Hollomon, et al. v. Pastides, et al.

Filing 78

ORDER signed by District Judge Kimberly J. Mueller on 8/20/18, GRANTING defendants' motions to transfer under 28 U.S.C. § 1404(a). The Clerk is DIRECTED to transfer this case to the District of South Carolina. Defendants motions to dismiss are DENIED as MOOT. CASE CLOSED (Kastilahn, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SMARTPHONERECORDS, LLC, a
California limited liability company,
DAMION HOLLOMON, and
REYNA CARRASCO,

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ORDER

Plaintiffs,

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No. 2:17-CV-0479-KJM-AC

v.
THE UNIVERSITY OF SOUTH
CAROLINA, et al.,
Defendants.

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Plaintiff SmartPhoneRecords, LLC (“SmartPhone”), a California company,
developed a cellphone application for artists’ use in selling music worldwide. Hoping to create a
“version 2.0,” SmartPhone registered to participate in a startup-accelerator program in South
Carolina. But SmartPhone left disappointed: Version 2.0 was never created; instead the
application data was inexplicably erased. SmartPhone and its two owners sue a number of South
Carolina defendants associated with the start-up program. Defendants move in separate motions
to dismiss for lack of jurisdiction, or alternatively to transfer venue to South Carolina. Mot. One,
ECF No. 58; Mot. Two ECF No. 66; Mot. Three, ECF No. 67-1. Plaintiffs oppose. ECF Nos. 70,
72. The court submitted the motions on June 11, 2018. ECF No. 77.
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As explained below, the court DENIES the motions to dismiss but GRANTS the

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motions to transfer.

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I.

BACKGROUND

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SmartPhone is co-owned by two California residents, plaintiffs Damion Hollomon

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and Reyna Carrasco. First Am. Compl. (“FAC”), ECF No. 51, ¶¶ 1-3. Each defendant is a South

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Carolina resident associated with the program at issue. Id. ¶¶ 4-16 (listing defendants). The

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program, called “firedUP” is a four-month, in-residence mentorship opportunity for startups in

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South Carolina. Id. ¶ 24. firedUP is managed by a nonprofit, defendant University of South

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Carolina Incubator (“USC Incubator”). Id. ¶¶ 4, 24. Defendant 52 App, Inc. (“52App”) helps

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firedUP participants develop cellphone applications specifically. Id. ¶ 8. Several individual USC

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Incubator and 52App employees are also named as defendants. Id. ¶¶ 10-16.

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Plaintiffs discovered firedUP through an online advertisement. Id. ¶ 21. Although

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participating meant relocating to the “deep south,” plaintiffs felt the opportunity was “too good to

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pass up.” Id. ¶ 25. They contacted firedUP’s directors and negotiated a Program Agreement in

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which they transferred a percentage of their company in exchange for a $25,000 cash investment

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paid over time and program enrollment. Id. ¶ 27; Program Agreement, FAC Ex. 2 (signed Feb. 2,

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2015). Plaintiffs relocated to South Carolina to begin the program on February 12, 2015. FAC

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Ex. 1.

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Within weeks, plaintiffs’ firedUP mentors urged plaintiffs to also contract with

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defendant 52App for more focused application-development assistance. Id. ¶ 8. Plaintiffs

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agreed. The contract, negotiated and signed in South Carolina, gave plaintiffs application-

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development assistance in exchange for a percentage of SmartPhone ownership. 52App

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Agreement, FAC Ex. 3 (executed on unspecified date in March 2015). For the duration of the

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firedUP program, plaintiffs worked primarily with 52App.

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Two days before the firedUP program ended, and right before plaintiffs were

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supposed to demo Version 2.0, their “entire database” deleted, causing them to lose all work they

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had done before and during the program. Id. ¶ 32. Defendants “feigned ignorance” about how

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this happened. Id. ¶ 33. Given this setback, 52App agreed to continue working remotely with
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plaintiffs after plaintiffs returned to California. Id. ¶ 34. When plaintiffs’ new application finally

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launched in December 2015, it fell far below plaintiffs’ expectations. Id. ¶ 39. Meanwhile, a

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fellow firedUP participant, defendant Tradeversity, Inc., launched a similar application that

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mimicked confidential information plaintiffs shared during the program. Id. ¶ 38.

