O'Bannon, Jr. v. National Collegiate Athletic Association et al

Filing 71

MOTION to Change Venue CORRECTION OF DOCKET #69 filed by National Collegiate Athletic Association. Motion Hearing set for 10/22/2009 02:00 PM in Courtroom 2, 4th Floor, Oakland. (Attachments: #1 Affidavit Robert Wierenga, #2 Index of Exhibits, #3 Exhibit A - Div I Men's Basketball, #4 Exhibit B - Football Bowl Subdivision, #5 Exhibit C - Federal Judicial Caseload Statistics, #6 Exhibit D - Email from Jon King 9-8-09, #7 Affidavit Peter Boyle, #8 Appendix Unpublished Opinions, #9 Proposed Order Transfer Venue)(Wierenga, Robert) (Filed on 9/14/2009)

O'Bannon, Jr. v. National Collegiate Athletic Association et al

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Gregory L. Curtner (Pro Hac Vice) [e-mail] Robert J. Wierenga (SBN183687) [e-mail] Kimberly K. Kefalas (Pro Hac Vice) [e-mail] Atleen Kaur (Pro Hac Vice) [e-mail] MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. 101 North Main St., 7th Floor Ann Arbor, MI 48104 Telephone: [phone] Facsimile: [phone] Jason A. Geller (SBN168149) [e-mail] Glen R. Olson (SBN111914) [e-mail] LONG & LEVIT LLP 465 California Street, 5th Floor San Francisco, CA 94104 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant National Collegiate Athletic Association UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION EDWARD C. O'BANNON, JR., on behalf of himself and all others similarly situated, Plaintiff, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION (a/k/a the "NCAA"), and COLLEGIATE LICENSING COMPANY, (a/k/a "CLC"). Defendants. Case No. 3:09-cv-03329 CW DEFENDANTS' NOTICE OF MOTION TO TRANSFER VENUE AND STATEMENT OF RELIEF SOUGHT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Hearing Date: Time: Dept: Judge: October 22, 2009 2 P.M. Courtroom 2, 4th Floor Hon. Claudia Wilken

Date Complaint filed: July 21, 2009

DEFENDANTS' NOTICE OF MOTION TO TRANSFER VENUE AND STATEMENT OF RELIEF SOUGHT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. 3:09-cv-03329-CW

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NOTICE OF MOTION AND STATEMENT OF RELIEF SOUGHT Please take notice that on October 22, 2009 at 2:00 P.M. before the Honorable Claudia Wilken, United States District Court, 1301 Clay Street, Suite 400 S, Oakland, C A94612-5212, Courtroom 2, 4th Floor, Defendants, the National Collegiate Athletic Association ("NCAA") and the Collegiate Licensing Company ("CLC"), will and hereby do move for an Order transferring this action to the Southern District of Indiana pursuant to 28 U.S.C. §1404. Defendants move to transfer the venue on the following grounds: 1. The convenience of the parties is best served by transferring the venue; 2. The convenience of the witnesses is best served by transferring the venue; 3. Ease of access to evidence and documents is best served by transferring the venue; and 4. Other public factors regarding the interest of justice are best served by transferring the venue. Therefore, Defendants respectfully request that this Court enter an Order transferring the venue of this action to the Southern District of Indiana.

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TABLE OF CONTENTS Page STATEMENT OF ISSUES TO BE DECIDED.................................................................. 1 INTRODUCTION ............................................................................................................... 1 ARGUMENT....................................................................................................................... 1 I. II. VENUE IS PROPER IN THE SOUTHERN DISTRICT OF INDIANA ................ 2 TRANSFER WILL SERVE THE INTERESTS OF JUSTICE ............................... 2 A. B. C. Convenience of the Parties ............................................................................ 2 Convenience of the Witnesses....................................................................... 4 Interest of Justice........................................................................................... 6

PLAINTIFF CANNOT MAKE THIS FORUM MORE CONVENIENT BY AMENDING HIS COMPLAINT ............................................................................ 8

CONCLUSION ................................................................................................................... 9

