Grant v. Kamehameha Schools/Bernice Pauahi Bishop Estate et al

Filing 90

OPPOSITION by Eric Grant to 77 Motion to Transfer. (Attachments: # 1 Appendix of Non-Standard Authorities, # 2 Declaration of Eric Grant, # 3 Declaration of James J. Banks)(Grant, Eric)

Download PDF
Grant v. Kamehameha Schools/Bernice Pauahi Bishop Estate et al Doc. 90 1 Eric Grant (Bar No. 151064) Attorney at Law 2 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 3 Telephone: (916) 388-0833 Facsimile: (916) 691-3261 4 E-Mail: grant@eric-grant.com 5 James J. Banks (Bar No. 119525) Banks & Watson 6 Hall of Justice Building 813 6th Street, Suite 400 7 Sacramento, California 95814 Telephone: (916) 325-1000 8 Facsimile: (916) 325-1004 E-Mail: jbanks@bw-firm.com 9 Counsel for Plaintiff and 10 Counter-Defendant ERIC GRANT ERIC GRANT, ATTORNEY AT LAW 11 12 13 14 ERIC GRANT, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA No. 2:08-cv-00672-FCD-KJM PLAINTIFF AND COUNTER-DEFENDANT ERIC GRANT'S OPPOSITION TO KSBE DEFENDANTS' MOTION TO TRANSFER TO DISTRICT OF HAWAII PURSUANT TO 28 U.S.C. § 1404 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 ) ) 15 Plaintiff, ) ) 16 v. ) ) 17 KAMEHAMEHA SCHOOLS/BERNICE ) PAUAHI BISHOP ESTATE; J. DOUGLAS ) 18 ING, NAINOA THOMPSON, DIANE J. ) PLOTTS, ROBERT K.U. KIHUNE, and ) 19 CORBETT A.K KALAMA, in their ) capacities as Trustees of the Kamehameha ) 20 Schools/Bernice Pauahi Bishop Estate; ) JOHN DOE; and JANE DOE, ) 21 ) Defendants. ) 22 ) ) 23 JOHN DOE and JANE DOE, ) ) 24 Counter-Claimants, ) ) 25 v. ) ) 26 KAMEHAMEHA SCHOOLS/BERNICE ) PAUAHI BISHOP ESTATE, et al., ) 27 ) Counter-Defendants. ) 28 ) Hearing Date: Time: Courtroom: Judge: Oct. 31, 2008 10:00 a.m. 2 Hon. Frank C. Damrell, Jr. Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer Dockets.Justia.com 1 2 TABLE OF CONTENTS Page 3 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii 4 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 6 7 8 9 10 A. B. C. The "Convenience of Witnesses" Does Not Favor Hawaii . . . . . . . . . . . . . . . . . . 2 The Parties' "Ability to Obtain and Present Evidence at Trial" Does Not Favor Hawaii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 "The Hawaii Court's Familiarity with Hawaii Law" Is Only Marginally Relevant; Much More Important Is this Court's Familiarity with California Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 The Grant-Doe Forum Selection Clauses and the Public Policy of California Are "Significant" Factors Weighing Against Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ERIC GRANT, ATTORNEY AT LAW 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 i Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 1 2 3 TABLE OF AUTHORITIES Page Cases 4 Bernhard v. Harrah's Club, 16 Cal. 3d 313 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 5 Cochran v. NYP Holdings, Inc., 6 58 F. Supp. 2d 1113 (C.D. Cal. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 7 Commodity Futures Trading Commission v. Savage, 611 F.2d 270 (9th Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8 Decker Coal Co. v. Commonwealth Edison Co., 9 805 F.2d 834 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 11 10 Ferens v. John Deere Co., 494 U.S. 516 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 11 Frontier Oil Corp. v. RLI Insurance Co., 12 153 Cal. App. 4th 1436 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-9 13 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 14 Hope v. Otis Elevator Co., 15 389 F. Supp. 2d 1235 (E.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 16 In re National Presto Industries, Inc., 347 F.3d 662 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3, 6 17 Jones v. GNC Franchising, Inc., 18 211 F.3d 495 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10-11 19 Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11 20 Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 21 313 U.S. 487 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 22 Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 23 Stewart Organization, Inc. v. Ricoh Corp., 24 487 U.S. 22 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10 25 Stratagene v. Parsons Behle & Latimer, 315 F. Supp. 2d 765 (D. Md. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 26 Streber v. Hunter, 27 221 F.3d 701 (5th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 28 ii Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer ERIC GRANT, ATTORNEY AT LAW 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 1 Page 2 T.M. Hylwa, M.D., Inc. v. Palka, 823 F.2d 310 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 3 Trinity Industries, Inc. v. Myers & Associates, Ltd., 41 F.3d 229 (5th Cir.), cert. denied, 516 U.S. 807 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . 4 4 5 United States v. Approximately $15,630.00 in U.S. Currency, No. CIV. 07-0452 FCD KJM (E.D. Cal. June 25, 2007) . . . . . . . . . . . . . . . . . . . . . . . . 