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 Venue
1
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.
1
Docket No. 24.
2
Docket No. 32.
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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-
3
Docket 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 marshals
office, fire department, and water plant serve both towns. Arizona
has caused the Mohave County sheriffs office to intervene in law
enforcement in Colorado City.
Plaintiffs 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 marshals office. Plain-
tiffs 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.
Plaintiffs 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 plaintiffs complaint, all
of the matters of which plaintiff complains have taken place within
the towns and through employees or instrumentalities of the towns.
4
The court has granted a Rule 12(b)(6), Federal Rules of Civil
Procedure, dismissal of plaintiffs third cause of action with
leave 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 courts 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 courts perception that such a
contention overstates the kind of balancing which the court does on
a motion to transfer venue. The plaintiffs 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 courts 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
sheriffs 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 plaintiffs
complaint with respect to the defendants, this case does not pre-
sent an unfair burden on Arizona jurors. Finally, because plain-
tiffs 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 plaintiffs
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 plaintiffs 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 plaintiffs 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
plaintiffs 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
5
Defendants appear to argue that a trial subpoena issued for
Prescott, Arizona, must be quashed because Colorado City is over
100 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
6
The plaintiff initially suggested that Page, Arizona, might
be a possible trial site; but the federal facility there is a park
service ranger station, not a courthouse. It would not be possible
to try this case at Page, Arizona. The parties have also discussed
the possibility of Flagstaff, Arizona, as a trial site. The
courts inquiries as to the utility of the federal court facility
at Flagstaff suggests that facility would be unsatisfactory for a
jury trial of more than a few days duration involving at least
three sets of lawyers.
Laying aside Salt Lake, Utah, and Phoenix, Arizona neither
of which has been suggested St. George, Utah, and Prescott,
Arizona, are the only two viable alternatives. The court knows
that the facility at Prescott is regularly used for district court
trials, and inquiries suggest that the District of Utah has a
suitable facility at St. George.
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duties. The court perceives no great inconvenience to the defen-
dants witnesses in favoring plaintiffs 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 plaintiffs 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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