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INDEX OF AUTHORITIES Page
Center for Biological Diversity v. Rural Utilities Svc., 2008 U.S. Dist. LEXIS 51835 (N.D. Cal. June 27, 2008) ........................................................ 5 Farmer v. Ford Motor Co., 2007 U.S. Dist. LEXIS 90289 (N.D. Cal. Nov. 28, 2007).................................................... 4, 6 Foster v. Nationwide Mut. Ins. Co., 2007 U.S. Dist. LEXIS 92540 (N.D. Cal. Dec. 14, 2007) ........................................................ 6 In re: Funeral Consumers Antitrust Litig., 22005 WL 2334362 (N.D. Cal. Sept. 23, 2005) ....................................................................... 8 Johns v. Panera Bread Co., 2008 U.S. Dist. LEXIS 78756 (N.D. Cal. July 21, 2009) ......................................................... 4 Keller v. EA, Case No. 09-cv-01967........................................................................................................... 6, 8 Knapp v. Wachovia Corp., 2008 U.S. Dist. LEXIS 41000 (N.D. Cal. May 12, 2008) ........................................................ 3 Lou v. Belzberg, 834 F.2d 730 (9th Cir. 1987)..................................................................................................... 4 MTS Systems Corp. v. Hysitron, Inc., 2006 U.S. Dist. LEXIS 66338 (N.D. Cal. September 1, 2006) (Wilken, J.) ............................ 3 Van Dusen v. Barrack, 376 U.S. 612 (1964) .................................................................................................................. 2 Wells Fargo & Co., 2008 U.S. Dist. LEXIS 103955................................................................................................. 5 Williams v. Bowman, 157 F. Supp. 2d 103 (N.D. Cal. 2001) ...................................................................................... 6 Young v. Wells Fargo & Co., 2008 U.S. Dist. LEXIS 103955 (N.D. Cal. Dec. 17, 2008) .................................................. 4, 5 STATUTES 28 U.S.C. §1404 .............................................................................................................................. 2 28 U.S.C. §1404(a) ......................................................................................................................... 2

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STATEMENT OF ISSUES TO BE DECIDED Whether this Court should transfer the venue of this action to the Southern District of Indiana where most of the parties, witnesses and evidence are located in or close to Indiana and where the convenience of the parties and the interest of justice will be served by transferring the venue to the Southern District of Indiana. INTRODUCTION This case has no business being litigated in this District. None of the parties to this action is located in this District: Plaintiff Edward O'Bannon is a resident of Henderson, Nevada, Complaint at ¶25;1 Defendant National Collegiate Athletic Association ("NCAA") is an

unincorporated association headquartered in Indianapolis, Indiana, ¶35, Wierenga Decl, ¶2; and Defendant Collegiate Licensing Company ("CLC") is a Georgia corporation with its principal place of business in Atlanta, Georgia. ¶36, Boyle Decl, ¶3. None of the currently known likely witnesses lives here, and most of the likely relevant documents are not kept here. Indeed, the only apparent connection between this case and this District is the fact that one of Plaintiff's lawyers works in San Francisco. The convenience of one of Plaintiff's lawyers is not enough to justify putting everyone else associated with this case through the inconvenience, and unnecessarily increased expense, of litigating in a distant forum. As Defendants demonstrate below, the public and private interests of justice require that this case be transferred to the Southern District of Indiana. ARGUMENT This case should be transferred to the Southern District of Indiana because litigating it in this District ­ thousands of miles from most, if not all, of the witnesses and documents likely to

References herein to "¶__" are to paragraphs in Plaintiff's Complaint, filed July 21, 2009.
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be relevant to the claims asserted in the Complaint ­ will cause the parties and the witnesses to suffer unnecessary inconvenience and expense. 28 U.S.C. §1404(a) provides that "[f]or the convenience of parties and witnesses, 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." The purpose of §1404(a) is to "prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). Transferring this case to the Southern District of Indiana will serve the

convenience of the parties and witnesses and promote the interest of justice. I. VENUE IS PROPER IN THE SOUTHERN DISTRICT OF INDIANA

There is no question that this action could have been brought in the Southern District of Indiana, because as the Complaint pleads, subject matter jurisdiction is based on a federal question under the federal antitrust laws. ¶21. And, just like this Court, the Southern District of Indiana could exercise pendent jurisdiction over the state law claims. This case may, therefore, be transferred to the Southern District of Indiana pursuant to 28 U.S.C. §1404. II. TRANSFER WILL SERVE THE INTERESTS OF JUSTICE

Since the action could have been brought in the Southern District of Indiana, the next question on this motion is whether transfer will serve the convenience of parties and witnesses and the interests of justice. It will do so, as we explain below. A. Convenience of the Parties