2, 6 6 United States v. One Oil Painting, 362 F. Supp. 2d 1175 (C.D. Cal. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7 8 Van Dusen v. Barrack, 376 U.S. 612 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 8 9 Washington Mutual Bank v. Superior Court, 24 Cal. 4th 906 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 10 ERIC GRANT, ATTORNEY AT LAW 11 Young v. Coastal Island Charters, No. CIV. S-05-1639 FCD GGH (E.D. Cal. Dec. 12, 2005) . . . . . . . . . . . . . . . . . . . . . 2-4 12 Statutes and Court Rule 13 28 U.S.C. § 1391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 14 § 1404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 15 Cal. Civil Code § 1646 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8 16 Fed. R. Civ. P. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 17 18 19 20 21 22 23 24 25 26 27 28 iii Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 1 2 INTRODUCTION Plaintiff and Counter-Defendant Eric Grant ("Grant") brought this action against KSBE1 3 and against John and Jane Doe ("the Does"), seeking a declaration that he is not liable in any man4 ner to any of those parties for an alleged breach of a settlement agreement between the Does and 5 KSBE resulting from alleged disclosures of confidential information by non-party John Goemans. 6 Having previously moved to dismiss this action entirely (doc. 50, filed July 9, 2008), KSBE now 7 moves to transfer this action to the District of Hawaii pursuant to 28 U.S.C. § 1404 (doc. 77, filed 8 Aug. 22, 2008). As set forth in this opposition, KSBE's motion to transfer lacks merit and should 9 be denied. 10 ARGUMENT ERIC GRANT, ATTORNEY AT LAW 11 The basic principles governing motions to transfer are well-established: "Under § 1404(a), 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 12 the district court has discretion `to adjudicate motions for transfer according to an `individualized, 13 case-by-case consideration of convenience and fairness.' " Jones v. GNC Franchising, Inc., 211 14 F.3d 495, 498 (9th Cir. 2000) (quoting Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 15 (1988)). Such a motion "requires the court to weigh multiple factors" in undertaking this consid16 eration. Id. KSBE has listed some of these factors. See KSBE Defendants' Memorandum in Sup17 port of Motion to Transfer ("KSBE Mem.") 4:21-24 (doc. 77-2, filed Aug. 22, 2008) (quoting eight 18 factors enumerated by Jones). But KSBE has pointedly omitted two factors the Ninth Circuit has 19 expressly deemed significant: "[T]he presence of a forum selection clause is a `significant factor' 20 in [a district] court's § 1404(a) analysis. We also conclude that the relevant public policy of the 21 forum state, if any, is at least as significant a factor in the § 1404(a) balancing." Jones, 211 F.3d 22 at 499 (footnote omitted). As discussed below, these two factors are highly relevant here. 23 In what framework should a district court weigh these "multiple factors"? This Court ad- 24 dressed that precise question last year: "The moving party has the burden of establishing that an 25 action should be transferred. . . . Unless the balance is strongly in favor of the defendant, the plain26 "KSBE" stands for Defendant Kamehameha Schools/Bernice Pauahi Bishop Estate, along with 27 Defendants J. Douglas Ing, Nainoa Thompson, Diane J. Plotts, Robert K.U. Kihune, and Corbett A.K. Kalama, in their capacities as Trustees of the Kamehameha Schools/Bernice Pauahi Bishop 28 Estate. 1 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 1 1 tiff's choice of forum should rarely be disturbed." United States v. Approximately $15,630.00 in 2 U.S. Currency, No. CIV. 07-0452 FCD KJM, slip op. at 5:21-25 (E.D. Cal. June 25, 2007) (citing 3 Commodity Futures Trading Commission v. Savage, 611 F.2d 270, 279 (9th Cir. 1979), and Gulf 4 Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).2 Or, as the Ninth Circuit phrased the point many 5 years ago: "The defendant must make a strong showing of inconvenience to warrant upsetting the 6 plaintiff's choice of forum." Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 7 (9th Cir. 1986), quoted in Young v. Coastal Island Charters, No. CIV. S-05-1639 FCD GGH, slip 8 op. at 7:4-7 (E.D. Cal. Dec. 12, 2005) (ruling that "where a plaintiff's choice of forum is his place 9 of residence, as in this case, a defendant must make a `strong showing of inconvenience to warrant 10 upsetting the plaintiff's choice of forum' ").3 ERIC GRANT, ATTORNEY AT LAW 11 Under these precepts, KSBE has the burden of establishing that this action should be trans- 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 12 ferred away from Grant's (and the Does') choice of forum. But as set forth below, KSBE has not 13 met that burden because KSBE has not made the requisite "strong showing" that this forum is in14 convenient or (to say the same thing) that the balance of factors is "strongly in [its] favor." Thus, 15 there is no warrant to upset or disturb Grant's choice of forum, which is his place of residence. 