Chester County Employees' Retirement Fund v. Ergen, et al.,

Filing 25

ORDER. The 24 Joint Motion to Transfer Venue is granted. Plaintiff's 20 Motion for Attorneys' Fees and Reimbursement of Expenses is deemed withdrawn. Pursuant to 28 U.S.C. § 1404(a), this action shall be transferred to the United States District Court for the District of Nevada. By Judge Philip A. Brimmer on 2/22/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-03291-PAB-KMT
CHESTER COUNTY EMPLOYEES’ RETIREMENT FUND, Derivatively on Behalf of
Nominal Defendant Echostar Corp.,
Plaintiff,
v.

CHARLES W. ERGEN,
MICHAEL T. DUGAN,
R. STANTON DODGE,
TOM A. ORTOLF,
C. MICHAEL SCHROEDER,
ANTHONY M. FEDERICO,
PRADMAN P. KAUL, and
JOSEPH P. CLAYTON,
Defendants, and
ECHOSTAR CORP.,
Nominal Defendant.

ORDER

This matter is before the Court on the Joint Motion to Transfer Venue [Docket
No. 24] filed by plaintiff Chester County Employees’ Retirement Fund (“Chester”) and
defendants EchoStar Corporation, Charles W. Ergen, Michael T. Dugan, R. Stanton
Dodge, Tom A. Ortolf, C. Michael Schroeder, Anthony M. Federico, Pradman P. Kaul,
and Joseph P. Clayton. The parties request that the Court transfer this case to the
United States District Court for the District of Nevada pursuant to 28 U.S.C. § 1404(a).

On December 5, 2012, Greg Jacobi, an EchoStar shareholder, filed a verified
stockholder derivative action in the United States District Court for the District of
Nevada. See Greg Jacobi, et al. v. Charles Ergen, et al., No. 12-cv-02075-JCM-GWF
(D. Nev. 2012). On December 18, 2012, two weeks after the Nevada case was filed,
Chester filed its complaint in this case. See Docket No. 1. The parties claim that the
lawsuit filed in Nevada seeks relief pursuant to the same transactions and occurrences
as this case and involves substantially the same defendants. Docket No. 24 at 2, ¶ 2.
The parties state that they are currently pursuing settlement negotiations and request
that the Court transfer the case to the United States District Court for the District of
Nevada in the interest of judicial efficiency and for the convenience of the parties. Id. at
¶ 6. Moreover, the parties also request that, if the motion to transfer is granted, the
Court withdraw Plaintiff’s Motion for Attorneys’ Fees and Reimbursement of Expenses
[Docket No. 20]. Id. at ¶ 7.
Section 1404(a) of Title 28 provides, in pertinent part, 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.” Section
1404(a) is “intended to place discretion in the district court to adjudicate motions for
transfer according to an ‘individualized, case-by-case consideration of convenience and
fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van
Dusen v. Barrack, 376 U.S. 612, 622 (1964)). To warrant a transfer, the moving party
must establish that: (1) the action could have been brought in the alternate forum; (2)
the existing forum is inconvenient; and (3) the interests of justice are better served in

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the alternate forum. Wolf v. Gerhard Interiors, Ltd., 399 F. Supp. 2d 1164, 1166 (D.
Colo. 2005).
The Court is satisfied that this action could have originally been brought in
Nevada. Additionally, because the parties have filed a joint motion, a transfer of this
case would be for the convenience of all parties. Thus, in light of the parties’ ongoing
settlement negotiations, the Court finds that considerations of convenience and
interests of justice strongly favor the transfer of this case to the United States District
Court for the District of Nevada. Accordingly, it is
ORDERED that the Joint Motion to Transfer Venue [Docket No. 24] is
GRANTED. It is further
ORDERED that Plaintiff’s Motion for Attorneys’ Fees and Reimbursement of
Expenses [Docket No. 20] is deemed WITHDRAWN. It is further
ORDERED that, pursuant to 28 U.S.C. § 1404(a), this action shall be transferred
to the United States District Court for the District of Nevada.

DATED February 22, 2013.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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