Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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SCOTT+SCOTT LLP
ARTHUR L. SHINGLER III (181719)
MARY K. BLASY (211262)
600 B Street, Suite 1500
San Diego, CA 92101
Telephone: 619/233-4565
619/233-0508 (fax)
ashingler@scott-scott.com
mblasy@scott-scott.com
– and –
DAVID R. SCOTT
156 South Main Street
P.O. Box 192
Colchester, CT 06415
Telephone: 860/537-3818
860/537-4432 (fax)
drscott@scott-scott.com
Attorneys for Plaintiff West Palm Beach
Police Pension Fund
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
WEST PALM BEACH POLICE PENSION
FUND, Individually and on Behalf of All Others
Similarly Situated,
Plaintiff,
vs.
CARDIONET, INC., ARIE COHEN, JAMES M.
SWEENEY, MARTIN P. GALVAN, FRED
MIDDLETON, WOODROW MYERS JR., M.D.,
ERIC N. PRYSTOWSKY, M.D., HARRY T.
REIN, ROBERT J. RUBIN, M.D., RANDY H.
THURMAN, BARCLAY’S CAPITAL, INC.,
CITIGROUP GLOBAL MARKETS INC.,
LEERINK SWANN LLC, THOMAS WEISEL
PARTNERS LLC, BANC OF AMERICA
SECURITIES LLC and COWEN AND
COMPANY,
Defendants.
Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND
POINTS OF AUTHORITY IN
OPPOSITION TO DEFENDANTS’
JOINT MOTION TO TRANSFER
THE ACTION TO THE EASTERN
DISTRICT OF PENNSYLVANIA
PURSUANT TO 28 U.S.C. § 1404(a)
Case 3:10-cv-00711-L -NLS Document 31 Filed 05/28/10 Page 1 of 22
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
of Pennsylvania Pursuant to 28 U.S.C. § 1404(a)
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TABLE OF CONTENTS
I. INTRODUCTION .............................................................................................................. 1
II. STATEMENT OF FACTS AND ALLEGATIONS........................................................... 2
III. ARGUMENT...................................................................................................................... 3
A. The Court Should Decide the Remand Motion Before the Transfer Motion ......... 3
1. Jurisdiction is a Preliminary Matter that should be Resolved First ............ 3
2. The Ninth Circuit Three-Step Methodology Confirms That Plaintiff's ...... 7
B. Legal Standard for Transfer Under § 1404(a)......................................................... 8
C. The Court Should Not Transfer this Action............................................................ 8
1. The Convenience of the Parties Does Not Warrant Transfer ..................... 8
2. The Convenience of the Witnesses Does Not Warrant Transfer ................ 9
3. The Interest of Justice Does Not Warrant Transfer .................................. 10
a. The Defendants Are Merely Shifting the Burden of Litigation from
One Forum to Another Rather than Eliminating It ....................... 10
b. Pennsylvania Has no Greater Interest in This Litigation than
California ...................................................................................... 11
c. Plaintiff’s Choice of Forum is Entitled to Deference ................... 12
d. The Location of the Documents Does Not Warrant Transfer....... 13
e. Whether Certain Third Parties May Not Show Up for Trial Absent
Compulsory Process is Purely Speculative at this Time, and
Therefore, Does Not Support Transfer ......................................... 13
IV. CONCLUSION................................................................................................................. 15
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
of Pennsylvania Pursuant to 28 U.S.C. § 1404(a)
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TABLE OF AUTHORITIES
Page(s)
CASES
Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft,
54 F. Supp. 2d 1042 (D. Kan. 1999)..........................................................................................6
Alvarez v. Limited Express, LLC,
2007 WL 2317125, No. 07-cv-10510-IEG-NLS (S.D. Cal. 2007)........................................4, 5
Anderson v. Merck & Co.,
417 F. Supp. 2d 842 (E.D. Ky. 2006) ........................................................................................6
AUSA Life Ins. Co. v. Citigroup, Inc.,
293 B.R. 471 (N.D. Iowa 2003).................................................................................................5
Boateng v. Gen. Dynamics Corp.,
460 F. Supp. 2d 270 (D. Mass. 2006) ......................................................................................13
Campus v. Holiday Isle, LLC,
2007 No. 07-00275 (N.D. Fla. Nov. 20, 2007)..........................................................................5
Carden v. Bridgestone/Firestone, Inc.,
2000 WL 33520302 (S.D. Fla. Oct. 17, 2000)...........................................................................6
Coady v. Ashcraft & Gerel,
996 F. Supp. 95 (D. Mass. 1998) ...............................................................................................9
Conroy v. Fresh Del Monte Prioduce, Inc.,
325 F.Supp.2d 1049 (N.D. Cal. 2004) ...................................................................................4, 7
Cordle v. Merck & Co.,
405 F. Supp. 2d 800 (E.D. Ky. 2005) ........................................................................................6
Culebra II, LLC v. River Cruises & Anticipation Yachts, LLC,
No. 07-13-P-H, 2007 WL 1657426 (D. Me. June 4, 2007) .....................................................13
Decker Coal Co. v. Commonwealth Edison Co.,
805 F.2d 834 (9th Cir. 1986) .....................................................................................................8
Falconwood Fin. Corp. v. Griffin,
838 F. Supp. 836 (S.D.N.Y. 1993).............................................................................................9
