NORTH CAROLINA MUTUAL LIFE INSURANCE COMPANY v. STAMFORD BROOK CAPITAL, LLC et al

RESPONSE in Opposition re MOTION to Dismiss

M.D.N.C.January 31, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA DURHAM DIVISION CIVIL ACTION NO: 1:16-cv-1174 NORTH CAROLINA MUTUAL LIFE INSURANCE COMPANY, a North Carolina Corporation, Plaintiff, v. STAMFORD BROOK CAPITAL, LLC, a Delaware limited liability company, et al. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) PLAINTIFF’S RESPONSE IN OPPOSITION TO DAVID WASITOWSKI’S MOTION TO DISMISS OR TO TRANSFER VENUE NOW COMES Plaintiff North Carolina Mutual Life Insurance Company (“North Carolina Mutual”), by and through counsel, and responds to the Motion to Dismiss filed by David Wasitowski (“Wasitowski”), pro se. Wasitowski moves to dismiss the action for improper venue and insufficient service of process pursuant to Rule 12(b)(3) and 12(b)(5)1 of the Federal Rules of Civil Procedure. 1 Wasitowski does not cite to Rule 12(b)(5) but instead makes his motion pursuant to Rule 4(m); however, the appropriate vehicle for his motion to dismiss based on insufficient service of process is pursuant to Rule 12(b)(5). Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 1 of 20 2 38100478_4.docx HISTORY2 North Carolina Mutual initiated this action on 23 September 2016, asserting a number of claims against Stamford Brook Capital, LLC, Forefront Capital Holdings, LLC, Bradley Reifler, Michael Flatley, Summit Trust Company (“Summit”), Port Royal Reassurance Company SPC, Ltd. (“Port Royal”), and others arising out of the defendants’ mismanagement and concerns about the misappropriation of approximately $34,000,000.00 in certain assets entrusted to them by North Carolina Mutual. In an Amended Complaint, filed 2 August 2018, North Carolina Mutual alleges that the defendants violated North Carolina Mutual’s trust and failed to invest and hold its assets in compliance with the requirements of applicable North Carolina insurance laws and agreements between the parties. Instead, the defendants, including Wasitowski, engaged in a concerted fraudulent scheme to transfer North Carolina Mutual’s assets to improper investments designed to benefit the defendants, their associates, and affiliated entities in violation of applicable laws and agreements. [D.E. 97]. After filing the amended complaint on 2 August 2018, a summons for Wasitowski was issued with Wasitowski’s address listed as 39 Fairmount Road West, Califon, NY 07830 (“Califon residence”). On 15 August 2018, Federal Express delivered a copy of the summons and amended complaint to the Califon residence. [D.E. 104-2, p. 1-3]. Federal Express reports “E. Witkinski” signed for the documents. [Id. at 1, 3]. 2 This case has a long and procedurally complicated history that spans almost two years and involves multiples filings describing in detail the factual basis of this matter. For the purposes of brevity, North Carolina Mutual has only recounted those facts and events sufficient to provide a brief background to this matter and those events that bear on the motion currently before the Court. Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 2 of 20 3 38100478_4.docx In support of this motion, Wasitowski attests that he moved from the Califon residence approximately two weeks prior to the delivery of the summons and complaint, [id. at ¶ 2]. According to property records, the owner of the Califon residence is Oiha or Olha Wasitowski. [Exhibit 1, Williams Declaration, ¶¶ 3-4]. Less than two weeks after the amended complaint and summons was delivered to the Califon residence, Gregory Smith, an attorney working on Wasitowski’s behalf, contacted counsel for North Carolina Mutual regarding the amended complaint and the claims against Wasitowski. [D.E. 153, ¶ 7]. Throughout those conversations, counsel for North Carolina Mutual and Mr. Smith discussed Wasitowski agreeing to meet with representatives of North Carolina Mutual regarding this matter, an agreed upon date of service, and the corresponding deadline for Wasitowski to respond to the complaint. [Exhibit 2, Broughton Declaration, ¶¶ 5-7]. Although North Carolina Mutual believed that it had effectuated valid service at the Califon residence, it withheld taking any action against Wasitowski in order to facilitate discussions between the parties. [Id. at ¶ 6]. It was agreed that in the event the parties were not able to resolve North Carolina Mutual’s claims against Mr. Wasitowski, the parties would agree on an effective date of service and a date by which Mr. Wasitowski would respond to the Amended Complaint. [Id.]