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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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2


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 plaintiffs 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 forums 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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3


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 courts
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 Complaints
allegations are based upon the alleged actions and conduct of the Marshals 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 Governments 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 Utahs
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. Braithwaites 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 Utahs Central Division and then make
their request with the assigned Judge.
St. George is located less than an hours 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 Arizonas 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 courts 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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6


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 $400.00
9
. 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 Governments 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 appear
11
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 Marshals
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 counsels 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 Clerks 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

Case 3:l2-cv-08l23-HRH Document 24 Filed 09/l0/l2 Page 9 of 9