Go Computer, Inc. v. Microsoft Corp.,
2005 WL 3113068 (N.D. Cal. Nov. 21, 2005) ..........................................................................6
Case 3:10-cv-00711-L -NLS Document 31 Filed 05/28/10 Page 3 of 22
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
of Pennsylvania Pursuant to 28 U.S.C. § 1404(a)
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Good v. Prudential Ins. Co. of Am.,
5 F. Supp. 2d 804 (N.D. Cal. 1998) ...........................................................................................5
Joe Comes & Riley Paint, Inc. v. Microsoft Corp.,
403 F. Supp. 2d 897 (S.D. Iowa 2005) ......................................................................................6
Johnson v. Am. Online, Inc.,
2002 WL 1268397 (N.D. Cal. Mar. 21, 2002)...........................................................................5
Kohl Am. Home Prods. Corp.,
78 F. Supp. 2d 885, 888 (W.D. Ark. 1999)................................................................................6
Laumann Mfg. Corp. v. Castings USA, Inc.,
913 F. Supp. 712 (E.D.N.Y. 1996) ............................................................................................9
Leeson v. Merck & Co.,
2006 WL 3230047 (E.D. Cal. Jan. 27, 2006) ............................................................................3
Lloyd v. Abell Huntington Hosp.,
Inc., 58 F. Supp. 2d 694 (S.D. W. Va. 1999).............................................................................6
Lowdermilk v. U.S. Bank Nat'l Ass'n,
479 F.3d 994 (9th Cir. 2007) .....................................................................................................3
Luther v. Countrywide Home Loans Servicing LP,
533 F.3d 1031 (9th Cir. 2008) ...............................................................................................1, 7
McEvily v. Sunbeam-Oster Co., Inc.,
878 F. Supp. 337 (D.R.I. 1994)................................................................................................14
Moses v. Business Card Express, Inc.,
929 F.2d 1131 (6th Cir. 1991), cert. denied, 502 U.S. 821 (1991) ..........................................14
N. Acceptance Trust 1065 v. Gray,
423 F.2d 653 (9th Cir. 1970) .....................................................................................................8
Pa. v. Top Pharm. Prods., Inc.,
415 F. Supp. 2d 516 (E.D. Pa. 2005) .........................................................................................6
Parsons v. Chesapeake & Ohio Ry. Co.,
375 U.S. 71 (1963).....................................................................................................................8
Pennwalt Corp. v. Purex Indus., Inc.,
659 F. Supp. 287 (D. Del. 1986)..............................................................................................13
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
of Pennsylvania Pursuant to 28 U.S.C. § 1404(a)
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Pilates, Inc. v. Pilates Inst., Inc.,
891 F. Supp. 175 (S.D.N.Y. 1995).......................................................................................9, 10
Proctor v. Vishay Intertechnology, Inc.,
584 F.3d 1208 (9th Cir. 2009) ...............................................................................................1, 7
Scheidt v. Klein,
956 F.2d 963 (10th Cir. 1992) ...................................................................................................9
Sigros v. Walt Disney World Co.,
129 F. Supp. 2d 56 (D. Mass. 2001) ....................................................................................8, 10
Sinochem Int’l Co. Ltd. V. Malaysia Int’l Shipping Corp.,
549 U.S. 422, 127 S.Ct. 1184 (2007).........................................................................................6
Smith v. Mail Boxes Etc.,
191 F. Supp. 2d 1155 (E.D. Cal. 2002)......................................................................................5
Sparling v. Hoffman Constr. Co.,
864 F.2d 635 (9th Cir. 1988) .....................................................................................................8
Stahl v. Stahl,
2003 WL 22595288 (S.D.N.Y. Nov. 6, 2003)...........................................................................5
Stern v. Mut. Life Ins. Co of NY.,
968 F. Supp. 637, 639 (N.D. Ala. 1997)....................................................................................6
Tortola Rests., L.P. v. Kimberly-Clark, Corp.,
987 F. Supp. 1186 (N.D. Cal. 1997) ..........................................................................................4
Utah v. Eli Lilly and Co.,
509 F. Supp. 2d 1016 (D. Utah 2007)........................................................................................3
Villarreal v. Chrysler Corp.,
1996 WL 116832 (N.D. Cal. Mar. 11, 1996).............................................................................4
STATUTES, RULES AND REGULATIONS
15 U.S.C.
§ 77v(a) ......................................................................................................................................7
§ 78u-4(b)(1)-(2)......................................................................................................................12
28 U.S.C.
§1404..........................................................................................................................................8
§ 1404(a) ....................................................................................................................................8
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
of Pennsylvania Pursuant to 28 U.S.C. § 1404(a)
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Fed.R.Civ. P.
