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PETER STIRBA, Utah Bar No. 3118 R. BLAKE HAMILTON, Utah Bar No. 11395 KATHLEEN ABKE, Utah Bar No. 12422 STIRBA & ASSOCIATES 215 South State Street, Suite 750 P.O. Box 810 Salt Lake City, Utah 84110-0810 Telephone: (801) 364-8300 Facsimile: (801) 364-8355 kabke@stirba.com Attorneys for Defendants City of Hildale, Utah, Twin

City Power and Twin City Water Authority, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America, Plaintiff,

v.

Town of Colorado City, Arizona; City of Hildale, Utah; Twin City Power; and Twin City Water Authority, Inc., Defendants.

Case No. CV-12-8123-PCT-HRH HILDALE DEFENDANTS’ MOTION FOR CHANGE OF VENUE (Oral Argument Requested)

Defendants City of Hildale, Utah (“Hildale”), Twin City Power (“TCP”), and Twin

City Water Authority, Inc. (“TCWA”) (collectively the “Hildale Defendants”) hereby

move this Court for a change of venue pursuant to 28 U.S.C. § 1404(a). Specifically, the

Hildale Defendants request that this Court transfer venue from the District of Arizona to

the District of Utah, for the convenience of the parties and witnesses and in the interest

logistical efficiency. This Motion is supported by the following memorandum of points

and authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

The United States alleges three causes of action against Hildale and the Town of

Colorado City, Arizona, (collectively, the “Twin Cities”), and two utility agencies that

serve the Twin Cities. The Twin Cities are located approximately 40 miles east of St.

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George, Utah (“St. George”) on their respective side of the Utah-Arizona border. All of

the events and incidents alleged in the Complaint are alleged to have occurred in one or

both of the Twin Cities and involve(d) residents of either Colorado City or Hildale. Since

all of the witnesses and evidence are located in the Twin Cities area, more than 300 miles

from this Court, the Hildale Defendants respectfully request that this Court transfer this

case to the Central District of Utah, which is a significantly more convenient venue for all

of the parties.

I. THE FEDERAL CHANGE OF VENUE STATUTE.

The federal change of venue statute 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 may have been brought. 28 U.S.C. § 1404(a). This

statute “serves as a statutory substitute for forum non conveniens in federal court when the

alternative forum is within the territory of the United States.” Ravelo Monegro v. Rosa,

211 F.3d 509, 512-13 (9th Cir. 2000).

Despite the fact that the common law doctrine of forum non conveniens no longer

applies to changes of venue within the United States, “forum non conveniens

considerations are helpful in deciding a § 1404 transfer motion.” Decker Coal Co. V.

Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). However, “section

1404(a) provides greater flexibility and discretion,” than the doctrine of forum non

conveniens. Berry v. Potter, 2006 WL 335841, *3 (D. Ariz. 2006) (unpublished opinion)

(citing Piper Aircraft Co. V. Reyno, 454 U.S. 235, 253 (1981)) (emphasis added).

To decide a section 1404 transfer motion, a court must “balance the preference

accorded to the plaintiff’s choice of forum with the burden of litigating in an inconvenient

forum.” Decker Coal, 805 F.2d at 843 (citing Mizokami Bros. of Arizona v. Mobay

Chemical Corp., 660 F.2d 712, 718 (8th Cir. 1981)). In doing so, the court should consider

both public and private factors affecting a forum’s convenience. See id. Public factors

include the logistical and practical issues “that make trial of a case easy, expeditious and

inexpensive,” such as ease of access to evidence and information, availability of

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compulsory process for attendance of witnesses, and the cost of obtaining witnesses. 805

F.2d at 843 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). Public factors

include considerations such as court congestion, “local interest in having localized

controversies decided at home,” conflict of laws issues, and “the unfairness of burdening

citizens in an unrelated forum with jury duty.” 805 F.2d at 843 (quoting Piper Aircraft,

454 U.S. at 241 n. 6 (quoting Gulf Oil Corp., 330 U.S. at 509)).

Here, both the relevant public and private factors support the transfer of this case to

the District of Utah.

II. THE DISTRICT OF UTAH IS AN APPROPRIATE ALTERNATIVE

VENUE TO THE DISTRICT OF ARIZONA.

Under section 1404, a district court may only transfer a case to another district

where the case could have been filed in the first place. See 28 U.S.C. § 1404(a). Pursuant

to the general venue statute, 28 U.S.C. § 1391(b)1, a civil action may be brought in “a

judicial district in which a substantial part of the events or omissions giving rise to the

claim occurred,” or “any judicial district in which any defendant is subject to the court’s

personal jurisdiction.” 28 U.S.C. § 1391(b).

