UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

LAWRENCE TREPP EL, Der ivatively On Behal f of NORF OLK SOUTH ERN CORP ORATION, P laintif f, v. Civil Action No. 10-1641 (JD B) J. P AUL REASON et al., Defendan ts, - and - NORF OLK SOUTHE RN CORP ORATION, Nom inal Def

endant.

MEMORAN DUM OP INION Plaintiff L awr ence Treppe l (" plaintiff" ) bring s this verified shar eholder derivative action ag ainst Norfolk Southern Corpor ation (" Norfolk Southern" ) and c urre nt and forme r member s of Norfolk Southern' s Boa

rd of Dir ector s and Audit Commit tee ( collectively , "de fenda nts"), alleg ing violations of Vir g inia state cor porate law, includingbrea ch of f iduciary duty , waste of corpor ate a ssets, and unjust enrichme nt. Now bef ore the Court is defenda

nts' motion to dismis s plaintiff' s complaint for improper venue, a nd, in the alternative, to transfe r this case to the United States District Court for the Ea stern District of V irg inia. Upon consider ation of the pa rties' submissi ons, and for

the re asons set for

th below, the Court will deny defe ndants' motion to dismiss and grant de fenda nts' motion to transfe r. Ac cording ly , this case will be tra nsfer red to the Easter n District of Virg inia. -1-BACK GR OUND

Norfolk Southern is a V irg inia corpor ation with its principal executive office s located in Norfolk, Vir g inia. Compl. ¶ 24. Along with four other ra ilroad compa

nies, Norf

olk Southern controls more tha

n 90% of a ll railroad tra cks in Americ a. I d. ¶ 2. In his complaint, plaintiff alleg es that Norf

olk Southern' s former

Chief Executive Off

icer (" CEO") David R. Goode a nd its

curr ent CEO Charles W. Moorman IV par ticipated in a se ries of me eting s of the American Association of Railroa ds (" AAR" ), in which re prese ntatives of seve ral of the leadingrailroa d companies a lleg edly

conspired to c oordinate a nd raise f uel surcha

rg e pric es. See id. ¶¶

5, 11, 12. The AA R is a private institutional body headqua rtere d in Washington, D.C. that serve s as the primary

g overningbody

of the ra ilroad industry . See id. ¶ 3; Pl.'s Opp' n to Defs.' Mot. to Dismiss ("Pl.'s O pp' n") [Docket Entry 30] at 1. Moorman is the curre nt chairma n of the AA R and has be en a me mber of the org anization since 2005; Goode is a f ormer AAR member a

nd chair man. See Compl. ¶¶ 11-12. B eg inning in 2003, the AA R alleg edly develope d a new

pricing sy stem for ra ilroad ser

vices that a llowed par

ticipating r ailroads to cha rg e ar tificially high f uel surcha rg e pric es. See Compl. ¶¶ 43- 46. This supposed coordination of railroa d fuel surc harg es amongNorfolk Southern a nd its competitors -- orc hestrate d throug h their member ship in the AAR -- is alleg ed to have continued through 2007. I d. ¶ 4. Fr om 2003 throug h 2007, the Norf olk Southern Boa

rd of Dir ector s met on thirty

occa sions. See Def

s.' Mot. to Dismi ss (" Def

s.' Mot.") [Docke t Entry

27], Ex . 1, Aff. of

Howar d D. McF adden ( "Mc Fa dden Af f." ) ¶ 3. Tw enty -one of

those meeting s occur

red in the Ea stern District of Virg inia, and none of the meeting s took place in the D istrict of Columbia. See id. ¶¶ 3-4. Also duringthis ti me per iod, Norfolk Southern' s Audit Comm ittee met on seve ral oc casions

-2-in the Easter n District of Virg inia, but never in the District of Columbia. I d. ¶ 5. The N orfolk Southern Boa

rd of Dir ector s is alleg ed to have approve d of the AA R fuel surcha rg e ar rang ement at some point duringits meetings. See Compl. ¶ 5 (noting that the B oard " ratified" the agree ments made by

Moorman and G oode with Norf olk Southern' s competitors at the AA R). Norfolk Southern ma de sig nificant prof its from its allege d price fix ing a rra ng ement, which prompted the filing of at least thirtee n differ ent antitrust class ac tions ag ainst the company

