329 F.Supp.2d 172 (2004) | Cited 0 times | D. Maine | August 19, 2004


Before the Court is Defendant's Motion to Transfer (Docket #12) through which Defendant seeks to have this action transferredto the United States District Court for the District of Columbiain hopes that it would then be consolidated with Oceana, Inc. v.Evans, Civ. No. 04-811 (D.D.C.). (See Ex. 1. to Docket # 25.)Plaintiff opposes the Motion to Transfer.

For the reasons explained below, the Court DENIES the Motion.


The authority for one district court to transfer an action toanother district is found in 28 U.S.C. § 1404(a), which states:"For the convenience of parties and witnesses, in the interest ofjustice, a district court may transfer any civil action to anyother district or division where it might have been brought."Id. As the First Circuit has explained, "the burden of proofrests with the party seeking transfer; there is a strongpresumption in favor of plaintiff's choice of form." Coady v.Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir. 2000). The First Circuit has also instructed that district courtsconsidering transfer should consider not only the convenience ofthe parties and witnesses but also "the availability ofdocuments; the possibility of consolidation; and the order inwhich the district court obtained jurisdiction." Id.Ultimately, the decision to transfer rests in the discretion ofthe court.


Plaintiff Associated Fisheries of Maine, Inc. ("AFM") filed itscomplaint on May 27, 2004. AFM seeks to challenge a final rulepublished by the Secretary of Commerce on April 27, 2004.Specifically, Plaintiff Associated Fisheries of Maine ("AFM")seeks to challenge a discrete portion of the final ruleimplementing Amendment 13 to the Northeast Multispecies FisheryManagement Plan ("Amendment 13").

Amendment 13 was promulgated using the procedures laid out inthe Magnuson-Stevens Act, 16 U.S.C. § 1801 et seq. TheMagnuson-Stevens Act created eight regional fishery managementcouncils, which are charged with preparing fishery managementplans ("FMPs") for their respective fisheries. See16 U.S.C. § 1852. FMPs and amendments to FMPs generally seek to conserve andmanage various fish populations in order to prevent overfishingand eventual collapse of regulated fisheries. FMPs and amendmentsto FMPs are transmitted from the fishery management council tothe Secretary of Commerce, who is charged with reviewing theplans and taking the steps necessary to turn approved FMPs oramendments to FMPs into final published regulations.1See 16 U.S.C. § 1854. Following this process, Amendment 13 was developed by the New England Fishery Management Council ("NEFMC")and transmitted to the Secretary of Commerce.2

In addition to the AFM case now pending before this Court,there are at least three other cases pending before Judge Huvellein the U.S. District Court for the District of Columbia thatinvolve challenges to the administrative rulemaking that resultedin Amendment 13. In an order dated August 12, 2004, Judge Huvelleconsolidated Oceana, Inc. v. Evans, Civ. No. 04-811 (D.D.C.)(filed May 18, 2004), Conservation Law Foundation, et al. v.Evans, et al., Civ. No. 04-839 (D.D.C.) (filed May 25, 2004),and Trawlers Survival Fund v. Evans, Civ. No. 04-862 (D.D.C.)(Filed May 27, 2004) (together, the "Consolidated D.C. Cases").


In his Motion to Transfer, the Defendant, Secretary of CommerceDonald Evans, essentially argues that the interest of justicewill be best served if this action is transferred to JudgeHuvelle for potential consolidation with the three cases listedabove. The question for the Court is whether Defendant can meethis burden in showing that the interest of justice would beserved by a transfer and should therefore trump the "strongpresumption in favor of plaintiff's choice of forum." Coady,223 F.3d at 11.

Plaintiff objects to the Secretary's attempt to have thisaction transferred and urges the Court to keep the case in theDistrict of Maine. AFM attempts to distinguish its challenge fromthe Consolidated D.C. Cases, which, according to AFM, "allpresent different issues" that "cover a wide range and includecomplex issues that are not readily susceptible to expeditedresolution." (Pl.'s Opp. to Transfer Mot. (Docket # 19) at 3.) In contrast, Plaintiff frames its challenge to Amendment 13 aslimited to one phrase — "not to exceed the vessel's annualallocation prior to August 1, 2002" — which it claims theSecretary arbitrarily and capriciously inserted into the finalrule implementing Amendment 13, thereby further limiting thepotential days at sea ("DAS") that AFM members may spend engagedin commercial fishing.

Having reviewed both AFM's complaint and the three complaintsfiled in the Consolidated D.C. Cases, the Court finds that AFMdoes present a unique narrow challenge to a particular provisionof Amendment 13. Undoubtedly, AFM's claims do overlap with theclaims presented in the Consolidated D.C. Cases. However, thepending case and the Consolidated D.C. Cases are by no meansidentical. See, e.g, Cianbro Corp, v. Curran-Lavoie, Inc.,814 F.2d 7, 11 (1st Cir. 1987) (explaining that "the first filedaction is generally preferred in a choice-of-venue decision"where the actions are "identical").

