United States District Court, S.D. New York
OPINION & ORDER MEMORANDUM ORDER
PAUL G. GARDEPHE, District Judge.
Pro se Plaintiff Amr Mohsen brings this action alleging violations of the Racketeering Influenced and Corrupt Organizations (RICO) Act, fraud, breach of contract, and other common law claims against Defendants Morgan Stanley & Co., Inc. and John Welker. In a September 23, 2013 order, this Court granted Defendants' motion 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. 67) Plaintiff has moved for reconsideration of that decision. For the reasons stated below, Plaintiffs motion will be denied.
I. THE CALIFORNIA ACTION
On September 14, 2009, Plaintiff filed a complaint in California state court (the "California Complaint") that is substantially similar to the Complaint in the instant action (the "New York Complaint"). (Kleinick Deel. (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) Plaintiff 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[ifomia] 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 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 moved to dismiss the California Complaint. On May 31, 2011, the Honorable Cormac J. Camey granted Morgan Stanley's motion to dismiss - which was unopposed-finding that Plaintiff's claims "suffer[ed] from many of the defects outlined in Morgan Stanley's motion to dismiss, particularly with respect to statutes of limitations...." (Kleinick Deel. (Dkt. No. 22), Ex. 2 at 1-2) Plaintiff was granted leave to amend, but did not do so within the time period set by the court. Accordingly, Judge Camey dismissed the action without prejudice. ( Id., Ex. 2 at 3) Judge Camey later rejected an amended complaint filed by Plaintiff, and denied Plaintiffs 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 Plaintiffs motion to proceed in forma pauperis, finding that Mohsen's "appeal [was] frivolous." (Kleinick Deel. (Dkt. No. 22), Ex. 3 at 1-2) On January 6, 2012, the Ninth Circuit dismissed Plaintiffs appeal, because he had not paid the filing fee. ( Id., Ex. 3 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 the action sua sponte, finding 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." (Dec. 7, 2011 Order (Dkt. No. 5) at 4) Judge Preska stated that she was "wary of what appears to be Plaintiffs attempts to bypass an 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 Plaintiffs 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. Deel. (Dkt. No. 7) ¶¶ 5, 7) Judge Preska construed Plaintiffs request as a motion for relief from judgment under Federal Rule of Civil Procedure 60(b). (See Apr. 20, 2012 Order (Dkt. No. 8)) On April 20, 2012, Judge Preska granted that motion, because the Ninth Circuit had dismissed Mohsen's appeal. (Id.)
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 the action." (Dec. 7, 2011 Order (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. (Dkt. No. 1) ¶ 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, 4)
III. TRANSFER TO THE CENTRAL DISTRICT OF CALIFORNIA
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) On August 13, 2013, Welker joined Morgan Stanley's motion. (Dkt. No. 64)
In a September 23, 2013 order, this Court granted Defendants' motion and transferred the action to the Central District of California. (Dkt. No. 67) In granting the motion, the court undertook "a two-part inquiry: first, [it considered] 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 [pursuant to 28 U.S.C. § 1404(a)]." Fuji Photo Film Co., Ltd. v. Lexar Media, Inc., 415 F.Supp.2d 370, 373 (S.D.N.Y. 2006) (internal quotations omitted).
Under the first prong of this analysis - whether the action might have been brought in another forum - this Court concluded that this action could have been brought in the Central District of California, because that court would have subject matter jurisdiction and personal jurisdiction over both Defendants, and venue would be proper in that district. (Sept. 23, 2013 Order (Dkt. No. 67) at 8-9) As to the second prong, this Court concluded that the Section 1404(a) factors weigh in favor of a California forum, because the Central District of California is a more convenient forum for the parties, the relevant documents are in that district, the locus of operative facts is in that district, and the Central District of California has already considered Plaintiffs claims. (Id. at 11-16)
IV. MOTION FOR RECONSIDERATION
On September 23, 2013, this action was electronically transferred from the Southern District of New York to the Central District of California.
In an October 22, 2013 letter, Plaintiff moved for leave to file a motion for reconsideration of this Court's September 23, 2013 order, alleging that he did not learn about the transfer order until approximately October 22, 2013. (Dkt. No. 71) Concluding that the Clerk of the Court had transferred this action to the Central District of California before the seven-day waiting period required by Local Civil Rule 83.1 had expired, and that Plaintiff had not had an opportunity to timely seek relief from the September 23, 2013 order, this Court ...