. See Compl. ¶¶ 47-48, 53; see also Pl.'s Opp' n at 2. On Nove mber 6, 2007, these separ ate antitrust actions wer e coor dinated and c onsolidated in the District of Columbia by the J udicial Panel on Multidist rict L itigation (" J PML ") . Compl. ¶ 53. Following c onsolidation by the J PML , an ame nded cla ss action complaint was f iled in the District of Columbia char g ing N orfolk Southern and seve ral of its compe titors with price fixing in violation of § 1 of the Sherma n Act. See Pl.'s O pp' n at 2-3; see also Consol. Am. Cl ass Action Compl. ("Class Ac tion Compl.") , In re Rail Fre ight F uel Surcha

rg e Antitrust L itigation, Misc. No. 07- 489 (D.D.C. filed A pr. 15, 2008). None of Norfolk Southern' s office rs or dire ctors we re individually named a s defe ndants in the consolidated a

ntitrust class action. See Class Ac tion Compl.; see also De fs.' Mot. at 3. On September

28, 2010, plaintiff, a Califor nia citizen and Norf

olk Southern share holder, filed this shareholde r der ivative suit on behalf of Norfolk Southern a g ainst the company and thirteen of its cur

rent a nd former executives, alleg ing br eac h of fiducia ry duty , waste of

corpor ate assets, and unjust enr ichment. Compl. ¶¶ 1, 10, 57. In his complaint, plaintiff contends that the company' s agree ment to coordinate fuel surc harg e pric es with its competitors has " irrepa rably damag ed Nor folk Southern' s corpor ate imag e and g oodwill" and f orce d the company

to spend signific ant funds " investigating a nd defe nding" ag ainst the class a ction. I d. ¶ 55. The thirte en

-3-individual defenda nts named in plaintiff' s complaint include Moorman a nd Goode, a s well as other Nor folk Southern direc tors and Audit Commit tee membe rs. I d. ¶¶ 11- 23. Of the thirtee n individuals named, four a re c itiz ens of Vir g inia, and one is a citizen of Washington, D.C. I d. Alongwith his complaint, plainti ff f iled a " Notice of

Designation of Related Civil Cases" pursuant to L ocal Civil Rule 40.5, in which he noted that his case wa s relate d to the consolidated 1 antitrust class ac tion pending in this Court befor e Judge F riedman. See Notice of Related Case [Docket Entry

2]. According ly , plaintiff' s case was initially assig ned to J udg e F riedman, but wa s

rea ssigne d to the undersigned judg e on De cembe r 7, 2010. See N otice of Rea ssignment [Docke t Entry 25]. Ten day s later, de fenda nts filed this mot ion to dism iss for improper ve nue, or, in the alternative, for tra

nsfer to the Easter

n District of Virg inia. I d. Def endant c halleng es venue on two g rounds. Fir st, he argues that this case should be dismiss ed bec ause the District of Columbia is not a proper ve nue pursua nt to 28 U.S.C . § 1391(a) . Second, def

endant a rgues that eve n if venue in the District of Columbia is proper, the Court should sti ll ex erc ise its discretionary authority to transfe r this case to the Easter n District of Virg inia for the c onvenienc e of the parties a nd the witnesses a

nd "in the inter est of justice." See 28 U.S.C. § 1404(a). The Court will address ea ch of the se arguments in turn. DISCUSSIO N I. Venue Under 28 U.S.C. § 1391(a) (2) Def endant f irst argues that venue is not proper in the District of Columbia and that this

case should theref

ore be dismiss ed under

Fe dera l Rule of Civil Procedur e 12(b) (3). When a

L ocal Civil Rule 40.5(c)( 1) provides that "[w]here the e x istence of a re lated ca se in this court is 1 noted at the time the indictment is retur ned or the complaint is filed, the Clerk shall assign the new c ase to the judg e to whom the oldest re lated ca se is assig ned." D.C. L ocal Civ. Rule 40.5. -4-plaintiff bring s suit in an improper venue , the district court " shall dismis s [t he ca se], or if it be in

the intere st of justice, transfe r such c ase to a ny district or division in which it could have bee n brought." 28 U.S.C. § 1406(a) ; see a lso Fed. R. Civ. P. 12(b)(3). Aplaintiff bring ing suit in fede ral c ourt bea

rs the burde n of showingthat venue is prope r, Va rma v. Gutier

rez, 421 F. Supp. 2d 110, 113 (D.D.C. 2006), a nd, "[i]n considering a

Rule 12(b)(3) motion, the court ac cepts the plaintiff' s well-pled f

actua l alleg ations reg ardingvenue a s true, dra ws all rea sonable infe renc es from those a lleg ations in plaintiff' s favor , and re solves any fac tual conflicts in the plaintiff' s favor ," Coope r v. F arme rs New Century Ins. Co., 593 F. Supp. 2d 14, 18 (D.D.C. 2008) (quoting Dar by v. U.S. Dep' t of Ener g y , 231 F. Supp. 2d 274, 276 (D.D .C. 2002)). Where, a s here , subject-matter jurisdiction is based solely on diversity