Rule 6(c)(2)(L).........................................................................................................................14
Rule 8 .......................................................................................................................................12
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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I. INTRODUCTION
On March 10, 2010, Plaintiff West Palm Beach Police Pension Fund (“West Palm”) filed
its Amended Complaint for violations of Sections 11, 12(a)(2), and 15 of the Securities Act of
1933 (the “1933 Act”) in California State Superior Court. West Palm filed in state court
pursuant to the statutory rights, provided by the 1933 Act, which have existed for over 75 years.
The right to prosecute claims arising under the 1933 Act in state court has survived various
Congressional enactments relating to the securities laws, including the Securities Litigation
Uniform Standards Act (“SLUSA”) and the Class Action Fairness Act of 2005 (“CAFA”).
Recent Ninth Circuit precedent, including Luther v. Countrywide Home Loans Servicing LP, 533
F.3d 1031 (9th Cir. 2008) (CAFA does not amend 1933 Act’s anti-removal bar) and Proctor v.
Vishay Intertechnology, Inc., 584 F.3d 1208 (9th Cir. 2009) (threshold requirement for SLUSA
removal is that claim must be based upon the statutory or common law of a state), affirms the
right to prosecute 1933 Act claims in state court.
In disregard of West Palm’s statutory rights to proceed in state court, Defendants
improperly removed this case. Shortly after removal, Defendants filed a motion to transfer this
case to the Eastern District of Pennsylvania. Defendants ask this Court to decide the transfer
motion before addressing West Palm’s remand motion.
Defendants’ desire to have the Court decide the transfer motion first is obvious. This
Court lacks subject matter jurisdiction over this case. Thus, Defendants hope to escape Ninth
Circuit law and thwart West Palm’s longstanding statutory rights to proceed under the 1933 Act
in state court, by transfer to the Third Circuit, where, in Defendants’ view, the law on remand is
less settled.
This Court should not countenance Defendants’ actions. This Court should grant West
Palm’s remand motion before deciding Defendants’ transfer motion, and send this case back to
California Superior Court where West Palm has the statutory right to prosecute its claims.
Case 3:10-cv-00711-L -NLS Document 31 Filed 05/28/10 Page 7 of 22
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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Even if this Court were to decide the issue of transfer before deciding remand, the Court
should deny Defendants’ transfer motion. The 1933 Act provides that venue is proper where the
defendant transacts business or where the offer or sale took place. Defendant CardioNet was
headquartered in San Diego, California, at the time of its initial public offering, which forms the
basis of West Palm’s claims, and continues to maintain FDA-licensed manufacturing facilities
within this District. Moreover, this case is not sufficiently related to the Pennsylvania action to
warrant transfer. This case involves a different relevant time period, different class of investors,
and different claims against mostly different defendants, all requiring different – not overlapping
– discovery. Accordingly, the convenience of the parties and witnesses, and the interests of
justice do not trump West Palm’s choice of forum, and this Court should deny transfer.
II. STATEMENT OF FACTS AND ALLEGATIONS
On March 25, 2008, Defendant CardioNet, Inc. conducted its Initial Public Offering
(“IPO”). (¶1).1 CardioNet conducted its IPO through a Registration Statement declared
effective by the Securities and Exchange Commission (“SEC”) on March 18, 2008. (¶64). Each
of the “Individual Defendants” signed the IPO Registration Statement, except Defendant
Thurman. (¶¶36-43). At the time of the IPO, CardioNet maintained its headquarters in San
Diego, California. (¶35).
On August 6, 2008, CardioNet conducted another stock offering (the “Secondary
Offering”). (¶72). By the time of the Secondary Offering, CardioNet had moved its
headquarters to Pennsylvania. Nevertheless, CardioNet continues to maintain substantial
operations here in San Diego County, California. (¶32). Indeed, according to CardioNet’s 2009
Annual Financial Report on Form 10-K filed with the SEC on February 23, 2010, CardioNet has
1 All “¶” and “¶¶” references are to the First Amended Class Action Complaint for Violations of
the Securities Act of 1933 filed in Superior Court of the State of California Case No. 37-2010-
00086836-CU-SL-CTL on March 10, 2010 (the “Complaint”), filed as attachments 1 and 2 to
Defendants’ removal petition on April 5, 2010. [See Dkt. No. 1].
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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“been FDA-registered in San Diego since December 2001 and a California-licensed medical
device manufacturer since March 2002.”
West Palm alleges CardioNet’s Registration Statements pursuant to which it conducted
its IPO and Secondary Offering contained materially false and misleading statements. (¶¶64-80).
West Palm alleges the Registration Statements were materially false and misleading at the time
of the IPO and Secondary Offering, March 25, 2008 and August 6, 2008, respectively. (Id.). As
a result, Defendants are liable to Plaintiff and its fellow class members under Sections 11,
12(a)(2) and 15 of the Securities Act of 1933, 15 U.S.C. §§ 77k, 77l(a)(2), 77o. (¶31, 87-106).
