instant motion, it is not disputed that the Colorado City marshals office, fire department, and water plant serve both towns. Arizona has caused the Mohave County sheriffs office to intervene in law enforcement in Colorado City. Plaintiffs complaint asserts three causes of action. The first cause of action is based upon 42 U.S.C. 14141(a) and alleges that the towns have engaged in practices violative of the First, Fourth, and Fourteenth Amendments to the United States Constitution based upon conduct of the marshals office. Plain- tiffs 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. Plaintiffs 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 plaintiffs 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 plaintiffs third cause of action with leave to renew. ORDER Motion for Change of Venue - 3 - Case 3:l2-cv-08l23-HRH Document 4l Filed l2/l0/l2 Page 3 of l0 Convenience of the Parties Plaintiff is the United States Government. The United States is bringing this action through the Civil Rights Division of the Department of Justice in Washington, D.C. The Hildale defendants are inanimate entities, creatures of the State of Utah, represented by counsel from Salt Lake City, Utah. The Town of Colorado City is an Arizona municipality represented 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. No doubt discovery will be ex- pensive. It appears to the 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 considerations do not affect the balance of concerns for purposes of venue. ORDER Motion for Change of Venue - 4 - Case 3:l2-cv-08l23-HRH Document 4l Filed l2/l0/l2 Page 4 of l0 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. Oral 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 courts 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 bal- ance of concerns for purposes of venue. While plaintiff argues that its choice of forum is entitled to paramount consideration, it is the courts perception that such a contention overstates the kind of balancing which the court does on a motion to transfer venue. The plaintiffs 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. The defendants are in a similar position. 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 courts 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 - 5 - Case 3:l2-cv-08l23-HRH Document 4l Filed l2/l0/l2 Page 5 of l0 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 contro- versies 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 bal- anced. Both Arizona and Utah have taken action aimed at ameliorat- ing the concerns which resulted in the bringing of this action by the plaintiff. The State of Utah has taken over the Trust and imposed an administrator. Arizona has caused the Mohave County sheriffs office to intervene in law enforcement in the town of Colorado City. Turning to the other public factors which the defendants suggest, it has not been shown that court congestion in the District of Arizona would stand in the way of the timely develop- ment and trial of this case. The District of Arizona 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 - 6 - Case 3:l2-cv-08l23-HRH Document 4l Filed l2/l0/l2 Page 6 of l0 Utah. Because there is a public interest and an appropriate nexus between the District of Arizona and the allegations of plaintiffs complaint with respect to the defendants, this case does not pre- sent an unfair burden on Arizona jurors. Finally, because plain- tiffs 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 substan- tially favor a transfer of this case from the District of Arizona to the District of Utah. Defendants have not made a showing of inconvenience sufficiently strong to justify negating plaintiffs 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 plaintiffs 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 - 7 - Case 3:l2-cv-08l23-HRH Document 4l Filed l2/l0/l2 Page 7 of l0 while the Town of Colorado City is more residential. Neither party has provided the court with discrete names and residence addresses of 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 of the Hildale witnesses are likely to be employees of the town; they will have no personal interest in where the case is tried. No doubt, Hildale can provide transportation and require its employees to appear wherever necessary for trial, without resource to subpoenas. The latter is not necessarily so with respect to plaintiffs 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 sub- poena. 5 Those same people may not be subject to subpoena across a state line were the case transferred to Utah. To the extent that plaintiffs or defendants witnesses have moved away from the towns, there may or may not be attendance difficulties for reluc- tant 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 state- wide reach unless the court in its discretion orders otherwise. Rule 45(c)(3)(A)(ii) and (B)(iii). ORDER Motion for Change of Venue - 8 - Case 3:l2-cv-08l23-HRH Document 4l Filed l2/l0/l2 Page 8 of l0 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 to St. George, Utah. There is no direct, scheduled air service between St. George, Utah, and Prescott, Arizona. 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 this case, the 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 also discussed the possibility of Flagstaff, Arizona, as a trial site. The courts 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 - 9 - Case 3:l2-cv-08l23-HRH Document 4l Filed l2/l0/l2 Page 9 of l0 duties. The court perceives no great inconvenience to the defen- dants witnesses in favoring plaintiffs 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 plaintiffs choice of forum is put in the bal- ance, 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 - 10 - Case 3:l2-cv-08l23-HRH Document 4l Filed l2/l0/l2 Page l0 of l0