Roger D. Silk v. Baron Bond

O [1] JS-6 [7] 8 United States District Court 9 Central District of California [10] 11 ROGER D. SILK, Case № 2:21-cv-03977-ODW (JPRx) 12 Plaintiff, ORDER GRANTING MOTION TO 13 v. TRANSFER [53] 14 BARON BOND et al., [15] Defendants. [16] 17 I. INTRODUCTION 18 Defendants Baron Bond and Howard Miller move to transfer this action to the 19 United States District Court for the District of Maryland, pursuant to 28 U.S.C. 20 § 1404(a). (Mot. Transfer (“Motion” or “Mot.”), ECF No. 53.) Defendants argue that 21 a transfer is necessary for the convenience of the parties and witnesses, and in the 22 interest of justice. (Id.) For the reasons discussed below, the Court GRANTS 23 Defendants’ Motion to Transfer. (ECF No. 53.)1 24 II. BACKGROUND 25 Plaintiff Roger Silk provided tax, estate, and related planning services to 26 decedent Frank Bond (“Decedent”) under three different agreements. (Compl. ¶¶ 20, [27] 28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 1 26, 28, ECF No. 1; id. Exs. 1, 2 (“Written Agreements”), ECF Nos. 1-1, 1-2.) During 2 the negotiations and performance of the contracts, Silk was a resident of California 3 and Decedent was a resident of Maryland. (See Decl. Roger Silk ISO Opp’n Mot. 4 Dismiss (“Silk Decl.”) ¶¶ 3-6, ECF No. 36-1 (cited by Silk in support of his 5 Opposition to Defendants’ Motion to Transfer).) 6 From approximately 1991 to 1995, Silk worked exclusively for Decedent under 7 an oral employment agreement (“Private Variable Annuity Agreement”). (Compl. 8 ¶ 20.) Throughout the negotiations and Silk’s performance of the Private Variable 9 Annuity Agreement, Silk traveled to Decedent’s office in Maryland. (Silk Decl. ¶ 4.) 10 After the Private Variable Annuity Agreement ended in 1995, Silk continued to advise 11 and manage aspects of Decedent’s finances, including Decedent’s estate. (Compl. 12 ¶ 21.) 13 Silk subsequently entered into two additional agreements with Decedent: the 14 “North Point Agreement,” (Id. ¶ 25, Ex. 1), and the “Westcliffe Agreement,” (id. ¶ 27, 15 Ex. 2.) Both agreements were in writing and on Silk’s letterhead, which identified his 16 office as being in Sherman Oaks, California. (See Written Agreements.) During 17 Decedent’s lifetime, he paid Silk their agreed-upon performance-based incentive fees. 18 (Compl. ¶ 22.) However, under all three agreements, the parties agreed to defer the 19 payments for Silk’s estate-planning work and certain income tax deferral work until 20 Decedent’s death. (Id. ¶¶ 25–28.) Accordingly, after Decedent’s death in July 2020, 21 Silk made a claim to Decedent’s estate in the Baltimore County Orphan’s Court for the 22 sum of these deferred payments. (Id. ¶¶ 29, 32.) Decedent’s estate disallowed Silk’s 23 claim. (Id. Ex. 3 (“Notice of Disallowance”), ECF No. 1-3.) 24 Silk then filed his Complaint in this Court, alleging three causes of action: 25 (1) breach of contract for the Private Variable Annuity Agreement, North Point 26 Agreement, and Westcliffe Agreement; (2) unjust enrichment (in the alternative); and 27 (3) promissory estoppel (in the alternative). (Id. ¶¶ 33–62.) The Court granted 28 Defendants’ motion to dismiss for lack of jurisdiction, (Order Granting Mot. Dismiss, 1 ECF No. 39), and the Ninth Circuit Court of Appeals reversed and remanded, (Op., 2 ECF No. 42). 3 Following remand, Defendants now move to transfer this case to the federal 4 court in Maryland, pursuant to 28 U.S.C. § 1404 (a). (Mot. 1–2.) Silk opposes the 5 Motion. (Opp’n Mot. (“Opposition” or “Opp’n”), ECF No. 58.) Defendants did not 6 file a Reply. 7 III. LEGAL STANDARD 8 “For the convenience of the parties and witnesses, in the interest of justice, a 9 district court may transfer any civil action to any other district or division where it 10 might have been brought.” 