of citizenship, 28 2 U.S.C. § 1391(a) provide s that venue is prope r only in: (1) a judicial district where any defe ndant re sides, if all defe ndants reside in the same State, (2) a

judicial district in which a substantial par t of the eve nts or omissions g iving rise to the cla im occurr ed, or a substantial part of the pr operty that is the subject of the action is situated, or (3) a judicial district in which any defe ndant may

be found, if the re is no district in which the ac tion may otherwise be brought. 28 U.S.C. § 1391(a)(1) -(3)

. In this case, ve nue ca

nnot lie under sec tion 1391(a)( 1) bec ause de fenda nts reside in eight differ ent states. See Compl. ¶¶ 11- 24. Moreove r, sec tion 1391(a)( 3) provides no f oundation for venue in the D istrict of Columbia, because it is onl y applicable when " there is no district in which the a ction may

otherwise be brought." 28 U.S.C. § 1391(a) (3). Plaintiff does not re fute

Subject-matter jur isdiction over plaintiff' s claim is founded on diver sity of citizenship: plainti ff 2 is a citizen of California, a nd defe ndants are citizens of Virg inia, Pennsylvania, Ne w York, the District of Columbia, Missouri, Georg ia, Flor ida, and Connec ticut. Moreover , the amount in controve rsy

in this case excee ds $75,000. See 28 U.S.C. § 1332(a)( 1); Compl. ¶¶ 7, 10-24. -5-that this case c ould have be en brought in the Eastern D istrict of Virg inia. Indeed, the Easter n District of Virg inia is where most of the "e vents or omissions givingrise to the cla ims occurr ed." Norfolk Southern is hea dquarte red in the Ea stern District of V irg inia and the major ity of the company' s Boa

rd mee tings duringthe re levant time-fr ame took plac e in the Ea stern District of Virg inia. See Compl. ¶ 24; McFa dden Af f. ¶ 3. The Easter

n District of Virg inia also would have persona l jurisdiction over defe ndants. See James v. Verizon Servs. Corp., 639 F. Supp. 2d 9, 15 (D.D.C. 2009) ( explaining that a c ourt consider ing tr ansfe r must "e nsure that the de fenda nts are subject to persona l jurisdiction in t he tra nsfer ee f orum" ); Va. Code Ann. § 8.01-328.1 (stating that "[a] court may

exercise pe rsonal jurisdiction over a person . . . [t] ransa ctingany business in this Com monwealth" ). B eca use there is at least one other district in which this action could have been br oug ht, plaintiff' s argument supporting ve nue must rest on 28 U.S.C. § 1391(a)( 2). Plaintiff, however , seeks to eva de the r equire ments of 28 U.S.C. § 1391(a)( 2) by emphasizing the r elationship betwee n this case a nd the consolidated a

ntitrust class action

curr ently pendingin this C ourt. Acc ordingto plaintiff, venue is prope r in the District of Columbi a bec ause his shar eholder derivative claim is "r elated" to the antitrust case s that were consolidated by

the J PMLTransf

er O rder , which " order ed that tra nsactions arising out of substantially

simil ar f acts be centr alized in this district." See Compl. ¶ 9; see also In re Rail Fr eight Fuel Surc harg e Antitrust L itigation, 528 F . Supp. 2d 1358, 1359 (J .P.M.L . 2007). B ut the Tra nsfer Orde r only

compels the c onsolidation of the thirteen a ntitrust actions then-pending in the District of Columbia or in other fe dera l district courts. See In re Rail F reight Fuel Surchar g e Antitrust L itigation, 528 F . Supp. 2d at 1359. Nothing in the Or der pur ports to require the coor dination or consolidation of all future claims ag ainst Norfolk Southern involving

-6-common questions of fac t. And despite plaintiff' s contention that " the MDL Panel alre ady

found venue pr oper in the D istrict of Colombia [ sic]" for the "r elated" fuel surc harg e antitrust litigation, see Pl.' s Opp' n at 7, it is well-established that in consider ing tr ansfe r under 28 U.S.C. § 1407, the J PML"is not enc umbere d by considerations of venue," see I n re F alstaff