On August 26, 2009, a federal securities fraud class action was filed in the U.S. District
Court for the District of Pennsylvania alleging violations of §10(b) of the Securities and
Exchange of 1934 on behalf of the open-market purchasers of CardioNet’s common stock
between April 30, 2009 and June 30, 2009 (the “Pennsylvania Action”). (See Notice of
Removal, Ex. C). Thus, the class period for the Pennsylvania Action begins over eight months
after the Secondary Offering. Moreover, the Pennsylvania Action names as Defendants
CardioNet, Thurman, and Galvan. In contrast, this action names an additional 13 Defendants not
named in the Pennsylvania Action.
III. ARGUMENT
A. The Court Should Decide the Remand Motion Before the Transfer Motion
1. Jurisdiction is a Preliminary Matter that should be Resolved First
Federal courts are courts of limited jurisdiction. Lowdermilk v. U.S. Bank Nat'l Ass'n,
479 F.3d 994, 998 (9th Cir. 2007); see also Utah v. Eli Lilly and Co., 509 F. Supp. 2d 1016, 1019
(D. Utah 2007) (quoting Wright and Miller, 13 Federal Practice and Procedure § 3522).
“Generally, jurisdiction is a preliminary matter that should be resolved before all others.”
Leeson v. Merck & Co., 2006 WL 3230047, at *2 (E.D. Cal. Jan. 27, 2006); see also Villarreal v.
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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Chrysler Corp., 1996 WL 116832 (N.D. Cal. Mar. 11, 1996) (“Judicial economy will best be
served by addressing the remand issue because a determination on this issue will facilitate
litigation in the appropriate forum.”). The judicial economy of the federal courts is best served
by addressing issues of jurisdiction promptly, so that cases may be removed from federal court
quickly if there is no basis for holding onto the case. See Conroy, 325 F. Supp. 2d at 1054. See
also Manual for Complex Litigation § 20.132, at 221-22 (4th ed. 2004) (approving of the
resolution of motions to remand prior to the MDL Panel's conclusive decision regarding
transfer).
Numerous courts faced with competing motions to remand and motions to stay have
denied motions to stay while a motion to remand was pending. For example, in Alvarez v.
Limited Express, LLC, 2007 WL 2317125, No. 07-cv-10510-IEG-NLS (S.D. Cal. 2007) plaintiff
Alvarez filed an employment class action against the Limited Express stores in state court for
meal and rest break violations. Defendant removed under CAFA, and Plaintiff filed a motion for
remand. Defendant then moved to transfer the case to the Central District of California. Id.
Chief Judge Gonzalez first considered and granted Plaintiff’s motion to remand before
considering Defendant’s motion to transfer, holding: "[b]ecause the Court lacks jurisdiction, the
Court denies as moot defendant's motion to stay and transfer the action." Id. at *5.
Similarly, in Tortola Restaurant, Plaintiff in an MDL action moved to remand, and
Defendant moved to stay and transfer. The court decided the remand motion first, reasoning:
This Court, as transferor Court, “retains exclusive jurisdiction until the § 1407
transfer becomes effective and as such, motions to remand should be resolved
before the panel acts on the motion to transfer.” Accordingly, defendants'
motion for stay of proceedings pending a decision by the Panel is hereby
DENIED, and the Court addresses the merits of plaintiff's remand motion.
Tortola Rests., L.P. v. Kimberly-Clark, Corp., 987 F. Supp. 1186, 1188-89 (N.D. Cal. 1997)
(emphasis added) (citations omitted).
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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In AUSA Life Ins. Co. v. Citigroup, Inc., 293 B.R. 471, 479 (N.D. Iowa 2003), plaintiff
insurance companies and investment funds that purchased Enron stock sued defendants, banks
and underwriters in state court alleging violations of state law in connection with the marketing
and sale of the securities. Defendants removed the case to federal court asserting bankruptcy
jurisdiction. Plaintiffs moved to remand, and Defendants moved to transfer to the Southern
District of New York.
In analyzing which motion to consider first, the AUSA court concluded “in accord with
the majority view that jurisdictional issues should be considered first, it will consider plaintiffs'
motion for remand before considering defendants' transfer motion.” Id. at 474. The court
granted plaintiffs' motion for remand and remanded the action for all further proceedings. Id. at
476. See also Campus v. Holiday Isle, LLC, 2007 No. 07-00275 (N.D. Fla. Nov. 20, 2007)
(following removal of state action asserting two claims under the Interstate Land Sales Full
Disclosure Act and one for breach of contract, court ruled it must first consider plaintiff's motion
to remand and could not consider defendant's motion to transfer because plaintiff's complaint and
relevant case law showed remand was required); Stahl v. Stahl, 2003 WL 22595288 (S.D.N.Y.
Nov. 6, 2003) (“[w]hen presented with competing motions to remand a case and to transfer
venue, a court is to consider the remand motion first, and then address the motion to transfer
venue only if it first denies the motion to remand.”).
