National Viatical, Inc. et al v. Universal Settlements International, Inc.

Filing 28

ORDER granting in part and denying in part 20 Plaintiff's Motion to Strike. Defendant's 4 Motion to Transfer Venue is GRANTED. The Clerk is directed to transfer this matter to the Western District of Michigan. Signed by Judge Richard W. Story on 11/15/11. (cem) [Transferred from Georgia Northern on 11/17/2011.]

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

NATIONAL VIATICAL, INC., et al.
Plaintiffs,
v.
UNIVERSAL SETTLEMENTS
INTERNATIONAL, INC.,
Defendant.

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CIVIL ACTION NO.
1:11-CV-1358-RWS

ORDER
This case comes before the Court on Defendant’s Motion to Transfer
Venue [4] and Plaintiffs’ Motion to Strike Elements of Defendant’s Reply Brief
[20]. After a review of the record, the Court enters the following order.
I. Motion to Strike
Plaintiffs have moved to strike portions of the Defendant’s reply brief
and various affidavits that were attached thereto. Plaintiffs argue that the
Defendant did not produce evidence of its convenience or financial means, by
way of affidavit or otherwise, in its initial motion and should not be able to do
so in its reply. As well, Plaintiffs argue that one of Defendant’s arguments
exceeded the scope of its original motion, namely that the Western District of

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Michigan retained exclusive jurisdiction over the matter.
“Where a party does raise a new ground in its reply, the Court may either
strike the new ground or permit the non-moving party additional time to
respond to the new argument.” Int’l Telecomm. Exch. Corp. v. MCI Telecomm.
Corp., 892 F. Supp. 1520, 1531 (N.D. Ga. 1995); LR 7.1(F) NDGa (“The court,
in its discretion, may decline to consider any motion or brief that fails to
conform to the requirements of these rules.”). First, the Court does not find that
the Defendant even argued that the Michigan court retained exclusive
jurisdiction over the matter–only that it retained jurisdiction. See Dkt. No. [19]
at 12 (“over which the Western District of Michigan retained jurisdiction for the
purposes of enforcement.”). Moreover, the Defendant stated in its initial brief
that “the W.D. Mich. Action is pending in that federal district and all parties to
this action are already properly subject to the jurisdiction of that court.” Dkt.
No. [4-1] at 13. Thus, Defendant alleged Michigan had jurisdiction from the
outset. Further, Plaintiffs attached the settlement agreement as an oppositionbrief exhibit which clearly shows that the court retained jurisdiction over the
matter. Pl.’s Ex. A, Dkt. No. [15-1] at 1. Therefore, the Court does not find that
argument exceeds the scope of the initial motion or the opposition brief or that

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it warrants surreply.
However, the Court does find Defendant’s affidavit timing to be
problematic and will STRIKE the reply affidavits as Defendant put forward no
good-cause evidence to explain why it did not attach them in the first instance.
However, as to proving means and inconvenience, the Court notes that
Plaintiffs plead that the Defendant was “in Canadian restructuring proceedings”
and that the Defendant is a Canadian citizen. Thus, the Court’s entertainment of
these facts in no way prejudices the Plaintiffs. See Cmpl., Dkt. No. [1-1] at 3, 7.
Therefore, Plaintiffs’ Motion to Strike [20] is GRANTED, in part, and
DENIED, in part.
II. Motion to Transfer Venue
The Defendant moves to transfer this case to the Western District of
Michigan–the court which mediated and took down the oral
settlementagreement which underlies this enforcement action. 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.” “In considering a
motion to transfer venue under Section 1404(a), the burden is on the moving

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party to establish the propriety of the transfer. Unless the balance is strongly in
favor of the moving party, the plaintiff’s choice of forum should not be
disturbed.” Paul, Hastings, Janofsky & Walker, L.L.P . v. City of Tulsa, 245 F.
Supp. 2d 1248, 1260 (N. D. Ga. 2002 )(internal citations omitted).
Section 1404 factors include (1) the convenience of the witnesses;
(2) the location of 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).
Here, the Court finds that this case warrants transfer. First, as to the
convenience of the witnesses and parties, each party and its witnesses will be
inconvenienced in the other’s requested forum. This factor does not favor either
venue. However, the location of relevant documents, the relative ease of access
to proof, and the locus of operative facts clearly favors the Michigan court. The
settlement agreement is a transcript which is filed under seal in the Michigan
court. That court ordered that the agreement was only to be disseminated to the
parties and their counsel, so it appears that this transcript should not have even

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been presented by Plaintiffs for filing under seal in this district without seeking
leave of court in Michigan. Def.’s Ex. A, Dkt. No. [19-2]. Further, Michigan
retained jurisdiction over this settlement matter, Pl.’s Ex. A, Dkt. No. [15-1] at
1, and the Michigan court has already resolved a similar settlement-agreement
dispute arising out of the underlying action. Since Magistrate Judge Carmody1
helped to resolve the initial matter, she would be best suited to interpret what
the parties meant in the agreement and whether a violation of the confidentiality
provision has occurred. It is also worth noting that there are apparently multiple
documents which are filed under seal in Michigan which this Court cannot
access.
As to the availability of process, Plaintiffs argue that non-party Cecello
would be within the subpoena powers of this Court, but would not be in
Michigan. However, because the Michigan court retained jurisdiction over the
settlement agreement, that court has retained jurisdiction over Cecello as a party
to the underlying matter. As well, the relative means of the parties does not
favor either venue because the only information the Court was provided about

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Plaintiffs argue that because the Michigan judges have knowledge of the disputed
evidence–the settlement agreement–they would have to recuse themselves if the case was
transferred. However, recusal only applies to extrajudicial knowledge of evidentiary
disputes. LaMarca v. Turner, 662 F. Supp. 647, 654 (S.D. Fla. 1987).
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NVI is that it does not want to expend $35,000 in travel expenses again, and all
the Court knows about USI is that it is in restructuring. See Pl.’s Ex. 15, Dkt.
No. [15-15] at 2; Cmpl., Dkt. No. [1-1] at 7.
Further, while Michigan courts would be more familiar with Michigan
breach of contract law, the Court finds that this factor does not significantly
favor either venue as this Court can apply basic contract law–whether Michigan
or otherwise. But, Plaintiffs’ choice of forum is a weighty interest and this
factor clearly weighs in favor of the Northern District of Georgia because this is
the Plaintiffs’ home forum, and Georgia has an interest in vindicating its
citizens’ rights.
Finally, though, the totality of the circumstances clearly favor Michigan.
This is a Michigan contract which is under seal, and access is limited to a
Michigan court. Michigan has access to all of the relevant filings, and that court
has already handled one enforcement proceeding arising out of the agreement.
Efficiency and comity favor the Western District of Michigan. Defendant’s
Motion to Transfer Venue [4] is GRANTED.

III. Conclusion

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Based on the foregoing, Plaintiff’s Motion to Strike [20] is GRANTED,
in part, and DENIED, in part. Defendant’s Motion to Transfer Venue [4] is
GRANTED. The Clerk is directed to transfer this matter to the Western District
of Michigan.

SO ORDERED this 15th

day of November, 2011.

________________________________
RICHARD W. STORY
United States District Judge

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