16 17 A. The "Convenience of Witnesses" Does Not Favor Hawaii. We concur with KSBE about the importance of the convenience of witnesses. See KSBE 18 Mem. 5:2-3. Indeed, this Court has opined: "As to the convenience of the witnesses, this factor is 19 often regarded as the most important in determining whether transfer of venue is proper." Approx20 imately $15,630.00 in U.S. Currency, slip op. at 7:20-22 (citing United States v. One Oil Painting, 21 362 F. Supp. 2d 1175, 1185 (C.D. Cal. 2005)). "A clear balance of inconvenience, however, must 22 be shown; a court will not transfer venue to shift the inconvenience of one party and witnesses to 23 the other." Id. at 7:23-8:1 (citing, inter alia, Van Dusen v. Barrack, 376 U.S. 612, 645-46 (1964)). 24 That is, "[w]hen the inconvenience [for witnesses] of the alternative venues is comparable `the tie 25 is awarded to the plaintiff' and there is no basis for a change of venue." Id. at 8:16-18 (quoting In 26 27 2 A copy of the quoted opinion is reproduced as Exhibit 1 to the Appendix of Unpublished Authorities filed concurrently herewith. A copy of the quoted opinion is reproduced as Exhibit 2 to the Appendix of Unpublished Auth28 orities filed concurrently herewith. 2 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 3 1 re National Presto Industries, Inc., 347 F.3d 662, 665 (7th Cir. 2003)). As set forth below, KSBE 2 has shown nothing like a "clear balance" of inconvenience. 3 First, Grant submits that this case--or at least all of the claims by or against him--can be 4 resolved on summary judgment, that is, without any witnesses at all. Indeed, Grant has just filed 5 a motion seeking summary judgment on such claims ("Grant MSJ," doc. 81, filed Oct. 3, 2008). A 6 cursory reading of the motion reveals that the material facts relating to such claims are undisputed. 7 Second, even if witnesses might be needed to resolve this case, KSBE has failed to comply 8 with the rule that a party moving to transfer pursuant to § 1404(a) "must demonstrate, through affi9 davits or declarations containing admissible evidence, who the key witnesses will be and what their 10 testimony will generally include." Young v. Coastal Island Charters, slip op. at 8:12-15 (quoting ERIC GRANT, ATTORNEY AT LAW 11 Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1119 (C.D. Cal. 1998)). That is, the moving 12 party "must demonstrate through affidavits that it is more convenient for witnesses to attend trial 13 in Hawaii." Hope v. Otis Elevator Co., 389 F. Supp. 2d 1235, 1243 (E.D. Cal. 2005) (also citing 14 Cochran). KSBE has supplied no admissible evidence (through affidavits or otherwise) regarding 15 what the testimony of the supposed witnesses will include. See KSBE Mem. 5-6.4 KSBE's default 16 in this regard should not be excused, for Grant put KSBE on notice that witness testimony would 17 be an issue if KSBE filed a motion to transfer. Thus, Grant asked KSBE in discovery: 18 19 20 If KSBE intends to file a motion to transfer venue pursuant to 28 U.S.C. § 1404(a) based in any manner on "the convenience of . . . witnesses,' please identify those witnesses whose convenience is the basis for the motion, together with the general subject matter of their expected testimony. 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 21 Declaration of Eric Grant ("Grant Decl.") ¶ 7, at 2 (filed concurrently herewith); id., Exh. 4, at 12 22 (Item t). KSBE refused to respond on the ground, among others, that the request "seeks informa23 tion that is irrelevant to this action." Ibid. 24 With respect to potential witnesses, the declarations filed by KSBE show nothing more than that 25 on April 7, 2008 (some seven months ago), John Goemans stated that he was in Hawaii, see Declaration of Louise K. Y. Ing, Exh. B, ¶ 2, at 1 (doc. 78-3, filed Aug. 22, 2008); but that KSBE has 26 absolutely no idea of the present whereabouts of Goemans, see Declaration of Paul Alston ¶¶ 2-3, at 2 (doc. 77-3, filed Aug. 22, 2008); accord KSBE Mem. 5:14 (conceding that Goemans' "present 27 whereabouts are unknown"). In any event, on September 4, 2008, Goemans was at a motel in Fort Bragg, California. See Declaration of James J. Banks ¶ 2, at 1 (filed concurrently herewith) id., 28 Exhs. 1-2; Declaration of Eric Grant Decl. ¶ 8, at 2 (filed concurrently herewith); id., Exh. 5. 