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After unsuccessful attempts to discuss their concerns with 52App, plaintiffs

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publicly accused 52App of luring them to South Carolina to destroy the application. Id. ¶¶ 41-42.

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Almost immediately, 52App sued SmartPhone in South Carolina state court for defamation,

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breach of contract and tortious interference. Id. ¶ 42(a)-(c). Because plaintiffs could not afford to

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defend the suit, the court entered default judgment on all claims. Id. ¶¶ 43-44. 52App then

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flooded plaintiffs’ systems with internet traffic in the form of “a direct denial of service attack,”

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costing plaintiffs $8,000 in Google charges. Id. ¶ 45.

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Based on these allegations, plaintiffs bring eight claims. Six claims are pled

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against “all defendants,” without differentiation: Intentional infliction of emotional distress

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(“IIED”); fraud; conversion; interference with prospective economic advantage; unlawful,

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fraudulent and unfair business practices; and unjust enrichment. Id. ¶¶ 46-49, 56-62. Plaintiffs

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also bring a breach of contract claim against 52App, id. ¶¶ 63-68; and a breach of fiduciary duty

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claim against all entities except Tradeversity, and against five individuals: USC Incubator director

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Harry Huntley; and four persons who jointly own 52App., William Kirkland, Charles Hardaway,

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Christopher Thibault and Brenden Lee. Id. at 15-16.1

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II.

MOTIONS TO DISMISS

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Defendants move to dismiss for lack of personal jurisdiction or for improper

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venue, arguing this lawsuit is insufficiently related to this forum to justify litigating the case here.

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Mot. One at 11-24; Mot. Two at 10-18; Mot. Three at 8-15.

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The court declines to dismiss on either basis. First, venue is proper here. A civil
action may be brought in “a judicial district in which a substantial part of the events or omissions

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The complaint erroneously restarts its paragraph numbering on page 15, beginning with
the fifth claim, and so the court here references pages and/or line numbers for the latter portion of
the complaint.
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giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). Because defendants’ allegedly

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tortious acts damaged plaintiffs’ California-based business, venue is proper here. See, e.g.,

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FAC ¶ 14 (alleging defendant destroyed their business); Myers v. Bennett Law Offices, 238 F.3d

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1068, 1076 (9th Cir. 2001) (reversing dismissal for improper venue; finding because “at least one

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of the ‘harms’ suffered by Plaintiffs . . . was felt in Nevada . . . a substantial part of the events

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giving rise to the claim occurred in Nevada. Thus, venue was proper.”). That defendants

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remained in South Carolina the entire time does not change this conclusion. Miller v. S & S Hay

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Co., No. 1:12-CV-01796-LJO, 2013 WL 1281589, at *4 (E.D. Cal. Mar. 27, 2013) (focus is not

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on where defendants were when they committed alleged wrongs). The motions to dismiss for

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improper venue are DENIED.

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Because the interest of justice supports a transfer of venue under 28 U.S.C.

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§ 1404(a), as explained more fully below, the court declines to examine personal jurisdiction.

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Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 (1962) (court may transfer cases “whether the court

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in which it was filed had personal jurisdiction over the defendants or not.”); Microsoft Corp. v.

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Hagen, No. CIV-F-09-2094-AWI-GSA, 2010 WL 11527312, at *1 (E.D. Cal. Aug. 30, 2010)

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(same); Kawamoto v. CB Richard Ellis, Inc., 225 F. Supp. 2d 1209, 1211 (D. Haw. 2002) (same).

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Accordingly, the motions to dismiss for lack for personal jurisdiction are DENIED as MOOT.

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III.

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VENUE TRANSFER
Defendants alternatively move to transfer to the District of South Carolina under

28 U.S.C. § 1404(a). See Mot. One at 24-26; Mot. Two at 18-19; Mot. Three at 15-17.
Section 1404(a) permits court to exercise discretion, “[f]or the convenience of

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parties and witnesses, [and] in the interest of justice,” to transfer an action “to any other district

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where it might have been brought.” 28 U.S.C. § 1404(a); Jones v. GNC Franchising, Inc., 211

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F.3d 495, 498 (9th Cir.2000) (emphasizing court’s broad discretion).