. Ultimately, the parties agreed to meet on Wednesday, 3 October 2018. In an email dated 2 October 2018, Mr. Smith writes, “[a]s we also discussed, no one will serve or attempt to serve David with any process or other document, and we will discuss an agreement concerning the agreed date of service of the complaint and David’s time to respond thereto.” [Id. at ¶ 7]. Following the 3 October 2018 meeting, North Carolina Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 3 of 20 4 38100478_4.docx Mutual and Wasitowski were unable to reach an agreement related to Wasitowski’s cooperation in this matter. [Id. at ¶ 8]. On 12 October 2018, counsel for North Carolina Mutual informed Mr. Smith that an agreement could not be reached and that North Carolina Mutual would continue to prosecute its claims against Wasitowski. [Id.]. Shortly, North Carolina Mutual’s counsel who had engaged in discussions with Mr. Smith began a multi-week trial in the District of Maryland. [Id. at ¶ 8]. Following the multi-week trial, on 28 November 2018, counsel for North Carolina Mutual reached out to Mr. Smith regarding an agreement regarding the time for Wasitowski to respond to the amended complaint. [Id. at ¶ 9]. On 5 December 2018, Mr. Smith informed counsel for North Carolina Mutual that despite earlier representations of reaching a mutually agreeable date on which Wasitowski would be deemed served and by which he must answer North Carolina Mutual’s amended complaint, Smith informed North Carolina Mutual that Wasitowski would no longer do so. [Id. at ¶ 10]. North Carolina Mutual entered into discussions with Wasitowski pursuant to an agreement that “an agreed date of service of the compliant and [Wasitowski’s] time to respond thereto” would be negotiated. [Id. at ¶ 7]. Furthermore, it was North Carolina Mutual understanding that in the event the parties were not able to resolve North Carolina Mutual’s claims against Wasitowski, the parties would agree on an effective date of service and a date for Wasitowski to respond. [Id. at ¶ 6]. With that understanding, North Carolina Mutual refrained from moving forward with any claim that Wasitowski was in default for failing to file a responsive pleading. [Id.]. Following receiving notice that Wasitowski Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 4 of 20 5 38100478_4.docx would no longer agree on a service date or a response deadline, and to avoid any doubt regarding whether Wasitowski had been validly served previously, North Carolina Mutual promptly caused Wasitowski to be personally served with a copy of the summon and amended complaint. On 7 December 2018, a copy of the summons and amended complaint was personally served on Wasitowski at 275 Madison Avenue, 38th Floor, New York, New York 10016. [Id. at ¶ 11; D.E. 144, p. 2]. STANDARD OF REVIEW When evaluating a motion to dismiss under Rule 12(b)(3), the Court may consider evidence outside of the pleadings without converting the motion to one for summary judgment. See Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 365-66 (2012). The plaintiff is only obligated to make a prima facie showing of proper venue to survive a motion to dismiss. Id. at 366. Additionally, the Court must construe the facts in the light most favorable to the plaintiff. Id. (citation omitted). Where the defendant has moved to dismiss for insufficient service of process pursuant to Rule 12(b)(5), the plaintiff bears the burden of establishing that service of process has been performed in accordance with Rule 4 of the Federal Rules of Civil Procedure. Elkins v. Broome, 213 F.R.D. 273, 275 (M.D.N.C. 2003). ARGUMENT I. Venue is proper in the Middle District of North Carolina. Wasitowski argues that the amended complaint should be dismissed against him because venue is improper in the Middle District of North Carolina. Wasitowski argues that his attendance at a December 2014 meeting in this district with North Carolina Mutual Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 5 of 20 6 38100478_4.docx executives does not constitute “any act or omission giving rise to [North Carolina Mutual’s] claims, much less a substantial part of the acts or omissions on which its claims are based.” [D.E. 