28 U.S.C. § 1404 (a). Section 1404(a) “gives a district 11 court broad discretion to transfer a case to another district where venue is also 12 proper.” Amini Innovation Corp. v. JS Imps., Inc., 497 F. Supp. 2d 1093 , 1108 13 (C.D. Cal. 2007); see also Commodity Futures Trading Comm’n v. Savage, 611 F.2d 14 270, 279 (9th Cir. 1979) (“Weighing of the factors for and against transfer involves 15 subtle considerations and is best left to the discretion of the trial judge.”). “The 16 burden is on the moving party to establish that a transfer would allow a case to 17 proceed more conveniently and better serve the interests of justice.” Amini 18 Innovation, 497 F. Supp. 2d at 1109 . “[T]he purpose of [§ 1404] is to prevent the 19 waste ‘of time, energy and money’ and ‘to protect litigants, witnesses and the 20 public against unnecessary inconvenience and expense.’” Van Dusen v. Barrack, [21] 376 U.S. 612, 616 (1964) (quoting Cont’l Grain Co. v. Barge FBL-585, 364 U.S. 22 19, 26–27 (1960)). 23 IV. DISCUSSION 24 Defendants argue the Court should transfer venue to the District of Maryland 25 pursuant to § 1404, on the basis that the action could have been brought in that 26 district, and that the convenience of the parties and witnesses, as well as the interest of 27 justice, weigh in favor of transfer. (Mot. 1.) Silk responds that the Court should not [28] 1 transfer the case because the Central District of California is a proper venue, and his 2 choice of venue should be given substantial weight. (See generally Opp’n.) 3 A district court may transfer an action to another federal district court (the 4 “transferee court”) if (1) the action originally might have been brought in the 5 transferee court, and (2) the convenience of parties and witnesses, and the interest of 6 justice, favor transfer. 28 U.S.C. § 1404 (a); Hatch v. Reliance Ins. Co., 758 F.2d 409 , 7 414 (9th Cir. 1985); Metz v. U.S. Life Ins. Co., 674 F. Supp. 2d 1141, 1145 (C.D. Cal. 8 2009). Generally, “substantial weight is accorded to the plaintiff’s choice of forum, 9 and a court should not order a transfer unless the ‘convenience’ and ‘justice’ 10 factors . . . weigh heavily in favor of venue elsewhere.” Catch Curve, Inc. v. Venali, 11 Inc., No. 2:05-cv-04820-DDP (AJWx), 2006 WL 4568799 , at *1 (C.D. Cal. Feb. 27, 12 2006) (citing Sec. Inv. Prot. Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985)). 13 “The party seeking the transfer bears the burden of persuasion.” Id. 14 A. Bringing the Action in the Transferee Court 15 An action originally might have been brought in a transferee court when, at the 16 time the action commenced, the transferee court (1) possessed subject matter 17 jurisdiction over the action, (2) had personal jurisdiction over the parties, and (3) was 18 a proper venue. Rubio v. Monsanto Co., 181 F. Supp. 3d 746, 760 (C.D. Cal. 2016) 19 (citing A.J. Indus., Inc. v. U.S. Dist. Ct. for Cent. Dist. Cal., 503 F.2d 384 , 386–88 20 (9th Cir. 1974)). 21 Regarding jurisdiction, Defendants plausibly assert that at the time the action 22 commenced, the United States District Court for the District of Maryland possessed 23 subject matter jurisdiction over the action, and personal jurisdiction over the parties. 24 (Mot. 9–10.) Silk does not directly dispute that the case could have been initially 25 brought there or oppose the Motion on these bases. (See generally Opp’n.) He has 26 therefore conceded these issues. See Heraldez v. Bayview Loan Servicing, LLC, 27 No. 2:16-cv-1978-R, 2016 WL 10834101 , at *2 (C.D. Cal. Dec. 15, 2016) (“Failure to 28 oppose constitutes a waiver or abandonment of the issue.”), aff’d, 719 F. App’x 663 1 (9th Cir. 2018). Accordingly, the Court accepts Defendants’ jurisdictional assertions 2 that the action originally might have been brought in the District of Maryland, for the 3 purposes of this Motion. 4 As for venue, venue is proper in “a judicial district in which any defendant 5 resides, if all defendants are residents of the State in which the district is located,” or 6 “in which a substantial part of the events or omissions giving rise to the claim 7 occurred,” or, failing that, in “any judicial district in which any defendant is subject to 8 the court’s personal jurisdiction with respect to such action.” 28 U.S.C. § 1391 (b). 9 Here, as the parties do not dispute the District Court of Maryland’s personal 10 jurisdiction over the parties in this case, the existence of personal jurisdiction over 11 Defendants provides a basis for finding the Maryland venue proper. Thus, venue is 12 proper in the District of Maryland. 