Continental 332 Fund, LLC et al v. Kozlowski

Filing 56

ORDER denying #32 Defendants David Albertelli's and Albertelli Construction, Inc.'s Motion to Transfer Venue. Signed by Judge Sheri Polster Chappell on 8/1/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CONTINENTAL 332 FUND, LLC,
CONTINENTAL 298 FUND LLC,
CONTINENTAL 306 FUND LLC,
CONTINENTAL 326 FUND LLC,
CONTINENTAL 347 FUND LLC,
CONTINENTAL 355 FUND LLC,
CONTINENTAL 342 FUND LLC and
CONTINENTAL 245 FUND LLC,
Plaintiffs,
v.

Case No: 2:17-cv-41-FtM-38MRM

DAVID ALBERTELLI, ALBERTELLI
CONSTRUCTION INC., GEORGE
ALBERTELLI WESTCORE
CONSTRUCTION, LLC, NATIONAL
FRAMING, LLC, MFDC, LLC, TEAM
CCR, LLC, BROOK KOZLOWSKI,
JOHN SALAT, KEVIN BURKE,
ANGELO EQUIZABAL, BRAVO21,
LLC, KERRY HELTZEL, AMY
BUTLER, US CONSTRUCTION
TRUST, FOUNDATION
MANAGEMENT, LLC, KMM
CONSTRUCTION, LLC and
WESTCORE CONSTRUCTION,
L.L.C.,
Defendants.
/
OPINION AND ORDER1

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or
websites. These hyperlinks are provided only for users’ convenience. Users are
cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By
allowing hyperlinks to other websites, this Court does not endorse, recommend, approve,
or guarantee any third parties or the services or products they provide on their websites.
Likewise, the Court has no agreements with any of these third parties or their websites.
The Court accepts no responsibility for the availability or functionality of any hyperlink.

This matter comes before the Court on Defendants David Albertelli and Albertelli
Construction, Inc.’s (the “Original Defendants”) Motion to Transfer Venue, which was filed
on March 22, 2017. (Doc. 32). The Plaintiffs at that time, Continental 332 Fund LLC,
Continental 298 Fund LLC, Continental 306 Fund LLC, and Continental 326 Fund LLC
(the “Original Plaintiffs”), responded in opposition on April 18, 2017. (Doc. 37). This
matter is ripe for review.
On January 24, 2017, the Original Plaintiffs filed a twenty-seven count Complaint
against the Original Defendants. (Doc. 1). The Original Plaintiffs alleged that the Original
Defendants had violated the Racketeering Influenced and Corrupt Practices Act, and
multiple other statutes from Florida and Minnesota, that they had breached existing
contracts, engaged in a conspiracy to commit fraud, and had committed fraud, civil theft,
conversion, and acts of negligence in Florida, Minnesota and Texas. (Doc. 1).
The Original Defendants then moved to dismiss the Complaint. (Doc. 30). In
addition, they also moved to transfer the case within the Middle District of Florida from
the Fort Myers Division to the Jacksonville Division. (Doc. 32). Thereafter, the Original
Plaintiffs elected to file an Amended Complaint, and responded in opposition to the Motion
to Transfer. (Docs. 37, 38).
After the Amended Complaint was filed, the Original Defendants again moved to
dismiss. (Doc. 41). Again, instead of litigating the merits of the pleading, the Original
Plaintiffs moved for, and received, leave to file their Second Amended Complaint. (Doc.

Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the Court.

2

49).

The Second Amended Complaint added four new Plaintiffs2, fifteen new

Defendants3, and seventeen more claims. (Doc. 49).
Despite these additions, the Original Defendants have not sought to supplement
their Motion to Transfer. This is important because the decisional calculus regarding
transfer turns on the “convenience of parties and witnesses . . . [and] the interests of
justice.” 28 U.S.C. § 1404(a). And though the court has broad discretion to discern the
merits of transfer, its consideration is properly limited to the individualized set of operative
facts that currently exist to adjudicate the matter. See Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 29 (1988); see also England V. ITT Thompson Industries, Inc., 856 F.2d
1518, 1520 (11th Cir. 1988); Suomen Colorize Oy v. DISH Network L.L.C., 801 F. Supp.
2d 1334, 1338 (M.D. Fla. 2011); Dale v. United States, 846 F. Supp. 2d 1256, 1257 (M.D.
Fla. 2012).
Notably, the Motion to Transfer does not turn on currently operative facts but
instead relies on facts drawn from a Complaint filed four Plaintiffs, fifteen Defendants and
seventeen claims ago. Because the Motion to Transfer rests on considerations that are
no longer operative, it must be denied. Should the Original Defendants wish to seek relief
under the current facts, they may do so as the rules allow.
Accordingly, it is now
ORDERED:

2

Continental 347 Fund LLC, Continental 355 Fund LLC, Continental 342 Fund LLC, and
Continental 245 Fund LLC
3 George Albertelli Westcore Construction LLC (Del.), Westcore Construction LLC (Nev.),
Foundation Management LLC, National Framing LLC, KMM Construction LLC, MFDC
LLC, Team CCR LLC, Brook Kozlowski, John Salat, Kevin Burke, Angelo Equizabal,
Bravo21 LLC, Kerry Heltzel, Amy Butler, and US Construction Trust

3

Defendants David Albertelli’s and Albertelli Construction, Inc.’s Motion to
Transfer Venue is DENIED.
DONE and ORDERED in Fort Myers, Florida this 1st day of August, 2017.

Copies: All Parties of Record

4