My24hournews.Com, Inc. v. At&T Corporation

MOTION to Alter Judgment re Order on Motion to Dismiss/Lack of Jurisdiction,, Order on Report and Recommendations,, Order on Appeal of Magistrate Judge Decision to District Court

D. Colo.August 18, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case Number: 15-CV-01210-RM-NYW MY24HOURNEWS.COM, INC., a Colorado corporation Plaintiff, v. AT&T CORP., a New York corporation Defendant. MOTION TO ALTER OR AMEND JUDGMENT BY TRANSFERRING CASE My24HourNews.com, Inc., Plaintiff in the above-captioned case (“Plaintiff”), for its Motion to Transfer Case pursuant to Federal Rule of Civil Procedure 59 (e) and 28 U.S.C. §1631, (“Motion”), respectfully submits the following: CONFERRAL Plaintiff’s counsel has conferred with Defendant’s counsel, who advises Plaintiff’s counsel that that Defendant AT&T Corp (“Defendant”) will oppose this Motion on at least the ground that a transfer is not warranted under the facts of this case. I. SUMMARY OF MOTION Plaintiff requests that this Court transfer this case to the United States District Court for the Northern District of Georgia, pursuant to Federal Rule of Civil Procedure (“Fed.R.Civ.P.”) Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 1 of 30 2 59(e) and 28 U.S.C. §1631. Plaintiff shows below that this Motion meets the requirements under Rule 59 (e) and 28 U.S.C. § 1631, based upon the Court’s determinations in its July 21, 2016 Opinion & Order (“Opinion & Order”) (ECF 115) for amending the Court’s judgment from dismissal of this case without prejudice and case closed dismissing without prejudice and transferring this case to the United States District Court for the Northern District of Georgia, in the interest of justice. II. BACKGROUND FACTS In Magistrate Judge Wang’s Recommendation and Report filed April 11, 2016 (ECF 91) (“R&R”), Magistrate Judge Wang found that specific personal jurisdiction existed over Defendant in light of Plaintiff’s allegations that Plaintiff and Defendant were members of a joint venture, and, during the course of a joint venture, Defendant agreed to Plaintiff’s temporary relocation of its broadcast studio to Denver, Colorado. Moreover, Magistrate Judge Wang found that Defendants agreed to Plaintiff’s use of the studio facilities as an off-hour facility and a back- up facility (ECF 91 at 24-25.) Magistrate Judge Wang also found that, assuming the truth of the alleged joint venture between the parties, Defendant had purposely availed itself of conducting activities in Colorado (ECF 91 at 26.) Magistrate Judge Wang further found that this litigation resulted from alleged injuries that arose from Defendant’s Colorado activities or the claims in this case arose out of the activities of Defendant in Colorado. (Id). Defendant objected to these findings asserting Judge Wang failed to address or analyze whether Plaintiff’s claims arose out of Defendant’s alleged conduct in Colorado (ECF 95 at 2-3), and if such analysis were performed, none of Plaintiff’s claims arose out of Defendant’s Colorado contacts. (Id. at 4-6). Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 2 of 30 3 In its de novo review of the R&R, this Court decided in its Opinion & Order that Plaintiff’s claims (1) and (4) alleging Defendant’s breach of fiduciary duties related to two separate joint ventures agreements, claims (2) and (5) promissory estoppel based upon Defendant’s failure to follow through on promises made in relation to two separate joint venture agreements (claim (3) and (6), Plaintiff’s reliance on the alleged false representation made by Defendant (claim 7), and Defendant’s concealment of material facts related to two separate joint venture (claim 8), Defendant’s breach of a contract (claim 9), Defendant’s alleged misappropriation Plaintiff’s ideas (claim 10), and Defendant’s alleged negligent misrepresentations (claim 14) did not arise out of Defendant’s alleged contacts in Colorado.(ECF 115 at 5.) The Court noted that the injuries underlying these claims pertain to representations, or the lack thereof, related to two joint venture agreements that Plaintiff and Defendant and were made or concealed during the parties meeting in Atlanta, Georgia (ECF 115 at 7) where Plaintiff resided at the time. Significantly, Atlanta is located in the Northern District of Georgia. Accordingly,, the Court granted Defendant’s motion to dismiss these claims without prejudice and closed the case. With respect to Plaintiff’s claim for Defendant’s alleged misappropriation of Plaintiff’s ideas (claim 10), theft of trade secrets (claim 11) and conversion and unjust enrichment arising from Plaintiff’s Broadcast Platform and Plaintiff’s intellectual property (claims 12 and 13), which are all torts, the Court applied a different analysis, from which the Court concluded that the injury underlying these claims, unlike the claims described above, did not arise from any alleged promises, representations, or concealed facts the parties meeting in Atlanta, but from Defendant’s taking of Plaintiff’s alleged ideas intellectual property and misappropriating, stealing or converting them for Defendant’s own purposes. The Court found and concluded that Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 3 of 30 4 these claims did not arise from Defendant’s purposeful direction of any contacts in Colorado (ECF 115 at 9- 12). In doing so, the Court noted that, to the extent such conduct alleged in the above referenced claims occurred, the focal point was either wherever it was that Defendant decided to misappropriate, convert or steal others’ intellectual property, or where Defendant believed Plaintiff to be located at the time of the tortious conduct (ECF 115 at 11.) The Court found that Plaintiff’s injuries arising from these claims did not occur in Denver. The facts of record show, however, that Defendant knew that Plaintiff was located in Atlanta at the time of the tortious conduct described above. To be sure, Defendant had even argued to the Court in its Motion to Dismiss that the significant events occurring in this case, including the alleged misrepresentations and/or concealment, took place in Atlanta (See, Defendant’s Motion to Dismiss (ECF 46 at pp. 13-14, 16)). Like the Court’s ruling with respect to all claims other than claims 11, 12 and 13, the Court granted Defendant’s Motion to Dismiss claims 11, 12 and 13 without prejudice and to close this case. III. ARGUMENT Rule 59 (e) provides: Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment. Plaintiff meets the requirement of this Rule because its Motion is timely filed and it is requesting the Court to amend its judgment from a dismissal without prejudice and case closed to, pursuant