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

Filing 80

Memorandum in Opposition to Defendants' Motion to Transfer Venue and Certificate of Service filed byEdward C. O'Bannon, Jr.. (Attachments: # 1 Declaration of Christopher L. Lebsock in Opposition to Defendants' Motion to Transfer Venue)(Lebsock, Christopher) (Filed on 9/21/2009)

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O'Bannon, Jr. v. National Collegiate Athletic Association et al Doc. 80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Michael P. Lehmann (Cal. Bar No. 77152) Christopher L. Lebsock (Cal. Bar No. 184546) Jon T. King (Cal. Bar No. 205073) Arthur N. Bailey, Jr. (Cal. Bar No. 248460) HAUSFELD LLP 44 Montgomery Street, 34th Floor San Francisco, CA 94104 Tel: (415) 633-1908 Fax: (415) 358-4980 Email: mlehmann@hausfeldllp.com clebsock@hausfeldllp.com jking@hausfeldllp.com abailey@hausfeldllp.com Michael D. Hausfeld (pro hac vice) Megan E. Jones (pro hac vice) HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Tel: (202) 540-7200 Fax: (202) 540-7201 Email: mhausfeld@hausfeldllp.com mjones@hausfeldllp.com Counsel for Plaintiff [Additional counsel listed on signature page] 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) PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE Judge: The Hon. Claudia Wilken Courtroom: 2, 4th Floor PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE Case No. 3:09-cv-03329 (CW) . Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 F. D. E. I. II. A. B. C. TABLE OF CONTENTS INTRODUCTION. ...................................................................................................................... 1 ARGUMENT............................................................................................................................... 1 Convenience of the parties. .................................................................................................... 1 Convenience of the witnesses. ............................................................................................... 4 Interest of justice factors. ....................................................................................................... 6 1. Consolidation of claims and multiplicity of litigation. .................................................. 6 2. Familiarity of the forum with the applicable law. ......................................................... 7 3. Local interest in the controversy. ................................................................................... 7 4. Ease of access to the evidence. ...................................................................................... 8 5. Court congestion. ........................................................................................................... 8 Plaintiff's choice of forum. .................................................................................................... 9 The Court's decision in Meijer v. Abbott Laboratories provides a relevant guidepost for resolving Defendants' motion. ............................................................................................... 9 The NCAA's motion should also be denied because it is premature................................... 10 17 III. CONCLUSION. ........................................................................................................................ 11 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE Case No. 3:09-cv-03329 (CW) . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cases TABLE OF AUTHORITIES Asis Internet Services v. Imarketing Consultants, Inc. 2008 WL 2095498, *7 (N.D. Cal. May 16, 2008) ..................................................................... 10 Associated Students of Calif. State Univ. at Sacramento v. NCAA 493 F.2d 1251 (9th Cir. 1974)....................................................................................................... 4 Bishop v. Electronic Arts, Inc. N.D. Cal. Case No. 09-cv-04128 ............................................................................................... 13 Center for Biological Diversity v. Kempthorne 2008 WL 4543043, *4 (N.D. Cal. Oct. 10, 2008) ........................................................................ 8 Commodity Futures Trading Comm'n v. Savage 611 F.2d 270, 279 (9th Cir. 1979)................................................................................................ 1 Gerin v. Aegon USA, Inc. 2007 WL 1033472, *6 (N.D. Cal. April 4, 2007) ........................................................................ 8 Getz v. Boeing Company 547 F.Supp.2d 1080, 1084 (N.D. Cal. 2008) ......................................................................... 6, 10 Huangyan Import & Export Corp. v. Nature's Farm Products, Inc. 2000 WL 1224814, *5 (S.D.N.Y. Aug. 29, 2000) ..................................................................... 