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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 bhamilton@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, REPLY MEMORANDUM IN SUPPORT OF HILDALE DEFENDANTS MOTION FOR Town of Colorado City, Arizona; City of CHANGE OF VENUE Hildale, Utah; Twin City Power; and Twin City Water Authority, Inc., (Oral Argument Requested) Defendants. v. Case No. CV-12-8123-PCT-HRH

Defendants City of Hildale, Utah (Hildale), Twin City Power, and Twin City Water Authority, Inc. (collectively the Hildale Defendants), pursuant to 28 U.S.C. 1404(a), hereby file their Reply Memorandum in Support of their Motion for Change of Venue. Doc. 42. Specifically, 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 justice. ARGUMENT I. SECTION 1404(a) STANDARD. The United States incorrectly states the standard in its response in opposition. Section 1404(a), provides:

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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 might have been brought. 28 U.S.C. 1404(a) (emphasis added). The decision of whether to grant a motion under this statute is within the broad discretion1 of the district court. Berry v. Potter, 2006 WL 335841, *3 (D. Ariz. 2006) (not reported) (citing Jones v. GNS Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000)). The determination requires an individualized, case-bycase consideration of convenience and fairness. Jones, 311 F.3d at 498 (internal quotations omitted). This analysis is not, as the United States asserts, guided by the principle that the United States choice of forum is afforded great weight. United States Response to Hildale Defendants Motion for Change of Venue (Opposition), Doc. 33, 7: 19-20. It is, rather, a balancing test, which weighs the interests of convenience and justice against the deference given to plaintiffs choice of forum. As a result, the deference traditionally given to the plaintiffs choice of forum is far from absolute. The United States Supreme Court explained that [a] plaintiff sometimes is under temptation to resort to a strategy of forcing the trial at a most inconvenient place for an adversary, even at some inconvenience to himself. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947). While the plaintiffs are entitled to some deference in their choice of forum, they are not entitled to, by choice of an inconvenient forum, vex, harass, or oppress the defendant by inflicting upon him the expense or trouble not necessary to his own right to pursue his remedy. Id. at 508 (emphasis added) (internal quotations omitted). Thus, despite the deference to a plaintiffs choice, when the balancing test reveals a sufficiently strong showing of inconvenience, that choice must be changed. See, e.g., Berry, *4 (finding sufficient showing of inconvenience even when the choice of forum was given extra deference). Such is the case here. Courts actually have more discretion to transfer under this section than they had to dismiss on grounds of forum non conveniens, a doctrine from which the balancing test derives. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 252 (1981).
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II.

THE BALANCE OF RELEVANT FACTORS WEIGHS IN FAVOR OF CHANGING VENUE. Courts consider a variety of private2 and public3 factors as part of the balancing test

under 1401(a). The United States has identified certain factors which it incorrectly argues favor denying a change in venue. Some of those factors are simply irrelevant to this case and this analysis. Others actually favor changing venue, or at the very least are neutral and cannot be said to favor either side of the balancing test. A. The United States Identifies Irrelevant and Incorrect Facts Entitled to No Weight.