13 As the United States District Court for the District of Maryland would have 14 possessed both subject matter and personal jurisdiction, and as venue is proper there, 15 this case could have originally been brought in the transferee court. 16 B. Convenience of the Parties and Witnesses, and Interest of Justice 17 The Court must next determine whether the convenience of the 18 parties and witnesses, as well as the interest of justice, favor transfer. See 28 U.S.C. 19 § 1404(a). 20 1. Convenience of the Parties and Witnesses 21 “Importantly, while the convenience of party witnesses is a factor to be 22 considered [in a § 1404(a) motion], the convenience of non-party witnesses is the 23 more important factor.” Ironworkers Loc. Union No. 68 & Participating Emps. 24 Health & Welfare Fund v. Amgen, Inc., No. 2:07-cv-5157-PSG (AGRx), 2008 WL 25 312309, at *5 (C.D. Cal. Jan. 22, 2008) (citing Saleh v. Titan Corp., 361 F. Supp. 2d 26 1152, 1160 (S.D. Cal. 2005)). However, a transfer is not appropriate merely to shift 27 the inconvenience from one party to another. Amini Innovation, 497 F. Supp. 2d 28 at 1109–10. 1 Regarding the convenience of the parties, Silk is located in Nevada, which is 2 California-adjacent, and Bond and Miller are both located in Maryland. (Compl. 3 ¶¶ 8–9; Mot. 1 n.1 (providing that Bond has relocated to Florida but maintains a home 4 and office in Maryland).) Accordingly, a transfer of forum from California to 5 Maryland would simply shift the inconvenience of traveling a longer distance from 6 Defendants to Silk. As such, this factor is neutral. 7 Regarding the convenience of the witnesses, Defendants list the following 8 witnesses Silk anticipates calling for testimony in this case: Mayrov Bond (located in 9 Florida), Jim Lintott (located in Virginia), Jeff Daley (located in Maryland), Neil 10 Axler (located in New York), and expert witness Peter Hickey (located in Illinois). 11 (Mot. 14.) None of these witnesses are in California, nor are they located on or near 12 the West Coast. Furthermore, Silk does not dispute that he expects to call these 13 witnesses to testify on his behalf or that their testimony will be probative. (See 14 generally Opp’n.) As a majority of the witnesses are geographically located closer to 15 Maryland than California, Maryland appears to be a more convenient forum to them. 16 And as Silk does not dispute that the value of their testimony will be probative, this 17 factor favors transfer. 18 Silk argues that Defendants cannot use his potential witnesses to support this 19 factor, relying on Ansari v. UnitedHealthcare Ins. Co., No. 2:19-cv-04068-JAK 20 (JPRx), 2019 WL 6729716 , at *4 (C.D. Cal. Sept. 25, 2019). (Opp’n 13.) However, 21 the Court does not read Ansari to require that the witnesses’ convenience be based 22 solely on the moving party’s witnesses; Silk’s witnesses are also a relevant 23 consideration before the Court. Therefore, the witnesses’ convenience favors transfer. 24 2. Interest of Justice 25 Next, in evaluating the interest of justice, courts may consider the following 26 factors: (1) the location where the relevant agreements were negotiated and executed, 27 (2) the state that is most familiar with the governing law, (3) the plaintiff’s choice of 28 forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating to 1 the plaintiff’s cause of action in the chosen forum, (6) the differences in the costs of 2 litigation in the two forums, (7) the availability of compulsory process to compel 3 attendance of unwilling non-party witnesses, and (8) the ease of access to sources of 4 proof. Jones v. GNC Franchising, Inc., 211 F.3d 495 , 498–99 (9th Cir. 2000). Courts 5 may also consider “the administrative difficulties flowing from court congestion [and] 6 the ‘local interest in having localized controversies decided at home.’” Decker Coal 7 Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (quoting Piper 8 Aircraft Co. v. Reyno, 454 U.S. 235 , 241 n.6 (1981)). The Court considers the 9 relevant factors in turn. 10 a. Location 11 In a contracts dispute, courts consider the locations of relevant substantial 12 events, like where the parties negotiated, executed, and performed or breached the 13 agreements in dispute. Niagra Bottling, LLC v. Orion Packaging Sys., LLC, No. 5:1214 cv-00498-VAP (DTBx), 2012 WL 1747398 , at *5 (C.D. Cal. May 14, 2012). Courts 15 specifically consider the location where the majority of the agreements in a breach of 16 contract case were negotiated and executed. Jones, 211 F.3d at 499 . 