to 28 U.S.C. §1631, to dismissal without prejudice and to transfer of this case to the Northern District of Georgia. The Court has the authority under Rule 59 (e) to transfer this case to the Northern District of Georgia if Plaintiff meets requirements of this statute. As Plaintiff Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 4 of 30 5 demonstrates below, Plaintiff meets the requirements of 28 U.S.C. §1631 because the Northern District of Georgia has jurisdiction over both the Parties and Plaintiff’s claims. A. 28 U.S.C. §1631, captioned “Transfer to cure want of jurisdiction,” gives this Court Authority in the exercise of its discretion to Transfer this Case to the Northern District of Georgia. Plaintiff requests the Court exercise discretion and transfer this case pursuant to 28 U.S.C. §1631 to the Northern District of Georgia where Atlanta is located in light of the fact that most, if not all, of the events that underlie Plaintiff’s claims occurred in that jurisdiction and that District Court in Atlanta has jurisdiction over both Plaintiff and Defendant. The Court’s dismissal Plaintiff’s claim for lack of jurisdiction over Defendant affords Plaintiff two options. First, Plaintiff can refile its Complaint against Defendant in the Northern District of Georgia but will incur new filing fees and other expenses by starting over in prosecuting its claims in that District Court. Second, Plaintiff can request the Court to amend its judgment under Rule 59(e) of dismissal without prejudice and case closed and to exercise its discretion and dismiss without prejudice and to transfer this case to the Northern District of Georgia, pursuant to 28 U.S.C. §1631, in order to cure the lack of personal jurisdiction in this Court. Plaintiff has selected this option because as 28 U.S.C. §1631 states, Plaintiff’s complaint would proceed as if it had been filed in the Northern District of George on the date Plaintiff filed its FAC here. 28 U.S.C. §1631 provides: Whenever a civil action is filed in a court as defined in section 610 of this title [28 USCS § 610] or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 5 of 30 6 proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. This statute gives authority to a federal court that determines that it lacks jurisdiction over a civil action by stating that the court shall, if it is in the interest of justice, transfer such action to any other court in which the action could have been brought at the time it was filed or noticed. In Grynberg v. Ivenhoe Enegy, Inc., 490 Fed. Appx. 86, (10th Cir. 2012,) the United States Court for the Tenth Circuit set forth the factors this Court must follow before deciding whether to transfer this case to another District Court. First, this Court must assure itself that the proposed transferee court has personal jurisdiction over the parties. If the Court finds that the Northern District of Georgia has such jurisdiction, even though 28 U.S.C. §1631 contains the word “shall,” and the phrase “if it is in the interest of justice,” this Court has discretion in making a decision whether to transfer this case. The factors related to the interest of justice include whether the Plaintiff’s claims would be time-barred if filed a new in the proper forum, whether Plaintiff’s claims as alleged are likely to have merit, and whether the claims were filed in good faith or if it was clear at the time Plaintiff’s filing of its complaint that this Court lacked the requisite jurisdiction. The Court must also consider judicial economy and prejudice to Defendant in determining whether to transfer this case. The Court must also balance these factors. Grynberg, 490 Fed. Appx. at 109. B. The Northern District of Georgia has Personal Jurisdiction over Plaintiff and Defendant in this Case This Court stated that the Court may exercise specific personal jurisdiction over a defendant consistent with the Due Process Clause of the U.S. Constitution if a plaintiff shows that “(1) the defendant has purposefully availed itself of the privilege of conducting activities or consummating a transaction in the forum state, and (2) the litigation results from alleged injuries that arise out of or relate to those activities.” (ECF 115 at 4). Emp’rs Mut. Cas. Co. v. Bartile Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 6 of 30 7 Roofs, Inc., 618 F.3d 1153, 1160 (10th Cir. 2010) (quotations, internal quotation, and citations omitted). This Court also noted that purposeful availment, however, does not mean the same thing with respect to all claims. The Court stated that, for tort claims, the test to determine whether Plaintiff’s claims against Defendant establish jurisdiction, “(a) an intentional action that was (b) expressly aimed at the forum state with (c) knowledge that the brunt of the injury would be felt in the forum state.” Newsome v. Gallacher, 722 F.3d 1257, 1264-65 (10th Cir. 2013) (ellipses and quotation omitted), and “[i]n order to assess whether minimum contacts occurred in a contract case, we look at prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing;” citing AST Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1058 (10th Cir. 2008) (quotation omitted). Plaintiff demonstrates immediately below why the Northern District of Georgia has jurisdiction over this case. 1. AT&T purposely availed itself of the privilege of conducting activities in Atlanta located in the Northern District of Georgia, and the injuries to Plaintiff occurred in that District Court. As this Court stated in its Opinion & Order, the Court adopted Magistrate Judge Wang’s findings in R&R. (ECF 115 at 2). The Court went on to hold that the address the injuries underlying Plaintiff’s claims pertain to representations, or the lack thereof, related to two joint venture agreements that Plaintiff and Defendant made during the parties meeting in Atlanta, Georgia on May 31 and June 1, 2012. (ECF 115 at 7). As stated above, Atlanta is located in the Northern District of Georgia. Moreover, the Court found that Plaintiff made it abundantly clear in its First Amended Complaint (“FAC”), that the joint ventures were agreed to in Atlanta. (ECF 23 at. ¶ ¶ 25, 64-68). Likewise, the Court found, by adopting Magistrate Judge Wang’s findings, that Plaintiff was Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 7 of 30 8 incorporated in Georgia at the time the events that underlie Plaintiff’s claims, and did not incorporate in Colorado until September 3 2014. (ECF 115 at 2; ECF 9 at 10). Magistrate Judge Wang also found that My24 was a Georgia corporation when it negotiated the master agreement and amended Master agreement in which both agreements identified My24’s headquarters as