13 In re Cathode Ray Tube (CRT) Antitrust Litig. 536 F.Supp.2d 1364 (J.P.M.L. 2008) ........................................................................................... 7 In re Dynamic Random Access Memory (DRAM) Antitrust Litig. 228 F.Supp.2d 1379 (J.P.M.L. 2002) ........................................................................................... 7 In re Graphics Processing Units Antitrust Litig. 483 F.Supp.2d 1356 (J.P.M.L. 2007) ........................................................................................... 7 In re Int'l Air Transp. Surcharge Antitrust Litig. 460 F.Supp.2d 1377 (J.P.M.L. 2006) ........................................................................................... 7 In re NCAA I-A Walk-On Football Litig. 2007 WL 951504 (W.D. Wash. March 26, 2007) ........................................................................ 4 In re Static Random Access Memory (SRAM) Antitrust Litig. 473 F.Supp.2d 1384 (J.P.M.L. 2007) ........................................................................................... 7 In re TFT-LCD (Flat Panel) Antitrust Litig. 483 F.Supp.2d 1353 (J.P.M.L. 2007) ........................................................................................... 7 In re Transpacific Passenger Air Transp. Antitrust Litig. 536 F.Supp.2d 1366 (J.P.M.L. 2008) ........................................................................................... 6 Linear Tech. Corp. v. Analog Devices, Inc. 1995 WL 225672, *4 (N.D. Cal. March 10, 1995) .................................................................... 11 PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE ii Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lou v. Belzberg 834 F.2d 730, 739 (9th Cir. 1987) ............................................................................................... 12 Matthews v. NCAA 79 F.Supp.2d 1199 (E.D. Wash. 1999) ........................................................................................ 4 Mayberry v. International Business Machines Corp. 2009 WL 1814436, *4 (N.D. Cal. June 25, 2009) ....................................................................... 3 Meijer, Inc. v. Abbott Laboratories 544 F.Supp.2d 995 (N.D. Cal. 2008) ................................................................................... 12, 13 NCAA v. Miller 795 F.Supp. 1476 (D. Nev. 1992) ................................................................................................ 4 O'Halloran v. University of Wash. 672 F.Supp. 1380 (W.D. Wash. 1987), rev'd, 856 F.2d 1375 (9th Cir. 1988) ............................. 4 Panavision Int'l L.P. v. Toeppen 141 F.3d 1316, 1323 (9th Cir. 1998)........................................................................................ 2, 6 Plascencia v. Lending 1st Mortg. 2008 WL 1902698, *9 (N.D. Cal. April 28, 2008) ...................................................................... 5 Regents of University of California v. ABC 747 F.2d 511 (9th Cir. 1984)......................................................................................................... 4 Silverlit Toys Manufactory, Ltd. v. Absolute Toy Marketing, Inc. 2007 WL 521239, *11 (N.D. Cal. Feb. 15, 2007) ....................................................... 2, 9, 10, 12 Sparling v. Hoffman Constr. Co., Inc. 864 F.2d 635, 639 (9th Cir. 1988)............................................................................................... 1 White v. National Collegiate Athletic Association C.D. Cal. Case No. 06-cv-00999) ................................................................................................ 4 Williams v. Bowman 157 F.Supp.2d 1103, 1106 (N.D. Cal. 2001) ............................................................................... 8 PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE iii Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION. The motion to transfer venue to the Southern District of Indiana filed by the National Collegiate Athletic Association ("NCAA") and the Collegiate Licensing Company ("CLC") should be denied. Plaintiff Ed O'Bannon's choice of forum--the Northern District of California--is indisputably proper. It is also the most logical forum for litigating his claims since the related case captioned, Keller v. Electronic Arts Inc., Case No. 09-cv-01967-CW ("Keller") is also pending in this district against these same defendants. Accordingly, it simply makes no sense for these two overlapping cases to be litigated in two different forums separated by thousands of miles when they can be more efficiently resolved in a consolidated proceeding in this Court. II. ARGUMENT. A district court may grant a discretionary change of venue pursuant to 28 U.S.C. 1404(a), which provides: "For 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 burden is on the defendant to show that the convenience of the parties and witnesses and the interests of justice require transfer to another district. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). No single factor is dispositive, and a district court has broad discretion to adjudicate motions for transfer of venue. Sparling v. Hoffman Constr. Co., Inc., 864 F.2d 635, 639 (9th Cir. 1988). A. Convenience of the parties. The NCAA argues that it will be substantially more convenient for it to litigate this case in Indianapolis because that is where its headquarters are and where the majority of the relevant documents are stored. Defendant CLC joins in this argument even though it is headquartered in Atlanta and many of its documents are presumably located in Georgia, not Indianapolis. It seems that the NCAA is stretching a bit when it claims that most of its relevant documents will be located in Indianapolis. As described further in this opposition, the NCAA is an organization made up of member institutions dispersed throughout the United States. Its PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 1 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amateurism policies are developed by its Division I Amateurism Cabinet, a committee comprised of representatives of various colleges and universities. This committee is responsible for "student-athlete likeness issues," which, of course, are at the heart of this litigation. Accordingly, relevant evidence is as likely to be contained in correspondence and emails located at any number of schools around the United States, as it is in Indianapolis. See http://ncaa.org/wps/ncaa?key=/ncaa/ncaa/legislation+and+governance/committees/division+i/ama teurism+cabinet/index-d1_amateurism_cabinet.html. Regardless, "the location of the evidence and witnesses . . . is no longer weighed heavily given the modern advances in communication and transportation." Panavision Int'l L.P. v. Toeppen, 141 F.3d 1316, 1323 (9th Cir. 1998) ("Panavision"); Silverlit Toys Manufactory, Ltd. v. Absolute Toy Marketing, Inc., 2007 WL 521239, *11 (N.D. Cal. Feb. 15, 2007) (Wilken, J.) ("Silverlit"). In fact, in modern complex litigation like this, it is now standard procedure for document productions to take place electronically (including paper documents and handwritten notes). These documents are then uploaded onto computer servers and can be reviewed by any authorized attorney from any computer with an internet connection regardless of where their office is located. Indeed, electronic production has become so common that production in any other manner would be highly unusual. Accordingly, Defendants are unable to establish that they are substantially burdened by litigating in California simply because a portion of their documents are located in other states. This is particularly true where, as here, the Defendants' contacts with this district are sufficient to put them on notice that they may be sued here. See Mayberry v. International Business Machines Corp., 2009 WL 1814436, *4 (N.D. Cal. June 25, 2009) (Wilken, J.). Although the NCAA is headquartered in Indianapolis, the association is simply an aggregation of its member institutions, including U.C. Berkeley, Stanford University, University of San Francisco, Santa Clara University, St. Mary's College of California, and San Jose State, all of which are located in this district and all of which enforced the wrongful agreements described in Plaintiff's complaint. See Wierenga Decl., Exhs. A and B; see also Complaint, 5 ("Defendant NCAA describes itself as `the organization through which the colleges and universities of the PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 2 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 nation speak and act on athletics matters at the national level' . . . ."); Complaint, 56 ("The NCAA additionally states `[m]any believe the Association rules college athletics; however, it is actually a bottom-up organization in which the members rule the Association.'"). Additionally, the Pac-10 Conference is also a member of the NCAA, is headquartered in Walnut Creek, California (see http://www.pac-10.org/school-bio/pac10-school-bio.html), and is directly involved in selling the Defendant NCAA's DVDs containing images of Plaintiff during his college career (see http://shop.pac10.com/COLLEGE_UCLA_Bruins/UCLA_Bruins_1995_NCAA_Championship_DVD) Setting aside the related Keller litigation which is already pending before this Court, the NCAA frequently litigates in jurisdictions where its member schools are located. See Declaration of Christopher L. Lebsock ("Lebsock Decl."), Exh. 1 (reflecting litigation involving the NCAA throughout the United States, including