3 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 4 1 Third, if we actually consider in detail the potential witnesses in this case, it is quickly ap- 2 parent that Hawaii is not indisputably more convenient than California. In this consideration, we 3 start with the parties themselves and then move on to other potential witnesses: 4 5 6 7 8 9 10 · · · · Plaintiff Grant: He resides in Sacramento County, i.e., in this judicial district.5 Defendants John Doe and Jane Doe: If their testimony were necessary, they would prefer to testify in Sacramento rather than in Honolulu. See Does' Opposition to Motion to Transfer 12 n.9 (doc. 86, filed Oct. 17, 2008) ("As to the Does, although located in Hawaii they would prefer the case be litigated in California as it would be much easier for their identities to be discovered as a result of a case pending in Hawaii, as opposed to a case pending in Sacramento.") Defendant Kamehameha Schools/Bernice Pauahi Bishop Estate: As a non-natural person, this party will not be testifying anywhere. Defendants Ing, Thompson, Plotts, Kihune, and Kalama (i.e., the Estate's Trustees): These parties "are sued only in their capacity as trustees of KSBE." Complaint for Declaratory Relief ("Complaint") ¶ 7, at 2 (doc. 1, filed Mar. 28, 2008). It is difficult to conceive why the Trustees' testimony would be necessary. Certainly, KSBE has provided no reason. KSBE's employees (see KSBE Mem. 5:6): Again, it is difficult to conceive why the testimony of any such employees would be necessary. Again, KSBE has provided no reason. Kathleen Sullivan and Emmett Lewis (KSBE's counsel in the Underlying Litigation): So far as this action involves KSBE, it essentially concerns whether there has been (as KSBE puts it) a "blatant violation of the confidentiality provision" of the Doe-KSBE Settlement Agreement, KSBE Mem. 1:9-10, and if so, who is responsible for that violation. Central to those issues is the meaning of the identified provision. In his summary judgment motion, Grant submits that the provision speaks for itself, such that no testimony is needed. But if testimony as to the provision's meaning is needed, it will obviously come from the persons ERIC GRANT, ATTORNEY AT LAW 11 12 13 14 15 16 17 18 5 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 · · KSBE asserts that Grant's "residency is entitled to minimal weight." KSBE Mem. 5:14-15. This 19 is flat wrong: as quoted above, this Court has held that "where a plaintiff's choice of forum is his place of residence, . . . a defendant must make a `strong showing of inconvenience to warrant up20 setting the plaintiff's choice of forum.' " Young v. Coastal Island Charters, slip op. at 7:4-7 (emphasis added) (quoting Decker Coal, 805 F.2d at 843). Moreover, the cases cited by KSBE in this 21 context, see id. at 5:18-6:13, do not even come close to supporting this assertion. Three of the four cases addressed personal jurisdiction, not the appropriateness of a transfer pursuant to § 1404(a). 22 See T.M. Hylwa, M.D., Inc. v. Palka, 823 F.2d 310, 313 (9th Cir. 1987) (holding that "the district court can constitutionally exercise personal jurisdiction over Palka pursuant to California's long23 arm statute"); Trinity Industries, Inc. v. Myers & Associates, Ltd., 41 F.3d 229, 230 (5th Cir.) (observing that the plaintiff "appeals the dismissal for lack of personal jurisdiction of its suit against 24 its former attorneys" and concluding that "the requisite jurisdiction exists"), cert. denied, 516 U.S. 807 (1995); Streber v. Hunter, 221 F.3d 701, 718 (5th Cir. 2000) (addressing a defendant's "claims 25 that the district court lacked personal jurisdiction over him"). 26 The remaining case, Stratagene v. Parsons Behle & Latimer, 315 F. Supp. 2d 765 (D. Md. 2004), did indeed consider a motion to transfer. But contrary to KSBE's motion here, the district 27 court denied a transfer sought by out-of-state defendants (like KSBE), concluding that "the court is well-served, in interest of justice, to honor Plaintiff's forum choice and retain this action." Id. at 28 772 (emphasis added). This Court should conclude likewise. 4 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 1 2 3 4 5 6 7 8 9 10 · · who negotiated it. As KSBE itself describes them, those negotiations "were conducted between Grant and [Kathleen] Sullivan in California and Emmett Lewis, [KSBE's] counsel in Washington D.C." KSBE Memorandum in Support of Motion to Dismiss 3:10-11 (doc. 51, filed July 9, 2008). Sullivan practices in California, Lewis in Washington, D.C. See Grant Decl. ¶¶ 9-10, at 3; id., Exhs. 6-7.. None of the three counsel resides in Hawaii, so Hawaii cannot be a more convenient forum for any of them. John Goemans: KSBE has conceded that Goemans' "present whereabouts are unknown." Mem. 5:14. Indeed, as recently as last month, Goemans was apparently residing at a motel in Fort Bragg, California. See supra note 4. By definition, therefore, Hawaii cannot be a more convenient forum for him. David Schulmeister (KSBE's former counsel) and Ken Kuniyuki (the Does' counsel): According to KSBE, these are the "two participants in the conversation that produced the purported threat" by KSBE to sue the Does and thereby disclose the Does' identities. KSBE Mem. 5:6-7. Since that