Atlanta. (ECF 91 at 4, 10, 23; R&R at 4, 10 and 23). Additionally, Plaintiff and Defendant negotiated the proposed Town Hall meeting in Atlanta. (ECF 91 at 5; ECF 46 at 116-11), and both sought to establish a studio in Atlanta, but due environmental conditions among others, Plaintiff was not able to do so. (ECF 91 at 8). Thus, Plaintiff was a Georgia corporation at all times relevant to Plaintiff’s claims which arose in 2012, and the events that underlie to Plaintiff’s claims arose in Atlanta. Consequently, the record shows that Defendant purposely availed itself of conducting activities or consummating transactions in Atlanta, Georgia, and the injuries alleged from Defendant’s contract arise out of or relate to Defendant’s actions in Atlanta, Georgia. Plaintiff submits that, based on the facts, the Northern District of Georgia has specific jurisdiction over Plaintiff and its claims for breach of contract, that is, the joint venture agreements because Defendant purposely availed itself of the privilege of conducting activities with Plaintiff in Atlanta, Georgia, and that the litigation results from injuries Plaintiff allegedly sustained arising out of or related to Defendant’s activities in Atlanta, Georgia. 2. AT&T purposely directed its activities which were aimed at Georgia. For its tort claims alleged against Defendant, Plaintiff must show defendant (a) engaged in an intentional action (b) that was expressly aimed at Georgia (c) with the knowledge that the brunt of the injury would be felt in Georgia. (ECF 115 at 4, 10). Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 8 of 30 9 Defendant intentionally built the Broadcast Platform pursuant to the Network Agreements (“Agreements”) which My24 signed in Atlanta where it was located in August 2012. These Agreements call for AT&T to deliver the Broadcast Platform for use by the joint ventures in the Parties plans for use in presidential debates and in the political context, that is, in the time period after the Republican and Democratic conventions such as Debates/Town Hall meetings (ECF 91 at 4; R&R at 4). The launch of the Broadcast Platform was originally intended be made from My24’s proposed Atlanta studio because the Parties wanted the joint venture to be located in Atlanta (ECF 91 at 8; R&R at 5). Second, as just noted, the launch of My24’s Broadcast platform was originally to be made from My24’s Atlanta studios. Thus, Defendant’s, actions in making the launch were expressly aimed at Atlanta where the launch of the Broadcast Platform from My24 studios was to have occurred. (ECF 46 at ¶¶ 87-94). Indeed, this Court held that to the extent Defendant engaged in the conduct alleged in the FAC, its focal point was either wherever it is that Defendant decided to misappropriate, convert or steal others’ intellectual property or where Defendant believed Plaintiff to be located at the time of the tortious conduct. (ECF 115 at 11). Here, Defendant knew that Plaintiff was located in Atlanta, Georgia in December 2012 at the time Defendant decided not to go forward with the joint ventures based on the factual events described by Magistrate Judge Wang and her R&R. (EFC 91 at 2-10; R&R 2-10), AT&T also began holding Plaintiff’s Broadcast Platform hostage for the invoices which Defendants sent Plaintiff for payment in Atlanta. Finally, Defendant reneged on the planned use of the Broadcast Platform, knowing that the brunt of the injuries to My24 would be felt in Atlanta, where Plaintiff had planned to move back after the use of a studio proposed for backup in Denver. (ECF 115 at 5; and ECF 91 at 9). Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 9 of 30 10 As noted above, the focal point of Defendant’s conduct in this regard was either wherever it was that Defendant decided to misappropriate, convert or steal others’ intellectual property, or where Defendant believed Plaintiff to be located at the time of Defendant’s conduct. As this Court held in its Opinion & Order, while Plaintiff’s injuries underlying its claims did not arise from any alleged, promises, presentations or concealed facts from the parties meeting in Atlanta but from Defendant’s taking Plaintiff’s alleged ideas and intellectual property and/or converting them for Defendant’s own ends (ECF 115 at 11), Plaintiff submits that the record is clear that Defendant knew Plaintiff was located in Atlanta. (ECF 115 at 7). Moreover, Defendant never asserted that it did not know where Plaintiff was located at the time it decided not to go forward with the joint ventures in 2012. In fact, Defendant argued just the opposite to this Court in its Motion to Dismiss. See Defendant’s Motion to Dismiss. (ECF 46 at 5, 7). Plaintiff submits that it has met the three-part test by showing above that Defendant purposely directed its activities in the forum of the Northern District of Georgia, and that that District Court has personal jurisdiction over Plaintiff and Defendant and the claims under the three part tort analysis this Court employed in its Opinion & Order. (ECF 115 at 10-12). C. A transfer of this case to The Northern District of Georgia is in the interest of justice. A transfer of this case to the Northern District of Georgia is warranted because Plaintiff’s claims would not be time-barred, the claims are likely to have merit, and Plaintiffs’ claims were filed in good faith rather than filed after Plaintiff either knew or should have known that the forum in which Plaintiff filed its complaint in Colorado was improper. D. Judicial Economy. Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 10 of 30 11 Moreover, the transferring court must consider judicial economy and prejudice. Finally, the transferring Court must balance the factors. Grynberg at 105, 107-108. 1. In its Opinion & Order, the Court acknowledged that Plaintiff alleged that the breach of the joint ventures occurred on December 7, 2012 when Defendants invoiced Plaintiff for work on the Broadcast Platform. (ECF 115 at 6). Accordingly, Plaintiff claims will not be time-barred if the Court transfers this case to the Northern District of Georgia. The Georgia statute of limitations for breach of simple written contract claims is six years but is only four years for breach of an oral contract. O.C.G.A. Title 9-3-24 (“all actions upon simple contracts in writing shall be brought within six years after the same becomes due and payable.