California). Some prominent examples of litigation involving the NCAA (including litigation as a plaintiff) that have been previously venued in district courts within the Ninth Circuit are: Regents of University of California v. ABC, 747 F.2d 511 (9th Cir. 1984) (litigated in C.D. Cal.); Associated Students of Calif. State Univ. at Sacramento v. NCAA, 493 F.2d 1251 (9th Cir. 1974) (litigated in E.D. Cal.); Matthews v. NCAA, 79 F.Supp.2d 1199 (E.D. Wash. 1999); O'Halloran v. University of Wash., 672 F.Supp. 1380 (W.D. Wash. 1987), rev'd, 856 F.2d 1375 (9th Cir. 1988); NCAA v. Miller, 795 F.Supp. 1476 (D. Nev. 1992) ("Miller"); In re NCAA I-A Walk-On Football Litig., 2007 WL 951504 (W.D. Wash. March 26, 2007) ("NCAA Walk-On"); and White v. National Collegiate Athletic Association, C.D. Cal. Case No. 06-cv-00999) ("White"). Indeed, in the two most recent class action litigations involving the NCAA, NCAA WalkOn and White, the NCAA did not even bother to challenge the west-coast venue of these PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 3 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proceedings. In light of the foregoing, the NCAA surely has a reasonable expectation that it may be sued in this district as a result of its anticompetitive conduct and that of its member schools located here. Similarly, Defendant CLC bills itself as "the nation's leading collegiate trademark licensing and marketing company, assisting collegiate institutions in protecting, managing and developing their brands." See http://www.clc.com/clcweb/publishing.nsf/Content/aboutclc.html. CLC counts as its "member institutions" U.C. Berkeley, Stanford University, Santa Clara University, and San Jose State, among many others. See http://www.clc.com/clcweb/publishing.nsf/Content/institutions.html. Like Defendant NCAA, Defendant CLC is regularly involved in litigation as a plaintiff and defendant all across the United States, including in California. See Lebsock Decl., Exh. 2. And, like Defendant NCAA, it, too, surely has a reasonable expectation of being sued in locations, such as this district, where it conducts its licensing activities. Under the totality of the circumstances, the Defendants have failed to establish that they will be substantially burdened by defending themselves in the Northern District of California, particularly in light of the fact that they will still be litigating Keller here. Plaintiff, on the other hand, has no contacts with Southern Indiana and will be substantially inconvenienced if he is required to litigate there. Indeed, "it is not appropriate to transfer a case on convenience grounds when the effect would be simply to shift the inconvenience from one party to another." Plascencia v. Lending 1st Mortg., 2008 WL 1902698, *9 (N.D. Cal. April 28, 2008) (Wilken, J.). On balance, this factor favors venue in the Northern District of California. B. Convenience of the witnesses. The NCAA identifies its president, Myles Brand and his senior advisor, Wallace Renfro as likely witnesses in this litigation and asserts that it would be more convenient for them if the case PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 4 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proceeded in Indiana where they live and normally work. 1 However, the convenience of partyaffiliated witnesses is not an important factor in the 1404(a) equation. Getz v. Boeing Company, 547 F.Supp.2d 1080, 1084 (N.D. Cal. 2008) (Wilken, J.) ("Getz") ("The Court, however, discounts any inconvenience to the parties' employees, whom the parties can compel to testify."). Notably, the Defendants have failed to identify any non-party witnesses who would be substantially inconvenienced by this litigation in the event that it proceeds in California. Nor could they realistically do so. Depositions of third-parties are normally taken in a location of the witness' choosing and can be recorded on video for later presentation at trial. In the event that the NCAA seeks to have some currently unidentified third-party witnesses testify in the courtroom, modern technology will allow them to work from San Francisco as readily as they could from Indianapolis, or wherever their home-base may happen to be. Panavision, 141 F.3d at 1323. In this regard, the Bay Area is served by three modern airports with frequent flights arriving from and departing to cities all across the United States. While Southern Indiana is certainly an accessible venue, it is not a hub of air transportation in the same way that the Bay Area is. That is one reason why the Judicial Panel on Multidistrict Litigation regularly transfers complex, nationwide antitrust class actions to this district. See e.g. In re Transpacific Passenger Air Transp. Antitrust Litig., 536 F.Supp.2d 1366 (J.P.M.L. 2008); In re