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JOB HAINES HOME FOR THE AGED v. YOUNG

July 31, 1996

JOB HAINES HOME FOR THE AGED, a non-profit association, in its individual capacity and on behalf of all persons similarly situated, Plaintiffs,
v.
HERBERT J. YOUNG, JOHN R. WILLIAMSON, ROBERT R. SPRAGUE HOUSTON I. FLOURNOY, BERNICE H. HUTTER, MELVIN P. SPITZ, RAFAEL E. VEGA, KPMG PEAT MARWICK, PEAT MARWICK & CO., PEAT MARWICK MAIN & CO. AND GIBSON, DUNN & CRUTCHER, Defendants



The opinion of the court was delivered by: CHESLER

 STANLEY R. CHESLER, U.S. Magistrate

 I. Introduction.

 This matter comes before the Court on the motions of Defendants to transfer this action to the Central District of California pursuant to 28 U.S.C. § 1404(a). *fn1" This matter was referred to the undersigned by the Honorable Maryanne Trump Barry, U.S.D.J. Oral argument was heard on July 22, 1996. For the reasons stated below, the motions are granted.

 II. Background

 This securities class action case arises from allegedly "false and misleading public representations, statements and assurances affecting the offer, sale, purchase and trading in the public debt securities of Gibraltar [Savings, a wholly owned subsidiary of Gibraltar Financial Corporation]." (Compl. P 1.) Gibraltar Savings ("Gibraltar") was a "federally insured savings and loan based in Beverly Hills, California." (Id. at P 2.) Plaintiff contends that Gibraltar, although actually sustaining substantial losses for 1986, "publicly reported 'record earnings' of approximately $ 49 million." (Id. at P 5-6.) Plaintiff alleges causes of action under federal securities law, as well as under New Jersey state law.

 The defendants in this action are: the officers and directors of Gibraltar Financial Corporation ("GFC") (the "Director Defendants"), *fn2" all of whom reside in California, except for Mr. Vega, who resides in Las Vegas, but maintains business operations in California, (Vega Cert. P 5), and who all worked for Gibraltar in California; GFC's accountants, *fn3" whose Los Angeles office audited GFC, (Taft Decl. P 3); and GFC's attorneys, Gibson, Dunn & Crutcher ("Gibson Dunn"), who worked out of their Los Angeles office.

 Defendants moved to transfer this action to the Central District of California where, Defendants contend, "all of the events giving rise to this Action occurred." (Def. Gibson, Dunn & Crutcher LLP's Mem. in Supp. of Mot. for Trans. of Venue Pursuant to 28 U.S.C. § 1404(a) [hereinafter "D. Mem."] at 4.) *fn4"

 III. Discussion.

 Section 1404(a) Transfers, Generally

 Section 1404(a) permits a court to transfer a federal action from one federal district to another "for the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). Such a transfer is restricted, however, to "any other district or division where [the case] might have been brought." Id. The purpose of allowing such transfers is to "prevent the waste of 'time, energy and money' and 'to protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S. Ct. 805, 809, 11 L. Ed. 2d 945 (1964). The key considerations for the court to review when deciding a motion to transfer, therefore, are 1) the convenience of the parties, 2) the convenience of the witnesses, and 3) the interests of justice.

 As a preliminary matter, this Court notes that the Central District of California is a venue in which this case "could have been brought," and, therefore, a request to transfer this case to that district is proper under § 1404(a). Because all of the defendants are residents of California, and/or do business there, the Central District of California would have personal jurisdiction over the defendants. Because the alleged wrongdoing arose from acts performed in California, that is also a proper venue for this case. *fn5"

 In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947), the Supreme Court listed specific factors for courts to consider when deciding transfer motions. The private factors noted by the Gulf Oil court include

 
the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. . . . The plaintiff may not, by choice of an inconvenient forum, 'vex,' 'harass,' or 'oppress' the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.

 Id. at 508, 67 S. Ct. at 843. The public factors deal with such things as court congestion, burdensome jury duty in a community unrelated to the litigation, the interest of having a local dispute decided in that locality, and the preference of having a state-law governed case decided in the forum familiar with that law. Id. at 509, 67 S. Ct. at 843.

 Analyses of transfers under § 1404(a) are "flexible and must be made on the unique facts of each case." Ricoh Co. v. Honeywell, Inc., 817 F. Supp. 473, 479 (D.N.J. 1993). Such determinations are discretionary with the judge. Id.