…”) O.C.G.A. Title 9-3-26 (all other actions upon contracts suppressed or implied not otherwise provided for shall be brought within four years from the accrual of the right of action….”). O.C.G.A Title 9-3- 26 obviously covers more sophisticated agreements and oral agreements such as a joint ventures Plaintiff alleges Defendant entered with Plaintiff in this case. Accordingly, Plaintiff’s action against Defendant for breach of contract, which the Court found that Plaintiff had alleged in its FAC, not occurred on December 7, 2012 (ECF 115 at 6) is governed by the four-year statute of limitations set forth in O.C.G.A. Title 9-3-26. Thus, Plaintiffs claims are not time-barred against Defendant if the Court transfers this case to the Northern District of Georgia as long as the transfer occurs before December 6, 2016. Likewise, Plaintiff’s claims that constitute torts are also governed by a four-year statute of limitations in Georgia. O.C.G.A. Title 9-3-31 (“Actions for injuries to personalty shall be brought within four years after the right of action accrues.”). Plaintiff’s tort claims against Defendant raise injury to Plaintiffs personalty. Willis v City of Atlanta, 265 GA App 640, 595 S.E. 2d 339 (2003), McNean v. Paine, Webber, Jackson & Curtis, Inc., 598 F.2d 888 (5th Cir Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 11 of 30 12 1979); McLendon v. Georgia Kaolin, 782 F. Supp. 154 (M.D. Ga. 1992). Hamburger v. PFM Capital Mgmt, 286 Ga. App. 382, 649 S.E. 2d. 779 (2007). Under this Georgia statute, Plaintiff’s claims of fraud and breach of fiduciary duty as well as the other torts alleged in claims 11, 12 and 13 began to accrue at or about December 7, 2012, when Plaintiff first learned that Defendant invoiced Plaintiff for work on the Broadcast Platform, the costs of which cost Defendant was to bear under the joint ventures the Parties agreed to at the May 31-June 1, 2012 meetings in Atlanta. 2. Plaintiff’s claims are likely to have merit. Plaintiff has the burden of establishing the grounds for a transfer. Grynberg at 108. Moreover, this Court is authorized in the interest of justice to consider the consequences of a transfer of this case to the Northern District of Georgia by taking “a peek at the merits to avoid raising false hopes and wasted judicial resources that would result from transferring a case” to a district court which is clearly without merit. Grynberg, at 108, citing Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000) (quoting Phillips v. Seiter, 173 F.3d 609, 610-11, (7th Cir. 1999)). In Phillips, the Seventh Circuit held that the Court is authorized to consider the consequence of a transfer before deciding to transfer which implies that the Court “take a peek at the merits,” since whether or not Plaintiff’s claims have any possible merit bears significantly on whether the Court should transfer or dismiss the Plaintiff’s case. The Seventh Circuit went on to hold that that a Court’s jurisdiction under 28 U.S.C. § 1631 is limited, which creates a power of limited review, that should reveal that “a case is a sure loser in the court that has jurisdiction over it, then the court in which it initially was filed did not have jurisdiction, should dismiss the case rather than waste time of another court.” Phillips, at 610-11. Therefore, under Phillips, this Court need not review the merits of the claims in detail, only review them for the purposes of determining Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 12 of 30 13 whether the claims state claims for relief. Significantly, Defendant has not answered the allegations in its FAC because Defendant moved for dismissal for lack of jurisdiction here which extends the filing of an answer with the Court. Therefore, at this point, Defendants have not denied Plaintiff’s allegations in the FAC. Plaintiff submits that the Court should consider this factor in determining whether Plaintiff’s claims have merit. 3. Plaintiff filed its complaint in good faith. This factor considers whether Plaintiff should have known that jurisdiction was not proper in this Court. Plaintiff, however, raised significant factual arguments demonstrating that this Court had jurisdiction both, general and specific jurisdiction over Defendant, and, indeed, the Magistrate Judge Wang agreed with Plaintiff with respect to specific jurisdiction, although this Court overturned Magistrate Judge Wang‘s R&R. There can be no question that Plaintiff filed its FAC in this Court in good faith, because Plaintiff had no reason to believe that jurisdiction was not proper in this Court. 4. A transfer this case will effect judicial economy and no prejudice to Defendant This Court must also consider whether a transfer is in the interest of justice by balancing the facts including judicial economy and no prejudice to Defendant. Grynberg at 108-109. A transfer of this case to the Northern District of Georgia is also in the interest of justice. A transfer will allow Plaintiff to proceed with its claims against Defendant in a court which has jurisdiction over both parties and over Plaintiff’s claims. Plaintiff will get its day in court, to which it is entitled. Moreover, the facts show that Defendant conducted most, if not all, of the activities that form the underlying basis for Plaintiff’s claims in Atlanta, Georgia, where Plaintiff was located, rather than have Plaintiff’s Chief Executive Officer and Plaintiff’s other representatives traveling Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 13 of 30 14 to various places around the country to meet with the member AT&T representatives in connection with the joint ventures. In other words, AT&T representatives always went to Plaintiff in Atlanta, Georgia for meetings, and always contacted Plaintiff’s Chief Executive Officer where Plaintiff was located in Atlanta. There will be no prejudice to Defendant as it chose Atlanta, Georgia to conduct its activities giving rise to Plaintiff’s claims in Georgia. WHEREFORE, Plaintiff requests this Court to amend its judgment dismissing this case without prejudice and closing this case to dismissing this case and transferring it to the Northern District of Georgia. Dated August 18, 2016 Respectfully submitted, Law Office of Michael L. Glaser, LLC s/ Michael L. Glaser Michael L. Glaser Michael D. Murphy The Law Office of Michael L. Glaser, LLC 1720 S. Bellaire St., Suite 607 Denver, CO 80222 Telephone: 303-757-1600 mglaser@glaserlegal.com Attorneys for My24HourNews.Com, Inc. Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 14 of 30 15 CERTIFICATE OF SERVICE I hereby certify that on this 18th day of August, 2016, a true and correct copy of the foregoing MOTION TO ALTER OR AMEND JUDGMENT BY TRANSFERRING CASE was filed and served via CM/ECF addressed to the following: Lee F. Johnston Case L. Collard Tucker K. Trautman DORSEY & WHITNEY LLP 1400 Wewatta St., Suite 400 Denver, CO 80202 Johnston.lee@dorsey.com Trautman.tucker@dorsey.com Collard.case@dorsey.com Attorneys for Defendant AT&T Corp. s/ Pamela L. Laning_____ Pamela L. Laning Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 15 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case Number: 15-CV-01210-RM-NYW MY24HOURNEWS.COM, INC., a Colorado corporation Plaintiff, v. AT&T CORP., a New York corporation Defendant. MOTION TO ALTER OR AMEND JUDGMENT BY TRANSFERRING CASE My24HourNews.com, Inc., Plaintiff in the above-captioned case (“Plaintiff”), for its Motion to Transfer Case pursuant to Federal Rule of Civil Procedure 59 (e) and 28 U.S.C. §1631, (“Motion”), respectfully submits the following: CONFERRAL Plaintiff’s counsel has conferred with Defendant’s counsel, who advises Plaintiff’s counsel that that Defendant AT&T Corp (“Defendant”) will oppose this Motion on at least the ground that a transfer is not warranted under the facts of this case. I. SUMMARY OF MOTION Plaintiff requests that this Court transfer this case to the United States District Court for the Northern District of Georgia, pursuant to Federal Rule of Civil Procedure (“Fed.R.Civ.P.”) Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 16 of 30 2 59(e) and 28 U.S.C. §1631. Plaintiff shows below that this Motion meets the requirements under Rule 59 (e) and 28 U.S.C. § 1631, based upon the Court’s determinations in its July 21, 2016 Opinion & Order (“Opinion & Order”) (ECF 115) for amending the Court’s judgment from dismissal of this case without prejudice and case closed dismissing without prejudice and transferring this case to the United States District Court for the Northern District of Georgia, in the interest of justice. II. BACKGROUND FACTS In Magistrate Judge Wang’s Recommendation and Report filed April 11, 2016 (ECF 91) (“R&R”), Magistrate Judge Wang found that specific personal jurisdiction existed over Defendant in light of Plaintiff’s allegations that Plaintiff and Defendant were members of a joint venture, and, during the course of a joint venture, Defendant agreed to Plaintiff’s temporary relocation of its broadcast studio to Denver, Colorado. Moreover, Magistrate Judge Wang found that Defendants agreed to Plaintiff’s use of the studio facilities as an off-hour facility and a back- up facility (ECF 91 at 24-25.) Magistrate Judge Wang also found that, assuming the truth of the alleged joint venture between the parties, Defendant had purposely availed itself of conducting activities in Colorado (ECF 91 at 26.) Magistrate Judge Wang further found that this litigation resulted from alleged injuries that arose from Defendant’s Colorado activities or the claims in this case arose out of the activities of Defendant in Colorado. (Id). Defendant objected to these findings asserting Judge Wang failed to address or analyze whether Plaintiff’s claims arose out of Defendant’s alleged conduct in Colorado (ECF 95 at 2-3), and if such analysis were performed, none of Plaintiff’s claims arose out of Defendant’s Colorado contacts. (Id. at 4-6). Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 17 of 30 3 In its de novo review of the R&R, this Court decided in its Opinion & Order that Plaintiff’s claims (1) and (4) alleging Defendant’s breach of fiduciary duties related to two separate joint ventures agreements, claims (2) and (5) promissory estoppel based upon Defendant’s failure to follow through on promises made in relation to two separate joint venture agreements (claim (3) and (6), Plaintiff’s reliance on the alleged false representation made by Defendant (claim 7), and Defendant’s concealment of material facts related to two separate joint venture (claim 8), Defendant’s breach of a contract (claim 9), Defendant’s alleged misappropriation Plaintiff’s ideas (claim 10), and Defendant’s alleged negligent misrepresentations (claim 14) did not arise out of Defendant’s alleged contacts in Colorado.(ECF 115 at 5.) The Court noted that the injuries underlying these claims pertain to representations, or the lack thereof, related to two joint venture agreements that Plaintiff and Defendant and were made or concealed during the parties meeting in Atlanta, Georgia (ECF 115 at 7) where Plaintiff resided at the time. Significantly, Atlanta is located in the Northern District of Georgia. Accordingly,, the Court granted Defendant’s motion to dismiss these claims without prejudice and closed the case. With respect to Plaintiff’s claim for Defendant’s alleged misappropriation of Plaintiff’s ideas (claim 10), theft of trade secrets (claim 11) and conversion and unjust enrichment arising from Plaintiff’s Broadcast Platform and Plaintiff’s intellectual property (claims 12 and 13), which are all torts, the Court applied a different analysis, from which the Court concluded that the injury underlying these claims, unlike the claims described above, did not arise from any alleged promises, representations, or concealed facts the parties meeting in Atlanta, but from Defendant’s taking of Plaintiff’s alleged ideas intellectual property and misappropriating, stealing or converting them for Defendant’s own purposes. The Court found and concluded that Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 18 of 30 4 these claims did not arise from Defendant’s purposeful direction of any contacts in Colorado (ECF 115 at 9- 12). In doing so, the Court noted that, to the extent such conduct alleged in the above referenced claims occurred, the focal point was either wherever it was that Defendant decided to misappropriate, convert or steal others’ intellectual property, or where Defendant believed Plaintiff to be located at the time of the tortious conduct (ECF 115 at 11.) The Court found that Plaintiff’s injuries arising from these claims did not occur in Denver. The facts of record show, however, that Defendant knew that Plaintiff was located in Atlanta at the time of the tortious conduct described above. To be sure, Defendant had even argued to the Court in its Motion to Dismiss that the significant events occurring in this case, including the alleged misrepresentations and/or concealment, took place in Atlanta (See, Defendant’s Motion to Dismiss (ECF 46 at pp. 13-14, 16)). Like the Court’s ruling with respect to all claims other than claims 11, 12 and 13, the Court granted Defendant’s Motion to Dismiss claims 11, 12 and 13 without prejudice and to close this case. III. ARGUMENT Rule 59 (e) provides: Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment. Plaintiff meets the requirement of this Rule because its Motion is timely filed and it is requesting the Court to amend its judgment from a dismissal without prejudice and case closed to, pursuant to 28 U.S.C. §1631, to dismissal without prejudice and to transfer of this case to the Northern District of Georgia. The Court has the