151, p. 7]. Venue is determined pursuant to the general venue statute which provides “[a] civil action may be brought in . . . a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). When determining whether events or omissions are sufficiently substantial to support venue under section 1391, the court should “not focus only on those matter that are in dispute or that directly led to the filing of the action. . . . Rather, it should review the entire sequence of events underlying the claim.” Mitrano v. Hawes, 377 F.3d 402, 406 (4th Cir. 2004) (citations and quotations omitted). A plaintiff is not required to establish that it has brought the action in the venue with the most substantial contacts; even if more substantial activities occurred in another district, this district would not be disqualified from being a proper venue. See Red Bull GmbH v. RLED, LLC, 515 F. Supp. 2d 641, 646 (M.D.N.C. 2007). “Substantial activities may occur in other districts without disqualifying this district as a proper venue, so long as ‘substantial’ activities occurred in this district also. Id. (citing Hardee’s Food Sys. Inc. v. Beardmore, 169 F.R.D. 311, 316 (E.D.N.C. 1996). Wasitowski admits that he came to North Carolina Mutual’s office, located in Durham, North Carolina, in December 2014 to participate in a pitch to company executives to transfer business and assets. [D.E 152, ¶ 18]. In its amended complaint, North Carolina Mutual alleges that the December 2014 meeting in Durham, North Carolina was for the Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 6 of 20 7 38100478_4.docx purpose of “persuad[ing] North Carolina Mutual to change its reinsurer from Markel to Port Royal in order to gain access to, and control over, the Trust Assets.” [D.E. 97, ¶ 37]. All of North Carolina Mutual’s claims stem from the conspiracy between Port Royal, Summit Trust, the Forefront entities, and their principals, including Wasitowski, aimed at defrauding North Carolina Mutual and improperly taking its assets. North Carolina Mutual has alleged that Port Royal and the Forefront defendants, including Wasitowski, participated in a concerted scheme to accomplish the fraud. The December 2014 meeting, though not the only action related to carrying out the scheme, was certainly a substantial act in the scheme. The meeting served to help convince North Carolina Mutual executives that transferring control of its assets to the defendants was a sound business decision. This meeting, for the sole purpose of furthering the scheme, was a substantial act in the relevant events that led to North Carolina Mutual filing this action. Therefore, venue is proper in this district pursuant to section 1391. Wasitowski also argues that venue of the RICO claim is improper in this district pursuant to the venue provision of the RICO statute. The venue statute for civil RICO claims is set forth in 18 U.S.C. § 1965. Venue is proper in the district where the defendant “resides, is found, has an agent, or transacts his business.” 18 U.S.C. § 1965(a). However, venue for a RICO action is also proper “[i]n any action under section 1964 of this chapter in any district court of the United States in which it is shown that the ends of justice require that other parties residing in any other district be brought before the court.” Id. at § 1965(b). “This section was intended to enable a plaintiff to bring before a single court for trial all Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 7 of 20 8 38100478_4.docx members of a nationwide RICO conspiracy.” Monarch Normandy Square Partners v. Normandy Square Assocs. Ltd. P’ship, 817 F. Supp. 899, 905 (D. Kan. 1993). In a RICO action, “venue may be proper with respect to a particular defendant even though the venue provisions of 18 U.S.C. § 1965(a) and 28 U.S.C. § 1391 do not apply to that defendant.” Southmark Prime Plus, L.P. v. Falzone, 768 F. Supp. 487, 490 (D. Del. 1991). If venue is proper in a district pursuant to 18 U.S.C. § 1965(a) or 28 U.S.C. § 1391 as to one or more defendants, venue will also be proper with respect to defendants not covered by these venue provisions if, pursuant to 18 U.S.C. § 1965(b), the “interests of justice” dictate that these other defendants be brought before the same court. Id.; see also, Monarch Normandy Square Partners, 817 F. Supp. 899, 904-05 (D. Kan. 1993). The ends of justice are met where, as here, the RICO claims