conversation, of course, KSBE has indeed sued the Does, see Declaration of Paul Alston, Exh. 25 (doc. 80-3, filed Aug. 29, 2008) (KSBE's complaint), and KSBE also has agreed that, pending further order of this Court, it "will not, directly or indirectly, disclose the identities of one or both of the Does," Stipulation and Order Regarding Nondisclosure ¶ 1, at 2:9-10 (doc. 43, filed Apr. 25, 2008). In this light, it would seem that the Schulmeister-Kuniyuki conversation remains relevant to very little, if anything, in this case. In any case, the Does have warranted that Mr. Kuniyuki "will appear voluntarily for trial" in this judicial district. Does' Opposition to Motion to Transfer 10:14 (doc. 86, filed Oct. 17, 2008). "[T]he Hawaii reporters to whom Goemans disclosed information about the settlement in violation of a confidentiality provision" (KSBE Mem. 5:8-9): The notion that any of these reporters would testify, in any venue, is fanciful. What Goemans said is reported in both newspaper stories and audio clips widely available on the Internet, many (if not most) of which are already before this Court. See KSBE Request for Judicial Notice, Exhs. 10, 11, 12, and 14 (docs. 61-6, 61-7, 61-8, and 61-10, filed July 9, 2008); id., Exhs. 13a, 13b, 13c, 13d, and 13e (on DVD, filed July 9, 2008). Grant does not contest that Goemans made the reported disclosures, and neither do the Does. See Complaint ¶ 26, at 5; Doe Answer ¶ 3, at 2 (doc. 12, filed Apr. 3, 2008); Doe Cross-Claim ¶ 9, at 4 (doc. 13, Apr. 3, 2008). "[A]ny witnesses to any alleged threats made to or against the Does" (KSBE Mem. 6:2728): The existence of these threats goes to the propriety of injunctive relief to enforce the provision of the Doe-KSBE settlement agreement that expressly requires KSBE to maintain the confidentiality of "the true names of, addresses of, or any other information identifying John Doe or Jane Doe or their family (whether individually or collectively)." Doe Motion for Temporary Restraining Order 6:21-22 (doc. 7, filed Apr. 3, 2008). Because the threats are posted on the website of The Honolulu Advertiser, see id. at 8:12-23, live testimony is not necessary. To summarize, on the one hand: Grant resides here; the Does would rather testify here; the ERIC GRANT, ATTORNEY AT LAW 11 12 13 14 15 16 17 18 19 20 21 22 23 · · 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 24 Does' counsel who might conceivably be a witness (Kuniyuki) has no objection to testifying here; 25 and KSBE's counsel who negotiated the contract on which this case hinges (Sullivan and Lewis) 26 work in California and Washington, D.C. On the other hand: KSBE's former counsel who might 27 conceivably be a witness (Schulmeister) resides in Hawaii, as do various unnamed--and unlikely 28 --potential witnesses. On these facts, it cannot be said that KSBE has shown, or even come close 5 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 1 to showing, a "clear balance of inconvenience." Approximately $15,630.00 in U.S. Currency, slip 2 op. at 7:23-24. Even if the truth were stretched in KSBE's favor to say that respective "inconveni3 ence of the alternative venues is comparable," that situation would invoke the rule that " `the tie is 4 awarded to the plaintiff' and there is no basis for a change of venue." Id. at 8:16-18 (quoting In re 5 National Presto Industries, 347 F.3d at 665). 6 7 8 B. The Parties' "Ability to Obtain and Present Evidence at Trial" Does Not Favor Hawaii. KSBE asserts that its requested transfer to Hawaii "would greatly ease the parties' ability 9 to obtain and present evidence at trial." KSBE Mem. 6:14-15 (section heading). The basis for this 10 assertion is twofold: (1) the "vast majority of the documents relevant to this action are in Hawaii," ERIC GRANT, ATTORNEY AT LAW 11 id. at 6:19-20; and (2) this case "will likely involve testimony from people in Hawaii" who are not 12 parties or their agents, id. at 6:26. Regarding the latter, we have already considered these purport13 ed witnesses in detail in the previous section and will not labor the point here. 14 Regarding the former, KSBE does not identify any particular documents (or even any cate- 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 15 gories of documents), except to say that they are possessed by the Does, KSBE, or Goemans. See 16 id. at 6:20-21. As for documents possessed by the Does and KSBE, they can (and doubtless will) 17 be produced without need to resort to any court's "compulsory process power." Id. at 7:1. Indeed, 18 the parties have already exchanged various documents without the Court's intervention. Not sur19 prisingly, they did so by electronic mail, rendering irrelevant the documents' original "location." 20 See, e.g., Grant Decl. ¶ 6, at 2; id., Exh. 3. Moreover, the principal relevant documents in this ac21 tion are those relating to the drafting of the Doe-KSBE Settlement Agreement by attorneys Grant, 22 Ms. Sullivan, and Mr. Lewis; obviously, such documents are located in the attorneys' respective 23 offices in California and Washington, D.C.