Transferring this case will make this litigation more convenient for the parties. None of the parties are residents of this District, nor is there any reason to believe that most of the evidence relevant to this case is located in this District. On the contrary: based on the allegations of the Complaint, it seems likely that the NCAA and CLC will be the largest party producers of
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documents in this case,2 and their records are kept primarily in Indianapolis and Atlanta, respectively. Wierenga Decl, ¶5; Boyle Decl, ¶6. Indeed, the Complaint recites allegations regarding various NCAA forms, rules, bylaws, and constitutional provisions (¶¶ 7-13, 58-78, and 83-90). Most of the documents relevant to these rules and bylaws are located at the NCAA headquarters in Indianapolis. Similarly, because most of the "wrongdoing" alleged in the

Complaint supposedly happened, if anywhere, in Indiana, the Court should transfer this case to that State.3 See Knapp v. Wachovia Corp., 2008 U.S. Dist. LEXIS 41000, *5 (N.D. Cal. May 12, 2008). Indianapolis is, of course, in the Southern District of Indiana; and while Atlanta is not, CLC joins in this motion because the Southern District of Indiana is substantially closer to Atlanta than this District, and thus is a more convenient forum for CLC as well. Boyle Decl, ¶¶ 4-5. Finally, Plaintiff is not entitled to deference in his choice of forum for two reasons. First, Plaintiff is not a resident of this District, which substantially limits the deference properly due to his choice of this forum. See, e.g., MTS Systems Corp. v. Hysitron, Inc., 2006 U.S. Dist. LEXIS 66338, *8-*9 (N.D. Cal. September 1, 2006) (Wilken, J.) (granting motion to transfer venue where plaintiff was not a California resident and had not shown that a large part of the challenged events took place in California).
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This presumes, of course, that Plaintiff has stated a valid claim for relief and that this case will survive into the discovery phase. Defendants do not believe that either of those propositions is true, and will be filing motions to dismiss shortly. If this case does proceed to discovery ­ and depending on the direction that Plaintiff's rather opaque allegations take in litigation ­ documents maintained by NCAA member institutions and other third parties may also be relevant to this litigation. But, again, there is no reason to believe that most of these documents are located in this District. Therefore, the possibility of third-party discovery does not weigh against transfer. 3 Although the Complaint recites allegations based on various NCAA rules and bylaws, Defendants do not concede that these allegations are sufficient to provide a factual predicate for Plaintiff's claims and reserve the right to bring a motion to dismiss the Complaint.
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Second, Plaintiff has brought this action as a putative nation-wide class action, which also limits the deference to his choice of forum. See, e.g., Johns v. Panera Bread Co., 2008 U.S. Dist. LEXIS 78756, *5 (N.D. Cal. July 21, 2009) ("Plaintiff's decision to seek to represent a nationwide class substantially undercuts [the] deference" to her choice of forum) (citing Foster v. Nationwide Mut. Ins. Co., 2007 U.S. Dist. LEXIS 95240, *3 (N.D. Cal. Dec. 14, 2007)); see also Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) ("when an individual ... represents a class, the named plaintiff's choice of forum is given less weight."). Plaintiff's decision to sue in this District does not outweigh the fact that litigating this case in the Southern District of Indiana will be substantially more convenient for the parties than litigating it in this District will be. Defendants' motion should be granted. B. Convenience of the Witnesses