Indeed, it has become the general practice within the Ninth Circuit for courts to rule on
motions to remand before deciding motions to transfer. See, e.g., Alvarez, 2007 WL 2317125 at
*5 (granting plaintiff’s motion to remand before considering defendant’s motion to transfer);
Johnson v. Am. Online, Inc., 2002 WL 1268397 (N.D. Cal. Mar. 21, 2002); Smith v. Mail Boxes
Etc., 191 F. Supp. 2d 1155 (E.D. Cal. 2002) (when jurisdictional issues are in dispute, plaintiff's
motion to remand should be resolved first); Good v. Prudential Ins. Co. of Am., 5 F. Supp.2d
804, 809 (N.D. Cal. 1998) (considering jurisdictional issues in remand motion first, then granting
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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stay pending MDL transfer); Villarreal, 1996 116832, (addressing remand issue first in interest
of judicial economy).
Numerous additional courts are in accord, finding that jurisdictional issues should be
resolved first. See Go Computer, Inc. v. Microsoft Corp., 2005 WL 3113068 (N.D. Cal. Nov. 21,
2005) (addressing remand first and granting motion); Anderson v. Merck & Co., 417 F. Supp. 2d
842, 844 n.2 (E.D. Ky. 2006) (ruling on motion to remand before transfer); Lloyd v. Abell
Huntington Hosp., Inc., 58 F. Supp. 2d 694, 696 (S.D. W. Va. 1999) (“[t]his Court cannot,
however, stay proceedings in an action over which it lacks jurisdiction”); Stern v. Mut. Life Ins.
Co of NY., 968 F. Supp. 637, 639 (N.D. Ala. 1997) (“[i]f the court lacks jurisdiction over the
action ab initio, it is without jurisdiction to enter such a stay”); Kohl Am. Home Prods. Corp., 78
F. Supp. 2d 885, 888 (W.D. Ark. 1999) (denying motion to stay because “the court believe[d] the
best course is to decide the motion to remand”); Carden v. Bridgestone/Firestone, Inc., 2000 WL
33520302, at *1, (S.D. Fla. Oct. 17, 2000) (court elected to hear motion for remand and denied
motion to stay as moot); Pa. v. Top Pharm. Prods., Inc., 415 F. Supp. 2d 516 (E.D. Pa. 2005);
Cordle v. Merck & Co., 405 F. Supp. 2d 800, n.4 (E.D. Ky. 2005); Joe Comes & Riley Paint, Inc.
v. Microsoft Corp., 403 F. Supp. 2d 897, 904 (S.D. Iowa 2005); Aetna U.S. Healthcare, Inc. v.
Hoechst Aktiengesellschaft, 54 F. Supp. 2d 1042, 1047 (D. Kan. 1999) (first deciding and
granting motion to remand, reasoning that jurisdiction should be determined before considering
motion to stay).
Sinochem Int’l Co. Ltd. V. Malaysia Int’l Shipping Corp., 549 U.S. 422, 432 (2007) does
not require this Court to decide the transfer motion before the remand motion. In Sinochem, the
Supreme Court explained, “where the subject-matter or personal jurisdiction is difficult to
determine, and forum non conveniens considerations weigh heavily in favor of dismissal, the
court properly takes the less burdensome course.” (Emphasis added). In this case, the less
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PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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burdensome course is to remand this action to state court, because Ninth Circuit law on removal
of 1933 Act claims is clear.
In sum, jurisdiction is a threshold issue this Court should resolve prior to determining the
appropriateness of other motions, including motions to transfer. When faced with motions
challenging jurisdiction and other competing motions, courts within the Ninth Circuit routinely
decide the threshold issue of jurisdiction first. Here, Plaintiff's Motion to Remand establishes
that removal of this action was improper under Ninth Circuit law. Therefore, remand is
appropriate, rendering moot Defendants' Motion to Transfer.
2. The Ninth Circuit Three-Step Methodology Confirms That Plaintiff's
Remand Motion Should Be Decided First
Courts within the Ninth Circuit utlize a three-step methodology for addressing competing
motions for remand and motions to transfer. See Conroy v. Fresh Del Monte Produce, Inc., 325
F. Supp.2d 1049, 1053, 1054 (N.D. Cal. 2004). Under the three-step methodology, if
“preliminary scrutiny” of the motion to remand suggests that removal was improper,
consideration of the pending motion to remand is promptly completed and remand ordered if the
removal was improper.
Here, “preliminary scrutiny” of Plaintiff’s Motion to Remand clearly suggests that
removal was improper, as the 1933 Act explicitly permits Section 11 cases to be brought in state
court and prohibits removal. 15 U.S.C. § 77v(a) (providing for concurrent state and federal court
jurisdiction and stating that “no case arising under the [1933 Act] and brought in any State court
of competent jurisdiction shall be removed to any court of the United States”). Furthermore,
recent Ninth Circuit law affirms the right to prosecute actions alleging only Section 11 claims in
state court. See, e.g., Proctor, 584 F.3d at 1221 (threshold requirement for SLUSA removal is
that claim must be based upon the statutory or common law of a state); Luther, 533 F.3d at 1031
(CAFA does not amend the 1933 Act’s anti-removal bar). Full consideration of Plaintiff’s
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PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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remand motion confirms this “preliminary scrutiny.” Because Defendants’ removal of this
action was improper under controlling Ninth Circuit law, the Court should be adjudicated
Plaintiff’s remand motion before considering Defendants’ Motion to Transfer.