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The transfer analysis is two-fold. The court first determines whether the case

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could have been brought in the forum to which the transfer is sought. Van Dusen v. Barrack,

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376 U.S. 612, 616 (1964) (citing 28 U.S.C. § 1404(a)). If so, the court goes on to make an

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“individualized, case-by-case consideration of convenience and fairness.” Jones, 211 F.3d at 498.
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A. Step One: Whether the Suit Could have been Brought in South Carolina

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The action could have been brought in South Carolina. Because all defendants

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reside in South Carolina, both venue and personal jurisdiction are proper there. FAC ¶¶ 4-16; see

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28 U.S.C. § 1391(b)(1) (venue is proper “in a judicial district in which any defendant resides, if

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all defendants are residents of the State in which the district is located.”); see also Goodyear

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Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 924 (2011) (personal jurisdiction over a

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corporation exists in whichever forum the corporation regards as home). The first step of the test

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is satisfied.

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B. Step Two: Multi-Factor Fairness Test
The court also assesses whether the interest of justice and convenience of the
witnesses and parties warrants transfer. Jones, 211 F.3d at 498-99.
The following non-exhaustive factors guide the analysis: (1) Where the relevant

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agreements were negotiated and executed; (2) which state is most familiar with the governing

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law; (3) plaintiff’s choice of forum; (4) the parties’ contacts with the forum; (5) the contacts

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relating to the plaintiff’s cause of action; (6) litigation costs in one forum versus the other;

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(7) ability to compel witnesses to appear in either forum; (8) sources of proof; (9) forum selection

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clauses; and (10) public policy considerations. Id. The forum selection clause and compulsory

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process factors are neutral as there is no such clause and no need for process, respectively. The

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other factors are analyzed below.

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The party seeking transfer must make a “strong showing” that these factors weigh

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in its favor. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

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In deciding whether to transfer venue, courts may consider facts beyond the pleadings and need

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not accept all allegations as true. Cf. Murphy v. Schneider Nat’l, Inc., 362 F.3d 1133, 1137 (9th

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Cir. 2004); Glob. Decor, Inc. v. Cincinnati Ins. Co., No. CV 11-2602-JST FMOX, 2011 WL

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2437236, at *2 (C.D. Cal. June 16, 2011).

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1. Place of Contract Negotiation and Execution

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On balance, this factor favors transfer. Defendants were in South California the

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entire time they negotiated, executed and performed the contracts at issue. FAC ¶¶ 24, 30.
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Although plaintiffs were in California when they negotiated and signed the Program Agreement,

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the terms of that agreement were clear: Plaintiffs had to relocate to South Carolina for the

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program’s duration. FAC Ex. 2 § 1.4 (“[Plaintiffs] shall reside in Columbia, South Carolina as of

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the Commencement Date and remain resident through the completion of the Development

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Phase.”); cf. Makinen v. Little, No. CIV.S-06-01887FCDGGH, 2006 WL 3437529, at *3 (E.D.

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Cal. Nov. 27, 2006) (“In determining . . . where performance or breach of the contract occurred,

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the court focuses on the activities of defendants rather than the activities of plaintiff.”); see

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also Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371-72 (11th Cir. 2003) (same); Woodke v.

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Dahm, 70 F.3d 983, 985 (8th Cir. 1995) (same). As for the 52App contract, it was fully

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negotiated and signed in South Carolina, and was intended to be performed there. See FAC ¶ 30.

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That 52App offered to continue helping plaintiffs remotely after plaintiffs’ return to California

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does not change that performance of the contract itself was restricted to South Carolina. See id. ¶

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34. Accordingly, despite plaintiffs’ considerable ties to California, this factor favors transfer. Cf.

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Makinen, 2006 WL 3437529, at *4 (finding transfer appropriate even though the “Plaintiff ha[d]

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substantial contacts with this forum because of his residence [in California] and ownership of a

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commercial tour business in this forum.”).

