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IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
NAOMI ANTLE, an individual, and REUBEN REISENWEBER, an individual,Plaintiffs,
v.
STEPHAN KLOS, an individual, STEPHAN ANTHONY LARSON and JANE DOE LARSON and the marital community consisted thereof, BRIAN LARSON and JANE DOE LARSON and the marital community consisted thereof, KENNETH NEAL and JANE DOE NEAL and the marital community consisted thereof, BVISUAL GROUP LIMITED, a Washington limited liability company, BVISUAL USA, INC a corporation, BVISUAL, S.A., a Washington company, and JOHN DOES 1-5,
Defendants.
/ NO. 12-2-37063-0 SEA
MOTION TO DISMISS OR, OR IN THE ALTERNATIVE, TO TRANSFER OR CHANGE VENUE
I. Introduction
This motion requests the dismissal of this lawsuit or in the alternative transfer or change to the Superior Court for the State of Washington in and for the county of Okanogan.
The Plaintiff has not filed this case in the County where all the acts occurred which gives rise to this lawsuit, nor did any of the remaining Defendants reside, nor is it the venue agreed to in the contract. The moving party is requesting the Court toDismiss the moving Defendant or in the alternative Transfer or Change to the Proper Venue, which will also convenience the gross majority of witnesses, and further the ends of justice.
II. STATEMENT OF FACTS
Section One, Actions To Be Tried In The Proper County:
1.4.12.020(3)Actions to be tried in county where cause arose.Actions for the following causes shall be tried in the county where the cause, or some part thereof, arose:(3) For the recovery of damages for injuries to the person or for injury to personal property, the plaintiff shall have the option of suing either in the county in which the cause of action or some part thereof arose, or in the county in which the defendant resides, or if there be more than one defendant, where some one of the defendants resides, at the time of the commencement of the action.---Okanogan County is where all actions occurred which gives rise to the allegations in the complaint. Okanogan County is the only physical location in Washington of the company. (Dclr #4, 5)
2.4.12.025(1)Action to be brought where defendant resides…(1) An action may be brought in any county in which the defendant resides, or, if there be more than one defendant, where some one of the defendants resides at the time of the commencement of the action. --- Okanogan County is where, at all relevant times, the Defendant of this motion resided. (Dclr #1) At this time none of the Defendants reside in King County.
3.4.12.025(3)Action to be brought where defendant resides…(3) The venue of any action brought against a corporation, at the option of the plaintiff, shall be: (a) In the county where the tort was committed; (b) in the county where the work was performed for said corporation; (c) in the county where the agreement entered into with the corporation was made; or (d) in the county where the corporation has its residence.a)--Okanogan County is where the alleged action(s) occurred. No actions occurred in King County. (Dclr #4, 5, 6)b)--Okanogan County is where the alleged work occurred.No work occurred in King County. (Dclr #4, 5, 6)c)--Okanogan County is where the alleged agreement was entered into between the Plantiff andthe corporation. (Dclr #4, 5, 6) No contracts were entered into in King County.d)--Okanogan County is where the Defendant Corporation(s) may have residence. (Dclr #2, 3). No Defendant Corporation has ever had residence in King County. (Dclr #2, 3)--Furthermore, in the alleged contract the “…parties agreed that the venue of any legal action hereon be laid in Delaware, USA.”(Cite)Washington courts are authorized to assert personal jurisdiction over nonresident defendants to the extent permitted by the federal due process clause. Shute v. Carnival Cruise Lines, 113 Wn.2d 763, 766-67, 783 P.2d 78 (1989). States can exercise jurisdiction without violating due process if the nonresident defendant has certain minimum contacts with the state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Daimler AG v. Bauman, ___ U.S. ___, 134 S. Ct. 746, 754, 187 L. Ed. 2d 624 (2014) (citing the Court's canonical opinion International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945)). The central concern of the federal constitutional inquiry is the relationship between the defendant, the forum, and the litigation. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977).According to the WA Supreme Court the WA long-arm statute, designed to be coextensive with federal due process, subjects nonresident defendants to personal jurisdiction of Washington courts for any cause of action that arises from the transaction of any business within the state, among other conduct. See: RCW 4.28.185(1)(a). Three factors must coincide for the long-arm statute to apply:"(1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction must not offend traditional notions of fair play and substantial justice, considering the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protections of state laws afforded the respective parties, and the basic equities of the situation." Shute, 113 Wn.2d at 767 (quoting Deutsch v. W. Coast Mach. Co., 80 Wn.2d 707, 711, 497 P.2d 1311 (1972)). The court holds a corporation's actions cannot be simply imputed to a corporate officer or employee for purposes of determining whether there are minimum contacts necessary to establish jurisdiction. But it is just as true that an officer or employee is not automatically shielded from personal jurisdiction just because his contacts occurred in the context of his employment. Colder v. Jones, 465 U.S. 783, 790, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). Instead, "[e]ach defendant's contacts with the forum State must be assessed individually." Id.; see also Davis v. Metro Prods. Inc., 885 F.2d 515, 522 (9th Cir. 1989) (affirming states' authority to assert personal jurisdiction over corporate officers based on contacts performed in that capacity).Section Two, The Private And Public InterestsTo Be Considered:
4.12.030(1) and (3)
Grounds authorizing change of venue.