B. Legal Standard for Transfer Under § 1404(a)
The decision to transfer a case pursuant to § 1404(a) is within the discretion of the district
court where the case was originally filed. See Sparling v. Hoffman Constr. Co., 864 F.2d 635,
639 (9th Cir. 1988) (decision to transfer under §1404 reviewed for abuse of discretion). In the
Ninth Circuit, ordinarily the plaintiff’s choice of forum is entitled to “substantial weight.” N.
Acceptance Trust 1065 v. Gray, 423 F.2d 653, 654 (9th Cir. 1970). Other relevant factors
include the convenience of the parties and witnesses, the availability of documents and the
interests of justice, including docket congestion. See Parsons v. Chesapeake & Ohio Ry. Co.,
375 U.S. 71 (1963). Once the court determines that venue is proper, the movant must present
strong grounds for transferring the action, otherwise, the plaintiff’s choice of venue will not be
disturbed. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).
Moreover, the presumption in favor of a plaintiff’s choice of forum renders transfer inappropriate
where its effect is merely to shift the burden of litigating from one forum to another. Sigros v.
Walt Disney World Co., 129 F. Supp. 2d 56, 71 (D. Mass. 2001).
C. The Court Should Not Transfer this Action
1. The Convenience of the Parties Does Not Warrant Transfer
Defendants assert that the convenience of the parties supports transfer to the Eastern
District of Pennsylvania pursuant to § 1404(a) because four of the Defendants are located in
Pennsylvania while other Defendants are located closer to Pennsylvania than California. In
practice, the actual location of litigation has little impact on the parties’ convenience, excepting
trial, which the vast majority of civil cases never see. Discovery is routinely conducted in the
location of the documents, or in the case of depositions, the location of the witness. Assuming
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PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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this case proceeds to discovery, West Palm fully expects to conduct discovery and deposition in
numerous states regardless of whether this action is pending in this Court or in the Eastern
District of Pennsylvania. Accordingly, the convenience of the parties does not strongly warrant
transfer.
2. The Convenience of the Witnesses Does Not Warrant Transfer
“To meet [the] burden of demonstrating that transfer is in the convenience of the
witnesses, the party seeking transfer must ‘specifically list the evidence and witnesses on which
the party intends to rely in the transferee district, along with a general statement of the topics of
each witness’ testimony … Absent such a showing, the motion should be denied.’” Pilates, Inc.
v. Pilates Inst., Inc., 891 F. Supp. 175, 183 (S.D.N.Y. 1995); see also Falconwood Fin. Corp. v.
Griffin, 838 F. Supp. 836, 840-41 (S.D.N.Y. 1993) (“A party making a motion to transfer on the
ground that witnesses will be inconvenienced is obliged to specify the witnesses to be called and
to describe generally what they will say, thereby providing the judge with enough information to
weigh the importance of witness convenience against other factors.”); Coady v. Ashcraft &
Gerel, 996 F. Supp. 95, 101 n.7 (D. Mass. 1998) (citing C. Wright, A. Miller & E.H. Cooper, 15
Federal Practice & Procedure § 3851 at 425 (2d ed. 1986) (“The party seeking the transfer must
specify clearly, typically by affidavit, the key witnesses to be called and their location and must
make a general statement of what their testimony will cover.”).
“A mere statement of convenience or a claim that the greatest number of witnesses
reside in a particular forum is insufficient.” Coady, 996 F. Supp. at 101 n.7. The materiality of
the prospective witness’ testimony, and not merely the number of prospective witnesses, will
determine the extent to which their convenience will be weighed. Scheidt v. Klein, 956 F.2d 963,
966 (10th Cir. 1992) (district court must receive “some factual information relative to the
materiality of witness testimony and [other relevant] considerations”); see also Laumann Mfg.
Corp. v. Castings USA, Inc., 913 F. Supp. 712, 721 (E.D.N.Y. 1996) (denying transfer because
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PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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defendant failed to state substance of key witness’ testimony). Here, Defendants merely list
prospective witnesses that they believe may be called at trial and offer nothing to establish the
materiality of their expected testimony. However, this Court cannot conduct a convenience
analysis on possibilities alone. In order for the convenience of prospective witnesses to even be
a relevant consideration, Defendants must provide specific information regarding which
prospective witnesses they actually intend to call, as well as topics of testimony they plan to
elicit. Pilates, 891 F. Supp. at 183. Because this litigation is at an early stage and no discovery
has been conducted, an assessment of the materiality of witness testimony is premature. Thus,
Defendants’ argument that the convenience of witnesses warrants transfer must be rejected.
Moreover, the location of party witnesses does not justify the transfer of this litigation to
the Eastern District of Pennsylvania. Each party can secure the appearance of their employees
and agents as witnesses regardless of the location of the forum. Sigros, 129 F. Supp. 2d at 71.