Br ewingCorp. Antitrust L itigation, 434 F . Supp. 1224, 1229 (J .P.M.L . 1977). I n other wor ds, the J PMLTransf er O rder does not imply

any findingby

the J PMLthat "a

substantial part of the e vents or omissions" g iving r ise to the fuel surc harg e antitrust litigation occ urre d in this di strict -- much le ss a finding that a " substantial part of the e vents or omissions" g iving r ise to plaintiff' s share holder de rivative claim occ urre d here . Henc e, irre spective of any alleg ed " relation" betwe en this case and the antitrust liti g ation pendinghere , venue is only proper if plaintiff' s claims meet the usua l statutory require ments of 28 U.S.C. § 1391(a)( 2). Plaintiff argues that a substantial pa rt of the e vents g iving r ise to his claims did, in fact,

occur in the District of Columbia beca use it is through the Washington, D.C.-ba sed AAR that Norfolk Southern a

nd its competitors alleg edly "c oordinated . . . to c harg e similar fue l surchar g es and incr ease the cha

rg es in unison." Compl. ¶¶ 3, 11, 12. B eca use the AA R is headquar

tere d in the District of Columbia, plaintiff maintains that " [a] t the very least, it can be inferr ed that ce rtain defe ndants and other

top executives met regularly for AA R meeting s in the District of Columbia, in further ance of their sc heme." See Pl.'s O pp' n at 6-7. Def endants do not dispute that Moorman a nd Goode may

have attended AAR mee tings in the District of Columbia or that these AAR meeting s may have a t least some re levanc e to plaintiff' s claims; rather , they argue that a mor e substantial portion of the e vents g iving r ise to plaintiff' s share holder de rivative a ction occur red in the Ea stern District of V irg inia. See De fs.'

-7-Reply

[Docket Entry

31] at 2. True enough. But " [n] othing in sec tion [ 1391(a) (2)] mandates that a plaintiff br ing suit in the district wher e the most substanti al portion of the re levant eve nts

occur red . . . . To the contra

ry , a plaintiff ne ed only

show that ' a substantial part of the e vents or omissions g iving r ise to the claim occ urre d' in that district." Modar essi v. Veda di, 441 F. Supp. 2d 51, 57 (D.D.C. 2006) ( citing 28 U .S.C. § 1391 (emphasis added) ). In other wor ds, section 1391(a) (2) a llows for the possibility that a plaintiff will have a choic e of ve nue among multipl e districts where a substantial portion of the e vents g iving rise to his claims occurr ed in more tha n one district. See, e .g ., City of Ne w York v. Cyco.Ne t, 383 F. Supp. 2d 526, 543 (S.D.N.Y. 2005) (" Venue may

be prope r eve n if a greater pa rt of the e vents g iving rise to a cla im happened in another forum." ); Setco Enter

prises Corp. v. Robbins, 19 F.3d 1278, 1281 (8th Cir. 1994) (" [W ]e ask whe ther the district the pla intiff chose ha d a substantial conne ction to the claim, whethe r or not other for

ums had g reater c ontacts." ). Her e, two of the named de fenda nts alleg edly

attended a

nd chair ed AAR mee tings in the District of Columbia, and it was supposedly at these me eting s that these individuals -- on be half of Norf olk Southern -- a g ree d to coordinate an incr ease in fuel surc harg e pric es with repr esentatives from Norf olk Southern' s competitors. Viewingthe complaint in the light most favor able to plaintiff, then, the Court finds that, while the most substantial portion of the releva nt events g iving r ise to plaintiff' s claims occur red in the Ea stern District of V irg inia, at least a substantial part of the e vents did, in fact, take place in this di strict. Henc e, the District of Columbi a is a prope r venue under 28 U .S.C. § 1391(a)(2) for plaintiff' s claims. II. Transf

er P ursuan t to 28 U.S.C. § 1404( a) Even whe re ve nue is proper , a district cour t nonetheless " has ' broad discr etion' to order

-8-transfe r" of venue pursuant to 28 U.S.C. § 1404(a). SeeRosales v. United States, 477 F. Supp.