are being brought in conjunction with other claims subject to venue in this district, the action has been pending in this district for more than two years, and judicial efficiency and economy support maintaining all claims in a single suit in one district. The Court should not dismiss this action or the RICO claim for improper venue. II. North Carolina Mutual timely served Wasitowski. Rule 4 requires the summons and a copy of the complaint be served on the defendant within 90 days of when the complaint was filed. Fed. R. Civ. P. 4(m). If a defendant is not served within 90 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against the defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 8 of 20 9 38100478_4.docx Id. “[W]here actual notice of the commencement of the action and the duty to defend has been received by the one served, the provisions of [then] Rule 4(d)(1)3 should be liberally construed to effectuate service and uphold the jurisdiction of the court, thus insuring the opportunity for a trial on the merits.” Karlsson v. Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963) (citations omitted). “Mere technicalities” should not stand in the way of consideration of a case on its merits. Scott v. Md. St. Dept. of Labor, 673 F. App’x 229, 304 (4th Cir. 2016) (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988)). Where service has provided actual notice of the litigation, “the rules, in general are entitled to a liberal construction. When there is actual notice, every technical violation of the rule or failure of strict compliance may not invalidate the service of process.” Armco, Inc. v. Penrod-Stauffer Bldg. Sys., Inc., 733 F.3d 1087, 1089 (4th Cir. 1984). In Karlsson, the defendant had resided in Maryland with his family but at the time of service had left the state permanently to make arrangements for his family to move to Arizona. Id. at 667. The defendant’s wife and kids stayed at the house in Maryland and a copy of the summons and complaint was served by leaving a copy of each with the defendant’s wife at the Maryland residence. Id. In determining if the defendant was properly served, the Fourth Circuit liberally construed Rule 4, noted that the defendant had 3 At the time of the Karlsson opinion, Rule 4(d)(1) proscribed service on an individual. See Karlsson, 318 F.2d at 667 n. 1. Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 9 of 20 10 38100478_4.docx received actual notice of the commencement of the action and its duty to defend, and held that service had been effectuated. Id. at 668. The facts of this case are similar to those of Karlsson. Wasitowski was living at the Califon residence up to the day before the amended complaint was filed and merely two weeks before the summons and amended complaint were served at the Califon residence, owned by Oiha or Olha Wasitowski. Wasitowski has failed to attest that he did not receive notice of the amended complaint filed against him from this service4 or that he does not know who currently resides at the Califon residence who would have accepted service of the pleading. Given the extremely short amount of time between Wasitowski leaving the Califon residence, that property records indicate that a Ms. Wasitowski owns the property, and that Wasitowski received actual notice of the claims against him and his duty to defend within two weeks of the service, this Court should conclude that service at the Califon residence was sufficient. III. The time for service should be extended for North Carolina Mutual’s good cause. In the event the Court concludes that service was not effectuated at the Califon residence, North Carolina Mutual has shown good cause for the untimely service and the Court should extend the time to serve Wasitowski through December 7, 2018. Courts examine multiple factors to determine if the plaintiff has shown good cause to excuse the failure to timely serve. Beasley v. Bojangles’ Rests., Inc., No. 1:17CV255, 2018 WL 4 Wasitowski merely attests that “[i]n August 2018 he was shocked to learn” he had been named as a defendant. [ECF No. 152, ¶ 12], Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 10 of 20 11 38100478_4.docx 4518693, at *1 (M.D.N.C. Sept. 20, 2018). These factors include whether: (1) the delay in service was outside of the plaintiff’s control; (2) the defendant was evasive; (3) the plaintiff acted diligently or made reasonable