The United States argues that Colorado Citys physical size, population size, and estimated revenues indicate that Arizona is the appropriate forum for this case. While mildly interesting, a comparison of Hildale and Colorado Citys raw statistics is entirely irrelevant to the 1401(a) analysis, which is centered on convenience. The United States points to no case where such information is relevant to this analysis, and even if it where, it still does not weigh against changing venue.4 Furthermore, the United States has not alleged the entire population of the Twin Cities has been wronged, but rather only nonFLDS individuals. The general population numbers say nothing regarding the number of non-FLDS individuals located in either Hildale or Colorado City. The United States points to other irrelevant facts, like the location of the Fire Department and the water treatment plant, to somehow support the conclusion that
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Including the relative ease of access to sources of proof; availabilty 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. Gulf Oil, 330 U.S. at 508. 3 Including administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Piper Aircraft, 454 U.S. at 241 n.6. 4 See infra, section II.B. and C. (the speculation that it is likely that witnesses and evidence will be in Colorado City based on population size is incorrect based upon the witnesses currently known).
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Arizona is a more appropriate forum. However, the Complaint does not involve the Fire Department or water treatment. The United States points to the fact that the Marshals Office is located in Colorado City, but neglects to mention a fact made clear in the Complaint, that the Marshals Office serves both Hildale and Colorado City. See Complaint, 4, n. 1. Interestingly, the United States also cites to, and attaches, the intergovernmental agreement between Hildale City and Colorado City regarding Twin City Water Authority (TCWA), which serves both cities. The United States doesnt even explain how this fact shows that Arizona is a more convenient forum, and neglects to mention that the TCWA offices are located in Utah. Finally, the United States points out that the Cottonwood Zoo and Park are located in Colorado City, but fails to mention that the Defendants have filed a pending Motion to Dismiss which challenges the allegation that these properties are even owned, operated, or managed by the Cities. Thus, the United States conclusion that, based on these facts, Colorado City is the principal city is simply not helpful to this Courts analysis. B. Hildale Defendants Contacts with Arizona Carry No Weight.

The United States argues that, because Hidale Defendants have contacts with Colorado City, the public factor of degree of contacts weighs in the favor of maintaining the case in Arizona. What the United States ignores is the fact that Colorado City has just as many, if not more,5 relevant contacts with Utah that would directly negate any weight given to Arizona as an appropriate venue. As the United States freely admits, the Marshals Office, TCWA, and Twin City Power (TCP) serve(d) both Hildale, Utah and Colorado City, Arizona. See Complaint, 4, 8, 9. Additionally, the United States, again referencing the population size of Colorado City in comparison with Hildale, speculates that the case will likely involve more of Defendants contacts with Arizona than with Utah. Population ratios are not determinative of number of contacts, and the weighing of

For example, Colorado Citys population receives its water, and at one time, its power, from Utah-based companies (TCWA and TCP).
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contacts should not be measured in terms of probability.6 Thus, any contacts between the two Cities cancel each other out and have no effect on the final analysis. C. The Cost of Litigation and Ease of Access to Proof Weigh in Favor of Changing Venue.

The United States argues that keeping this case with the District of Arizona will not appreciably impact costs and ease of access to evidence. The United States asserts that it will work with the Parties to reduce needless expense and hardship during discovery, indicating that technological advancements have made access to documents less of a burden, generally. Opposition, 10: 8-9, 23-25. Regardless of the unnamed technological advancements to which the United States refers, the Twin Cities are very small, rural communities and are unlikely to have the means and/or demand for technological systems to keep their records. As a result, much of the records review will require the parties to physically review documents where they are kept, in the Twin Cities area. The United States claims that changing venue to St. George will shift the costs to the plaintiff, but does not explain how this would occur. In fact, the United States does not dispute that the Phoenix courthouse (where the United States wishes to transfer this case to be heard by Judge Teilborg) is at least 7 hours from the Twin Cities, or that the St. George courthouse is less than an hour from the Cities. It also does not dispute the distance between major airports and the Twin Cities. Travel time can be an extremely costly part of litigation. Saving six hours of travel time by moving the case to St. George would dramatically reduce these costs for all parties.7

