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Mohsen v. Morgan Stanley & Co. Inc.

United States District Court, Second Circuit

September 23, 2013

AMR MOHSEN, Plaintiff,
v.
MORGAN STANLEY & CO. INC., DEAN WITTER, and JOHN WELKER, Defendants.

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, District Judge.

Pro se Plaintiff Amr Mohsen brings this action alleging Racketeering Influenced and Corrupt Organizations Act (RICO) claims, fraud, breach of contract, and other common law claims against Defendants Morgan Stanley & Co., Inc. and John Welker.[1] Defendants have moved to transfer this action to the United States District Court for the Central District of California, pursuant to 28 U.S.C. § 1404(a). (Dkt. Nos. 21, 64) For the reasons stated below, Defendants' motion will be granted.

BACKGROUND

I. THE CALIFORNIA ACTION

On September 14, 2009, Plaintiff filed a complaint in California state court (the "California complaint") substantially similar to the Complaint filed with this Court (the "New York complaint"). (Kleinick Decl. (Dkt. No. 22), Ex. 1 ("CA Cmplt.")) In both complaints, Plaintiff alleges that Defendants fraudulently caused him to sell stock from his brokerage accounts in September 2001 at a significant loss, and that they breached a contract with him by overcharging him for commissions. (CA Cmplt. ¶¶ 8-11; Cmplt. (Dkt. No. 1) ¶¶ 12-21)

In the California complaint - filed in Superior Court, Orange County - Plaintiff asserts that venue is proper in Orange County, California, because "Defendants reside or have places of business in Orange County where many of the acts and transactions giving rise to the causes of action asserted herein took place." (CA Cmplt. ¶ 2) He further asserts that although he is currently serving a sentence in federal prison in Safford, Arizona, he "is a citizen of the State of Cal[ifornia] with a California driver['s] license, " and maintains a residence in San Jose, California. Plaintiff further pleads that he "intends to return [and] live in California upon his release." (Id. ¶ 3) Plaintiff also alleges that "Morgan Stanley Dean Witter is a firm for financial and securit[ies] management with offices [in]... Irvine, California, ..." and that "John Welker is First Vice President [and] Br[anch] Manager at Morgan Stanley Dean Witter with offices [in]... Irvine, California...." (Id. ¶¶ 4-5) Plaintiff also states that he "opened several stock brokerage accounts on or about December 2000 with the firm of Morgan Stanley Dean Witter having offices at 8001 Irvine Center Drive, Suite 800, Irvine, California... [and that] Welker was the account executive in charge of these accounts." (Id. ¶ 6)

On April 1, 2011, Morgan Stanley removed the California action to the United States District Court for the Central District of California. (Mohsen v. Morgan Stanley Dean Witter, No. 8:11-cv-00495-CJC-MLG (C.D. Cal.) ("C.D. Cal. Dkt.") (Dkt. No. 1)) Morgan Stanley then filed a motion to dismiss. On May 31, 2011, the Honorable Cormac J. Carney granted Morgan Stanley's motion to dismiss - which was unopposed - finding that Plaintiffs claims "suffer[ed] from many of the defects outlined in Morgan Stanley's motion to dismiss, particularly with respect to statutes of limitations...." (Kleinick Decl., Ex. 2, at 1-2) Plaintiff was given leave to amend, but did not do so within the time limit set by the court. Accordingly, Judge Carney dismissed the action without prejudice. (Id. at 3) Judge Carney later rejected an amended complaint filed by Plaintiff, and denied Plaintiff's motion for relief from judgment. (C.D. Cal. Dkt. Nos. 18, 19)

On August 24, 2011, Plaintiff filed a notice of appeal. (Mohsen v. Morgan Stanley Dean Witter, No. 11-56468 (9th Cir.) (Dkt. No. 1)) On November 15, 2011, the Ninth Circuit denied Plaintiff's motion to proceed in forma pauperis, finding that "the appeal [was] frivolous." (Kleinick Decl., Ex. 3, at 1-2) On January 6, 2012, the Ninth Circuit dismissed Plaintiff's appeal, because he had not paid the filing fee. (Id. at 3) Plaintiff subsequently filed a petition for a writ of certiorari with the United States Supreme Court. That petition was denied on May 29, 2012. (Id., Ex. 4)