efforts; (4) the plaintiff is pro se or in forma pauperis; (5) the defendant will be prejudiced; (6) the plaintiff asked for an extension of time under Rule 6(b)(1)(A). Id. (quoting Scot v. Md. St. Dep’t of Labor, 673 F. App’x 299, 306 (4th Cir. 2016). Where the plaintiff has shown good cause for the failure to timely serve, the court must extend the time to serve and may extend that time to the point where the defendant was properly served with process. Escalante v. Tobar Constr., Inc., No. 8:18-cv-00980- PX, 2019 WL 109369, at *4 (D. Md. Jan. 3, 2019). In Escalante, the plaintiff properly served the defendant on August 8, 2018, 34 days after the time under Rule 4(m) had elapsed. Id. at *1. In deciding the defendant’s motion to dismiss for insufficient service of process, the court found the plaintiff had shown good cause for the failure and “exercise[d] its discretion to afford the parties full resolution on the merits and extends the time to serve the Complaint on Tobar up to and including August 8, 2018.” Id. at *4. The Court should do the same here and extend the time for service up to and including December 7, 2018, the date upon which Wasitowski was personally served with the summons and amended complaint. Here, it is without question that Wasitowski received actual notice of North Carolina Mutual’s claims against him and his duty to defend. Indeed, he obtained counsel to negotiate with North Carolina Mutual a resolution of the claims and his deadline to respond less than two-weeks after a copy of the summons and complaint was delivered to the Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 11 of 20 12 38100478_4.docx Califon residence. Wasitowski and North Carolina Mutual communicated for over a month to set a time to meet and discuss the claims and response deadline. Furthermore, Mr. Smith, on Wasitowski’s behalf, made it a condition of the meeting that North Carolina Mutual would not attempt to serve Wasitowski and the parties agreed to establish a mutually agreeable date for acceptance of service of process. When considering these factors, North Carolina Mutual has shown good cause for a failure to timely serve Wasitowski and asks that the time to serve be extended to December 7, 2018, the date when Wasitowski was personally served. IV. The Court should not transfer this action to the Southern District of New York. Wasitowski asks this court to transfer the action to the Southern District of New York pursuant to sections 1404(a) or 1406(a) of Title 28 of the United States Code, depending on whether the Court determines venue is proper here. The Court should not transfer venue to the Southern District of New York under either provision. a. Factors weigh against transferring venue for the convenience of the parties or interest of justice pursuant to section 1404(a). If the Court determines venue is proper in this district, section 1404(a) provides that for the convenience of the parties and witnesses, 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.” 28 U.S.C. 1404(a). When considering a motion to transfer under section 1404(a), the court should consider the following factors: (1) the plaintiff's initial choice of forum; (2) relative ease of access to sources of proof; (3) availability of compulsory process for attendance of unwilling witnesses; (4) possibility Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 12 of 20 13 38100478_4.docx of a view of the premises, if appropriate; (5) enforceability of the judgment, if one is obtained; (6) relative advantage and obstacles to a fair trial; (7) other practical problems that make a trial easy, expeditious, and inexpensive; (8) administrative difficulties of court congestion; (9) local interest in having localized controversies settled at home; (10) appropriateness of having a trial of a diversity case in a forum that is at home with the state law that must govern the action; and (11) avoidance of unnecessary problems with conflicts of laws. IHFC Props., LLC v. APA Mktg., Inc., 850 F. Supp. 2d 604, 622 (M.D.N.C. 2012). Courts should refrain from transferring venue if the inconvenience is merely shifted from one party to another. Speed Trac Techs., Inc. v. Estes Express Lines, Inc., 567 F. Supp. 2d 799, 803 (M.D.N.C. 2008) (citing Tools USA & Equip. Co. v. Champ Frame Straightening Equip., Inc., 841 F.Supp. 719, 721 (M.D.N.C.1993)). As a general rule, the plaintiff’s choice