The opinion of the court was delivered by: Thomas F. Hogan, Chief Judge
Re: DuCoa L.P.'s and DCV, Inc.'s Motion to Sever and Transfer
Class Plaintiffs have alleged that Defendants DuCoa, L.P. and DCV, Inc., the general partner of DuCoa, L.P., conspired with other defendants and their co-conspirators to fix prices, allocate market share, and use other unlawful practices to inflate the prices of choline chloride, a B-complex vitamin used to enrich animal feed products, which was sold to Plaintiffs and other direct purchasers. See Third Consolidated Am. Class Action Compl. Neither DuCoa nor DCV properly asserted lack of personal jurisdiction or improper venue as affirmative defenses. Many other defendants in this litigation made such motions and in response Plaintiffs moved to transfer. Some of the motions, including Plaintiffs' motion to transfer to Minnesota the claims against defendant BioProducts, have been granted, while other motions to transfer are still pending. Trial of the Class Plaintiffs claims against DuCoa L.P., DCV, Inc. and the Mitsui Defendants is set to begin on May 28, 2003 in this Court.
Defendants DuCoa and DCV have moved pursuant to Fed.R.Civ.P. 21 and 28 U.S.C. § 1404 (a) or 1406(b). Class Plaintiffs oppose the motion claiming that: (1) Defendants have waived any objection to personal jurisdiction and improper venue in this District; (2) a motion pursuant to 28 U.S.C. § 1406 (a) is procedurally improper; and (3) Defendants have failed to make a sufficient showing for transfer pursuant to 28 U.S.C. § 1404 (a).
Rule 21 provides for severance of parties and/or claims "at any stage of the action and on such terms as are just." Fed.R.Civ.P. 21. Section 1404(a) provides that "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." 28 U.S.C. § 1404 (a). Finally, Section 1406(a) provides that "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Id. § 1406(a).*fn1
A threshold consideration for transfer thus is whether the action could have been brought in the proposed transferee district. If this threshold requirement is met, transferring a case pursuant to section 1404(a) becomes a discretionary matter to be decided on a case-by-case basis, balancing a number of case-specific factors to determine whether convenience and justice support such a transfer. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) ("Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an `individualized, case-by-case consideration of convenience and fairness.' . . . A motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors.") (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)); see e.g., Reiffin v. Microsoft Corp., 104 F. Supp.2d 48, 50 (D.D.C. 2000); Wilderness Soc'y v. Babbitt, 104 F. Supp.2d 10, 12 (D.D.C. 2000); Trout Unltd. v. Dep't of Agric., 944 F. Supp. 13, 15-16 (D.D.C. 1996).*fn2 Defendants bear the burden of showing that the balance of case-specific factors favors transfer. Reiffin, 104 F. Supp.2d at 50; Air Line Pilots Ass'n v. E. Air Lines, 672 F. Supp. 525, 526 (D.D.C. 1987). In the instant motion, parties have addressed the factors of convenience and justice.
As a preliminary matter, the Court notes that parties do not dispute that Class Plaintiffs could have brought this action in the District of Minnesota. Thus the Court will assume that venue would have been proper in Minnesota and, therefore, will address whether convenience and justice support such a transfer. The Court finds that transfer is not warranted as Defendants have not met their burden of showing that the balance of factors favors transfer. Here, Defendants must show that Minnesota is a more convenient forum than the District of Columbia. See Van Dusen v. Barrack, 376 U.S. 612, 645-46 (1945) ("Section 1404(a) provides for transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient.").
In their moving papers, Defendants argue that Plaintiffs' choice of forum should be given less weight because Plaintiffs do not reside in the District of Columbia and because discovery has not established that DuCoa, DCV or any choline chloride defendant committed any act with in the District of Columbia. Further, Defendants argue that their burden decreases when there is no meaningful nexus to the controversy and the parties. While there is some merit to those arguments see Greater Yellowstone Coalition, 180 F. Supp.2d 124, 128 (D.D.C. 2001), a lesser burden and less deference does not mandate a blanket transfer at the request of Defendants. Here, Defendants have failed to show that Minnesota is a more convenient venue as to Plaintiffs' claims against these Defendants — DuCoa and DCV.
Defendants, in reply, make much of the fact that Plaintiffs' arguments that Minnesota is not more convenient; in fact, Defendants' argue that Plaintiffs "failed to set out any factor indicating that Minnesota a more convenient forum." Defs. Reply at 4. This seems a veiled attempt to shift the burden of establishing that Minnesota is a more convenient venue to the Plaintiffs. While the Court acknowledges that Defendants' burden may be less in situations like the instant case, it is indeed the burden of the Defendants to show that balance of factors favors transfer. This they have not done.
Defendants continue, in reply, to attempt to meet their burden by asserting that Minnesota is more convenient because they are defending other cases there and because at least some coconspirators have been transferred to Minnesota.*fn3 While these are factors the Court may consider, the Court does not find that these factors favor transfer in the context of this case.
As to the convenience factor, the Court finds that Defendants have not shown that it would be more convenient to the parties and the witnesses to transfer the claims against Defendants to Minnesota. Despite the fact, that Defendants "adopt and incorporate by reference any and all witness lists, exhibit lists and deposition lists" which have been or will be filed by any and all parties in the direct action aspect of this multidistrict litigation, the Court does not find that such litigation strategies would necessarily make trial in Minnesota more convenient. Defendants argue that because other defendants and allege co-conspirators will go to trial in Minnesota, the venue will necessarily be more convenient to Plaintiffs and Defendants. Defendants gloss over the fact, however, that there will indeed be a trial against at least one of its alleged co-conspirators in the District of Columbia. Thus, Defendants have adopted much of the potential evidence of Defendants in all the cases some of which will be go to trial in this District, some of which may be remanded, and some of which may be transferred. It is unclear how this favors transfer to Minnesota for convenience when there will also be a trial in this District. Moreover, Defendants informed the Court in the recent pretrial conference that it would not present any live witnesses. Therefore, even assuming that there will be a similar trial in Minnesota of Defendants co-conspirators, it is not clear that either the District of Columbia or Minnesota ...