Given the prevalence of modern air travel, minimal burden would be imposed upon party
witnesses in order to secure their appearance to provide trial testimony. Furthermore, discovery
involving party witnesses, including depositions, need not occur in this District and can be
conducted in the districts in which the party witnesses reside. Accordingly, the location and
convenience of party witnesses does not justify transfer.
3. The Interest of Justice Does Not Warrant Transfer
a. The Defendants Are Merely Shifting the Burden of Litigation
from One Forum to Another Rather than Eliminating It
Where transferring venue would “merely shift the burden of litigating in a foreign forum
rather than eliminate it,” the transfer should not be granted. Id. at 71. Defendants would have
the Court do just that – shift the burden of litigation from this District to the Eastern District of
Pennsylvania. Moreover, this Court should consider docket congestion of the two Districts. The
Eastern District of Pennsylvania is much more congested than the Southern District of
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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California. The Southern District of California has 360 pending cases per judgeship (3,175 total
civil cases filed in 2009), compared to 2,969 per judgeship in the Eastern District of
Pennsylvania (47,606 total civil cases filed in 2009). The median time from filing to disposition
of civil cases in this District is six months compared to 13.2 in the Eastern District of
Pennsylvania. See Administrative Office of the United States Courts, Federal Court
Management Statistics, available at http://www.uscourts.gov/cgi-bin/cmsd2009.pl.
Because transfer would shift the burden of litigating this case to the more congested
Eastern District of Pennsylvania, the Court should deny the transfer.
b. Pennsylvania Has no Greater Interest in This Litigation than
California
Defendants contend that Pennsylvania has a greater interest in this litigation than
California. Nearly every corporate Defendant “has its principal place of business in
Pennsylvania or New York.” (Defs.’ Mem. at 12). It is not apparent to West Palm what greater
interest Pennsylvania has over California regarding New York-based corporate Defendants.
None of the corporate Defendants are organized under the laws of Pennsylvania. While
CardioNet is currently headquartered in Pennsylvania, it was headquartered in San Diego,
California, at the time of its IPO. Also, Underwriter Defendant Thomas Weisel Partners LLC
has its principal place of business in California. Moreover, this action arises under the federal
securities laws and involves securities which have presumably been sold throughout the United
States. Thus, to say one state has a greater interest over another in the enforcement of federal
securities laws in a federal court makes little sense to West Palm.
Defendants also contend the existence of the Pennsylvania Action gives Pennsylvania a
greater interest. While there is certainly some overlap between the cases in that they involve the
same company, this action pleads different claims, arising during different time periods, and
involves numerous other Defendants than the Pennsylvania Action. Defendants point to a
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PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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pending motion to dismiss in support of transfer. However, the Pennsylvania Action arises under
the Securities Exchange Act of 1934 and therefore must plead fraud with requisite particularity
required by the 1934 Act. 15 U.S.C. § 78u-4(b)(1)-(2). Here, West Palm’s claims arise under
the 1933 Act, do not allege fraud, and therefore must only pass muster under Rule 8 of the
Federal Rules of Civil Procedure.
Because Pennsylvania has no greater interest in this litigation than California, the Court
should deny the Defendants’ Motion to Transfer.
c. Plaintiff’s Choice of Forum is Entitled to Deference
Plaintiff’s choice of forum is entitled to deference. While Defendants correctly point out
that because (1) this action is brought as a class action and (2) West Palm does not reside in this
District, West Palm’s choice of forum is entitled to less deference, they then ask this Court to
incorrectly conclude that West Palm’s choice forum “should be disregarded entirely.” (Defs.’
Mem. at 15). Defendants’ leap from a reduction in deference to no deference whatsoever is
simply not supported by the cases they cite. (Id. at 15-16).
Moreover, West Palm disagrees that the operative facts occurred primarily in
Pennsylvania. Defendants concede that the IPO occurred while CardioNet was based in
California. Without the benefit of discovery, we cannot determine where drafting sessions may
have occurred. But West Palm notes that CardioNet’s Registration Statements for both offerings
indicate CardioNet’s counsel for both offerings is Cooley Godward Kronish LLP, located in San
Diego, California. See Registration Statements for IPO and Secondary Offering.
Contrary to Defendants’ arguments, this Court should afford West Palm’s choice of
forum, which has substantial ties to this action, some deference, and deny Defendants’ Motion to
Transfer.
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Civil Action No.: 3:10-cv-00711-L-NLS
PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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d. The Location of the Documents Does Not Warrant Transfer
The location of documents in this litigation fails to support transfer, especially given “the
comparatively low cost of transporting documents.” See Pennwalt Corp. v. Purex Indus., Inc.,
659 F. Supp. 287, 290 (D. Del. 1986). Moreover, ‘“since most records and documents now can
be transported easily or exist in miniaturized or electronic form … their location is entitled to
little weight.”‘ Boateng v. Gen. Dynamics Corp., 460 F. Supp. 2d 270, 276 (D. Mass. 2006).