authority under Rule 59 (e) to transfer this case to the Northern District of Georgia if Plaintiff meets requirements of this statute. As Plaintiff Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 19 of 30 5 demonstrates below, Plaintiff meets the requirements of 28 U.S.C. §1631 because the Northern District of Georgia has jurisdiction over both the Parties and Plaintiff’s claims. A. 28 U.S.C. §1631, captioned “Transfer to cure want of jurisdiction,” gives this Court Authority in the exercise of its discretion to Transfer this Case to the Northern District of Georgia. Plaintiff requests the Court exercise discretion and transfer this case pursuant to 28 U.S.C. §1631 to the Northern District of Georgia where Atlanta is located in light of the fact that most, if not all, of the events that underlie Plaintiff’s claims occurred in that jurisdiction and that District Court in Atlanta has jurisdiction over both Plaintiff and Defendant. The Court’s dismissal Plaintiff’s claim for lack of jurisdiction over Defendant affords Plaintiff two options. First, Plaintiff can refile its Complaint against Defendant in the Northern District of Georgia but will incur new filing fees and other expenses by starting over in prosecuting its claims in that District Court. Second, Plaintiff can request the Court to amend its judgment under Rule 59(e) of dismissal without prejudice and case closed and to exercise its discretion and dismiss without prejudice and to transfer this case to the Northern District of Georgia, pursuant to 28 U.S.C. §1631, in order to cure the lack of personal jurisdiction in this Court. Plaintiff has selected this option because as 28 U.S.C. §1631 states, Plaintiff’s complaint would proceed as if it had been filed in the Northern District of George on the date Plaintiff filed its FAC here. 28 U.S.C. §1631 provides: Whenever a civil action is filed in a court as defined in section 610 of this title [28 USCS § 610] or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 20 of 30 6 proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. This statute gives authority to a federal court that determines that it lacks jurisdiction over a civil action by stating that the court shall, if it is in the interest of justice, transfer such action to any other court in which the action could have been brought at the time it was filed or noticed. In Grynberg v. Ivenhoe Enegy, Inc., 490 Fed. Appx. 86, (10th Cir. 2012,) the United States Court for the Tenth Circuit set forth the factors this Court must follow before deciding whether to transfer this case to another District Court. First, this Court must assure itself that the proposed transferee court has personal jurisdiction over the parties. If the Court finds that the Northern District of Georgia has such jurisdiction, even though 28 U.S.C. §1631 contains the word “shall,” and the phrase “if it is in the interest of justice,” this Court has discretion in making a decision whether to transfer this case. The factors related to the interest of justice include whether the Plaintiff’s claims would be time-barred if filed a new in the proper forum, whether Plaintiff’s claims as alleged are likely to have merit, and whether the claims were filed in good faith or if it was clear at the time Plaintiff’s filing of its complaint that this Court lacked the requisite jurisdiction. The Court must also consider judicial economy and prejudice to Defendant in determining whether to transfer this case. The Court must also balance these factors. Grynberg, 490 Fed. Appx. at 109. B. The Northern District of Georgia has Personal Jurisdiction over Plaintiff and Defendant in this Case This Court stated that the Court may exercise specific personal jurisdiction over a defendant consistent with the Due Process Clause of the U.S. Constitution if a plaintiff shows that “(1) the defendant has purposefully availed itself of the privilege of conducting activities or consummating a transaction in the forum state, and (2) the litigation results from alleged injuries that arise out of or relate to those activities.” (ECF 115 at 4). Emp’rs Mut. Cas. Co. v. Bartile Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 21 of 30 7 Roofs, Inc., 618 F.3d 1153, 1160 (10th Cir. 2010) (quotations, internal quotation, and citations omitted). This Court also noted that purposeful availment, however, does not mean the same thing with respect to all claims. The Court stated that, for tort claims, the test to determine whether Plaintiff’s claims against Defendant establish jurisdiction, “(a) an intentional action that was (b) expressly aimed at the forum state with (c) knowledge that the brunt of the injury would be felt in the forum state.” Newsome v. Gallacher, 722 F.3d 1257, 1264-65 (10th Cir. 2013) (ellipses and quotation omitted), and “[i]n order to assess whether minimum contacts occurred in a contract case, we look at prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing;” citing AST Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1058 (10th Cir. 2008) (quotation omitted). Plaintiff demonstrates immediately below why the Northern District of Georgia has jurisdiction over this case. 1. AT&T purposely availed itself of the privilege of conducting activities in Atlanta located in the Northern District of Georgia, and the injuries to Plaintiff occurred in that District Court. As this Court stated in its Opinion & Order, the Court adopted Magistrate Judge Wang’s findings in R&R. (ECF 115 at 2). The Court went on to hold that the address the injuries underlying Plaintiff’s claims pertain to representations, or the lack thereof, related to two joint venture agreements that Plaintiff and Defendant made during the parties meeting in Atlanta, Georgia on May 31 and June 1, 2012. (ECF 115 at 7). As stated above, Atlanta is located in the Northern District of Georgia. Moreover, the Court found that Plaintiff made it abundantly clear in its First Amended Complaint (“FAC”), that the joint ventures were agreed to in Atlanta. (ECF 23 at. ¶ ¶ 25, 64-68). Likewise, the Court found, by adopting Magistrate Judge Wang’s findings, that Plaintiff was Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 22 of 30 8 incorporated in Georgia at the time the events that underlie Plaintiff’s claims, and did not incorporate in Colorado until September 3 2014. (ECF 115 at 2; ECF 9 at 10). Magistrate Judge Wang also found that My24 was a Georgia corporation when it negotiated the master agreement and amended Master agreement in which both agreements identified My24’s headquarters as Atlanta. (ECF 91 at 4, 10, 23; R&R at 4, 10 and 23). Additionally, Plaintiff and Defendant negotiated the proposed Town Hall meeting in