The court may, on motion, in the following cases, change the place of trial when it appears by affidavit, or other satisfactory proof:
(1) That the county designated in the complaint is not the proper county; or,
(3) That the convenience of witnesses or the ends of justice would be forwarded by the change;
(1)---The venue is not proper, as detailed above Section One and in reliance on:
4.12.020(3),
4.12.025(1),
4.12.025(3)(a) and (b) and (c) and (d), (Dclr #1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11)
Availability Of Compulsory Process For Attendance Of Unwilling, And The Cost Of Obtaining Attendance Of Willing, Witnesses;
The convenience of the witnesses is probably the single most important factor in the transfer analysis. Because of the importance of this factor, the moving party seeking transfer has clearly specified the key witnesses (including Plaintiff and Defendant witnesses) to be called and has made a general statement of what their testimony will cover (Exhibit A).
(3)---At least fifteen (15)of the named material key witnesses for the Plaintiff,during all relevant times, has been and remains a residence of Okanogan County. (Dclr #1, 2, 3, 7, 9, 10, Exhibit A)
Only one Defendant witnessesnamed by the Plaintiff resided in King County such Defendant has defaulted in this case and has been incarcerated in Coyote Ridge Correctional Facility, Franklin County. Therefore no weight should be assigned because this defendant/witness will have to travel to either venue.
The Plaintiff traveled to Okanogan County and met with these witnesses. (Dclr #5)
None of these witnesses or the Moving Defendant traveled to King County to meet with the Plaintiff. (Dclr #5)
2) Availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses;
--- At least two unwilling witnesses will not attend (Rand Renfroe and Jan Renfroe, divorced)
Rand Renfroe was the lead engineer for bVisual from 2006-2008 and Jan Renfroe was bVisual bookkeeper and Treasurer from 2007 – 2008. They are also parties to the lawsuit which was settled with Numbers Consulting and which the Plaintiffs refer to in 3.22.27 in their complaint
--- At least two willing witnesses will not attend (Dugan Henderson and John Moran) (Dclr #9)
Inconvenience
--- The gross majority of the witnesses reside in Okanogan County
Many of whom have had bVisual product demonstrations precisely similar to Plaintiff Antle and Reisenweiber (Dclr #7 and Exhibit A)
Many of these witnesses do not have the financial resources or time to travel to King County for hearings, depositions and trial. (Dclr #9)
The substantial convenience of witnesses and the ends of justice will be served if the venue is changed to Okanogan County.
The Relative Ease Of Access To Sources Of Proof;
The place where the defendant's documents are kept weighs in favor of transfer to that location.
In this case, 9 of the 9 claims raised by the plaintiff are related to the sale of securities for bVisual for various reasons, (3.5) the demonstration of the company’s product, (3.13) the employees, and (3.2) the company’s physical location and existence. The relevant documents, the product for demonstration, the employees and the company’s physical location and existence are located at its headquarters in Okanogan County. (See Plaintiff Complaint)
1) Ease of access to sources of proof;
--- The gross majority of evidence is located in Okanogan County. (Dclr #8)
2) Availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses;
--- At least two unwilling witnesses will not attend (Rand Renfroeand JanRenfroe, divorced)
Rand Renfroewas the lead engineer for bVisual from 2006-2008 and Jan Renfroewas bVisual bookkeeper and Treasurer from 2007 – 2008. They are also parties to the lawsuit which was settled with Numbers Consulting and which the Plaintiffs refer to in 3.22.27 in their complaint
--- At least two willing witnesses will not attend (Dugan Henderson and John Moran) (Dclr #9)
Inconvenience
--- The gross majority of the witnesses reside in Okanogan County
Many of whom have had bVisual product demonstrationsprecisely similar to Plaintiff Antle and Reisenweiber (Dclr #7 and Exhibit A)
Possibility Of View Of Premises, If View Would Be Appropriate To The Action;
3) The possibility of view of premises, if view would be appropriate to the action;
--- The only premise is in Okanogan County (Dclr #2, 3)
--- The Plaintiff alleged there is no business, a viewing of the business in its premises,and a viewing of its work-product would be conclusive and appropriate. And a viewing of the retail product would be conclusive and appropriate. (Dclr #2, 3, 5, 11)
All Other Practical Problems That Make Trial Of A Case Easy, Expeditious And Inexpensive:
[open for other non-categorized items]
(Cite)
Forum non-conveniens is the issue of making a party travel to King County.