of forum “should rarely be disturbed.” Collins v. Straight Inc., 748 F.2d 916, 921 (4th Cir. 1984). To disturb the plaintiff’s choice of forum, the defendant must show that the balance of factors weighs “strongly in its favor.” IHFC Props., LLC, 850 F. Supp. 2d at 623 (quoting Mamani v. Bustamante, 547 F. Supp. 2d465, 469 (D. Md. 2008)). Although Wasitowski argues that the matter should be transferred because this district Rule 45 subpoena power does not reach “principal witnesses” who reside in New York. However, this argument is not sufficient to carry the burden related to this factor. The moving party “must demonstrate whether its witnesses are willing to travel to a foreign jurisdiction.” Id. (citing and quoting Thayer/Patricof Educ. Funding, LLC v. Pryor Res., Inc., 196 F. Sup. 2d 21, 33 (D.D.C. 2002)). Wasitowski has failed to prove that the Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 13 of 20 14 38100478_4.docx “principal witnesses” are not willing or could not be persuaded to travel to North Carolina to participate in trial if needed. This factor weighs against transfer. Wasitowski argues that trying the case in this district will be “extremely inconvenient” where he may have to provide for long-distance travel to North Carolina for hearings and trial for himself and other potential nonparty witnesses. Wasitowski argues that North Carolina Mutual has “far greater financial means” to try the case in a foreign forum. It would inequitable for North Carolina Mutual, the harmed party in this matter, to be required to litigate in a foreign jurisdiction where venue is proper in this district. Wasitowski was a participant in the scheme to defraud North Carolina Mutual of millions of dollars. Transferring this matter to the Southern District of New York would serve only to increase the costs and loss of the injured party. Although North Carolina Mutual is an operating company, it is statutorily insolvent and has been under supervision from the North Carolina Department of Insurance (“NCDOI”). Due to the insolvency and supervision, North Carolina Mutual’s financial position is significantly affected and its ability to hire additional counsel in New York, admit North Carolina lawyers to the New York bar, and pay for the various expenses associated with trial in a foreign jurisdiction is significantly impacted. This factor does not weigh in favor of transfer because doing so would only shift the burden and inconvenience to a statutorily insolvent entity. North Carolina also maintains a significant interest in resolving this dispute. North Carolina Mutual is a North Carolina company with its principal place of business in this district. North Carolina Mutual conducts business under the regulatory oversight of Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 14 of 20 15 38100478_4.docx NCDOI. Indeed, it is NCDOI’s regulations proscribing the appropriate assets that an insurance company may invest in that forms the basis of North Carolina Mutual’s claims. Namely, that the company’s assets, over $34,000,000, were transferred or invested by the defendants in assets that did not meet NCDOI’s regulations as the operative investment agreements required. North Carolina’s interest in resolving this local controversy weighs heavily in favor of retaining venue. North Carolina Mutual’s claims also include a number a state law claims that will apply North Carolina law. These claims include common law claims of fraud and breach of contract, along with claims of unfair and deceptive trade practices and civil RICO act violations pursuant to North Carolina statutes. This district will undoubtedly be more familiar with the North Carolina common law and statutory provisions to be applied in this action. Other factors weigh in favor of retaining jurisdiction, including judicial efficiency and economy. This matter has been pending before this court for more than two years, since September 2016. This Court has unparalleled familiarity with the claims, the factual allegations, the procedural history, and the parties in this case. Indeed, this Court has already resolved a number of motions related to this action in this two-year pendency. Judicial efficiency and economy weigh in favor of retaining venue. The other factors not discussed herein do not weigh either in favor of or against retaining venue. Wasitowski as the moving party bears the burden of proving that the factors discussed above weighs strongly in his favor in order for venue to be transferred. Wasitowski has failed to meet this burden and this district should retain venue. Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 15 of 20 16 38100478_4.docx b. Venue is proper in this district and section 1406(a) is inapplicable. If the Court determines that venue is improper in this district, the court may dismiss the action, “or if it be in the interest of justice, transfer such case to any district tor division in which it could have been brought.” 28 U.S.C. § 1406(a). As discussed above, venue is proper in this district and therefore, section 1406(a) is inapplicable. CONCLUSION Wherefore, Plaintiff North Carolina Mutual asks the Court to deny Defendant David Wasitowski’s Motion to Dismiss or Transfer Venue. This the 31st day of January, 2019. WILLIAMS MULLEN /s/ M. Keith Kapp M. Keith Kapp (N.C. Bar #8850) P.O. Box 1000 Raleigh, North Carolina 27602 Telephone: (919) 981-4000 Facsimile: (919) 981-4300 Email: kkapp@williamsmullen.com Attorneys for Plaintiff Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 16 of 20 17 38100478_4.docx WORD COUNT CERTIFICATION Pursuant to Local Rule 7.3(d)(1), I hereby certify, subject to Fed. R. Civ. P. 11, that the accompanying response brief contains 4,393 words, according to the word count feature of the word-processing system used to prepare the brief. Accordingly, the response brief does not exceed the 6,250 word limitation. Respectfully submitted, this the 31st day of January, 2019. WILLIAMS MULLEN /s/ M. Keith Kapp M. Keith Kapp (N.C. Bar #8850) P.O. Box 1000 Raleigh, North Carolina 27602 Telephone: (919) 981-4000 Facsimile: (919) 981-4300 Email: kkapp@williamsmullen.com Attorneys for Plaintiff Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 17 of 20 18 38100478_4.docx CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that on January 31, 2019, the foregoing document was served upon each party to this cause or that party's counsel of record by electronically filing the same with the Clerk of Court using the Court’s CM/ECF system which will send notification of such filing to all counsel of record and parties that have made an appearance in this civil action, in accordance with the provisions of Rule 5, Federal Rules of Civil Procedure. Undersigned further certifies that the foregoing document was mailed to the following non CM/ECF participants: Stamford Brook Capital, LLC c/o The Company Corporation, Registered Agent 251 Little Falls Drive Wilmington, DE 19808 Forefront Capital Services, LLC c/o Corporation Service Company, Registered Agent 251 Little Falls Drive Wilmington, DE 19808 Forefront Capital Holdings, LLC c/o Corporation Service Company, Registered Agent 251 Little Falls Drive Wilmington, DE 19808 Bradley C. Reifler 123 Fraleigh Hill Road Millbrook, NY 12545 Michael Flatley 50 Sherman Street Lynbrook, NY 11563 Michael Flatley 2347 28th Street, Apt. 2FLF Long Island City, NY 11105 Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 18 of 20 19 38100478_4.docx Summit Trust Company c/o Summit Trust Company, Registered Agent 8861 W. Sahara Ave., Suite 215 Las Vegas, NV 89117 Forefront Partners Short Term Notes, LLC c/o Bradley Reifler 123 Fraleigh Hill Road Millbrook, NY 12545-4951 Forefront Partners Short Term Notes, LLC c/o Michael Flatley 50 Sherman Street Lynbrook, NY 11563 Forefront Partners Short Term Notes, LLC c/o Michael Flatley 2347 28th Street, Apt. 2FLF Long Island City, NY 11105 Forefront Partners Short Term Notes, LLC c/o Bradley C. Reifler 116 W. 14th Street New York, NY 10011 David Wasitowski 39 Fairmount Road West Califon, NJ 07830 David Wasitowski Union Capital Group 275 Madison Avenue, 38th Floor New York, NY 10016 David Wasitowski 5 Laga Court Ringoes, New Jersey 08551 Gregory L. Smith The Law Office of Gregory L. Smith 147 Prince Street, Fl. 2 Brooklyn, NY 11201 Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 19 of 20 20 38100478_4.docx FF Sully Partners, LP c/o The Company Corporation 251 Little Falls Drive Wilmington, DE 19808 This the 31st day of January, 2019. WILLIAMS MULLEN /s/ M. Keith Kapp M. Keith Kapp (N.C. Bar #8850) P.O. Box 1000 Raleigh, North Carolina 27602 Telephone: (919) 981-4000 Facsimile: (919) 981-4300 Email: kkapp@williamsmullen.com Attorneys for Plaintiff Case 1:16-cv-01174-LCB-JEP Document 160 Filed 01/31/19 Page 20 of 20