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2. Which Forum is Most Familiar with Governing Law

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South Carolina law governs key issues in this dispute. Although the Program

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Agreement does not specify what state’s laws govern disputes arising under the contract, it does

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provide, “the laws of South Carolina . . . govern the construction of this agreement.” FAC Ex. 2

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at 7 (Agreement § 7.5, entitled “Law Governing Construction of Agreement.”). Where there is no

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express choice of law clause, courts focus on where the contracts were intended to be fully

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performed in identifying the applicable law. Shanze Enterp., Inc. v. Am. Cas. Co. of Reading, PA,

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No. 2:14-CV-02623-KJM, 2015 WL 1014167, at *3–4 (E.D. Cal. Mar. 5, 2015) (citing cases).

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Here, the parties intended the terms of both agreements to be performed in South Carolina before

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the program ended. See FAC ¶ 32 (explaining all application-development should have ended

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with an an-residence demo); id. Ex. 2 § 1.1 (program duration is 24 weeks, ending with a demo

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day); id. § 2.2 (outlining payment schedule ending on demo day).
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Relatedly, defendants correctly note that the default judgment awarded

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against plaintiffs and for the benefit of 52App may trigger preclusion under the Rooker-

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Feldman doctrine.2 Mot. One at 9. If so, South Carolina law would govern the required

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analysis. The Rooker-Feldman doctrine forbids federal courts from revisiting claims that

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are inextricably intertwined with state court decisions. Bianchi v. Rylaarsdam, 334 F.3d

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895, 900 n.4 (9th Cir. 2003). Here, in support of their IIED claim, plaintiffs’ allegations

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reference the South Carolina default judgment that rescinded the 52App contract. See

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FAC ¶¶ 42-44; see also Opp’n One, ECF No. 70 at 3-4. Specifically, plaintiffs argue the

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state judgment, and 52App’s pursuit of it, constitutes IIED and a “prior restraint” on free

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speech. Opp’n at 3-4. This “indirect challenge [against the state judgment] based on

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constitutional principles,” could trigger Rooker-Feldman. See Murphy v.

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Schwarzenegger, No. CIVS-09-2587-JAM DAD, 2010 WL 3521958, at *7 (E.D. Cal.

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Sept. 8, 2010) (quoting Bianchi, 334 F.3d at 900 n.4). If so, South Carolina state law will

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determine whether the claims pending in this suit are barred. See Noel v. Hall, 341 F.3d

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1148, 1164 (9th Cir. 2003) (quoting GASH Assoc. v. Village of Rosemont, 995 F.2d 726,

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728–29 (7th Cir. 1993)).

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Because a court located in South Carolina is better positioned to apply its

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law on these major issues, this factor favors transfer. See Van Dusen v. Barrack, 376

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U.S. 612, 645 (1964) (recognizing advantage to transferring case to state “in which the

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federal judges are more familiar with the governing laws”); Coffey v. Van Dorn Iron

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Works, 796 F.2d 217, 219, 221 (7th Cir. 1986) (explaining “it is also considered

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advantageous” to have federal judges try a case “who are familiar with the applicable

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state law.”).

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This doctrine is named after the two Supreme Court cases from which it derives: Rooker
v. Fidelity Trust Co., 263 U.S. 413 (1923), and D.C. Court of Appeals v. Feldman, 460 U.S. 462
(1983).
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3. Plaintiffs’ Choice of Forum

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Ordinarily plaintiffs’ choice of forum is afforded great deference. See Decker, 805

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F.2d at 843 (defendants must make a “strong showing” of inconvenience to overcome plaintiffs’

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choice of forum). But there are exceptions, one of which is when “the action has little connection

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to the chosen forum.” Shanze, 2015 WL 1014167, at *5 (citation omitted); see also Saleh v. Titan

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Corp., 361 F. Supp. 2d 1152, 1157 (S.D. Cal. 2005) (collecting cases applying this exception).

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Here, the only connection to California is that the individual plaintiffs and

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corporate plaintiff reside here. The offering of the firedUP program was strictly limited to South

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Carolina and persons residing there. FAC ¶ 26. Plaintiffs voluntarily relocated to South Carolina

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to join the program, knowing it was run by a South Carolina entity, required relocating to the

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“deep south,” and that all performance would occur in South Carolina. Id. ¶¶ 26-30. California

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of course has an interest in its residents, but under these facts plaintiffs’ California residency is an

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insufficient justification for suing fourteen South Carolina-based defendants here. Cf. Pacific Car

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& Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968) (emphasizing “if the operative facts

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have not occurred within the forum of original selection and that forum has no particular interest

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in the parties or the subject matter, the plaintiff’s choice is entitled only to minimal

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consideration.”); cf. Makinen, 2006 WL 3437529, at *4 (deciding same where plaintiff lived and

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operated business in original forum). Plaintiffs’ choice of forum disfavors transfer, but here only

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slightly.

