KANE v. STOLL et al

Filing 10

OPINION. Signed by Judge Renee Marie Bumb on 6/27/2014. (dmr)

[Dkt. Nos. 3, 4 and 7]
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRADLEY H. KANE,

:

Plaintiff,

:Civil Action No. 14-3748 (RMB/KMW)

v.

:

ROBERT STOLL, ESQ., et al.,
Defendants.

OPINION

:
:

Appearances:
Stuart A. Wilkins, Esquire
Law Offices of Stuart A. Wilkins
8000 Sagemore Drive, Suite 8302
Sagemore Corporate Center
Marlton, New Jersey 08053
Attorney for Plaintiff
Peter T. Shapiro, Esquire
Lewis, Brisbois, Bisgaard & Smith, LLP
77 Water Street, Suite 2100
New York, New York 10005
Attorney for Defendants
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon its own motion as to
why this matter should not be transferred to the Central District
of California.

On June 13, 2014, the Court issued an Order to

Show Cause directing the parties to answer by June 24, 2014, as
to why this matter should not be transferred. [Docket No. 3].
Plaintiff Bradley H. Kane filed an opposition to the transfer
(along with an accompanying motion for remand). [Docket No. 4].

Defendants Robert Stoll and Stoll, Nussbaum and Polakov (“SNP”)
filed a Memorandum of Law In Support of Transfer and Opposition
to Plaintiff’s Motion to Remand [Docket No. 7].
A.

Background
i.

New Jersey Action

According to the Complaint filed April 23, 2014,1 in October
2012, Plaintiff’s niece, Sammi Kraft, was tragically killed in an
automobile accident in Los Angeles, California.

Both the owner

and the driver were two individuals who resided in Culver City,
California and Santa Monica, California, respectively.
Plaintiff, the deceased’s uncle and an attorney licensed to
practice law in New Jersey and Pennsylvania, and a licensed
inactive attorney in California, flew to California to assist the
grieving family.

Plaintiff, inter alia, retrieved the police

reports, spoke with the District Attorney of Santa Monica
regarding pending criminal charges against the driver, and
obtained the driver’s insurance information.

At Plaintiff’s

suggestion, the family rejected the insurance carrier’s offer of
settlement.

After several conversations, the family and the

insurance company agreed to proceed to nonbinding mediation.2
Prior to the date for the mediation, Plaintiff, presumably on
1

Defendants removed the Complaint to this Court on June 11,

2014.
2

The Complaint uses mediation and arbitration
interchangeably.
2

behalf of the family, retained the services of a local attorney
in San Diego, California.
One week prior to the scheduled mediation, however, the
father of the deceased, Sheldon Kraft, retained the services of
Defendants Stoll and his law firm SNP to represent the family in
the mediation.
California.

Defendant Stoll is an attorney licensed in

Defendant SNP is a California professional

corporation engaged in the practice of law in California.
Plaintiff alleges he thereafter transmitted his entire legal file
to Defendants “with a transmittal letter confirming that the
customary referral fee would be forthcoming.”

Complt. ¶ 56.

In

December 2013, Defendants settled the wrongful death case against
one of the parties.

Plaintiff seeks a portion of that

settlement, alleging that Defendants have breached their contract
to pay the agreed-upon referral fee.
ii.

California Action

Prior to the filing of Plaintiff’s Complaint with this
Court, Defendant SNP filed a lawsuit in the Central District of
California, Stoll, Nussbaum and Polakow v. Bradley H. Kane, No.
14-2690.3

In the California action, SNP alleges that on April

11, 2013, the Kraft family had retained it to represent them in
the wrongful death and survival action.

3

The Kraft family entered

In fact, the instant matter was filed four days after SNP
filed the California lawsuit.
3

into a contingent fee agreement with SNP, and pursuant to that
contractual relationship, SNP filed a lawsuit on behalf of the
Kraft family in the Los Angeles Superior Court.

That lawsuit is

currently pending, except one of the defendants in that action
has settled for $3,000,000.

(Plaintiff seeks a percentage of

that settlement in the New Jersey action.)
SNP alleges that at no time before the Krafts signed the
contingent fee agreement with SNP did SNP have any relationship
with Plaintiff.

Moreover, there was no contract, oral or

written, between the Kraft family members and Plaintiff.

Any

work Plaintiff did was done at no charge because he was a family
member and he had informed the Krafts of this.4

SNP further

alleges that Plaintiff has wrongfully attempted to bribe the
Krafts with money if they would support his claim for attorneys
fees.

SNP alleges that Kane is interfering with its attorney-

client relationship with the Kraft family by making unfounded
claims for attorneys fees from a portion of the settlement
proceeds.
B.

Legal Analysis
Title 28, United States Code, Section 1404(a) permits a

district court to transfer a civil action for the convenience of

4

SNP also avers that any work done by Plaintiff was
unethical because he was not authorized to practice law in
California.
4

parties and witnesses or in the interest of justice, to another
district where the action may have been brought.

In assessing

whether a transfer is in the interest of justice, a court should
“consider both the private and public interests affected by the
transfer.”