“This is particularly true with the development of photo duplication, facsimile transmission, the
Internet, and the easy availability, excellent reproducibility, and relatively low cost of hard and
electronic copies.” Id. (citing Wright, supra, 15 Federal Practice & Procedure § 3853.) Indeed,
Defendants concede the location of documents is less significant in this case. (Defs.’ Mem. at
18).
Here, documents are in the possession of parties located in California, New York,
Pennsylvania and elsewhere. Because the documents are dispersed throughout the United States,
this factor does not warrant transfer of this action to the Eastern District of Pennsylvania.
e. Whether Certain Third Parties May Not Show Up for Trial
Absent Compulsory Process is Purely Speculative at this Time,
and Therefore, Does Not Support Transfer
Defendants speculate that there are certain non-parties who may be important witnesses
who are within the Eastern District of Pennsylvania. However, speculation alone will not
suffice. Defendants must present evidence to support their assertion that there are non-party
witnesses located in Pennsylvania who will not appear at trial. Culebra II, LLC v. River Cruises
& Anticipation Yachts, LLC, No. 07-13-P-H, 2007 WL 1657426 at *10 (D. Me. June 4, 2007)
(the defendants have not shown that these unnamed witnesses are unwilling to travel to Maine or
that there are no alternative, less burdensome means by which to present their testimony).
Defendants have presented no such evidence here. Thus, this Court should disregard
Defendants’ argument.
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PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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Further, that a third party witness (whose necessity as a trial witness has not even been
established) might be outside of this Court’s subpoena power fails to support transfer. The
Court’s theoretical lack of subpoena power over certain third parties is a non-issue and
Defendants will not be prejudiced by a potential, yet unsubstantiated, claim of a lack of access to
these witnesses at trial. Further, courts have broad powers to manage litigation in multiple-party
complex litigation and may adopt necessary management procedures, such as compelling
testimony and/or documents. Fed. R. Civ. P. 16(c)(2)(L). Moreover, many courts have held
witnesses need not provide live testimony. See, e.g., Moses v. Business Card Express, Inc., 929
F.2d 1131, 1138-39 (6th Cir. 1991), cert. denied, 502 U.S. 821 (1991) (“[t]here is no reason why
the testimony of witnesses [not subject to compulsory process] could not be presented by
deposition”); McEvily v. Sunbeam-Oster Co., Inc., 878 F. Supp. 337, 348 (D.R.I. 1994)
(“videotaped depositions can make demeanor evidence available to a jury even when witnesses
are not physically present at trial”).
Defendants here provided no evidence that the parties will be unable to secure third party
witness testimony through depositions, thus preserving that evidence for use at a trial. To the
extent a third party witness is not within the subpoena power of any district court, then transfer to
the Eastern District of Pennsylvania will do nothing to secure that witness’ testimony. Thus,
Defendants’ unsupported speculation regarding the unavailability of third party witnesses and
this Court’s theoretical lack of trial subpoena power over unidentified third parties fails to
establish that transfer to the Eastern District of Pennsylvania is appropriate.
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PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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IV. CONCLUSION
While Defendants have presented some reasons why this action could be transferred to
the Eastern District of Pennsylvania, they have not made the requisite strong showing necessary
to support transfer. Therefore the Court should deny Defendants’ Motion to Transfer.
DATED: May 28, 2010
SCOTT+SCOTT LLP
/s/Arthur L. Shingler III______________
ARTHUR L. SHINGLER III (181719)
MARY K. BLASY (211262)
600 B Street, Suite 1500
San Diego, CA 92101
Telephone: 619/233-4565
619/233-0508 (fax)
-and-
DAVID R. SCOTT
156 South Main Street
P.O. Box 192
Colchester, CT 06415
Telephone: 860/537-3818
860/537-4432 (fax)
Amber L. Eck
ZELDES & HAEGGQUIST, LLP
625 Broadway, Suite 906
San Diego, CA 92101
Telephone: 619/434-0024
619/342-7878 (fax)
Counsel for Plaintiff
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PLAINTIFF’S MEMORANDUM AND POINTS OF AUTHORITY
IN OPPOSITION TO DEFENDANTS’ JOINT MOTION
TO TRANSFER THE ACTION TO THE EASTERN DISTRICT
OF PENNSYLVANIA PURSUANT TO 28 U.S.C. § 1404(a)
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CERTIFICATE OF SERVICE
I hereby certify that on May 28, 2010 I caused the foregoing to be electronically filed
with the Clerk of the Court using the CM/ECF system which will send notification of such filing
to the e-mail addresses denoted on the Electronic Mail Notice List, and I hereby certify that I
caused the foregoing document or paper to be mailed via the United States Postal Service to the
non-CM/ECF participants indicated on the Manual Notice List.
I certify under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. Executed on May 28, 2010.
/s/ Arthur L. Shingler III
ARTHUR L. SHINGLER III
SCOTT+SCOTT LLP
600 B Street, Suite 1500
San Diego, CA 92101
Telephone: 619-233-4565
Fax: 619-233-0508
E-mail: ashingler@scott-scott.com
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