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Dover Limited v. Assemi

August 5, 2009

DOVER LIMITED, PLAINTIFF,
v.
ALAIN ASSEMI ET AL., DEFENDANTS.



MEMORANDUM OPINION

In this action arising out of an alleged fraudulent investment scheme, plaintiff Dover Limited, a Hong Kong corporation with its principal place of business in Singapore ("Plaintiff" or "Dover"), asserts various common law claims, as well as claims under the federal securities laws, against the following defendants: Alain Assemi, who resides in Switzerland; Tyrone John Morrow, who resides in North Carolina; TJ Morrow PC, an allegedly inactive New York corporation controlled by Morrow; John Banzhaf, Delbert Reichardt, Stephen Lovett and Thomas Begley, all of whom are domiciled in Georgia; Thomas Begley & Associates, Argosy Capital Securities (formerly Hartsfield Capital Securities) and Hartsfield Capital Group, Georgia corporations that are not represented in this action and are in default; and Mansell Capital Partners, a Georgia limited liability company that is not represented in this action and is in default. The Court has subject matter jurisdiction of the claims that arise under federal law pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction of the remaining claims pursuant to 28 U.S.C. § 1367.

The following motions are before the Court: Assemi's motion to dismiss the complaint (docket entry no. 17); Begley and Lovett's motion to dismiss the complaint or, in the alternative, to transfer the venue of this action to the Northern District of Georgia, which motion has been joined by Banzhaf and Reichardt (docket entry nos. 25 and 30); Plaintiff's motion for a default judgment against Mansell Capital Partners (docket entry no. 37); and Morrow and TJ Morrow PC's motion to dismiss the complaint and motion for a more definite statement (docket entry no. 56). Defendants Begley, Lovett, Banzhaf and Reichardt have all asserted, inter alia, that the Court lacks personal jurisdiction over them.*fn1

BACKGROUND

On February 26, 2009, following the withdrawal of counsel for defendants Begley, Lovett, Thomas Begley & Associates and Hartsfield Capital Group, as well as the Court's receipt of a (subsequently granted) application for withdrawal filed by counsel for defendants Reichardt, Banzhaf and Argosy Capital Securities, the Court issued an order requiring that each of the above-mentioned individual defendants file a notice of appearance either pro se or by new counsel and that any entity defendant appear by counsel by March 31, 2009. (Docket entry no. 75.) At the time, the above-mentioned defendants had submitted motions to dismiss the complaint, Plaintiff had submitted opposition papers, and the defendants, possibly owing to the cessation of their relationships with counsel, had failed to file reply submissions. The Court granted these defendants additional time to do so. (Id.)

Lovett, Begley, Banzhaf and Reichardt (the "Georgia Individual Defendants") all appeared pro se (docket entry nos. 78, 79, 80 and 81). None of the Georgia Individual Defendants has submitted a reply brief. None of the entity defendants has appeared.

DISCUSSION

Begley, Lovett, Banzhaf and Reichardt's Motion to Dismiss or, in the Alternative, to Transfer Venue

The parties dispute whether Begley, Lovett, Banzhaf and Reichardt are subject to personal jurisdiction in New York. The Georgia Individual Defendants submitted affidavits in support of their motion to dismiss the complaint in which they proffered facts purporting to demonstrate that their contacts with this forum were too limited to support this Court's exercise of personal jurisdiction over them. The affidavits were prepared by counsel who have subsequently withdrawn from the case and, during jurisdiction-related depositions, the Georgia Individual Defendants' statements contradicted in part the representations they had made in their affidavits. See, e.g., Mullaney Decl., Ex. C, pp. 24-25. However, it is not necessary to determine whether the Georgia Individual Defendants have valid personal jurisdiction defenses in light of the Court's determination, explained below, that the claims against them will be transferred to the Northern District of Georgia pursuant to 28 U.S.C. § 1404(a). See Corke v. Sameiet M. S. Song of Norway, 572 F.2d 77, 80 (2d Cir. 1978) (holding that a court may transfer a case even if the court does not have personal jurisdiction over the defendants). The claims against the entity defendants controlled by the Georgia Individual Defendants (Thomas Begley & Associates, Hartsfield Capital Group, Argosy Capital Securitiesand Mansell Capital Partners (collectively "the Georgia Entity Defendants")) will also be transferred.

Resolution of the Georgia Individual Defendants' transfer motion requires a two-pronged analysis. The Court must determine whether the action "might have been brought" in the transferee court and, if so, whether it would be an appropriate exercise of the Court's discretion to order the transfer.*fn2 An action "might have been brought" in the transferee court if that court would have subject matter jurisdiction of the claims, personal jurisdiction over the defendants and would constitute a proper venue. American Tel. & Tel. Co. v. Milgo Electronic Corp., 428 F. Supp. 50, 52 (S.D.N.Y. 1977). The parties do not dispute that the Georgia Individual Defendants and the Georgia Entity Defendants would be subject to personal jurisdiction in the Northern District of Georgia and that a federal court of that district would have subject matter jurisdiction of the asserted claims.

The Complaint alleges, inter alia, the following facts indicating that venue would be proper in the Northern District of Georgia as well.*fn3 Wendy Yap, Director of Dover, met with Begley, Lovett and Banzhaf at Hartsfield Capital Securities' office in Alpharetta, Georgia.

(Compl. ¶¶ 3, 24.)*fn4 Hartsfield Capital Securities received a $6,750,000 investment from Plaintiff in Alpharetta, Georgia. (Id. ¶¶ 3, 17.) Plaintiff received correspondence from Alpharetta, Georgia that induced it to make a $900,000 investment with an escrow account controlled by TJ Morrow PC. (Id. ¶ 46.) These allegations constitute "a substantial part of the events or omissions giving rise to [Plaintiff's] claims" and are therefore sufficient to render the Northern District of Georgia a venue in which the action might have been brought.

The Court thus turns to the second prong of the analysis.

In determining whether transfer is warranted for the convenience of the parties and witnesses [and] in the interest of justice under § 1404(a), courts generally consider several factors. The factors to be considered . . . include (1) the convenience of witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum's familiarity with the governing law, (8) the weight accorded the plaintiff's choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances.

In re Nematron Corp. Sec. Litig., 30 F. Supp. 2d 397, 400 (S.D.N.Y. 1998) (internal citations and quotation marks omitted). The Georgia Individual Defendants are proceeding pro se and reside in Georgia, a factor which weighs heavily in favor of transfer. See Sequa Corp. v. Patrick, No. 95 Civ. 3072, 1995 WL 640510, *1 (S.D.N.Y. Oct. 31, 1995). In contrast, Plaintiff, a Hong Kong company based in Singapore, has no discernible ties to New York other than its New York-based counsel. A plaintiff's choice of forum merits less consideration when, as here, it is not the plaintiff's home forum and the plaintiff's choice does not further genuine jurisdictional convenience. See Billing v. Commerce One, Inc., 186 F. Supp. 2d 375, 377 (S.D.N.Y. 2002) (granting defendant's motion to transfer venue when locus of operative facts and convenience of witnesses favored the transferee court and plaintiff had chosen a forum outside of his district of residence); cf. Norex Petroleum Ltd. v. Access Industries Inc., 416 F.3d 146, 155 (2d Cir. 2005) (stating, in the context of a forum non conveniens analysis, "Usually, the greatest deference is afforded a plaintiff's choice of its home forum, while less ...


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