See, e.g., Galli v. Travelhost, Inc., 603 F.Supp. 1260, 1262 (D. Nev. 1985) ([t]he simple assertion that the necessary witnesses probably reside in a certain forum is not sufficient to grant 1401(a) motion).
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See Hildale Defendants Motion to Change Venue, Doc. 24. Hildale Defendants note that this case is currently being heard in Prescott, Arizona, which is over 6 hours from the Twin Cities. Therefore, even if the United States is unsuccessful in its motion to transfer the case to Judge Teilborg in Phoenix, moving the case to St. George would still save over 5 hours travel time for all parties.
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With regard to witnesses, the United States indicates that some possible witnesses have moved out of the Twin Cities, but does not indicate who these individuals are or where they have moved. Additionally, the United States argues that more of the witnesses are likely to come from Colorado City because it has a larger population than Hildale. Since the United States has refused to identify any of the individuals involved in the events alleged in the Complaint, there is no way to test this theory. However, in its Opposition, the United States admitted that many of the patterns and practices alleged in the Cooke case are also alleged in the instant action. Opposition, 14:9-10. The pattern and practice witnesses called by the Plaintiffs and Plaintiff/Intervenors in the Cooke case were: Steven Bateman of Sandy, Utah; Marion Timson of Herriman, Utah; Aaron Timson of Herriman Utah; Matthew Musser of Centennial Park, Arizona; Ron and Jinjer Cooke of Colorado City, Arizona; Joseph Young of St. George, Utah; John Cooke of Centennial Park, Arizona; and Richard Holm, currently living in Montana.8 According to the United States theory, the majority of these witnesses should be in Colorado City, because Colorado City has a larger population that Hildale. However, of nine witnesses, only two are located in Colorado City, and five are located outside of Arizona. The United States claims will require essential witnesses from the United Effort Plan Trust (UEP), who were also identified in the Cooke case. See Complaint, 11-14. Those witnesses include: Bruce Wisan (UEP Special Fiduciary); Jethro Barlow, Andrew Chatwin, and Isaac Wyler (UEP Employees); Katie Cox, Margaret Cooke, Don Timpson, Robert Huddleston, Deloy Bateman, and Carolyn Jessop (UEP Advisory/Housing Board Members).9 Of these eleven witnesses, only one lives in Colorado City: Isaac Wyler. The remaining ten witnesses live in Utah, many in Hildale City. Other witnesses from the Cooke case that are essential, non-party witnesses here are former Hildale City Mayor (of 20 years) David Zitting, and former Hildale City Manager Jeremiah Barlow, both Hildale
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See Exhibit A, an exceprt from Plaintiff-Intervenor State of Arizonas 11th Supplemental Disclosure Statement in the Cooke case, No. 10-CV-08105. 9 Id.
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City residents.10 With respect to the United States claims regarding water hookups, an essential witness would be Brian Zitting, an engineer who was once hired by TCWA, Colorado City and Hildale, who also resides in Utah.11 Based upon what little information the United States has provided regarding its witnesses, the vast majority of those witnesses reside in Utah, not Arizona, and those that do not live in Utah are still mostly in the Twin Cities area, which is less than an hour from the St. George courthouse. With regard to alternative Arizona court locations, the United States mentions in passing that District of Arizona has facilities located in Flagstaff and Page. However, the Flagstaff courthouse is still an approximate 4.5 hour drive from the Twin Cities. The Page facility is over a 2 hour drive from Hildale City, more than double the time to drive from Hildale City to St. George. Most importantly, the United States has grossly misrepresented the nature and capabilities of the facility in Page, Arizona, where the United States alleges this Court could hear the case. Counsel for Hildale Defendants can represent to the Court that they called the number listed for the Page facility on the Arizona District Courts website. The number was actually for a magistrate judge in Flagstaff. The clerk informed counsel that the Page facility is a ranger station on the shores of Lake Powell, which confirmed the information on the Arizona District Court website.12 The ranger station deals with Civil Violations Bureau (CVB) matters, which involve civil violations on federal land. The ranger station does not even have a courtroom, and is used only as a satellite court for the magistrate judge in Flagstaff to hold court on a temporary basis. The ranger station would be wholly inadequate to hold trial for a case like this. For the United States to suggest that this Court could hear the case at this facility is blatantly incorrect.

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Id. Id.

See Map and Photograph of Page ranger station, available at http://www.azd.uscourts.gov/azd/contacts.nsf/f99c364bec42218707256ec10063ad79/5c54 6612f55393d707257463005acb1b?OpenDocument.
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D.

