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Hamilton v. Nochimson

July 21, 2009


The opinion of the court was delivered by: O'neill, J.


Plaintiff Richard Hamilton filed a complaint on May 18, 2009 alleging breach of fiduciary duty and conversion by defendant Joshua Nochimson. Presently before me are defendant's motion to transfer pursuant to 28 U.S.C. § 1404(a) or to dismiss for lack of personal jurisdiction, plaintiff's response and defendant's reply thereto.


Plaintiff is a citizen of Maryland. Defendant is a citizen of Illinois. Plaintiff is a professional basketball player currently playing for the Detroit Pistons. Plaintiff met defendant in 1996 while they were students at the University of Connecticut. They remained acquainted at college through 1999. Plaintiff left college in 1999 to become a professional athlete and was drafted by the National Basketball Association's Washington Wizards. Plaintiff then entered into an agreement with defendant whereby defendant would become plaintiff's personal assistant. In 2002, plaintiff was traded to the Detroit Pistons and both plaintiff and defendant relocated to the Detroit area. In 2003, plaintiff and defendant entered into a new agreement whereby defendant would be plaintiff's business manager.

Plaintiff alleges that from 2003 to 2008 defendant "abused his authority as [plaintiff's] business manager to steal approximately one million dollars from plaintiff." Plaintiff alleges that defendant made unauthorized use of frequent flyer miles, unauthorized use of a credit card, unauthorized wire transfers from plaintiff's bank account, unauthorized use of checks, and unauthorized receipt and conversion of money received pursuant to an endorsement contract.


"For the convenience of the parties and witnesses, [and] in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). "The purpose of Section 1404(a) is to avoid the waste of time, energy and money and, in addition, to safeguard witnesses, litigants, and the public against avoidable inconvenience and expense." Liggett Group Inc. v. R.J. Reynolds Tobacco Co., 102 F. Supp.2d 518, 525-26 (D. N.J. 2000). The moving party bears the burden of establishing the need for a transfer by demonstrating that: "(1) the case could have been bought initially in the proposed transferee forum, (2) the proposed transfer will be for the convenience of the parties, (3) the proposed transfer will be in the interest of the convenience of the witnesses, and (4) the proposed transfer will be in the interests of justice." Miller v. Consol. Rail Corp., 196 F.R.D. 22, 24-25 (E.D. Pa. 2000); see also Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). The transfer analysis is not limited, however, to these factors. The decision to transfer venue under 28 U.S.C. § 1404(a) must incorporate "all relevant factors to determine whether on balance the litigation [will] more conveniently proceed and the interests of justice will be better served by transfer to another forum." Smithkline Beecher Corp. v. Geneva Pharms., Inc., 2000 WL 217642, at *1 (E.D. Pa. Feb. 11, 2000); quoting Jumara, 55 F.3d at 879.


Defendant argues that this action should be transferred to the Eastern District of Michigan, because it is the more convenient venue. Defendant also argues that this court lacks personal jurisdiction over him Since I will transfer this case to the Eastern District of Michigan, I will not decide the personal jurisdiction question.

A diversity action may be brought "in a judicial district in which a substantial part of the events giving rise to the claim occurred . . . ." 28 U.S.C. § 1391(a)(2). Section 1391 "does not require a majority of the events take place [in the district], nor that the challenged [district] be the best forum for the lawsuit to be venued." Fellner ex rel. Estate of Fellner v. Phila. Toboggan Coasters, Inc., 2005 WL 2660351, at *3 (E.D. Pa. Oct. 18, 2005), quoting Park Inn Int'l, L.L.C. v. Mody Enters., Inc., 105 F. Supp.2d 370, 376 (D. N.J. 2000). "It is irrelevant that a more substantial part of the events took place in another district, as long as a substantial part of the events took place in [this] district as well." Rodriguez v. Smith, 2005 WL 1484591, at *3 n.5 (E.D. Pa. June 21, 2005), quoting Morris v. Genmar Indus., Inc., 1993 WL 217246, at *5 (N.D. Ill. July 18, 1993).

While the majority of the alleged breach of the fiduciary duty and conversion took place in Michigan, plaintiff is able to point to the occurrence of substantial activity in Pennsylvania. Defendant spent a portion of each year managing plaintiff's business affairs in Pennsylvania. Defendant accompanied plaintiff on trips to Pennsylvania for professional basketball games as well as to help run a charity basketball camp in Pennsylvania. Also, plaintiff alleges that a portion of the unauthorized credit card transactions that took place in Pennsylvania. While this activity amounted to approximately less than one month out of a given year, it was on a sufficiently regular basis to qualify as a substantial part of events. See Hayes v. Transcor Am., LLC, 2009 WL 1795309, at *3 (E.D. Pa. June 23, 2009), holding that venue was proper in a case of prisoner mistreatment, even though only one hour of the alleged six days of mistreatment took place within the district. Thus, venue is proper in this District.

A district court may transfer an action to another district even when venue is proper in the district in which the action was originally brought. 28 U.S.C. § 1404(a). Although it is within the discretion of a district court to decide a motion to transfer under § 1404(a) "based on an individualized, case-by-case consideration of convenience and fairness, such motions are not to be liberally granted." Lomanno, 285 F. Supp.2d at 643. Before ordering a transfer, the district court must consider the following factors addressing public and private interests:

The private interests [] include[]: plaintiff's forum preference as manifested by the original choice, the defendant's preference, whether the claim arose elsewhere, the convenience of the parties as indicated by their relative physical and financial condition, the convenience of the witnesses-but only to the extent that the witnesses may actually be unavailable for trial in one of the fora, and the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum.)

The public interests [] include[]: the enforceability of the judgment, practical considerations that could make the trial easy, expeditious, or inexpensive, the relative administrative difficulty in the two fora resulting from court congestion, the local interest in deciding local controversies at home, the public policies of the fora, ...

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