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4. Parties’ Forum Contacts and Contacts Relating to Plaintiffs’ Claims

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These two factors weigh the relative advantage of litigating the dispute in the

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original forum versus the forum to which transfer is sought. See Jones, 211 F.3d at 498.
Here, besides plaintiffs, all parties’ contacts relevant to this dispute are in South

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Carolina. Defendants are all South Carolina residents and entities that intentionally limited their

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business activities to South Carolina. FAC ¶¶ 4-16. Defendants did not commit any of the

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alleged contract breaches, fiduciary breaches or torts within California. To the contrary, plaintiffs

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unilaterally pursued the South Carolina program by responding to an online advertisement and

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voluntarily relocating to South Carolina once chosen to participate. Id. ¶¶ 21-27. South Carolina
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residency was a non-negotiable prerequisite to enrollment. See id. Ex. 1. This dispute centers

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primarily on conduct that occurred in South Carolina while plaintiffs were still there. Id. ¶ 26

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(“Hardaway explained that, during their stay in South Carolina for a few months, Plaintiffs would

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receive intensive mentoring and support for their plans to refine the [] App and expand its market

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share.”), ¶ 27 (“Hardaway also told Plaintiffs that they would be a ‘perfect fit’ for Columbia,

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South Carolina, and that Plaintiffs’ stay there would culminate in a presentation of version 2.0 . . .

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at the conclusion of the firedUP program”), ¶ 33 (application data “wiped out” while in South

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Carolina), ¶ 38 (“Defendant Tradeversity . . . which had been incorporated in South Carolina . . .

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launched a mobile app that was based on Plaintiff LLC’s intellectual property”), ¶ 47 (“After

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luring Plaintiffs . . . to South Carolina and using Plaintiff LLC’s intellectual property to assist

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Defendant Tradeversity to develop a mobile app, Defendants conspired to destroy LLC’s business

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by, inter alia, deleting all the data on which that business operated, followed by a factually and

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legally baseless lawsuit [in South Carolina]”).  The parties’ contacts with the forum favor transfer.

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Shanze, 2015 WL 1014167, at *5 (deciding same).

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5. Litigation Costs

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Technology now alleviates many of the burdens of distance litigation, rendering

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this factor in many ways obsolete. Foster v. Nationwide Mut. Ins. Co., No. 07-04928, 2007 WL

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4410408, at *6 (N.D. Cal. Dec. 14, 2007); Cohen v. State Farm & Cas. Co., No. 09-1051, 2009

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WL 2500729, at *6 (E.D. Cal. Aug. 14, 2009) (same). Nonetheless, “‘because litigation costs are

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reduced when venue is located near the most witnesses expected to testify,’” and most witnesses

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here reside in South Carolina, this factor slightly favors transfer. Park, 964 F. Supp. 2d at 1095

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(quoting Bunker v. Union Pac. R.R. Co., No. 05-04059, 2006 WL 193856, *2 (N.D. Cal. Jan. 23,

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2006)). Plaintiffs concede most witnesses are in South Carolina, arguing only that because the

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two plaintiffs “of very limited means” live in California, transfer is not in the interest of justice.

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See Opp’n One at 22-23. Plaintiffs specifically aver they did not have the “means of identifying

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and hiring a South Carolina practitioner” to defend them when they were sued in that state by

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52inc, Decl. of Damion Hollomon, ECF No. 70-1, ¶ 25, and that their current attorneys are not

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licensed to practice in South Carolina and “will be unable to represent” them there upon transfer,
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id. While this court is not blind to the attritional effect litigation can have, plaintiffs do not say

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their counsel could not obtain pro hac vice status in South Carolina, or that they now would be

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unable to find local counsel to move forward the case they have initiated, following transfer.