2d 213, 215 (D.D.C. 2007) ( quoting In re Scott, 709 F .2d 717, 720 (D.C. Cir. 1983)). Unde r section 1404(a ), a district c ourt may transfe r any

civil action to any

other district whe re the case orig inally could have been br oug ht "[f]or the convenie nce of the par ties and witnesses, [and] in the intere st of justice." See 28 U.S.C. § 1404(a) . In order to establish the propriety of transf er, the moving pa

rty must show that (1) the plaintiff c ould have br oug ht the action in the tra nsfer ee district, and that (2) the convenie nce of parties a nd witnesses and the interests of justice w eig h in favor of transf er. See , e.g ., L ag or v. Eli L illy & Co., Civ. A. No. 06-1967, 2007 WL1748888, at *1 (D.D.C. June 18, 2007); Be renson v. Nat'l F in. Servs., L L C, 319 F. Supp. 2d 1, 2 (D.D.C. 2004); Trout Unlimited v. Dep' t of Agric., 944 F . Supp. 13, 16 (D.D.C. 1996). As previously

explained, this sui t could have be en brought in the Eastern D istrict of Virg inia beca

use " a substantial par

t of the eve nts or omissions g iving r ise to the claim occ urre d" in that district, see 28 U.S.C. § 1391(a)( 2), and de fenda nts would be subject to per sonal jurisdiction there, see Va. Code Ann. § 8.01-328.1. Ther efor e, the Court must consider whether defe ndants have satisfied their bur den of showingthat the conve nience to the parties a nd witnesses and the interests of justice w eigh in favor of transfe r. In evaluating motions to transfer , courts have steadfa stly "r efuse d to identify

specific circ umstances ' which will justify or re quire e ither grant or de nial of [the transfe r] remedy .' " Piper Aircr aft Co. v. Rey

no, 454 U.S. 235, 262 (1981) (quotingGulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)) . Instead, c ourts "a djudicate motions to transfer acc ordingto 'a

n individualiz ed,

case -by -ca se consider ation of conve nience and fa irness.' " Stewa rt Org ., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quotingVan Duse n v. Ba rra ck, 376 U.S. 612, 622 (1964)) . Specifica lly , -9-courts we igh se vera l "public- interest" and " private- interest" fac tors in order to de termine whe ther

transfe r is war

rante d in a par

ticular c ase. See Nat' l Ass'n of Home B uilders v. EPA, 675 F. Supp. 2d 173, 176 (D.D.C. 2009); see also Trout Unlimited, 944 F. Supp. at 16. The private-inter est fac tors include: (1) the plaintiff' s choice of for um; (2) the def

endant' s choice of for

um; (3) whether the claim ar ose elsewhere ; (4) the c onvenienc e of the parties; (5) the conve nience of the witnesses; and (6) the ea se of a cce ss to sources of pr oof. See N at' l Ass'n of Home B uilders, 675 F. Supp. 2d at 176 (c itations omi tted). The thr ee " public-intere st" fa ctors ar e: (1) the transfe ree court' s familiarity

with the g overninglaws; (2) the relative cong estion of the ca lendar s of the potential transfe ree and tra nsfer or cour

ts; and (3) the loc al intere st in adjudicatinglocal controve rsies at home. See id. Application of these two se ts of fac tors to plaintiff' s share holder derivative claims confir

ms that transfer

of this case to the Easter

n District of Virg inia is appropr iate. A. P rivate -Inter est F actor s 1. Choice of Forum Reg ardingthe first and se cond private-intere st factor s -- the pa rties' respe ctive choic es of forum -- plaintiff has c hosen to sue in the District of Columbia, while def endants pre fer

to litigate in the E astern D istrict of Virg inia. As the par ty bring ing suit, plaintiff' s choice of for um is ordinarily

entitled to defe renc e. See E nvtl. Def. v. U.S. De p' t of Tra nsp., Civ. A. No. 06-2176, 2007 WL1490478, at *7 (D.D .C. May 18, 2007) (c iting Ka fac k v. Primerica L ife I ns. Co., 934 F. Supp. 3, 6 (D.D.C. 1996)). Ne verthe less, courts have held that " substantially less defe renc e is

war rante d when the f

orum pref err ed by the plaintiff is not his home forum." Reiffe n v. Microsoft Corp., 104 F. Supp. 2d 48, 53 (D.D .C. 2000). Her e, plaintiff is a c itiz en of Califor nia, yet he ha s

-10-chosen to bringsuit in the District of Columbia. See Compl. ¶ 10. B y contra st, defenda

nts' chosen f orum is the state whe re the most indi vidual defe ndants reside , and whe re de fenda nt Norfolk Southern is incor porate d and hea dquarte red. See Compl. ¶¶ 11-24. Acc ording ly , plaintiff' s choice of for

um is entitl ed to little defer ence . 2. W here theClaim Arose The third private-intere st factor weighs strong ly

in defe ndants' favor , as plaintiff' s claims

arose not in the District of Columbia but in t he Ea stern District of V irg inia. To be sure , Moorman' s and Goode ' s alleg ed par ticipation in AAR meeting s in the District of Columbia does constitute a " substantial event" for pur poses of 28 U.S.C. § 1391(a) (2). B ut that does not mean that the District of Columbia is where plaintiff' s claims "a rose" for pur