The Availability of Compulsory Process Factor Weighs in Favor of Transfer.

The United States incorrectly states the effect of Rule 45 on the subpoena powers of district courts. Rule 45(b)(2) provides that: Subject to Rule 45(c)(3)(A)(ii), a subpoena may be served at any place: (A) within the district of the issuing court; [or] (B) outside the district but within 100 miles of the place specified for the deposition, hearing, trial, production, or inspection; . . .. Id. (emphasis added). Rule 45(c)(3)(A)(ii) limits this provision by providing that: On timely motion, the issuing court must quash or modify a subpoena that: . . . (ii) requires a person who is neither a party nor a partys officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; . . .. Id. (emphasis added). Rule 45(c)(3)(B)(iii) limits the same state exception by stating that a court may quash or modify a subpoena that requires: (iii) a person who is neither a party nor a partys officer to incur substantial expense to travel more than 100 miles to attend trial. Combining these three layers of the subpoena rule into one statement, a subpoena must be quashed when it attempts to compel a non-party to travel more than 100 miles from his or her home or job to a trial within the same state. Therefore, the United States is incorrect when it states that holding the trial at the Page ranger station (assuming this were even possible, see supra section II.C.) would solve the problem of compulsory process, because non-party witnesses residing in Utah could not be compelled to attend trial in Arizona, regardless of whether the distance was less than 100 miles.

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Of course, the same Rule 45 would apply to the compulsory process power of the St. George court, would not extend outside of the state of Utah, and therefore could only compel the trial attendance of non-party witnesses located within 100 miles and in the same state.13 There is no indication from the Complaint or the United States Opposition that convincingly shows an anticipated distribution of witnesses between the Twin Cities. Since the United States has refused to identify witnesses, this balancing would be, at a minimum, neutral but, relying on the United States assertion that many of the witnesses will be the same as those involved in the Cooke case, see supra, the majority, if not all, of those witnesses live in Utah. Thus, the availability of compulsory process of witnesses factor weighs in favor of transfer. E. The Public Interests of the Arizona Attorney General and the Mohave County Sheriffs Office are, at a Minimum, Neutral.

The United States claims that public interests favor keeping the case in Arizona because that is where the Cooke case is currently pending. However, no court has found that the Cooke case (involving FHA and AFHA claims with respect to an individual plaintiff) is actually related to this case, which raises two entirely different claims, has completely different plaintiffs and even implicates different defendants. Therefore, this allegation cannot be considered to weigh in favor of either venue. Furthermore, if the United States is genuinely concerned that the Cooke case could result in conflicting decisions, the United States FHA claim must be nearly identical to that made in the Cooke case. If this is true, then this claim is redundant and the United States should have intervened into the Cooke case instead of filing a separate action. The United States also alleges that Arizona has an interest in having the case kept in the Arizona District because the Mohave County Sheriffs Office has decided to patrol Colorado City due to its concerns about the Marshals Offices performance. Such The United States also attempts to place the burden on Hildale Defendants to identify witnesses that will need to be compelled to testify. However, the United States has refused to provide any information that would allow Hildale Defendants to do so.
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concerns are self-serving, based on no form of official adjudication, and legislation motivated by those same concerns was defeated in Arizona. However, even if such concerns were legitimate, they would equally apply to the citizens of Hildale, Utah, where the same Marshals Office was also challenged by defeated legislation. Therefore, these facts do not weigh in the favor of keeping the case in Arizona. CONCLUSION The United States is not entitled to force Hildale Defendants to defend themselves in a forum that is totally inconvenient for all parties. A more convenient forum exists in St. George. The convenience of that forum outweighs the Plaintiffs interest in keeping the case in Arizona. Therefore, Hildale Defendants respectfully request that the Court grant its Motion for Change of Venue. Dated this 8th day of October 2012. STIRBA & ASSOCIATES

By /s/ R. Blake Hamilton 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 8th day of October 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/ Heather Sias

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