Gottlieb et al v. Tyler et al

Filing 47

ORDER granting 32 Defendants' Motion for Transfer. Signed by Judge Darrin P. Gayles See attached document for full details. (isc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 18-cv-22428-GAYLES
ALLEN B. GOTTLIEB, et al.,
Plaintiffs,
v.
NANCY ELLEN TYLER and
JOHN GRUBARD,
Defendants.
/
ORDER
THIS CAUSE comes before the Court on Defendants’ Motion for Transfer [ECF No. 32],
pursuant to 28 U.S.C. § 1404(a). The Court has carefully reviewed the briefs, the record in this
case, and the applicable law and is otherwise fully advised. For the reasons that follow, the motion
shall be granted.
I.

BACKGROUND
In this action, Plaintiffs Allen B. Gottlieb (“Gottlieb”) and three other members of his

immediate family (collectively “Plaintiffs”), filed a Complaint seeking declaratory relief and
damages against Defendants Nancy Ellen Tyler (“Tyler”) and John Grubard (“Grubard”),
attorneys with the Securities and Exchange Commission (“SEC”) [ECF No. 1]. To understand
the claims and allegations in the Complaint, it is necessary to recount some of the prior litigation
history in which Gottlieb and his family have been involved. In 1998 the SEC initiated an action
against Gottlieb in the Southern District of New York for the alleged fraudulent offer and sale
of securities. SEC v. Stewart, No. 98-CV-2636-LAP (S.D.N.Y 1998) (“New York Action”). The
New York Action resulted in a judgment against Gottlieb wherein he was ordered to pay
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disgorgement, pre-judgment interest, and civil penalties, and enjoined from transferring, selling,
or assigning any assets before the judgment was satisfied. In support of that judgment, the SEC
filed a Motion for a Turnover Order (“Turnover Action”) in the New York Action seeking to
recover the funds from the sale of Gottlieb’s Aventura, Florida, property.
In 2015, Phyllis Gottlieb—Gottlieb’s wife and a Plaintiff in this action—filed an action
in Florida state court seeking a declaration that the SEC could not garnish the subject funds.
Defendants Tyler and Grubard, appearing on behalf of the SEC, removed the action to federal
court and sought a transfer of that action to New York. See Phyllis Gottlieb v. SEC and First
Am. Title Ins. Co., No. 15-CV-23309-RNS (S.D. Fla. 2015) (“First SDFLA Action”). In the First
SDFLA Action, Phyllis Gottlieb argued that the property was subject to Florida homestead laws
that prevented the SEC from garnishing the funds related to the sale of that property. Judge
Robert N. Scola granted the SEC’s motion and transferred the action to the Southern District of
New York. Id. at [ECF No. 37]. Following the transfer, the case was dismissed and appealed to
the Second Circuit, which affirmed the transfer and dismissal. See Gottlieb v. SEC, et al., No.
15-CV-9568-LAP (S.D.N.Y.), aff’d No. 16-3663 (2d Cir. Jan. 23, 2018). Plaintiffs now bring
this Bivens action against Tyler and Grubard individually for their efforts on behalf of the SEC
in the Turnover Action, and essentially make the same factual and legal arguments as those
alleged in the First SDFLA Action.
Defendants1 have moved to transfer venue from this Court to the Southern District of
New York, pursuant to 28 U.S.C. § 1404(a), arguing that this action involves the same facts and
parties involved in the pending New York Action. Defendants argue that the interests of justice

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Defendants have specially appeared in this action as they each argue that service has not been completed on them.
The Court does not address these issues on the merits but instead agrees that they may specially appear for the sole
purpose of filing this Motion to Transfer and, in so doing, have not waived their rights to challenge the purported
service.
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favor transfer to the Southern District of New York in order to coordinate this action with the
New York Action, prevent the duplication of discovery, and promote judicial economy.
Defendants also argue that the interests of judicial economy trump Plaintiffs’ choice of forum
and weigh heavily in favor of transfer. The Court agrees.
II.

DISCUSSION
The statute governing venue transfer, 28 U.S.C. § 1404(a), provides, in relevant 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 . . . where it might have been brought.” This analysis
requires a two-pronged inquiry. First, the court must determine whether the case may have been
brought in the desired district of transfer. Meterlogic, Inc. v. Copier Solutions, Inc., 185 F. Supp.
2d 1292, 1299 (S.D. Fla. 2002). Second, “the court must weigh various factors . . . to determine if
a transfer . . . is justified.” Elite Advantage, LLC v. Trivest Fund, IV, L.P., No. 15-22146, 2015 WL
4982997, at *5 (S.D. Fla. Aug. 21, 2015) (citation and internal quotation marks omitted). The
Eleventh Circuit instructs that a district court should generally consider the following private and
public interest factors to determine whether a transfer is appropriate:
(1) the convenience of the witnesses; (2) the location of the relevant documents and
the relative ease of access to sources of proof; (3) the convenience of the parties;
(4) the locus of operative facts; (5) the availability of process to compel the
attendance of unwilling witnesses; (6) the relative means of the parties; (7) a
forum’s familiarity with the governing law; (8) the weight accorded a plaintiff’s
choice of forum; and (9) trial efficiency and the interests of justice, based on the
totality of the circumstances.
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005) (citation omitted).
Plaintiffs’ Complaint seeks to re-litigate those matters currently pending in the New York
Action. This is evident from the allegations in the Complaint as well as the pleadings on the current
Motion. Plaintiffs’ main argument against transfer of this action is that they are seeking a
declaratory judgement that the funds, currently held in the Southern District of New York, are
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subject to the Florida homestead laws and should thus be litigated in this forum. In transferring the
prior related action to New York, Judge Scola made all the necessary findings supporting transfer
of this current action, including a finding that the New York court is capable of properly applying
Florida homestead laws therein. See First SDFLA Action, No. 15-CV-23309-RNS at [ECF No.
37]. This Court adopts Judge Scola’s findings and concludes that the factors weigh in favor of
transfer. While Plaintiffs prefer this forum, they have not presented a sufficient justification to
disturb Judge Scola’s previous findings. It is clear from the record that this case should be
transferred to the Southern District of New York where the first-filed New York Action remains
pending and where the court may properly address all related issues affecting all parties.
III.

CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED that Defendant’s Motion to

Transfer Venue [ECF No. 32] is GRANTED. This action shall be transferred in its entirety to the
United States District Court for the Southern District of New York. This action shall be CLOSED
in this District. All pending motions are DENIED as moot.
DONE AND ORDERED in Chambers at Miami, Florida this 29th day of March, 2019.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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