order on change of venue motion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

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 Venue1

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.

1Docket No. 24.

2Docket No. 32.

ORDER – Motion for Change of Venue - 1 -

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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-

3Docket No. 24 at 1.


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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 marshal’s

office, fire department, and water plant serve both towns. Arizona

has caused the Mohave County sheriff’s office to intervene in law

enforcement in Colorado City.

Plaintiff’s 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 marshal’s office. Plain-

tiff’s 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.

Plaintiff’s 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 plaintiff’s complaint, all

of the matters of which plaintiff complains have taken place within

the towns and through employees or instrumentalities of the towns.

4The court has granted a Rule 12(b)(6), Federal Rules of CivilProcedure, dismissal of plaintiff’s third cause of action withleave to renew.


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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.


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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 court’s 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 court’s perception that such a

contention overstates the kind of balancing which the court does on

a motion to transfer venue. The plaintiff’s 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 court’s 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.


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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

sheriff’s 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


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Utah. Because there is a public interest and an appropriate nexus

between the District of Arizona and the allegations of plaintiff’s

complaint with respect to the defendants, this case does not pre-

sent an unfair burden on Arizona jurors. Finally, because plain-

tiff’s 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 plaintiff’s

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 plaintiff’s 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,


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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 plaintiff’s 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

plaintiff’s 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

5Defendants appear to argue that a trial subpoena issued forPrescott, Arizona, must be quashed because Colorado City is over100 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).


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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

6The plaintiff initially suggested that Page, Arizona, mightbe a possible trial site; but the federal facility there is a parkservice ranger station, not a courthouse. It would not be possibleto try this case at Page, Arizona. The parties have also discussedthe possibility of Flagstaff, Arizona, as a trial site. Thecourt’s inquiries as to the utility of the federal court facilityat Flagstaff suggests that facility would be unsatisfactory for ajury trial of more than a few days’ duration involving at leastthree sets of lawyers.

Laying aside Salt Lake, Utah, and Phoenix, Arizona – neitherof which has been suggested – St. George, Utah, and Prescott,Arizona, are the only two viable alternatives. The court knowsthat the facility at Prescott is regularly used for district courttrials, and inquiries suggest that the District of Utah has asuitable facility at St. George.


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duties. The court perceives no great inconvenience to the defen-

dants’ witnesses in favoring plaintiff’s 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 plaintiff’s 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


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order on change of venue motion

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