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In any event, although the fairness and cost to plaintiffs “is a factor to be

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considered,” § 1404(a) is more concerned with the fairness and convenience “of non-party

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witnesses.” Saleh v. Titan Corp., 361 F. Supp. 2d 1152, 1160 (S.D. Cal. 2005) (citation and

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quotations omitted); see also Burke v. USF Reddaway, Inc., No. 2:12-CV-02641-KJM, 2013 WL

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85428, at *4 (E.D. Cal. Jan. 8, 2013) (“It is axiomatic that convenience of nonparty witnesses is

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frequently the most important factor in the section 1404(a) calculus.”) (citing cases).

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6. Sources of Proof

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To the extent witness testimony will be taken before trial by deposition, this factor

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strongly favors transfer. “The convenience of witnesses is often the most important factor in

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resolving a motion to transfer.” Park v. Dole Fresh Vegetables, Inc., 964 F. Supp. 2d 1088, 1095

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(N.D. Cal. 2013) (citation omitted).

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Here, all witnesses besides plaintiffs are in South Carolina, where all defendants

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conduct their business, where both contracts were performed, and where most conduct relevant to

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the dispute occurred. Most evidence, therefore, is likewise located in South Carolina. This factor

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strongly favors transfer. Shanze, 2015 WL 1014167, at *6 (deciding same).

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7. Public Policy Considerations

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Although California courts have some interest in litigating issues pertaining to

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their own residents, as shown through the careful consideration of each factor discussed above,

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the facts here establish a tie much stronger to South Carolina. Cf. Makinen, 2006 WL 3437529, at

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*4 (finding transfer appropriate despite plaintiffs’ residence and business ties to forum).

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“Conversely, South Carolina courts have a significant interest in litigating a dispute that involves

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a contractual arrangement between and the possible tortious activity of two of its resident

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corporations, many employees at said corporations, and allegedly tortious conduct that took place

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on its own soil.” Functional Pathways of Tenn., LLC v. Wilson Senior Care, Inc., 866 F. Supp.

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2d 918, 932 (E.D. Tenn. 2012). As noted above, South Carolina appears to have another public
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interest at stake: Plaintiffs attack, at least indirectly, an existing South Carolina state court

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judgment that rescinded the same contract plaintiffs allege 52App has breached. FAC ¶ 42; see

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Thibault Decl. ¶ 11 (declaring South Carolina judgment “rescinded the agreement . . . for lack

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of consideration” and found plaintiffs “made defamatory statements about 52Apps and its

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officers and employees.”). This factor favors transfer.

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8. Relative Docket Congestion

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Although neither party addresses the issue, courts may consider “docket

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congestion and time to trial between the transferee and transferor districts” when deciding

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whether transfer is in the interests of justice. Decker, 805 F.2d at 843; see Opp’n at 21 (plaintiffs

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listing this factor but not analyzing it).

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The court sua sponte judicially notices the Federal Court Management Statistics

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published by the Administrative Office of the Courts.3 See Balanced Body Univ., LLC v.

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Zahourek Sys., Inc., No. 13-1606, 2014 WL 744105, at *4 (E.D. Cal. Feb. 24, 2014) (doing the

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same); Cook v. Hartford, No. 12-0019, 2012 WL 2921198, at *1 (E.D. Cal. July 17, 2012)

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(same). As of March 31, 2018, these reports show that congestion currently is far greater in the

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Eastern District of California, reflecting the ongoing need for creation of new judgeships, than in

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the District of South Carolina: The median time from filing to trial for civil cases in South

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Carolina is 21.1 months, and from filing to disposition otherwise is 8.7 months; the corresponding

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figures here are 44.8 months and 10.2 months. These data on balance favor transfer.

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IV.

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CONCLUSION
Besides plaintiffs’ choice of forum, which weighs against transfer, the relevant

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factors on balance strongly favor transfer if they are not neutral. Accordingly, in the interests of

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justice and fairness to the parties and witnesses, the court GRANTS defendants’ motions to

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transfer under 28 U.S.C. § 1404(a). The Clerk of the Court is DIRECTED to transfer this case to

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the District of South Carolina. Defendants’ motions to dismiss are DENIED as MOOT.

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http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0331.2018.pdf (last
visited on Aug. 17, 2018).
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IT IS SO ORDERED.

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This resolves ECF Nos. 58, 66, 67.

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DATED: August 20, 2018.

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UNITED STATES DISTRICT JUDGE

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