--not in Hawaii. 24 As for relevant documents possessed by Goemans, KSBE asserts that they are, "according 25 to Goemans, in Hawaii." KSBE Mem. 6:20. KSBE's information in this regard is out-of-date. It 26 is true that as of April 22, 2008, Grant's counsel in the Grant v. Goemans litigation read Goemans' 27 most recent discovery response to state that "any documents [possessed by Goemans] would be in 28 Hawaii and in storage." Declaration of Louise K. Y. Ing, Exh. C at 2:14 (doc. 78-4, filed Aug. 22, 6 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 1 2008). But on May 9, 2008, Goemans' counsel in that litigation executed a supplemental discov2 ery response, which explained that "[a]fter a diligent search and reasonable inquiry, no documents 3 to this request will be produced because all documents responsive to said request have either been 4 destroyed or lost." Grant Decl. ¶ 5, at 2; id., Exh. 2, at 2:17-19. 5 In short, the allegedly greater ease with which the parties could obtain and present relevant 6 evidence were this action in Hawaii is illusory. This factor does not favor transfer. 7 8 9 C. "The Hawaii Court's Familiarity with Hawaii Law" Is Only Marginally Relevant; Much More Important Is this Court's Familiarity with California Law. KSBE next asserts that the "many issues in this action raising questions of Hawaii law also 10 weigh heavily in favor of transfer." KSBE Mem. 7:5-6. On examination, however, it is apparent ERIC GRANT, ATTORNEY AT LAW 11 that most of the issues in this action--particularly the central ones--raise questions of California 12 law. First of all, the entire dispute between Grant and the Does is governed by California law, as 13 both their attorney-client engagement agreement and their settlement agreement expressly provide. 14 See Grant Decl. ¶ 3, at 1 (engagement agreement); id., Exh. 1, ¶ 15, at 4 (same); Grant Decl. ¶ 4, at 15 1 (settlement agreement). 16 As for the dispute between Grant and KSBE, its focus is whether Grant "is liable to [KSBE] 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 17 in whole or in part for alleged breaches of the Doe-KSBE settlement agreement by [Grant] or by 18 other persons." Complaint ¶ 32, at 6:7-8. As explained in Grant's pending motion for summary 19 judgment, the legal questions are (1) whether Grant had any contractual relationship with KSBE; 20 (2) if so, whether he breached any contractual duty to KSBE; and (3) whether he is otherwise liable 21 to KSBE for an intentional tort, for negligence, or under vicarious liability. See Grant MSJ 7-14. 22 KSBE does not expressly deny that these issues are governed by California law, see KSBE Mem. 23 7:23-25 (arguing that certain other issues "are governed by Hawaii law"), and that result is emin24 ently reasonable.6 25 As discussed more fully in the text below, the California Court of Appeal recently held that "Civil Code section 1646 is the choice-of-law rule that determines the law governing the interpretation 26 of a contract." Frontier Oil Corp. v. RLI Insurance Co., 153 Cal. App. 4th 1436, 1442-43 (2007). 27 Section 1646 in turn provides: "A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according 28 (continued...) 7 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 6 1 But the potentially complicated choice-of-law issues need not be resolved now. The crucial 2 point for present purposes is that California choice-of-law rules will apply regardless of where this 3 action is venued. This outcome is the result of two familiar rules: (1) in diversity cases, a federal 4 district court "must apply the same choice-of-law rules that [the forum] state courts would apply if 5 they were deciding the case," Ferens v. John Deere Co., 494 U.S. 516, 519 (1990) (citing Klaxon 6 Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 496 (1941)); and (2) in such cases, 7 "following a transfer under § 1404(a) initiated by a defendant, the transferee court must follow the 8 choice-of-law rules that prevailed in the transferor court," id. (citing Van Dusen v. Barrack, 376 9 U.S. 612 (1964)). Therefore, even if this action is transferred to the district court in Hawaii, that 10 court must follow and apply California choice-of-law rules. ERIC GRANT, ATTORNEY AT LAW 11 As to the interpretation of contracts, the California Court of Appeal recently adopted Civil 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 12 Code § 1646 as the applicable rule, notwithstanding that the "California Supreme Court has never 13 cited section 1646 as a choice-of-law rule," and notwithstanding that "[s]ome courts and commen14 tators . . . have inferred or suggested that the judicially developed governmental interest analysis 15 supplants the choice-of-law rule