Cathode Ray Tube (CRT) Antitrust Litig., 536 F.Supp.2d 1364 (J.P.M.L. 2008); In re TFT-LCD (Flat Panel) Antitrust Litig., 483 F.Supp.2d 1353 (J.P.M.L. 2007); In re Static Random Access Memory (SRAM) Antitrust Litig., 473 F.Supp.2d 1384 (J.P.M.L. 2007); In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 228 F.Supp.2d 1379 (J.P.M.L. 2002); In re Int'l Air Transp. Surcharge Antitrust Litig., 460 F.Supp.2d 1377 (J.P.M.L. 2006); and In re Graphics Processing Units Antitrust Litig., 483 F.Supp.2d 1356 (J.P.M.L. 2007). Moreover, unlike the nebulous claims of witness inconvenience advanced by the Defendants, Plaintiff has specifically identified Electronic Arts, Inc. and Jeff Karp (Electronic Arts' former Group Vice President for Marketing) as important third-party witnesses in this litigation. Electronic Arts is headquartered in this district and Mr. Karp is currently employed as 1 On September 16, 2009, Mr. Brand died of pancreatic cancer. PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 5 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Chief Executive Officer of Mevio, Inc. in San Francisco. See Complaint at 38; http://www.zoominfo.com/Search/PersonDetail.aspx?PersonID=1085367. Clearly, current and former Electronic Arts' witnesses will be less inconvenienced if Keller and O'Bannon proceed as a consolidated action in the district in which they work and reside. Accordingly, this factor weighs in favor of venue in Oakland. C. Interest of justice factors. Citing Williams v. Bowman, 157 F.Supp.2d 1103, 1106 (N.D. Cal. 2001), the NCAA identifies several additional "interest of justice" factors that district courts frequently weigh when considering whether to grant a defendant's change of venue. The factors identified by the NCAA are: 1) consolidation of claims and multiplicity of litigation; 2) familiarity of each forum with the applicable law; 3) local interest in the controversy; 4) ease of access to the evidence; and 5) relative court congestion and time of trial in each forum. See Defs' Brf. at 6:2-7. None of these factors support Defendants' transfer request. 1. Consolidation of claims and multiplicity of litigation. "A major consideration [in the motion to transfer calculus] is the desire to avoid multiplicity of litigation . . . ." Gerin v. Aegon USA, Inc., 2007 WL 1033472, *6 (N.D. Cal. April 4, 2007); Center for Biological Diversity v. Kempthorne, 2008 WL 4543043, *4 (N.D. Cal. Oct. 10, 2008) (Wilken, J.) (existence of related claims in one of the proposed venues warrants significant consideration since consolidation ameliorates risk of inconsistent adjudications). Here, the Court has previously examined the Keller and O'Bannon complaints and has determined that the cases are related. See O'Bannon Dkt. Entry 59. That clearly was the correct determination, and counsel for these plaintiffs continue to move toward more collaboration, not less. For example, they have agreed to harmonize their claims and present them in a unified complaint, subject, of course, to the Court's concurrence at an October 8, 2009 hearing. But, even if the cases are never formally consolidated, there is little doubt that Keller and O'Bannon should be resolved in one forum in order to avoid the multiplicity of litigation that 1404(a) was designed to prevent. Since Keller will be litigated in the Northern District of California, it is PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 6 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 eminently sensible for O'Bannon to be resolved here too. This factor tips heavily toward venue in this district. 2. Familiarity of the forum with the applicable law. The Defendants seem to suggest that this factor is neutral because this Court and the Southern District of Indiana are equally capable of interpreting the applicable law. While that may be true, the interests of justice, nevertheless lean toward venue in this district because this Court has already expended time and effort familiarizing itself with the specific allegations in the O'Bannon complaint (and the interplay between the claims made in O'Bannon and Keller) when it ruled on Plaintiff's related case motion. Silverlit, 2007 WL 521239 at *11 (the fact that a court is already familiar with the claims made in the litigation is a factor that should be considered when weighing a 1404(a) transfer request). Defendants have failed to provide a compelling justification for another judge in another district to duplicate that effort. 