II. THE NEW YORK ACTION

On September 8, 2011, while his appeal was pending before the Ninth Circuit, Plaintiff filed the instant action. On December 7, 2011, Chief Judge Preska dismissed this action sua sponte, holding that the "Complaint is duplicative of the amended complaint that Plaintiff [attempted to] file[] in the Central District of California because the complaints share the same parties, facts, claims for relief[, ] and exhibits." (Dkt. No. 5 at 4) Judge Preska stated that she was "wary of what appears to be Plaintiff's attempts to bypass the appellate court ruling by filing a duplicative suit here...." (Id.) She further noted that "[b]ecause the United States District Court for the Central District of California already has familiarity with the facts in this action and a substantial part of the events giving rise to Plaintiff's claims took place in California, it may be in the interest of justice for that court to hear this action." (Id. at 4 n.1 (citing 28 U.S.C. § 1404))

On March 5, 2012, Plaintiff sought leave to re-file his complaint in this District. (Dkt. No. 7) Plaintiff argued that, although the dismissal of his California action was "effectively a final dismissal due to the expiration of the statutes of limitations on some of the causes of action pursuant to California [law, ]" "some of the causes of action... have not expired pursuant to New York [law]...." (Feb. 29, 2012 Pltf. Decl. (Dkt. No. 3) ¶¶ 5, 7) Judge Preska construed Plaintiff's request as a motion for relief from judgment under Federal Rule of Civil Procedure 60(b). On April 20, 2012, she granted that motion, because the Ninth Circuit had dismissed Plaintiff's appeal. (Dkt. No. 8)

As noted above, the California complaint and the New York complaint "share the same parties, facts, claims for relief[, ] and exhibits. The only significant differences are claims for why New York is the proper venue for this action." (Dkt. No. 5 at 3) In the New York complaint, Plaintiff pleads that "[v]enue is proper in this judicial district under 28 U.S.C. § 1391(a) because a defendant's corporate headquarter[s] resides in this judicial district, and the parties had agreed that the governing law relating to disputes would be the law of the State of New York...." (Cmplt. ¶ 11) Plaintiff further pleads that he is a citizen of the State of Arizona and that Welker is a citizen of the "State of Dakota." (Id. ¶¶ 1-2, 4)

On January 28, 2013, Morgan Stanley moved to transfer this action to the United States District Court for the Central District of California, pursuant to 28 U.S.C. § 1404(a). (Dkt. No. 21) Plaintiff filed an opposition to Morgan Stanley's motion on March 21, 2013. (Dkt. No. 37) Morgan Stanley filed a reply on April 10, 2013.[2] (Dkt. No. 43) On August 13, 2013, Welker joined Morgan Stanley's transfer motion.[3] (Dkt. No. 64)

DISCUSSION

I. LEGAL STANDARD

Title 28, United States Code, § 1404(a) states that "[f]or the convenience of parties and witnesses, [and] 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 or to any district or division to which all parties have consented." 28 U.S.C. § 1404(a). "The purpose of § 1404(a) is to prevent waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" In re Stillwater Min. Co. Sec. Litig., No. 02 Civ. 2806 (DC) , 2003 WL 21087953, at *2 (S.D.N.Y. May 12, 2003) (quoting Trehern v. OMI Corp., No. 98 Civ. 0242 (RWS) , 1999 WL 47303, at *1 (S.D.N.Y. Feb. 1, 1999) (internal quotations omitted)).

Absent consent, "[a] motion to transfer venue requires a two-part inquiry: first, whether the action to be transferred might have been brought in the transferee court; and second, whether considering the convenience of parties and witnesses, and the interest of justice, a transfer is appropriate." Fuji Film Co. v. Lexar Media, Inc. , 415 F.Supp.2d 370, 373 (S.D.N.Y. 2006) (internal quotations omitted). "[M]otions for transfer lie within the broad discretion of the district court and are determined ...


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