stated in Civil Code section 1646." Frontier Oil Corp. v. RLI In16 surance Co., 153 Cal. App. 4th 1436, 1449 n.5, 1454 (2007); see also id. at 1458 (acknowledging 17 that "[s]ome federal courts have concluded or suggested that the governmental interest analysis has 18 judicially supplanted the choice-of-law rule stated in Civil Code section 1646 or that the state of 19 California law on this point is uncertain"). This Court is in a much better position than a court in 20 Hawaii to resolve and apply these uncertain currents of California law. 21 As to other contract-related issues and as to all tort-related issues, "California courts apply 22 the so-called governmental interest analysis, under which a court carefully examines the govern23 mental interests or purposes served by the applicable statute or rule of law of each of the affected 24 (...continued) 25 to the law and usage of the place where it is made." Grant negotiated, executed, and performed the Doe-KSBE settlement agreement wholly in California, See Declaration of Eric Grant ¶¶ 11-14, at 26 2-3 (doc. 36-2, filed Apr. 15, 2008). Thus, if Grant did enter into a distinct contract with KSBE in connection with that settlement agreement, the contract was necessarily "made" in California. In 27 addition, if the hypothesized contract imposed upon Grant an independent obligation to KSBE to keep the Doe-KSBE settlement confidential, such contract necessarily contemplated that Grant's 28 obligation be "performed" in California, where he resides and practices law. 8 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 6 1 jurisdictions to determine whether there is a `true conflict.' " Kearney v. Salomon Smith Barney, 2 Inc., 39 Cal. 4th 95, 100 (2006). Under that analysis, California "will apply its own rule of deci3 sion unless a party litigant timely invokes the law of a foreign state." Washington Mutual Bank v. 4 Superior Court, 24 Cal. 4th 906, 919 (2001). Thus, "[u]nder the first step of the governmental in5 terest approach, the foreign law proponent must identify the applicable rule of law in each poten6 tially concerned state and must show it materially differs from the law of California." Id. Only if 7 the respective laws are "materially different" need a court "proceed to the second step and deter8 mine what interest, if any, each state has in having its own law applied to the case." Id. at 920. In 9 practice, this means that a court "may properly find California law applicable without proceeding 10 to the third step in the analysis if the foreign law proponent fails to identify any actual conflict or ERIC GRANT, ATTORNEY AT LAW 11 to establish the other state's interest in having its own law applied." Id.; accord Frontier Oil, 153 12 Cal. App. 4th at 1465 (holding that the "party arguing that foreign law governs has the burden to 13 identify the applicable foreign law, show that it materially differs from California law, and show 14 that the foreign law furthers an interest of the foreign state"). 15 These principles have two immediate applications. First, it is apparent that to undertake a 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 16 proper California choice-of-law analysis, a court must be familiar with the governing substantive 17 law of California. In the present case, this means that it will be necessary for the district court to 18 become familiar with and apply substantive California law (as well as choice-of-law rules) regard19 less of where the case is venued. Second, it is apparent that KSBE's naked assertion that "at least 20 two principal issues underlying this action--[KSBE's] right to disclose the Does' identities and the 21 Does' liability for Goemans' disclosure--are governed by Hawaii law," KSBE Mem. 7:23-25, is 22 just that: a naked assertion. KSBE has not even begun to shoulder its burden under California's 23 choice-of-law rules both to identify the assertedly applicable law of Hawaii and to show that such 24 law materially differs from California law. Having failed at these initial steps, KSBE certainly has 25 failed to show Hawaii's interest in having its own law applied. 26 Accordingly, the Hawaii district court's obvious familiarity with Hawaii law is marginally 27 relevant at best. What is far more relevant--because the law of California is an inextricably sig28 nificant part of this case, both in choice-of-law and in substance--is this Court's familiarity with 9 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 1 California law. That crucial advantage will be lost, and not much gained in return, if the requested 2 transfer is granted.7 3 4 5 D. The Grant-Doe Forum Selection Clauses and the Public Policy of California Are "Significant" Factors Weighing Against Transfer. As stated above, the Ninth Circuit has held that "the presence of a forum selection clause is 6 a `significant factor' in the [district] court's § 1404(a) analysis"; likewise, "the relevant public pol7 icy of the forum state, if any, is at least as significant a factor in the § 1404(a) balancing." Jones, 8 211 F.3d at 499. Both of these "significant" factors weigh against the requested transfer. 