The Southern District of Indiana is also a substantially more convenient forum for the witnesses. As noted above, the NCAA is headquartered in Indianapolis, and its employees ­ several of whom are likely to be witnesses in this case ­ live and work there. Wierenga Decl, ¶2. Indeed, the only individuals who are quoted directly in the Complaint are the NCAA's President, Myles Brand (¶16) and Wallace Renfro, a senior advisor to Dr. Brand (¶17), both of whom live in or near Indianapolis and work in Indianapolis. Wierenga Decl, ¶¶3-4. Most of CLC's employees work in and around Atlanta, which again is substantially closer to the Southern District of Indiana than it is to this District. Boyle Decl, ¶¶4-5. Therefore, it will be more convenient for the potential witnesses if this action is transferred to Indiana. See, e.g., Panera Bread Co., 2008 U.S. Dist. LEXIS 78756 at *10; Young v. Wells Fargo & Co., 2008 U.S. Dist. LEXIS 103955, *12 (N.D. Cal. Dec. 17, 2008); Farmer v. Ford Motor Co., 2007 U.S. Dist. LEXIS 90289, *8-*9 (N.D. Cal. Nov. 28, 2007).
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Nor is there any offsetting convenience to Plaintiff's potential witnesses from litigating in this District. Plaintiff's alleged classes consist of certain former or current student athletes who competed for NCAA Division I men's basketball athletic teams and NCAA Football Bowl Subdivision teams. ¶1. The vast majority of NCAA member schools that sponsor Division I men's basketball are found in the Midwest, South or East region of the United States, which are closer to Indiana than to California. See Wierenga Decl, ¶7, Ex. A (List of schools sponsoring Division I men's basketball from the NCAA's website).4 Similarly, the majority of schools that sponsor Football Bowl Subdivision teams are also closer to Indiana than to California. See Wierenga Decl, ¶8, Ex. B (List of schools sponsoring Division I FBS teams from the NCAA's website). Finally, Plaintiff himself is not a California resident, and there is no real convenience to be served to him by retaining this action in California. The fact that some of Plaintiff's lawyers work in San Francisco is not entitled to any deference on this motion. Center for Biological Diversity v. Rural Utilities Svc., 2008 U.S. Dist. LEXIS 51835, *5 (N.D. Cal. June 27, 2008) ("the convenience of counsel is not a recognized factor."). Nor is it sufficient for Plaintiff to claim that some of the class members may be located in California because "the relevant inquiry is the convenience of the named parties and principal witnesses likely to be deposed or testify at trial." Wells Fargo & Co., 2008 U.S. Dist. LEXIS 103955 at *12 (emphasis added). Therefore, this factor also weighs in favor of transferring this action to the Southern District of Indiana.

The Court can take judicial notice of the location of NCAA member institutions on this motion, because the fact of the location of these schools is not subject to reasonable dispute and is generally known within the territorial jurisdiction of this Court and/or is capable of accurate determination by sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b).
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C.

Interest of Justice

Finally, public interest factors weigh in favor of transfer here. These factors include: 1) ease of access to the evidence, 2) familiarity of each forum with the applicable law, 3) local interest in the controversy, 4) feasibility of consolidation with other claims, and 5) relative court congestion and time of trial in each forum. See Williams v. Bowman, 157 F. Supp. 2d 103, 1106 (N.D. Cal. 2001). All of these factors favor transferring the action to Indiana. First, as discussed above, access to the evidence is facilitated by transferring the case because the likely relevant documents, and potential witnesses, are much more likely to be located in or near the Southern District of Indiana than in or near this District. Second, the Southern District of Indiana is equally familiar with the application of federal antitrust laws as this Court. Although Plaintiff also brings two state law claims for Unjust Enrichment and Accounting, Plaintiff does not specify which state law is applicable to these claims. Nonetheless, the Southern District of Indiana will be equally able to adjudicate these claims. See, e.g., Foster, 2007 U.S. Dist. LEXIS 95240. Third, because the NCAA is located in Indiana, and the Complaint seems to claim that most of the actions alleged took place at or through the NCAA, that State has a greater local interest in the adjudication of the legality of the NCAA's actions and the NCAA's rules and regulations. Farmer, 2007 U.S. Dist. LEXIS 90289 at *10. Fourth, although Plaintiff has filed a motion to consolidate the case with Keller v. EA, Case No. 09-cv-01967, currently pending in this Court, that motion is inappropriate and should not be granted ­ as one of the plaintiffs has already conceded. Keller previously opposed relation of these cases, claiming that "the two actions do not involve `substantially' the same parties and the events giving rise to the two actions are significantly different." (Dkt. 55 in Case No. 09-cvDEFENDANTS' NOTICE OF MOTION TO TRANSFER VENUE AND STATEMENT OF RELIEF SOUGHT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Case No. 3:09-cv-03329-CW

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01967 at 3). Defendants respectfully suggest that it would be inappropriate to grant plaintiffs' consolidation motion when one of the plaintiffs himself has already conceded (accurately) that the two actions do not involve common questions of fact or law. And Keller, who now supports consolidation, previously pointed out to the Court the insubstantial contacts that the O'Bannon case has to this District and noted that the O'Bannon case likely would have to be transferred to a more appropriate venue. (Dkt. 58 in Case No. 09-cv-01967 at 2). For these reasons, and others that Defendants will set forth in their opposition to plaintiffs' consolidation motion, the possibility of consolidation should not weigh against transfer here. Finally, because of the location and minimal required travel time for witnesses the costs of litigating this case in Indiana are likely to be lower than for litigating this case in California. Furthermore, according to the Federal Judicial Caseload Statistics, maintained by the Administrative office of the U.S. Courts and published at http://www.uscourts.gov/caseload2008/ contents.html (last visited September 10, 2009), the caseload of civil cases filed in the Southern District of Indiana is much lower than in the Northern District of California, making the Southern District of Indiana less congested than this District. The new filings in the twelve months ending in March 31, 20085 in the Southern District of Indiana were 2,561 cases and the pending cases were 2,231. In the Northern District of California, in contrast, the new filings were 6,630 cases and 8,364 cases were pending. See Wierenga Decl, ¶9, Ex. C (excerpt from the Federal Judicial Caseload Statistics showing the civil cases commenced, terminated and pending in U.S. District Courts for the 12 month periods ending March 31, 2007 and March 31, 2008). Therefore, keeping all of the above factors in mind, it is clear that the interests of justice will be well served by transferring the case to the Southern District of Indiana.