The United States alleges numerous incidents and events in support of its three

causes of action, but does not specify whether said events occurred within the State of

Arizona or the State of Utah and does not differentiate between the Twin Cities, simply

referring to them as the “Cities.”2 In fact, only one allegation - that regarding an incident

at the Holm School - actually identifies the location of the alleged dispute, which was in

Hildale.3 The Complaint does not identify the allegedly aggrieved individuals at all, much

less as residents of either Arizona or Utah. Furthermore, the majority of the Complaint’s

allegations are based upon the alleged actions and conduct of the Marshal’s Office, a law

1 The “general venue statute,” 28 U.S.C. § 1391, applies to all of the causes of action

alleged in the Complaint. See 42 U.S.C. § 3612(o), stating specifically that the general venue statute applies to the United States’ 2 See, generally, Doc. 1, at ¶¶ 2, 4, 5, 16-50.

3 Id. at ¶ 28.

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enforcement entity whose members reside in both Arizona and Utah and that, like the

TCWA and TCP, serves or served the Twin Cities.4

While the Complaint is unclear as to the exact location and residency of the

relevant events, individuals, and/or witnesses, it is certain that all of the allegations

occurred in the Twin Cities area and involved individuals who reside in either of the Twin

Cities. In other words, it is more than fair to say that a substantial part of the events or

omissions giving rise to the Government’s claims occurred in Utah and the United States

could have brought this case in the District of Utah.

Additionally, the District of Utah obviously has personal jurisdiction over the

Hildale Defendants. Hildale is a Utah governmental entity.5 TCWA is a Utah non-profit

organization headquartered in Hildale.6 TCP was a Utah corporate entity whose plant

(which is now closed) and registered agent is located in Hildale.7 For these reasons, the

District of Utah is an appropriate, alternative venue to which this case may be transferred

pursuant to section 1404(a).

III. THE DISTRICT OF UTAH IS A MORE CONVENIENT FORUM.

The United States District Court for the District of Arizona is nearly 400 miles

away from the Twin Cities. While the main courthouse for the District of Utah is located

in Salt Lake City, approximately 300 miles away from the Twin Cities, the Utah District

Court also maintains chambers and courtroom space in St. George. Counsel can represent

to this Court that since 2010, the District of Utah has leased space in the State of Utah’s

new Fifth District Courthouse for the purpose of serving individuals located in Southern

Utah, sparing those litigants the time and expense of travel to Salt Lake City. United

States Magistrate Judge Robert T. Braithwaite’s chambers are located in the St. George

courthouse. Counsel further represents that parties who wish to have proceedings held in

4 Id. at ¶¶ 4, 8, 9.

5 Id. at ¶ 7.

6 Id. at ¶ 8.

7 Id. at ¶ 9.

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St. George must file the case in the District of Utah’s Central Division and then make

their request with the assigned Judge.

St. George is located less than an hour’s drive from the Twin Cities and has all of

the requisite amenities for the litigation of this case. Counsel for the Hildale Defendants

are unaware of any similar federal court facility within the District of Arizona that is as

geographically beneficial to all of the individuals involved with this matter and therefore,

this case should be transferred to the District of Utah.

A. Public and Private Factors Support Transfer to the District of Utah.

Saving six hours of travel time for access to proof and witnesses would make the

litigation of this case, and certainly trial, easier, more expeditious, and less expensive.

These savings would apply equally to the United States and to the Defendants.

Given the allegations in the Complaint, it appears that all of the evidence and

witnesses relevant to this case is located in the Twin Cities.8 Rule 45 requires that

subpoenas for depositions be issued from the Court for district in which the deposition is

being held and that witnesses are compensated for their time and travel fees. Fed. R. Civ.

P. 45(a)(2) & (b)(1). St. George is the city nearest to the Twin Cities that is suitable for

conducting depositions, meaning that deposition subpoenas would need to be issued from

the District of Utah. If this matter were already in the District of Utah, this would be a

more efficient use of federal court resources.

There are several unavoidable issues created by having an eventual trial in this case

held in the District of Arizona. First, any witnesses located in the State of Utah are beyond

the District of Arizona’s subpoena power for attendance at trial. See Fed. R. Civ. P.

45(b)(2). Furthermore, a district court cannot compel a witness who is located more than

100 miles from the place – meaning the actual courthouse – where the case is to be tried,

even if the witness is within the court’s district. See id. In other words, the District of

8 The only named individual who appears to be located outside of the Twin Cities is

Special Fiduciary of the UEP Trust, Bruce Wisan, who counsel can represent is located in Salt Lake City.