The WA Supreme Court first recognized the doctrine of forum non conveniens in Werner v. Werner, 84 Wash.2d 360, 371,526 P.2d 370 (1974). Under the doctrine, courts have discretionary power to "[decline] jurisdiction where, in the court's view, the difficulties of litigation militate for the dismissal of the action subject to a stipulation that the defendant submit to jurisdiction in a more convenient forum." Werner, at 370, 526 P.2d 370. The standard of review applicable to a decision to dismiss on forum non conveniens grounds is abuse of discretion. Such a dismissal may only be reversed if it is "manifestly unfair, unreasonable or untenable." General Tel. Co. v. Utilities & Transp. Comm'n, 104 Wash.2d 460, 474, 706 P.2d 625 (1985).
The doctrine presupposes that there are at least two forums in which the defendant is amenable to process. Werner, 84 Wash.2d at 370, 526 P.2d 370. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947), the United States Supreme Court set out the criteria for choosing the appropriate forum. This court adopted the Gulf Oil factors in Johnson[794 P.2d 1276] v. Spider Staging Corp., 87 Wash.2d 577, 555 P.2d 997 (1976).
Recognizing that application of the doctrine is within the discretion of the trial court, the Supreme Court expressly declined to set up bright line rules. Instead, the Court set out a list of private and public interest factors to be considered and balanced.
The private interests to be considered are as follows:
the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. See:Gulf Oil, 330 U.S. at 508, 67 S.Ct. at 843.
The Court also said the following:
There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.
Gulf Oil, at 508, 67 S.Ct. at 843.
The Court also set out public interest factors to be considered:
Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself. Gulf Oil, at 508-09, 67 S.Ct. at 843.
4.4.12.090(1)Transmission of record on change of venue — Costs, attorney's fee.(1)…except in the cases mentioned in RCW 4.12.030(1), in which case the plaintiff shall pay costs of transfer and, in addition thereto, if the court finds that the plaintiff could have determined the county of proper venue with reasonable diligence, it shall order the plaintiff to pay the reasonable attorney's fee of the defendant for the changing of venue to the proper county.Attorney fees and cost should be awarded. The Plaintiff and/or the attorney for the Plaintiff having exercised reasonable due diligence could have determined the proper county for this action. Reasonable due diligence would have been:1. Checking the online Public Records.2. Reading the contract.3. Paying attention to where they were serving the defendants.4. Reading the interrogatories provided by the corporate defendants.5. Asking the attorney for the defendant or in the case of a “pro se defendant” asking the defendant.Any of the above acts of due diligence would have raised the venue issue.
III. ISSUE
Whether the Defendants REQUEST FOR DISMISSAL or in the alternative REQUEST FOR CHANGE OF VENUE TO OKANOGAN COUNTY should be granted.
Whether or not it would be proper and equitable to award the Defendant Reasonable Attorney Fees.
IV. AUTHORITY
4.12.030(1) and (3)Grounds authorizing change of venue. The court may, on motion, in the following cases, change the place of trial when it appears by affidavit, or other satisfactory proof:(1) That the county designated in the complaint is not the proper county; or,(3) That the convenience of witnesses or the ends of justice would be forwarded by the change;
V. CONCLUSION
Based on the foregoing, this case properly should have been in Okanogan County. The court has the authority to Dismiss or in the alternative Transfer or Change the Venue to the proper venue, i.e. Okanogan County. In doing so, the court will convenience the gross majority of the witnesses, substantially reduce the costs, make evidence readily available, furthering the ends of justice and allowing an equitable resolution of this dispute.
As shown above, had there been reasonable due diligence or a Stipulated Agreement, this motion would not have been required. It is proper and equitable to award the Defendant Reasonable Attorney Fees.
DATED this _nn_ day of _October_, 2014
By______
Stephan Anthony (Tony) Larson
624 Central
Oroville, WA 98844
Motion of change venue -1