poses of 28 U.S.C. § 1404(a) . Courts in thi s district have he ld that claims "a rise" under 28 U .S.C. § 1404(a) in the location wher e the c orporate dec isions underlying those claims wer e made , see, e .g ., Be renson, 319 F. Supp. 2d at 4 (a g ree ing w ith "the de fenda nts' position that the claims ar ose at the loc ation wher e the c orporate dec isions were ma de" ), or whe re most of the significant e vents g iving r ise to the claims occ urre d, see, e .g ., Davis v. Am. Soc' y of Civil Eng' rs, 290 F. Supp. 2d 116, 123 (D.D.C. 2003) ( concludingthat case did not "ar ise" in this di strict wher e " only one of the many potential events g iving r ise to this action . . . occur red in the D istrict of Columbia"). Eve n if Moorman and G oode conspire d with Norfolk Southern' s competitors to raise f uel surcha

rg e price s duringAAR meeting s in W ashing ton, D.C., it was the Boa rd' s decision to ratify

this price fix ing a g ree ment that alleg edly cause d harm to Norf

olk Southern' s share holders and the reby g ave rise to this shareholde r der ivative ac tion. As defenda nts corre ctly

explain, "[t] his derivative suit does not focus on whether cer tain entities conspired to fix prices usingthe AAR, but whethe r

-11-direc tors of a V irg inia company , meetingoutside this dis trict, brea ched the ir fiduciar y duties in manag ing the company' s aff airs." See De f.' s Reply

[Docket Entry

31] at 2. Norfolk Southern is headqua rtere d in the Easter

n District of Virg inia, and it held twenty -one of its thi rty Boa rd meeting s duringthe re levant time-fr ame in that district. See Compl. ¶ 24; see a lso McFa dden Aff. ¶ 3. Significa

ntly , neither the Boa

rd nor the Audit Com mittee ever met in the District of Columbi a at a

ny point between 2003 a

nd 2007. See McF adden A ff. ¶ ¶ 4-5. Nor folk Southern' s supposed dec ision to "ratify " a ny alleg ed pric e fixing ar

rang ement thus could not have occur red in the District of Columbia -- if such a decision we re e ver ma de, it most li kely took place dur ing the company' s Boa

rd mee tings in the Ea stern District of V irg inia. Moreove r, plaintiff ha s brought claims ag ainst thirteen individual defe ndants -- only two of whom ar e alleg ed to have attended AAR meeting s in the District of Columbia. See Compl. ¶¶ 3, 5. To the extent that the remainingindividual defenda nts breac hed their f

iduciary duties, eng ag ed in cor

porate waste, or

committed unjust enrichment, those ac tions would have occ urre d duringBoa

rd or Audit Committ ee me eting s held outside this dist rict. B eca use the majority

of Norfolk Southern' s meeting s duringthe re levant time-fr ame tra nspired in the Ea stern District of Virg inia -- a

nd beca use plaintiff' s suit is based on a ctions alleg edly taken ( or not taken) during those meeting s -- plaintiff' s claims arose in the Easter n District of Virg inia, not in the District of Columbi a. 3. Convenienc e of the Parties and W itnesses The four th and fifth private-intere st factor s -- the c onvenienc e of the parties a nd the witnesses -- do not weig h heavily in favor of

either ve nue, g iven the close proxi mity of the District of Columbia and the Ea stern District of V irg inia. See, e.g ., L ag or, 2007 WL1748888, at

-12-*4 (findingany potential inconvenienc e to the par ties to be minimal where the two potential

venues w ere in close proximi ty). Ne verthe less, to the extent that these fac tors point in either direc tion, they

favor transfe r to the Easte rn District of Vir g inia. The District of Columbia is no more c onvenient for plaintiff than the Ea stern District of Virg inia. Plaintiff is a citiz en of Califor nia, and he "ma de cle ar [his] willingness ' to foreg o the convenie nce of

a g eographic ally

near by forum' " when he f

iled this suitin the District of Columbi a. See id. at *4 (quoting D ean v. E li L illy & Co., 515 F . Supp. 2d 18, 22 (D.D.C. 2007)). Nor folk Southern is a Virg inia corpor ation with its principal place of business in Norfolk, Vir g inia, and four of the individual defe ndants also re side in Virg inia, wher eas only one of the individual defe ndants reside s in the District of Columbia. Compl . ¶¶ 11- 24. The Ea stern District of Virg inia is theref ore the more c onvenient for um for the major ity