 The party moving for transfer not only has the burden of going forward, but also the burden of persuasion. Lony v. E.I. Du Pont de Nemours & Co., 935 F.2d 604, 609 (3d Cir. 1991). Therefore, the plaintiff's choice of forum will prevail, unless the party moving for the transfer can convince the court otherwise. The moving party must thus prove that "its alternative forum is not only adequate, but more convenient than the present forum." Hudson United Bank v. Chase Manhattan Bank, 832 F. Supp. 881, 888 (D.N.J. 1993), aff'd, 43 F.3d 843 (3d Cir. 1994).

 Another situation where "the plaintiff's choice of a forum becomes substantially less important [is] when he sues representatively on behalf of a class." Firmani v. Clarke, 325 F. Supp. 689, 691 (D. Del. 1971). In a class action, the named plaintiff's testimony and other input is likely to be minimal. Id. Furthermore, plaintiff classes are often comprised of residents of many states. Thus, a multitude of states could have interests in seeing their citizens' complaints justly addressed. The residence of the class representative becomes a mere happenstance. The choice to sue in that named plaintiff's home state, a mere fortuity.

 Therefore, the weight of authority holds that in class actions and derivative law suits the class representative's choice of forum is entitled to lessened deference. Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S. Ct. 828, 832 91 L. Ed. 1067 (1947)(determining in this derivative action that "where there are hundreds of potential plaintiffs . . . all of whom could with equal show of right go into their many home courts, the claim of any one plaintiff that a forum is appropriate merely because it is his home forum is considerably weakened"); Baldwin v. Nat'l Safety Assoc., Inc., 1994 U.S. Dist. LEXIS 4468, 1994 WL 139267, * 2 (N.D. Cal. April 6, 1994); Werbowsky v. Am. Waste Serv. Inc., 1992 U.S. Dist. LEXIS 8267, 1992 WL 147924, *2 (S.D.N.Y. 1992); Supco Automotive Parts v. Triangle Auto Spring Co., 538 F. Supp. 1187, 1192 (E.D. Pa. 1982)(noting that in class actions "plaintiff's choice of forum deserves less weight); Blake Constr. Co. v. Int'l Harvester Co., 521 F. Supp. 1268, 1271-72 (N.D. Ill. 1981)(finding little weight to be given class representative's choice of forum); Blender v. Sibley, 396 F. Supp. 300, 302 (E.D. Pa. 1975)(indicating that far less weight is accorded plaintiff's choice in class actions and derivative suites); Harris v. Am. Inv. Co., 333 F. Supp. 325, 326 (E.D. Pa. 1971); Fogel v. Wolfgang, 48 F.R.D. 286, 290 (S.D.N.Y. 1969)(applying Koster's logic to class actions). But see, Carty v. Health-Chem Corp., 567 F. Supp. 1 (E.D. Pa. 1982).

 "The preference for honoring a plaintiff's choice of forum is simply that, a preference[,] . . . not a right," AT&T v. MCI, 736 F. Supp. 1294, 1306 (D.N.J. 1990). Nevertheless, the 1404(a) factors are still balanced by the court in making a transfer determination, and the balance must tip strongly in favor of transfer before disturbing the plaintiff's choice. Hardaway Constructors, 617 F. Supp. at 620.

 In reviewing the factors which weigh for or against transfer, this Court must look to facts which are a matter of record, not merely to assertions in the attorneys' briefs. Ricoh Co., 817 F. Supp. at 480. One of the factors to consider is "whether the moving party submitted adequate data of record to facilitate an appropriate analyses." Hudson United Bank v. Chase Manhattan Bank, 832 F. Supp. 881, (D.N.J. 1993)(citing Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756-57, (3d Cir. 1973)).

 The Special Venue Provision of the 1934 Act

 Plaintiff asserts that Section 27 of the Securities Exchange Act of 1934 ("the Act"), 15 U.S.C. § 78aa, provides plaintiffs in securities suites, such as this one, with a special venue provision such that Plaintiff's choice of venue under this statute should not be disturbed. Plaintiff contends that this section gives plaintiffs "the right to select the venue for the plaintiff's legal action in any United States Federal Court." (Pl. Joint Resp. and Opp. to D. ...


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