Rather, the broad challenges to Amendment 13 presented in theConsolidated D.C. Cases arguably will require the court to reviewmany substantive portions of Amendment 13 as well multipleprocedural aspects of the rulemaking process that are totallyirrelevant to AFM's claim. By way of example, the ConsolidatedD.C. Cases clearly challenge many aspects of Amendment 13 thatwere developed by the NEMFC. By comparison, AFM's Complaintstates: "AFM does not challenge the DAS restriction that theNEFMC has lawfully imposed, but the additional restriction thatthe [Secretary] unilaterally seeks to impose are unlawful."(Compl. ¶ 6.) In short, the Court finds that because of thenarrow challenge brought by AFM, AFM's claim can be resolvedseparately from the Consolidated D.C. Cases without a potentialfor inconsistent judgments. Moreover, the narrow nature of AFM's challenge wouldallow this Court to rule on the AFM matter more quickly than theU.S District Court for the District of Columbia will be able toresolve the multiple complex questions already posed by theConsolidated D.C. Cases.

Faced with Defendant's attempt to subsume its narrow challengeinto the broader challenges to Amendment 13 contained in theConsolidated D.C. Cases, AFM expresses particular concern thattransfer and consolidation of its claims will result in a delayeddecision on its narrow challenge. AFM essentially contends thattime is of the essence. To the extent the language they challengehas the effect of further limiting the days at sea that itsmembers are allowed in the current fishing season, AFM seeks adecision that prevents the Secretary from enforcing andinterpreting that language to the detriment of AFM's members assoon as possible and hopefully prior to the end of the currentfishing season, which ends on April 30, 2005.

AFM argues that transfer of the case will likely prevent adecision before the end of the current fishing season. Thus, AFMbelieves that transfer would not serve the interest of justiceand would also not serve the dictate of the Magnuson-Stevens Act,which calls on courts to review challenges to regulationspromulgated under the Act "at the earliest possible date" and to"expedite the matter in every possible way."16 U.S.C. § 1855(f)(4).

In light of the harm that would come from a delayed decision onAFM's challenge and the statutory mandate that the Court"expedite" challenges such as those presented by AFM, the Courtconcludes that a transfer would not serve the interest ofjustice. The Court notes that it has considered Defendant'sargument that the interest of justice would be advanced if only one court was required to review thevoluminous administrative record on Amendment 13. Defendantcorrectly points out that this type of consolidation couldpromote judicial efficiency. However, the Court believes that itsreview of AFM's challenge can proceed efficiently with the helpof technology3 as well as the parties' utilization of theDistrict of Maine's Local Rule 56.4 Thus, in the Court'sassessment, the interest of justice is best served by allowingPlaintiff's challenge to proceed to a prompt resolution in itshome forum.

Moreover, the Court notes Defendant clearly has not shown thattransfer will result in more convenience for the parties to thislitigation. In fact, the Secretary initially asserted that theconvenience of the parties and witnesses did not favor eitherjurisdiction.5 For its part, AFM asserts that it would beless convenient and more expensive for it to have to litigate itsdispute in the District of Columbia, especially if its case wereto join the Consolidated D.C. Cases. In short, it appears that itwould be more convenient for AFM to continue to press itschallenge before this Court.


The Court finds that Defendant has not overcome the strongpresumption in favor of Plaintiff's home forum and has not methis burden of showing that transferring this case to the U.S.District Court for the District of Columbia would serve theinterest of justice or the convenience of the parties and witnesses. For thisreason, the Motion to Transfer is DENIED.

The parties are reminded that the Court has already granted thePlaintiff's unopposed motion to expedite this matter pursuant tothe parties' proposed schedule. (See Docket # 15.) Under theexpedited schedule, the briefing schedule for the crossmotionsfor summary judgment will be triggered upon Plaintiff's receiptof Defendant's Answer and the Administrative Record.


1. The Magnuson-Stevens Act also includes some provision bywhich the Secretary may engage in rulemaking without receivingproposals from a fishery management council. See16 U.S.C. § 1854(c).

2. The Court notes at the outset that the promulgation ofAmendment 13 was also done in an apparent response to variouscourt orders issued following the decision in Conservation LawFoundation v. Evans, 209 F. Supp. 2d 1 (D.D.C. 2001).

3. The Court notes that Defendant has agreed to provide thisCourt with a copy of the administrative record in searchableCD-ROM format. (See Docket #s 27 & 28.)

4. In connection with the cross-motions for summary judgment,the parties are urged to read and comply with the procedures forfiling statements of material fact laid out in Local Rule 56. Inaccordance this rule, the parties are reminded that: "The courtmay disregard any statement of fact not supported by a specificcitation to record material properly considered on summaryjudgment. The court shall have no independent duty to search orconsider any part of the record not specifically referenced inthe parties' separate statement of facts." Local Rule 56(e).

5. With respect to witnesses, both parties admit thatwitnesses are unlikely to be an issue since the case will likelybe resolved by cross-motions for summary judgment and the Court'sreview of the administrative record.

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