of the pa rties. Howeve r, " ' the most critical fa ctor to examine under 28 U .S.C. § 1404(a) is the convenie nce of

the witnesses,' not the convenie nce of the par ties." L ag or, 2007 WL1748888, at *4 (quotingChung v. Chry sler Corp., 903 F . Supp. 160, 164 (D.D.C. 1996)). He re, the majority of the witnesse s are also more likely to reside in the Ea stern District of V irg inia, since the witnesses will probably

be cur rent a nd former employ ees of

Norfolk Southern, which is a Virg inia-base d company . See De fs.' Mot. at 17. But neither of the pa rties have argued that any potential witnesses would be una vailable to g ive live trial testimony if the ca se we re to be hear d in the District of Columbia. See Montg omery v. STG Int'l, Inc., 532 F . Supp. 2d 29, 33 n.5 (D.D.C. 2008) ( noting that the significanc e of this fa ctor is incre ased where "importa nt witnesses may actua lly be unava ilable to g ive live trial testimony in one of the districts" ). Ther efor e, while the Easter n District of Virg inia would likely be somewhat more conve nient for more witnesses,

-13-the close pr ox imity of the two jurisdictions and the a bility of witnesses to appe ar a

nd g ive testimony in both venues mea

ns that this factor we ighs only slightly in favor of

transfe r. 4. Acc ess to Sources of Proof Turningto the last private- interest conside ration -- the diffe renc e betwe en the two ve nues with respec t to acce ss to sources of pr oof -- this, too, does not weigh he avily in favor of

either forum. De fenda

nt corre ctly

points out t hat bec ause N orfolk Southern' s corpor ate he adquar ters is located in the E astern D istrict of Virg inia, the bulk of its corpora te re cords, mee ting minutes, and company memoranda

are likely to be found ther e. Howe ver, " technolog ical adva nces ha ve signific antly

reduc ed the we ight of

the ea se-of

-ac cess- to-proof f

actor ." N at' l R.R. C orp. v. R & R Visual, Inc., Civ. A. No. 05-822, 2007 WL2071652, at *6 (D.D .C. J uly 19, 2007). The importance of this fac tor is also lessened where , as her e, the two potential districts ar e in close proxi mity . Neve rtheless, to the e x tent that this factor w eighs in favor of either f orum, it too points towards transfe r to the Easte rn District of Vir g inia. B. P ubl ic-Inter est F actor s Although the balanc e of the private- interest fa ctors thus weighs in favor of transfe r, it is arguable that c onsideration of the private- interest fa ctors alone would not be suffic ient to "ove rcome the pre sumption i n favor of plaintiff' s choice of for um," g iven the close proxi mity betwee n the two venue s. See, e.g ., Modare ssi, 441 F. Supp. 2d at 57 n.7 (findingthat the balanc e of private -intere st and public-intere st factor s was not suffic ient to warr ant transf er, a nd noting that "[t]he ge og raphic distance be tween this Court and those of the District of Mar

yland is far

too small to present any

thing more than minor prac tical difficulties for the par ties or their witnesses" ). B ut where two potential venues a re in c lose proxim ity , "public, r ather than private , -14-interest fa ctors pre dominate" in the transfe r ana ly sis. See Har tley v. Dombrowski, 744 F. Supp. 2d 328, 340 (D.D.C. 2010) ( citing Me dlantic L ongTerm Car e Corp. v. Smith, 791 A.2d 25, 31 (D.C. 2002) (" Where the pla intiff' s choice of for um is between the District of Columbia and one of the c ounties in the Washington, D.C. metropolitan ar ea . . . the public interest fa ctors predominate for the obvious re ason that the re lative ea se or diff iculty in ge tting to a D.C. c ourt and a me tropolitan court outside D.C. is usually the same." )). And he re, e x amination of the rele vant public-intere st factor s makes cle ar that transfe r is war rante d. 1. Familiarity wi th the Gove rning Laws Reg ardingthe first public-inter est fac tor -- the transfe ree court' s familiarity with the g overninglaws -- it is well-settled that the public interest is " best serve d by havinga ca se decide d by

the fe dera l court in the state whose laws g overn the interests at stake ." T rout Unlimited, 944 F. Supp. at 19. Neither party contends that this case will be g overne d by any thing other than V irg inia state law. See Compl. ¶ 1 ("This a ction seeks to re medy defe ndants' violations of state law . . . .) ( emphasis adde d); Def s.' Mot. at 12 (" This action will be g overne d by Virg inia law." ). More over, this ca se will likely involve the interpre tation and applica tion of Virg inia-spec ific proc edura l rules for sha reholde r der ivative ac tions. S ee V a. Code. Ann. § 13.1- 672.1. These c onsiderations point strong ly in favor of

