Securities and Exchange Commission v. Inteligentry, LTD et al

Filing 93

ORDER Denying 41 Motion to Change Venue. Signed by Judge Gloria M. Navarro on 7/23/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SECURITIES AND EXCHANGE COMMISSION, )
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Plaintiff,
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vs.
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INTELIGENTRY, LTD.; PLASMERG, INC.; PTP )
LICENSING, LTD.; and JOHN P. ROHNER,
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Defendants.
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Case No.: 2:13-cv-00344-GMN-NJK
ORDER

Before the Court is Defendant John P. Rohner’s Motion to Change Venue (ECF No. 41).

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For the reasons discussed below, the Motion is denied.

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I.

BACKGROUND
This action arises out of Defendant John P. Rohner’s (“Rohner”) alleged violations of

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securities laws in connection with his solicitation of investments for Inteligentry, Ltd.,

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PlasmERG, Inc., and PTP Licensing, Ltd. (the “Rohner Companies”). Plaintiff Securities and

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Exchange Commission (“SEC”) alleges that Rohner is a resident of Las Vegas, Nevada, and is

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the Founder, President, Chief Executive Officer, Treasurer, and Director of each of the Rohner

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Companies. The Rohner Companies are Nevada corporations with their principal place of

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business in Las Vegas. Allegedly, the Rohner Companies’ employees worked in Nevada, their

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shareholder meetings took place in Nevada, and Defendants invited potential investors to

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presentation at their facilities in Nevada.
Since the action was filed, Rohner has relocated to Iowa. Rohner now moves to transfer

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the action to the Southern District of Iowa.

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II.

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LEGAL STANDARD
Under 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the

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interest of justice, a district court may transfer any civil action to any other district or division

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where it might have been brought.” A motion to transfer lies within the broad discretion of the

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district court, and is determined on an “individualized, case-by-case consideration of

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convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (citing

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Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
The case-by-case approach has led courts to balance a number of factors in determining

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if transfer is appropriate. Although the relevant factors vary with facts of specific cases, see

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Williams v. Bowman, 157 F.Supp.2d 1103, 1106 (N.D. Cal. 2001), the following factors are

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generally considered in a transfer motion: (1) the plaintiff’s choice of forum; (2) the location

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where a majority of the facts giving rise to the case occurred; (3) the potential litigation costs

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and convenience of the parties; (4) the convenience of potential witnesses; (5) ease of access to

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the evidence; (6) the parties’ contacts with the forum; (7) any local interest in the controversy;

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and (8) the availability of compulsory process to compel unwilling witnesses. See Jones v.

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GNC Franchising Inc., 211 F.3d 495, 498-99 (9th Cir. 2000); Decker Coal Co. v.

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Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). The movant bears the burden

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of showing that transfer is appropriate. Operation: Heroes, Ltd. v. Procter and Gamble Prods.,

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Inc., 903 F.Supp.2d 1106, 1111 (D. Nev. 2012).

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III.

DISCUSSION

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Rohner does not contend that the District of Nevada is an inappropriate venue.

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Likewise, the SEC does not directly attack Rohner’s motion by arguing that the action could

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not have originally been brought in the Southern District of Iowa. Thus, the only question

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before the Court is whether, considering convenience and fairness, a transfer to the Southern

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District of Iowa is in the interest of justice. Because the balance of factors weighs in favor of

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trying the case in Nevada, the Court concludes that it is not.

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Rohner’s main contention in support of transfer is that litigating in Nevada would be

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expensive and inconvenient. Rohner avers that since April 1, 2013, he has permanently resided

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in Iowa. Rohner also claims that he is handicapped and “[a] car trip of 2 hours to appear in

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court is preferable to a plane trip of many hours and overnight lodging.” Rohner additionally

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asserts that many defense witnesses are “close to [the] Iowa court,” though Rohner does not

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identify any specific witness.

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Although this Court recognizes that it may be inconvenient for Rohner to travel and

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defend this action in Nevada, Rohner has not met his burden of showing that a transfer would

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be in the interest of justice because the majority of the factors weigh against transfer. The

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SEC’s choice of forum does not appear to be driven by forum shopping, but rather by the fact

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that the Rohner Companies are Nevada corporations and most of the facts giving rise to this

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action took place in Nevada. Consequently, the SEC’s choice of forum is afforded substantial

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weight. Decker, 805 F.2d at 843.

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Further, because most of the facts giving rise to this action took place in Nevada, the

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bulk of the evidence and the majority of witnesses are likely to be located here. Consequently,

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the costs of litigation and convenience of witnesses weigh in favor of Nevada proceedings. The

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defense witnesses referenced in Rohner’s motion only appear to relate to the SEC’s allegations

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involving “some illicit behavior on some business based in Iowa.” However, the allegations

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relating to Iowa are only a small fraction of the total allegations of the Complaint. Employees

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of the Rohner Companies, stockholders, and investors are all much more connected with

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Nevada. Accordingly, the local interests are greater in Nevada and this Court is more likely to

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have authority to subpoena witnesses under the 100-mile restriction in Fed. R. Civ. P. 45(b)(2)

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and (c)(3)(A)(ii), than a court in Iowa.

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Finally, Rohner has extensive contacts with Nevada. Even accepting Rohner’s

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contention that his primary residence has always been in Iowa and that any residences in Las

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Vegas were only temporary, Rohner resided, owned property, and incorporated companies in

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Nevada. In fact, Rohner was residing in Las Vegas at the time he was served with the

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Complaint. Rohner’s relocation did not occur until after he was apprised of and had appeared

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in this action.
Consequently, the balance of factors weighs against transferring the action to the

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Southern District of Iowa. The Court finds that such a transfer would not be for the

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convenience of the parties and the witnesses in the interest of justice.

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IV.

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CONCLUSION
IT IS THEREFORE ORDERED that Defendant John P. Rohner’s Motion to Change

Venue (ECF No. 41) is DENIED.
DATED this 23rd day of July, 2013.

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___________________________________
Gloria M. Navarro
United States District Judge

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