17 Here, during the negotiation and execution of the two written agreements, Silk 18 was in California and Decedent was in Maryland. (Silk Decl. ¶ 8; see Aff. Howard 19 Miller ISO Mot. Dismiss ¶ 5, ECF No. 30-2.) However, the parties dispute the 20 location Silk and Decedent negotiated and executed the oral agreement. On the one 21 hand, Defendants argue Silk and Decedent negotiated and executed the oral agreement 22 in Maryland. (Mot. 13.) On the other, Silk argues that he was “living and working in 23 California” “at all relevant times” pertaining to this lawsuit, although he does not 24 contest that Decedent was then-located in Maryland. (Opp’n 6 (citing Silk Decl.).) 25 Accordingly, the Court finds it reasonable to conclude that the parties negotiated and 26 executed all three agreements in both Maryland and California. Thus, this factor 27 weighs neutral. [28] 1 b. Familiarity with governing law 2 In diversity cases, courts must determine which venue would be most familiar 3 with the law governing the action. Van Dusen, 376 U.S. at 645 . This factor “does not 4 ask whether a court is equally capable” of applying a state’s laws; rather this factor 5 “focuses on the familiarity of each forum with the applicable law.” Applied 6 Elastomerics, Inc. v. Z-Man Fishing Prods., Inc., No. C 06-2469 CW, 2006 WL 7 2868971, at *5 (N.D. Cal. Oct. 6, 2006); cf. Metz, 674 F. Supp. 2d at 1148 (finding 8 that courts in both California and New York were fully capable of applying New York 9 substantive law). 10 Here, Silk’s causes of action are based primarily on Maryland statutory law for 11 breach of contract. Although both the California and Maryland courts are equally 12 capable of applying Maryland law, courts in Maryland regularly adjudicate matters 13 arising under Maryland state law and are thus more familiar with the law governing 14 the case. On the other hand, it is reasonable to infer that courts in the Central District 15 of California, including this Court, adjudicate fewer cases arising under Maryland law, 16 and as such are less familiar with the law governing this case. Accordingly, this factor 17 favors transfer. 18 c. Local interest 19 The venue where events occur has a “local interest in having localized 20 controversies decided at home.” Decker Coal, 805 F.2d at 843 ; see Vu v. 21 Ortho-McNeil Pharm., Inc., 602 F. Supp. 2d 1151, 1157 (N.D. Cal. 2009) (finding 22 one district’s local interest stronger “because the events at issue took place there”). 23 Here, the events relevant to Silk’s causes of action took place in both Maryland and 24 California, so this factor is neutral. 25 d. Ease of access to evidence/sources of proof 26 “[The] ease of access to documents does not weigh heavily in the transfer 27 analysis, given that advances in technology have made it easy for documents to be 28 transferred to different locations.” Metz, 674 F. Supp. 2d at 1149 . Accordingly, the 1 moving party must show some evidence to suggest that the transportation of evidence 2 to the original venue would be difficult. See Bohara v. Backus Hosp. Med. Benefit 3 Plan, 390 F. Supp. 2d 957, 963 (C.D. Cal. 2005) (finding that “the movant must show 4 particularly the location [and] difficulty of transportation . . . of such records”). 5 Here, Defendants have already produced electronically scanned copies of their 6 hard-copy files, which can readily be accessed as evidence. (See Opp’n 13). This 7 established electronic availability suggests the parties will find evidence and 8 discovery easy to access in either forum. As such, the Court finds that the ease of 9 access to evidence proves the same in both Maryland and California, and this factor is 10 neutral. 11 e. Costs of litigation 12 Regarding the costs of litigation, Silk is not a current resident of California. 