3. Local interest in the controversy. The Defendants also argue that the Southern District of Indiana has a stronger interest in this litigation than the Northern District of California because the NCAA is headquartered in Indianapolis and its rule-making emanated from there. However, the NCAA policy decisions at issue in this case are the result of agreements between the NCAA's member schools, which are dispersed throughout the United States, including at least six that call the Northern District of California home. As a result, former collegiate football and basketball players nationwide (including those that played in this district) were deprived of fair compensation for the use of their likeness, including in DVDs, streaming media, and photographs; on apparel; in sports memorabilia, including trading cards; and in videogames. See e.g. Complaint, 9-11, 43, 58-78. In similar situations, the Court has rejected arguments that the district in which the defendant is headquartered has an overriding interest in resolving the litigation. See Silverlit, 2007 WL 521239 at *11 (transactions at issue occurred throughout the United States, not simply at the defendant's headquarters). Accordingly, Defendants have failed to establish that this factor supports transfer to the Southern District of Indiana. PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 7 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Ease of access to the evidence. Defendants' argument with respect to this factor appears to focus on the cost savings that they contend would be achieved if this case were litigated in Southern Indiana, where many of the NCAA's witnesses are likely to reside. See Defs' Brf. at 7:10-11. This argument lacks merit. The Keller case will proceed in California regardless of where the O'Bannon litigation is venued. The NCAA witnesses designated to testify on common issues will still have to travel to Oakland. Moreover, for those witnesses who do not reside in Indianapolis--i.e. witnesses for Defendant CLC and third-party Electronic Arts, among others--Defendants' proposal actually creates a dangerous probability that costs will be increased since litigation in two venues requires twice the travel. Additionally, transferring this litigation to Southern Indiana will not reduce the cost for Plaintiff, who lives much closer to the courthouse in Oakland than to the one in Indianapolis. On prior occasions, this Court has found that this type of "cost savings" argument generally does not favor one venue over another. See Getz, 547 F.Supp.2d at 1084 (finding that this factor was neutral); Asis Internet Services v. Imarketing Consultants, Inc., 2008 WL 2095498, *7 (N.D. Cal. May 16, 2008) (same). Unlike in those cases, however, there is a real likelihood that cost savings can be achieved if Keller and O'Bannon are jointly managed by this Court. This factor, therefore, tips in favor of venue in California. 5. Court congestion. Defendants next suggest that the Northern District of California's docket is much more crowded than the Southern District of Indiana's docket because approximately three times as many cases were filed in this district last year than were filed in the Southern District of Indiana. While that may be true, the Defendants fail to mention that this district also has nearly three times as many judges as the Southern District of Indiana. Compare Lebsock Decl. Exhs. 3 and 4 (U.S District Court--Judicial Caseload Profiles for 2008). The Judicial Caseload profiles demonstrate that for 2008, the median time from filing to disposition in civil matters is 7.7 months (N.D. Cal.) and 9.2 months (S.D. Ind.). The median time from filing to trial is 30 months (N.D. Cal.) and 29 months (S.D. Ind.). The differences PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 8 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 between the two districts in terms of the length of time it takes to resolve civil litigation are trivial. "[T]hese kinds of considerations should play a role in venue shifting analysis only if the backlogs in the two courts are so totally disproportionate that it is obvious that time to trial would be radically longer in the court initially selected by plaintiff." Linear Tech. Corp. v. Analog Devices, Inc., 1995 WL 225672, *4 (N.D. Cal. March 10, 1995). That certainly is not the case here. D. Plaintiff's choice of forum. Defendants claim that Plaintiff's choice of forum is not subject to the substantial deference that is normally afforded to a plaintiff because he is not a current resident of California and because this is a class action involving nationwide conduct. But this does not mean that Plaintiff's choice of forum is entirely disregarded either. Silverlit, 2007 WL 521239 at *10. It is true that Plaintiff currently resides in Henderson, Nevada. However the events that give rise to his claim partially occurred in this district, since this is one of the locations where he played college basketball as a member of the U.C.L.A. Bruins basketball team. See Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (consideration properly given to the