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Arizona lacks subpoena power over the vast majority, if not all, of the witnesses that may

be called at a trial of this matter. Even if this Court could compel these witnesses to

appear, the mileage fee alone for each witness would be over $400.009. Certainly, the

inability to compel any witnesses to testify at trial presents a significant problem for all of

the parties involved. On the other hand, St. George is less than 100 miles away from the

Twin Cities and therefore the District of Utah would have subpoena power over all of the

individuals located in the Twin Cities. This fact alone clearly demonstrates that the

District of Utah is a more appropriate venue than the District of Arizona.

Other factors also support the transfer of this case to the District of Utah. Both

Arizona and Utah share an interest in having this case litigated “at home” as at least some

of the alleged events giving rise to the Government’s claims occurred in both states.

Likewise, while it is uncertain from the face of the Complaint, it is fair to assume that the

aggrieved parties are residents of both Arizona and Utah and both states share an interest

in providing a means of redress for its own citizens. Furthermore, the UEP Trust, TCWA

and TCP are all organized under the laws of the State of Utah and thus the State of Utah,

as well as its residents who may be called to serve on a jury, would have a strong interest

in hearing this case locally.

B. Transfer to the District of Utah is More Convenient for All Parties.

Transfer of venue under section 1404 “must alleviate rather than merely shift

inconvenience to another party.” Berry, at *4 (citing Decker Coal, 805 F.2d at 843). Here,

both parties would benefit from this case been held in St. George.

As discussed in Section III.A., supra, both parties will likely be unable to compel

the attendance of certain defendants and witnesses at trial.

While the Complaint does not identify the individuals alleged to have been injured

by and/or subject to the Defendants’ allegedly unconstitutional conduct, it is apparent that

9 Calculated at the 2012 Federal mileage rate of 55.5 cents per mile multiplied by 744 miles, the shortest available round-trip distance between Hildale and Phoenix.

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they live in the Twin Cities or the surrounding vicinity.10

These individuals will naturally

be deposed and may be called to testify in an eventual trial of this matter. The aggrieved

parties may wish to attend hearings or other proceedings as the case progresses. There is

no doubt that it would be significantly more convenient for these people to travel to St.

George, a city that is close by and a place with which they are likely quite familiar, than to

make a 7-hour drive to Phoenix.

Practically speaking, counsel for the United States are located in Washington, D.C.

and would naturally be traveling by air to attend hearings, depositions, and ultimately

trial. Given the cost to have witnesses travel to Phoenix for depositions, it is substantially

more likely that counsel would instead travel to the Twin Cities area for the purposes of

taking depositions and gathering evidence. The airport closest to the Twin Cities is in St.

George, and there are several flights each day from Salt Lake City to St. George,

obviating the need for out-of-state counsel to drive hundreds of miles to meet with and/or

depose witnesses. Furthermore, any witnesses or individuals wishing or compelled to

attend a hearing or other proceeding would have no choice but to drive from the Twin

Cities to Phoenix. While there are ample flights between Salt Lake City and St. George, it

does not appear11

that there are any direct flights between St. George and Phoenix. In

short, the burden of litigating this case in the District of Arizona is shared by all of the

parties and the United States, like the Defendants, would benefit from this case being

transferred to the District of Utah.

III. CONCLUSION.

Based upon the foregoing facts and law, the Hildale Defendants respectfully

request that this Court grant their Motion and transfer the venue of this case to the District

of Utah.

10

Naturally, only residents of the Twin Cities are within the jurisdiction of the Marshal’s Office (and therefore subject to its alleged actions). Likewise, TCWA and TCP only provide(d) utility service to individuals residing in the Twin Cities. 11

Based upon counsel’s research.

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Dated this 10

th day of September 2012.

STIRBA & ASSOCIATES

By /s/ Kathleen Abke Peter Stirba R. Blake Hamilton Kathleen Abke 215 S. State St., Suite 750 Salt Lake City, UT 84110-0810 Attorneys for Defendants City of Hildale, Utah, Twin City Water Authority, and Twin City Power

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CERTIFICATE OF SERVICE

I hereby certify that on the 10

th day of September 2012, I electronically transmitted

the foregoing document to the Clerk’s Office using the CM/ECF system for filing and transmittal of Notice of Electronic filing to the following CM/ECF registrants:

R. Tamar Hagler

Eric W. Treene

Lori K. Wagner

Sean R. Keveney

Jessica C. Crockett

Anika Gzifa

Matthew J. Donnelly

United States Department of Justice

Civil Rights Division

950 Pennsylvania Avenue, NW

Washington, D.C. 20530

Attorneys for Plaintiff United State of America

Jeffrey C. Matura

Asha Sebastian

Graif Barrett & Matura, P.C.

1850 North Central Avenue, Suite 500

Phoenix, Arizona 85004

Attorneys for Defendant Town of Colorado City, Arizona

/s/ Zachary Hoddy

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