Atlanta. (ECF 91 at 5; ECF 46 at 116-11), and both sought to establish a studio in Atlanta, but due environmental conditions among others, Plaintiff was not able to do so. (ECF 91 at 8). Thus, Plaintiff was a Georgia corporation at all times relevant to Plaintiff’s claims which arose in 2012, and the events that underlie to Plaintiff’s claims arose in Atlanta. Consequently, the record shows that Defendant purposely availed itself of conducting activities or consummating transactions in Atlanta, Georgia, and the injuries alleged from Defendant’s contract arise out of or relate to Defendant’s actions in Atlanta, Georgia. Plaintiff submits that, based on the facts, the Northern District of Georgia has specific jurisdiction over Plaintiff and its claims for breach of contract, that is, the joint venture agreements because Defendant purposely availed itself of the privilege of conducting activities with Plaintiff in Atlanta, Georgia, and that the litigation results from injuries Plaintiff allegedly sustained arising out of or related to Defendant’s activities in Atlanta, Georgia. 2. AT&T purposely directed its activities which were aimed at Georgia. For its tort claims alleged against Defendant, Plaintiff must show defendant (a) engaged in an intentional action (b) that was expressly aimed at Georgia (c) with the knowledge that the brunt of the injury would be felt in Georgia. (ECF 115 at 4, 10). Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 23 of 30 9 Defendant intentionally built the Broadcast Platform pursuant to the Network Agreements (“Agreements”) which My24 signed in Atlanta where it was located in August 2012. These Agreements call for AT&T to deliver the Broadcast Platform for use by the joint ventures in the Parties plans for use in presidential debates and in the political context, that is, in the time period after the Republican and Democratic conventions such as Debates/Town Hall meetings (ECF 91 at 4; R&R at 4). The launch of the Broadcast Platform was originally intended be made from My24’s proposed Atlanta studio because the Parties wanted the joint venture to be located in Atlanta (ECF 91 at 8; R&R at 5). Second, as just noted, the launch of My24’s Broadcast platform was originally to be made from My24’s Atlanta studios. Thus, Defendant’s, actions in making the launch were expressly aimed at Atlanta where the launch of the Broadcast Platform from My24 studios was to have occurred. (ECF 46 at ¶¶ 87-94). Indeed, this Court held that to the extent Defendant engaged in the conduct alleged in the FAC, its focal point was either wherever it is that Defendant decided to misappropriate, convert or steal others’ intellectual property or where Defendant believed Plaintiff to be located at the time of the tortious conduct. (ECF 115 at 11). Here, Defendant knew that Plaintiff was located in Atlanta, Georgia in December 2012 at the time Defendant decided not to go forward with the joint ventures based on the factual events described by Magistrate Judge Wang and her R&R. (EFC 91 at 2-10; R&R 2-10), AT&T also began holding Plaintiff’s Broadcast Platform hostage for the invoices which Defendants sent Plaintiff for payment in Atlanta. Finally, Defendant reneged on the planned use of the Broadcast Platform, knowing that the brunt of the injuries to My24 would be felt in Atlanta, where Plaintiff had planned to move back after the use of a studio proposed for backup in Denver. (ECF 115 at 5; and ECF 91 at 9). Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 24 of 30 10 As noted above, the focal point of Defendant’s conduct in this regard was either wherever it was that Defendant decided to misappropriate, convert or steal others’ intellectual property, or where Defendant believed Plaintiff to be located at the time of Defendant’s conduct. As this Court held in its Opinion & Order, while Plaintiff’s injuries underlying its claims did not arise from any alleged, promises, presentations or concealed facts from the parties meeting in Atlanta but from Defendant’s taking Plaintiff’s alleged ideas and intellectual property and/or converting them for Defendant’s own ends (ECF 115 at 11), Plaintiff submits that the record is clear that Defendant knew Plaintiff was located in Atlanta. (ECF 115 at 7). Moreover, Defendant never asserted that it did not know where Plaintiff was located at the time it decided not to go forward with the joint ventures in 2012. In fact, Defendant argued just the opposite to this Court in its Motion to Dismiss. See Defendant’s Motion to Dismiss. (ECF 46 at 5, 7). Plaintiff submits that it has met the three-part test by showing above that Defendant purposely directed its activities in the forum of the Northern District of Georgia, and that that District Court has personal jurisdiction over Plaintiff and Defendant and the claims under the three part tort analysis this Court employed in its Opinion & Order. (ECF 115 at 10-12). C. A transfer of this case to The Northern District of Georgia is in the interest of justice. A transfer of this case to the Northern District of Georgia is warranted because Plaintiff’s claims would not be time-barred, the claims are likely to have merit, and Plaintiffs’ claims were filed in good faith rather than filed after Plaintiff either knew or should have known that the forum in which Plaintiff filed its complaint in Colorado was improper. D. Judicial Economy. Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 25 of 30 11 Moreover, the transferring court must consider judicial economy and prejudice. Finally, the transferring Court must balance the factors. Grynberg at 105, 107-108. 1. In its Opinion & Order, the Court acknowledged that Plaintiff alleged that the breach of the joint ventures occurred on December 7, 2012 when Defendants invoiced Plaintiff for work on the Broadcast Platform. (ECF 115 at 6). Accordingly, Plaintiff claims will not be time-barred if the Court transfers this case to the Northern District of Georgia. The Georgia statute of limitations for breach of simple written contract claims is six years but is only four years for breach of an oral contract. O.C.G.A. Title 9-3-24 (“all actions upon simple contracts in writing shall be brought within six years after the same becomes due and payable.