13 Thus, if the case proceeds in California, he will incur costs of travel regardless of 14 venue, though his litigation costs would reasonably be less if traveling from Nevada 15 to California than if traveling to Maryland. However, if the case proceeds in 16 Maryland, the costs of litigation would be reduced for a majority of people involved. 17 Bond is located in Maryland, and Miller, along with most of the non-party witnesses, 18 is located on the East Coast. That means their combined costs of travel will be less to 19 Maryland than to California. As the costs of litigation will be greater on balance to 20 litigate in California than in Maryland, this factor favors transfer. 21 f. Compulsory process 22 A subpoena may command a person to attend a trial, hearing, or deposition 23 within 100 miles of where the person resides, is employed, or regularly transacts 24 business in person. Fed. R. Civ. P. 45(c)(1). A subpoena may also command a 25 person to attend a trial, hearing, or deposition within the state where the person 26 resides, is employed, or regularly transacts business in person if the person would not 27 incur substantial expense. Id. This means that, “[f]or non-party witnesses, the court’s 28 subpoena power extends to anywhere within the district and/or one hundred miles of 1 the place of trial.” Huynh v. Mercedes-Benz USA, LLC, No. 2:22-cv-5045-MWF 2 (SKx), 2022 WL 18142559 , at *4 (C.D. Cal. Nov. 8, 2022) (quoting Costco 3 Wholesale Corp. v. Liberty Mut. Ins. Co., 472 F. Supp. 2d 1183, 1193 (S.D. Cal. 4 2007)). 5 Here, the majority of the anticipated non-party witnesses are within neither 6 100 miles of the Central District of California nor the state of California, and as a 7 result, many of the relevant non-party witnesses will likely be outside the Court’s 8 subpoena power. See Fed. R. Civ. P. 45(c)(1). In contrast, several of the non-party 9 witnesses are within 100 miles of the District Court for the District of Maryland. 10 Thus, the availability of compulsory process favors transfer. 11 g. Plaintiff’s choice of forum 12 Lastly, absent a strong showing of inconvenience, a plaintiff’s preference of 13 forum will not be disturbed. Decker Coal, 805 F.2d at 843 . However, where the 14 plaintiff is not a resident of the preferred forum, less deference is given to their 15 choice of forum. See Ainsworth v. Experian Info. Sols., Inc., No. 8:10-cv-0170616 CJC (RNBx), 2011 WL 2135713 , at *2 (C.D. Cal. May 12, 2011) (citing Williams v. 17 Bowman, 157 F. Supp. 2d 1103, 1107 (N.D. Cal. 2001)). Here, Silk is a resident of 18 Nevada, not California, which lessens any deference given to his choice of forum 19 otherwise. (See Compl. ¶ 8.) Thus, Silk’s choice of forum is entitled to only 20 minimal deference under the circumstances of this case. 21 C. Conclusion—Motion to Transfer 22 In sum, the convenience of the witnesses, familiarity with governing law, cost 23 of litigation, and compulsory process factors favor transfer, and the remaining factors 24 are neutral. The balance of the convenience and justice factors thus overcomes the 25 minimal deference given to Silk’s forum preference. As this action could originally 26 have been brought in the United States District Court for the District of Maryland, and 27 as Defendants establish that the convenience of the parties and witnesses, as well as [28] 1 || the interest of justice, favor transfer, the Court finds transfer to Maryland is warranted 2 | under the circumstances of this case.? 3 Vv. CONCLUSION 4 For the reasons discussed above, the Court GRANTS Defendants’ Motion to 5 || Transfer pursuant to 28 U.S.C. § 1404 . (ECF No. 53.) All dates and deadlines are 6 || VACATED. The Clerk of the Court shall TRANSFER this case to the United States District Court for the District of Maryland, 101 W. Lombard Street, Baltimore, 8 | Maryland, 21201. [9] 10 IT IS SO ORDERED. 1] 12 February 29, 2024 14 GEA. Lith 15 OTIS WRIGHT, II UNITED STATES DISTRICT JUDGE [26] Defendants’ request, in the event that the Court declines to transfer this case, that the Court order 28 || limited jurisdictional discovery in advance of any merits discovery. (Mot. 19.) However, as the Court finds transfer appropriate, Defendants’ request in the alternative is denied as moot.