the Easter

n District of Virg inia as the appropr iate for

um for hea

ringthis case. Plaintiff counters by

noting that " the District of Columbia routinelyhear s derivative c ases involving cor

porations org anized under the laws of other states." Pl.'s Opp' n at 13. That is undoubtedly

true, but the prope r ana ly sis of this publi c intere st factor focuse s on the transfe ree court' s familiarity

with the g overninglaws, not on the transf eror court' s ability

to apply those

-15-laws. See, e .g ., Trout Unlimited, 944 F. Supp. at 16, 19. Henc e, cour ts in thi s district often transfe r ca ses to the Easter n District of Virg inia wher e the c ases involve c laims arisingunder Virg inia law, despite this Court' s ability to apply Virg inia law. See, e .g ., Parkridg e 6, L L C v. U.S. Dep' t of Tra

ns., Civ. A. No. 09-01478, 2009 WL3720060, at *4 (D.D .C. Nov. 9, 2009) (findingthat transfe r to the Easte rn District of Vir g inia was a ppropriate wher e twelve of the fiftee n counts in the complaint arose under V irg inia law). H ere , there are no fede ral statutes or regulations at issue, and the c ase w ill be gove rned e ntirely by Virg inia corpor ate law , makingthe Easter n District of Virg inia the more a ppropriate venue to he ar pla intiff' s claims. 2. Relative Congestion of the Courts A compar ison of the re lative docke t cong estion in the District of Columbia and the Easter n District of Virg inia also supports transfe r. The D .C. Circuit has expl ained that while "c ong estion alone is not sufficie nt rea son to transfer , relative docket c ong estion and potential speed of resolution is an appropriate fa ctor to be c onsidered" by district courts in the motion to transfe r ana ly sis. See Starnes v. McGuire, 512 F .2d 918, 932 (D.C. Cir. 1974). He re, the Easter n District of Virg inia' s court ca lendar is far le ss cong ested than that of the District of Columbia. The media

n time interval fr om filing to disposition of civil cases in the District of Columbia was 8.4 months for the twelve -month time period endingMarc h 31, 2010, while the median time interval for

the Easter

n District of Virg inia was 4.8 months duringthe same pe riod. See Table C5, U.S. District Courts – Median Time Interva ls, available at http://www.uscour ts.gov/Statistics/ Fe dera lJ udicialCaseloadStatistics2010/aspx . This Court has previously g rante d motions t o transfe r fr om the District of Columbia to the Eastern D istrict of Virg inia based, in pa rt, on a differ ence in docket cong estion betwee n the two districts. See, e.g ., Parkridg e, 2009 WL

-16-3720060, at *4 (findingtransfe r wa rra nted, in part, be cause "the median time of c ases pr ocee ding to trial in this Dis trict is thirty -six months, while the median time in the Easter n District of Virg inia is 10.6 months). The interest in judicial ef ficienc y there fore weighs in favor of transfe r. 3. Local Interest Finally , the Easter

n District of Virg inia has a stronginterest in havingplaintiff' s claims "r esolved in the loca le wher e they arise." Trout Unlimited, 944 F. Supp. at 19. Other courts in this dist rict have looked at whe re " [a] clea r majority of the ope rative e vents took place " in or der to determine where a ca se should be adjudica ted. See id. As pre viously explained, the majority of the c orporate meeting s and dec isions relatingto plaintiff' s share holder de rivative c laims

occur red in the Ea stern District of V irg inia, wher e Nor folk Southern is based. See Def s.' Mot. at 3. Be cause this case involves c laims under Virg inia law, brought on behalf of a Virg inia corpor ation with its headquarte rs in Virg inia, and bec ause pla intiff' s claims are based on corpor ate a ction that was most likely taken by defe ndants in Virg inia, the Court finds that transfe r to the Easte rn District of Vir g inia is also supported by the local inter est in havingthis matter re solved in a cour

t in Virg inia. CONCLUSION For the fore g oing r easons, the Court will deny defe ndants' motion to di smiss for improper venue unde r Rule 12(b)( 3) but grant de fenda nts' motion to transfe r this action to the United States District Court for the Ea stern District of V irg inia pursuant to 28 U.S.C. § 1404(a). A separ ate Or der a ccompa

nies this Memorandum Opinion.

/s/ J ohn D. B ates J OHN D. B ATES United States District J udg e Dated: June 27, 2011 -17-