The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Defendant National Indian Gaming Commission ("NIGC") has moved to transfer venue to the United States District Court for the Western District of Texas pursuant to 28 U.S.C. § 1404(a). Because this action could have been brought in the Western District of Texas, and because transfer to that jurisdiction is in the public interest, the motion will be granted.
In the underlying action, plaintiff Ysleta del Sur Pueblo ("Pueblo") challenges NIGC's determination that the Pueblo is not under NIGC jurisdiction for funding and other purposes. (Compl. ¶ 1, Ex. C.) Plaintiff has sued defendant under the United States Constitution, federal common law, the Restoration Act, the Indian Gaming Regulatory Act*fn1 ("IGRA"), the Declaratory Judgment Act, the Administrative Procedures Act ("APA"), and the All Writs Act. (Id. ¶ 2.) Plaintiff seeks injunctive relief compelling defendant to exercise jurisdiction over the gaming activities of the Pueblo and to provide technical assistance and training. (Compl. at 5.)
On October 14, 2009, plaintiff's counsel wrote to defendant requesting that NIGC reconsider its decision not to provide the Pueblo with training. (Compl., Ex. B.) Defendant responded with a letter denying plaintiff's request on February 23, 2010, from NIGC headquarters in Washington, D.C. (Compl., Ex. C.) In this letter, NIGC relied on a Fifth Circuit decision, Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325 (5th Cir. 1994), cert. denied, 514 U.S. 1016 (1995), in concluding that plaintiff's activities are governed by the Restoration Act and not IGRA. (Compl., Ex. C.) Because IGRA does not govern plaintiff, NIGC explained that the Pueblo was not under NIGC jurisdiction. (Id.)
The Fifth Circuit decision relied upon by NIGC in its February 23, 2010 letter is part of litigation that has gone on for over fifteen years between plaintiff and the State of Texas ("the State") in the federal courts of Texas concerning plaintiff's gaming activities. (Def.'s Mot. at 3-6.) In 1993, plaintiff sued the State, seeking to compel it to negotiate a contract, pursuant to IGRA, to permit plaintiff to engage in certain types of gambling. (Def.'s Mot. at 3.) The District Court for the Western District of Texas granted plaintiff summary judgment, but the Fifth Circuit reversed the district court, holding that the Restoration Act, and not IGRA, governed the Pueblo's gaming activities. Ysleta del Sur Pueblo, 36 F.3d at 1336. Accordingly, the Fifth Circuit found that plaintiff's suit was barred by the Eleventh Amendment. Id.
Several years later, the State sued plaintiff under the Restoration Act to enjoin plaintiff from conducting certain gaming activities. (Def.'s Mot. at 5.) On August 3, 2009, plaintiff was cited for contempt for violation of the modified injunction entered in that case. (Id.) Since then, plaintiff has filed several status reports as required by the district court. (Def's Mot. at 5; Pl.'s Opp'n at 18.) In one of those status reports, plaintiff alerted the district court that it is "seeking to have NIGC exercise regulatory jurisdiction on the Pueblo, and specifically to exercise its statutory authority to provide technical assistance and training to the Pueblo's Regulatory Commission." (Def's Mot., Ex. D at 7.)
28 U.S.C. § 1404(a) states that "[f]or 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." The moving party bears the burden of establishing that transfer is proper. Veney v. Starbucks Corp., 559 F. Supp. 2d 79, 82 (D.D.C. 2008) (citing Trout Unlimited v. Dep't of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996)). Here, defendant must make two showings. First, it must establish that the action could have been brought in the Western District of Texas originally. Id. (citing Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). Second, it must demonstrate that considerations of convenience and the interest of justice weigh in favor of transfer. Id. (citing Trout Unlimited, 944 F. Supp. at 16). Courts have broad discretion to "'adjudicate motions to transfer according to individualized, case-by-case consideration of convenience and fairness.'" Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 50 (D.D.C. 2000) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).
In exercising its discretion, the Court considers several private and public interest factors. Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d 1, 3 (D.D.C. 2006) (citing Reiffin, 104 F. Supp. 2d at 51-52).
Private interest factors include, but are not limited to: (1) plaintiffs' privilege of choosing the forum; (2) defendant's preferred forum; (3) location where the claim arose; (4) convenience of the parties; (5) convenience of witnesses, but only to the extent that witnesses may be unavailable for trial in one of the fora; and (6) ease of access to sources of proof. Public interest considerations include: (1) the transferee's familiarity with the governing law; (2) the relative congestion of the courts of the transferor and potential transferee; and (3) the local interest in deciding local controversies at home.
Onyeneho, 466 F. Supp. 2d at 3 (citing Airport Working Grp. of Orange Cnty., Inc. v. U.S. Dep't of Def., 226 F. ...