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These statistics are only available up to March 31, 2008.
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III.

PLAINTIFF CANNOT MAKE THIS FORUM MORE CONVENIENT BY AMENDING HIS COMPLAINT

Plaintiff has previously claimed to Defendants, and to the Court, that he will shortly be filing an amended complaint, which (Plaintiff claims) may add California plaintiffs or defendants to this action. Plaintiff's supposed future amendments are irrelevant to this motion, for at least two reasons. First, despite having had ample opportunity to file an amended complaint, Plaintiff has failed to do so ­ and apparently has no intention of doing so anytime soon. This motion is properly directed to the case that Plaintiff has filed, not the case that Plaintiff wishes he had filed, or might file in the future. Any claim of future amendment is simply irrelevant to the question whether the case currently on file is most appropriately litigated in this District. As we have shown above, the answer to that question is "no." Indeed, Plaintiff only began mentioning in correspondence to Defendants that he might add a California Defendant after Defendants pointed out to the Court in their opposition to the motion to relate the Keller and O'Bannon cases that this case had no apparent connection to this District. And, Plaintiff has thus far failed to amend his Complaint, most recently informing Defendants that he no longer intends to amend the Complaint anytime in the near future, unless of course, Defendants file this Motion to Transfer Venue -- all in an apparent attempt to "cure" this defect. See Wierenga Decl, ¶10, Ex. D (email from counsel for Plaintiff). Amending a complaint in this fashion "smacks of forum shopping." In re: Funeral Consumers Antitrust Litig., 22005 WL 2334362, *7 (N.D. Cal. Sept. 23, 2005) (Alsup, J.). Second, the inconvenience of this forum is not a superficial matter of whose name appears on the caption, and cannot be fixed merely by adding a party or two who call this District home. The apparent gravamen -- although insufficiently pled -- of Plaintiff's case is that the Defendants, somehow acting through the vehicle of the NCAA's rules or forms, have violated the antitrust
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laws. Those allegations place the center of gravity of this case in Indianapolis, Indiana, not in this District. Unless Plaintiff radically changes the nature of his allegations, simply adding a

California party or two is not going to change that center of gravity. The Southern District of Indiana is, by far, the most logical and convenient forum for this lawsuit. Defendants' motion should be granted. CONCLUSION Defendants respectfully request that this Court enter an Order transferring the venue of this action to the Southern District of Indiana. Robert J. Wierenga, the filer of this Motion, hereby attests that Peter M. Boyle concurs in the filing of this Motion and Memorandum of Point and Authorities.

Dated: September 11, 2009

By: /s/ Robert J. Wierenga Robert J. Wierenga (SBN 183687) MILLER, CANFIELD PADDOCK AND STONE Attorneys for Defendant NCAA

Dated: September 11, 2009

By: /s/ Peter M. Boyle Peter M. Boyle (pro hac vice) KILPATRICK STOCKTON LLP Attorneys for Defendant CLC

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AALIB:566736.1\063863-00041

CERTIFICATE OF SERVICE I hereby certify that on September 11, 2009, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification to the e-mail addresses registered and I hereby certify that I have mailed the foregoing document(s) via the U.S. Postal Service to the following non-CM/ECF participant: Arthur N. Bailey Hausfeld LLP 44 Montgomery St., 34th Floor San Francisco, CA 94104 Tanya Chutkan Jack Simms Boise Schiller & Flexner LLP 5301 Wisconsin Ave., Suite 800 Washington DC 20015

By: /s/ Robert J. Wierenga Robert J. Wierenga (SBN 183687) MILLER, CANFIELD PADDOCK AND STONE Attorneys for Defendant NCAA

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