9 First, although it is not "dispositive," a forum-selection clause "will be a significant factor 10 that figures centrally in the district court's calculus." Stewart Organization, 487 U.S. at 29. Two ERIC GRANT, ATTORNEY AT LAW 11 forum-selection clauses are applicable here. The attorney-client engagement agreement between 12 Grant and the Does generally lays "venue" in "Sacramento County, California." Grant Decl. ¶ 3, 13 at 1; id., Exh. 1, ¶ 15, at 4. The settlement agreement between those parties specifically provides 14 for "venue" in this Court. Grant Decl. ¶ 4, at 1. KSBE admittedly was not a party to either agree15 ment, but there is no inherent unfairness to KSBE in the present circumstances. Venue in this judi16 cial district is predicated on the fact that "a substantial part of the events or omissions giving rise 17 to [Grant's] claim occurred" here. 28 U.S.C. § 1391(a)(2) (emphasis added).8 Also, in concluding 18 that KSBE is subject to specific personal jurisdiction in this judicial district, this Court will neces19 sarily have determined that KSBE "purposefully direct[ed] [its] activities or consummate[d] some 20 transaction with the forum or resident thereof," and that Grant's claim against KSBE "arises out of 21 KSBE's remaining arguments are makeweight. The Does' claim for injunctive relief, see KSBE 22 Mem. 8:1-12, is a comparatively tiny part of this case. Additionally, KSBE's argument that "if a court were to issue an injunction [against KSBE] along the lines the Does request, it would be best 23 if that court were in Hawaii so that it could more easily monitor compliance with its order," id. at 8:7-9, would seem to have force only to the extent that KSBE were likely to violate that order. As 24 for the notion that "Grant's choice of forum should be given little weight" because of the "lack of significant contact" between the forum and the underlying events, id. at 8:13-14 (section heading), 25 that notion's factual premise is plainly incompatible with the posture of this case, as made clear in the immediately following section in the text. 26 8 Regarding venue, Grant alleged that "a substantial part of the events or omissions giving rise to 27 [his] claims occurred in this judicial district." Complaint ¶ 2, at 2:3-4 (doc. 1, filed Mar. 28, 2008) (emphasis added). In failing to assert a timely objection to venue pursuant to Federal Rule of Civil 28 Procedure 12(b)(3), KSBE effectively admitted this allegation under Rule 12(h)(1)(A). 10 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer 7 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 1 or relates to [its] forum-related activities." Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 2 797, 802 (9th Cir. 2004). 3 Second, the relevant public policy of the forum state is at least as significant a factor in the 4 § 1404(a) balancing. See Jones, 211 F.3d at 499. The California Supreme Court has long recog5 nized that "California ha[s] a special interest in applying its law to a California resident" who is in6 jured within California. Kearney, 39 Cal. 4th at 111 (discussing Bernhard v. Harrah's Club, 16 7 Cal. 3d 313 (1976)); see also id. at 104 (affirming that "a state may act to protect the interests of its 8 own residents while in their home state"). Grant is a California resident who is being victimized 9 by KSBE's groundless harassment of him based on another person's disclosure of confidential in10 formation--a disclosure that Grant actively attempted to prevent. See Grant MSJ 9-10. California ERIC GRANT, ATTORNEY AT LAW 11 has an interest in applying its law--under which Grant is decidedly not liable to KSBE under any 12 conceivable theory, see id. at 7-14--in these circumstances. 13 Accordingly, both the applicable forum selection clauses and the applicable public policy 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: (916) 388-0833 14 weigh against KSBE's requested transfer. In that light, and because KSBE's arguments in favor of 15 transfer are insubstantial, KSBE has utterly failed to make the "strong showing of inconvenience" 16 that is necessary to "warrant upsetting the plaintiff's choice of forum." Decker Coal, 805 F.2d at 17 843. 18 19 CONCLUSION For all of these reasons, KSBE's motion to transfer this case to the district court in Hawaii 20 pursuant to 28 U.S.C. § 1404(a) should be denied. 21 22 23 24 25 26 27 28 11 Plaintiff and Counter-Defendant Eric Grant's Opposition to KSBE Defendants' Motion to Transfer Dated: October 17, 2008. Respectfully submitted, /s/ Eric Grant ERIC GRANT Counsel for Plaintiff and Counter-Defendant ERIC GRANT

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?