…”) O.C.G.A. Title 9-3-26 (all other actions upon contracts suppressed or implied not otherwise provided for shall be brought within four years from the accrual of the right of action….”). O.C.G.A Title 9-3- 26 obviously covers more sophisticated agreements and oral agreements such as a joint ventures Plaintiff alleges Defendant entered with Plaintiff in this case. Accordingly, Plaintiff’s action against Defendant for breach of contract, which the Court found that Plaintiff had alleged in its FAC, not occurred on December 7, 2012 (ECF 115 at 6) is governed by the four-year statute of limitations set forth in O.C.G.A. Title 9-3-26. Thus, Plaintiffs claims are not time-barred against Defendant if the Court transfers this case to the Northern District of Georgia as long as the transfer occurs before December 6, 2016. Likewise, Plaintiff’s claims that constitute torts are also governed by a four-year statute of limitations in Georgia. O.C.G.A. Title 9-3-31 (“Actions for injuries to personalty shall be brought within four years after the right of action accrues.”). Plaintiff’s tort claims against Defendant raise injury to Plaintiffs personalty. Willis v City of Atlanta, 265 GA App 640, 595 S.E. 2d 339 (2003), McNean v. Paine, Webber, Jackson & Curtis, Inc., 598 F.2d 888 (5th Cir Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 26 of 30 12 1979); McLendon v. Georgia Kaolin, 782 F. Supp. 154 (M.D. Ga. 1992). Hamburger v. PFM Capital Mgmt, 286 Ga. App. 382, 649 S.E. 2d. 779 (2007). Under this Georgia statute, Plaintiff’s claims of fraud and breach of fiduciary duty as well as the other torts alleged in claims 11, 12 and 13 began to accrue at or about December 7, 2012, when Plaintiff first learned that Defendant invoiced Plaintiff for work on the Broadcast Platform, the costs of which cost Defendant was to bear under the joint ventures the Parties agreed to at the May 31-June 1, 2012 meetings in Atlanta. 2. Plaintiff’s claims are likely to have merit. Plaintiff has the burden of establishing the grounds for a transfer. Grynberg at 108. Moreover, this Court is authorized in the interest of justice to consider the consequences of a transfer of this case to the Northern District of Georgia by taking “a peek at the merits to avoid raising false hopes and wasted judicial resources that would result from transferring a case” to a district court which is clearly without merit. Grynberg, at 108, citing Haugh v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000) (quoting Phillips v. Seiter, 173 F.3d 609, 610-11, (7th Cir. 1999)). In Phillips, the Seventh Circuit held that the Court is authorized to consider the consequence of a transfer before deciding to transfer which implies that the Court “take a peek at the merits,” since whether or not Plaintiff’s claims have any possible merit bears significantly on whether the Court should transfer or dismiss the Plaintiff’s case. The Seventh Circuit went on to hold that that a Court’s jurisdiction under 28 U.S.C. § 1631 is limited, which creates a power of limited review, that should reveal that “a case is a sure loser in the court that has jurisdiction over it, then the court in which it initially was filed did not have jurisdiction, should dismiss the case rather than waste time of another court.” Phillips, at 610-11. Therefore, under Phillips, this Court need not review the merits of the claims in detail, only review them for the purposes of determining Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 27 of 30 13 whether the claims state claims for relief. Significantly, Defendant has not answered the allegations in its FAC because Defendant moved for dismissal for lack of jurisdiction here which extends the filing of an answer with the Court. Therefore, at this point, Defendants have not denied Plaintiff’s allegations in the FAC. Plaintiff submits that the Court should consider this factor in determining whether Plaintiff’s claims have merit. 3. Plaintiff filed its complaint in good faith. This factor considers whether Plaintiff should have known that jurisdiction was not proper in this Court. Plaintiff, however, raised significant factual arguments demonstrating that this Court had jurisdiction both, general and specific jurisdiction over Defendant, and, indeed, the Magistrate Judge Wang agreed with Plaintiff with respect to specific jurisdiction, although this Court overturned Magistrate Judge Wang‘s R&R. There can be no question that Plaintiff filed its FAC in this Court in good faith, because Plaintiff had no reason to believe that jurisdiction was not proper in this Court. 4. A transfer this case will effect judicial economy and no prejudice to Defendant This Court must also consider whether a transfer is in the interest of justice by balancing the facts including judicial economy and no prejudice to Defendant. Grynberg at 108-109. A transfer of this case to the Northern District of Georgia is also in the interest of justice. A transfer will allow Plaintiff to proceed with its claims against Defendant in a court which has jurisdiction over both parties and over Plaintiff’s claims. Plaintiff will get its day in court, to which it is entitled. Moreover, the facts show that Defendant conducted most, if not all, of the activities that form the underlying basis for Plaintiff’s claims in Atlanta, Georgia, where Plaintiff was located, rather than have Plaintiff’s Chief Executive Officer and Plaintiff’s other representatives traveling Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 28 of 30 14 to various places around the country to meet with the member AT&T representatives in connection with the joint ventures. In other words, AT&T representatives always went to Plaintiff in Atlanta, Georgia for meetings, and always contacted Plaintiff’s Chief Executive Officer where Plaintiff was located in Atlanta. There will be no prejudice to Defendant as it chose Atlanta, Georgia to conduct its activities giving rise to Plaintiff’s claims in Georgia. WHEREFORE, Plaintiff requests this Court to amend its judgment dismissing this case without prejudice and closing this case to dismissing this case and transferring it to the Northern District of Georgia. Dated August 18, 2016 Respectfully submitted, Law Office of Michael L. Glaser, LLC s/ Michael L. Glaser Michael L. Glaser Michael D. Murphy The Law Office of Michael L. Glaser, LLC 1720 S. Bellaire St., Suite 607 Denver, CO 80222 Telephone: 303-757-1600 mglaser@glaserlegal.com Attorneys for My24HourNews.Com, Inc. Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 29 of 30 15 CERTIFICATE OF SERVICE I hereby certify that on this 18th day of August, 2016, a true and correct copy of the foregoing MOTION TO ALTER OR AMEND JUDGMENT BY TRANSFERRING CASE was filed and served via CM/ECF addressed to the following: Lee F. Johnston Case L. Collard Tucker K. Trautman DORSEY & WHITNEY LLP 1400 Wewatta St., Suite 400 Denver, CO 80202 Johnston.lee@dorsey.com Trautman.tucker@dorsey.com Collard.case@dorsey.com Attorneys for Defendant AT&T Corp. s/ Pamela L. Laning_____ Pamela L. Laning Case 1:15-cv-01210-RM-NYW Document 120 Filed 08/18/16 USDC Colorado Page 30 of 30