parties' contacts with the forum). The case law is clear that some deference is to be paid to Plaintiff's choice of forum, and on the facts of this case it seems that more of it, not less, ought to be given here in light of the parties' contacts with this district. E. The Court's decision in Meijer v. Abbott Laboratories provides a relevant guidepost for resolving Defendants' motion. In Meijer, Inc. v. Abbott Laboratories, 544 F.Supp.2d 995 (N.D. Cal. 2008) ("Meijer") this Court denied a motion to transfer that involved facts remarkably similar to those presented in this case. The Court explained: Abbott seeks to transfer the SmithKline Beecham case to Illinois. It is true that the only apparent connection between the case and California is that California is home to a large number of HIVpositive individuals who may be consumers of boosted PIs. However, this case has no greater connection to Illinois, except that Illinois is the site of Abbott's headquarters. Illinois thus has no particular interest in this case other than the generalized interest in ensuring that its citizens receive fair adjudications. PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 9 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. at 1008-09. While Abbott claims that transferring the case to Illinois would be more convenient for it, this claim is undercut by the fact that Abbott would continue to have to defend itself in the related cases still before this Court, while defending itself in a new forum as well. Moreover, GSK apparently finds California to be a convenient forum, and it would not be appropriate to transfer this case on convenience grounds when the effect would be simply to make the litigation more convenient for one party at the expense of the other party. Additionally, it would not be in the interest of justice to transfer this case because it would needlessly splinter the litigation. Nor has Abbott shown that the availability of witnesses or evidence will be an issue if the case continues in this District, particularly considering that the related cases will continue before the Court whether SmithKline Beecham is transferred or not. The Court's rationale in Meijer is equally applicable here and counsels in favor of denying Defendants' motion to transfer the O'Bannon action. F. The NCAA's motion should also be denied because it is premature. Plaintiff notes that the NCAA persisted in immediately filing its motion to transfer despite his stated intention to amend the complaint, something he is entitled to do as a matter of right pursuant to FRCP 15(a)(1). Plaintiff also advised that a third complaint, Bishop v. Electronic Arts, Inc., N.D. Cal. Case No. 09-cv-04128, was recently filed and that a fourth complaint was soon to be filed. Wierenga Decl., Exh. 4. The amendment contemplated by Plaintiff bears directly on factors traditionally considered by courts confronted with 1404(a) motions. Plaintiff intends to add an additional defendant, Electronic Arts (described as a non-party co-conspirator in the initial complaint), whose corporate headquarters is located in this district. He also intends to include a co-plaintiff who resides here and played college football in this district. See Wierenga Decl., Exh. 4. Plaintiff intends to make additional modifications to the complaint as well, some of which may be informed by counsel for plaintiffs in the related cases. Under the circumstances, the NCAA's motion is premature and should be denied on this alternative basis as well. See Huangyan Import & Export Corp. v. Nature's Farm Products, Inc., 2000 WL 1224814, *5 (S.D.N.Y. Aug. 29, 2000) (denying 1404(a) motion as premature because pleadings remained unsettled). PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 10 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION. For the foregoing reasons, Plaintiff respectfully requests that this Court deny Defendants' motion to transfer venue to the Southern District of Indiana. Defendants have failed to meet their burden of demonstrating that the interests of justice militate in favor of splintering Keller and O'Bannon and having these related actions proceed in two different judicial districts separated by thousands of miles. Dated: September 21, 2009 Respectfully submitted, HAUSFELD LLP /s/ Christopher L. Lebsock___________ Michael P. Lehmann (Cal. Bar No. 77152) Christopher L. Lebsock (Cal. Bar No. 184546) Jon T. King (Cal. Bar No. 205073) Arthur N. Bailey, Jr. (Cal. Bar No. 248460) 44 Montgomery Street, 34th Floor San Francisco, CA 94104 Tel: (415) 633-1908 Fax: (415) 358-4980 Email: mlehmann@hausfeldllp.com jking@hausfeldllp.com abailey@hausfeldllp.com Michael D. Hausfeld (pro hac vice) Megan E. Jones (pro hac vice) HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Tel: (202) 540-7200 Fax: (202) 540-7201 Email: mhausfeld@hausfeldllp.com mjones@hausfeldllp.com Counsel for Plaintiff Edward Charles O'Bannon, Jr. William A. Isaacson (pro hac vice) Tanya Chutkan (pro hac vice) Jack Simms (pro hac vice) BOIES, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, 8th Floor Washington, DC 20015 Tel: (202) 237-2727 PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE John F. Cove, Jr. (Cal. Bar No. 212213) BOIES, SCHILLER & FLEXNER LLP 1999 Harrison Street, Suite 900 Oakland, CA 94612 Tel: (510) 874-1000 Fax: (510) 874-1480 Email: jcove@bsfllp.com 11 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fax: (202) 237-6131 Email: wisaacson@bsfllp.com tchutkan@bsfllp.com jsimms@bsfllp.com Jonathan W. Cuneo Daniel M. Cohen CUNEO GILBERT & LaDUCA LLP 507 C Street NE Washington, D.C. 20002 Tel: (202) 789-3960 Fax: (202) 789-1813 Email: jonc@cuneolaw.com danielc@cuneolaw.com Daniel S. Mason (Cal. Bar No. 54065) ZELLE HOFMANN VOELBEL & MASON LLP 44 Montgomery Street, Suite 3400 San Francisco, CA 94104 Tel: (415) 693-0700 Fax: (415) 693-0770 Email: dmason@zelle.com Vincent J. Esades HEINS MILLS & OLSON, P.L.C. 310 Clifton Avenue Minneapolis, MN 55403 Tel: (612) 338-4605 Fax: (612) 338-4692 Email: vesades@heinsmills.com Mitchell J. Rapp (Michigan Bar No. P43081) Shawn D. Stuckey (MN Bar No. 0388976) ZELLE HOFMANN VOELBEL & MASON LLP 500 Washington Avenue South, Suite 400 Minneapolis, MN 55415 Telephone: (612) 339-2020 Facsimile: (612) 336-9100 Email: mrapp@zelle.com sstuckey@zelle.com Steven J. Greenfogel MEREDITH COHEN GREENFOGEL & SKIRNICK, P.C. 1521 Locust Street, 8th Floor Philadelphia, Pennsylvania 19102 Tel: (215) 564-5182 Fax: (215) 569-0958 Email: sgreenfogel@mcgslaw.com Brian M. Sund Joshua G. Hauble MORRISON FENSKE & SUND, P.A. 5125 County Road 101, Suite 202 Minnetonka, MN 55345 Tel: (952) 975-0050 Fax: (952) 975-0058 Email: bsund@morrisonfenske.com jhauble@morrisonfenske.com Bruce L. Simon (Cal. Bar. No. 96241) Jessica L. Grant (Cal. Bar. No. 178138) PEARSON, SIMON, WARSHAW & PENNY, LLP 44 Montgomery Street, Suite 1430 San Francisco, CA 94104 Tel: (415) 433-9000 Fax: (415) 433-9008 Email: bsimon@pswplaw.com PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE Eugene A. Spector SPECTOR ROSEMAN KODROFF & WILLIS, P.C. 1818 Market Street, Suite 2500 Philadelphia, Pennsylvania 19103 Tel: (215) 496-0300 Fax: (215) 496-6611 Email: espector@srkw-law.com 12 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 jgrant@pswplaw.com Jay L. Himes Morissa Falk LABATON SUCHAROW LLP 140 Broadway New York, NY 10005 Tel: (212) 907-0700 Fax: (212) 818-0477 Email: jhimes@labaton.com mfalk@labaton.com Stanley D. Bernstein Ronald J. Aranoff Dana Statsky Smith BERSTEIN LIEBHARD LLP 10 East 40th Street, 22nd Floor New York, New York 10016 Tel: (212) 779-1414 Fax: (212) 779-3218 Email: bernstein@bernlieb.com aranoff@bernlieb.com Carl A. Taylor Lopez LOPEZ & FANTEL 1510 114th Avenue Seattle, WA 98122-4024 Tel: (206) 322-5200 Email: clopez@lopezfantel.com Gordon Ball BALL & SCOTT, A PROFESSIONAL ASSOCIATION 550 Main Avenue, Suite 750 Knoxville, TN 37902 Tel: (865) 525-7028 Fax: (865) 525-4679 Email: GBall@ballandscott.com Allan Steyer (Cal. Bar. No. 100318) STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP One California Street, Third Floor San Francisco, CA 94111 Tel: (415) 421-3400 Fax: (415) 421-2234 Email: asteyer@steyerlaw.com Additional Attorneys for Plaintiff Edward Charles O'Bannon, Jr. PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 13 Case No. 3:09-cv-03329 (CW) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I, Kathleen Vance, declare that I am over the age of eighteen (18) and not a party to the entitled action. I am a partner in the law firm of HAUSFELD LLP, and my office is located at 44 Montgomery Street, Suite 3400, San Francisco, California 94104. On September 21, 2009, I filed the following: 1. PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE; 2. DECLARATION OF CHRISTOPHER L. LEBSOCK IN OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE with the Clerk of the Court using the Official Court Electronic Document Filing System which served copies on all interested parties registered for electronic filing. I also certify that I caused true and correct Chambers Copies of the foregoing document(s) to be hand-delivered to the following Judge pursuant to Civil L.R. 3-12(b) by noon of the following day: The Hon. Claudia Wilken U.S.D.C., Northern District of California Oakland Division 1301 Clay Street, Suite 400 S Oakland, CA 94612-5212 I declare under penalty of perjury that the foregoing is true and correct. /s/ Kathleen Vance_____________________ PLAINTIFF EDWARD O'BANNON'S OPPOSITION TO DEFENDANTS' MOTION TO TRANSFER VENUE 14 Case No. 3:09-cv-03329 (CW)

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