Bus. Store, Inc. v. Mail Boxes Etc., No. 11-3662,

2012 WL 525966, at *3 (D.N.J. Feb. 16, 2012)(citation omitted).
The private interests include:
(1) plaintiff’s forum preference as manifested in the
original choice; (2) the defendant’s preference; (3)
whether the claim arose elsewhere; (4) the convenience
of the parties as indicated by their relative physical
and financial condition; (5) the convenience of the
witnesses (only to the extent that the witnesses may
actually be unavailable for trial in one of the fora;
and (6) the location of books and records (only to the
extent that the files could not be produced in the
alternative forum.)
Digital Tech. Licensing LLC v. Sprint Nextel Corp., No. 07-5432,
2011 WL 1899279, at *3 (D.N.J. May 19, 2011); see also Jumara v.
State Far Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).

The public

interests include: 1) the enforceability of the judgment; 2)
practical considerations that could make the trial easy,
expeditious or inexpensive; 3) any relative administrative
difficulty resulting from court congestion; 4) local interest in
deciding local controversies; 5) public policies of the fora; and
6) trial judge’s familiarity with the applicable state law in
diversity cases.

Jumara, 55 F.3d at 879-80.

Here, there is no question that venue is appropriate in the

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Central District of California because “a substantial part of the
events or omissions giving rise to the claim occurred” there.
See 28 U.S.C. § 1391(a)(2).

Specifically, Plaintiff contends

that Defendants breached a fee arrangement for services related
to a wrongful death and survival action in California.
i.

Private Factors

The private factors favor transfer to the Central District
of California.

The only factor that weighs against transfer in

this case is the Plaintiff’s choice of forum.
Plaintiff’s Choice of Forum
Although “the plaintiff’s choice of venue should not be
lightly disturbed,” Jumara, 55 F.3d at 879, that choice is not
dispositive.

Maximum Human Performance, Inc. v. Dymatize

Enterprises, Inc., 2009 U.S. Dist. LEXIS 76994 (D.N.J. Aug. 27,
2009).

Here, Plaintiff’s breach of contract claims arise out of

Defendants’ alleged non-payment of a referral fee for services
that Plaintiff performed, mostly in California.
Defendants’ Choice of Forum
Defendants’ choice of forum weighs in favor of transfer.
Indeed, prior to the filing of the within Complaint, SNP had
filed a lawsuit in the Central District of California dealing
with the same subject matter.

In the California action, SNP

alleges that Kane is interfering with its attorney-client
relationship with the Kraft family by insisting that he is owed a

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referral fee.
Whether The Claim Arose Elsewhere
The claim clearly arose in California.

Plaintiff alleges

that upon his transmittal letter to SNP, the parties agreed to a
fee arrangement.

The fee arrangement was for services rendered

in connection with a soon-to-be filed wrongful death and survivor
action.
Convenience of the Parties
Plaintiff avers that he was diagnosed with appendiceal
cancer in January, 2013, is on Social Security disability, and is
undergoing physical rehabilitation as a result of undergoing a
total hip replacement.

Although travel to California may be

difficult, Plaintiff has not indicated that he is financially
unable to travel or physically unable to travel after a
recuperation period.

Indeed, according to the Complaint, it

appears that despite his health condition Plaintiff, who has now
retained counsel, has been able to perform services in
California.

In contrast, Defendants deny that they have ever

traveled to New Jersey in connection with this matter.

This

factor weights in favor of transfer.
Convenience of the Witnesses
The Complaint sets forth all the various services performed
by Plaintiff in connection with the wrongful death action.
Although Plaintiff sets forth that several witnesses as to his

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services are in New Jersey, it is not clear that the testimony of
these witnesses is even relevant to the within dispute.
Assuming New Jersey Law applies,5 New Jersey Rule of
Professional Conduct (“RPC”) 1:39-6(d) provides an exception to
the requirement that the division of fees be in proportion to the
services performed by each lawyer under RPC 1.5(e).

However,

under RPC 1:39-6(d), a lawyer who agrees to share fees must have
the client’s informed consent to the arrangement.
McCay, 500 F. Supp. 2d 521, 526 (E.D. Pa. 2007).

Judge v.
“New Jersey

courts . . . take a dim view of fee-sharing arrangements that
plainly violate the Rules of Professional Conduct.”

Id.

Here,

the Kraft family denies that it ever consented to the alleged fee
referral agreement as alleged by Kane.
be the focus of the litigation.

This factual dispute will

If it is ultimately determined

that no such agreement existed, Plaintiff would not be entitled
to any fees as a matter of law.

Testimony of these witnesses

(who are in New Jersey and Pennsylvania) as to the hours of legal
work Plaintiff allegedly did would, thus, would be irrelevant.
Indeed, in Goldberger, Seligsohn & Sherwood, P.A. v. Baumgarten,
378 N.J. Super. 244 (App. Div. 2005), the court granted the
defendant’s motion for summary judgment and held that the

5

If New Jersey law does not apply but California law does,
Defendants allege that Plaintiff is not entitled to any fees
because he was engaged in the unauthorized practice of law.
8

attorney-plaintiff was not entitled to fees because there was “no
evidence that the clients were notified of the alleged fee
decision, nor [was] there any evidence that the clients consented
to the participation of all the lawyers involved.”

Id. at 252.

Moreover, compelling the attendance of the Kraft family
members in New Jersey to testify as witnesses with respect to
whether they, in fact, agreed to a fee splitting arrangement is
problematic as both Sheldon and Lynda Lou Kraft are located in
California and are beyond this Court’s subpoena power.

Fed. R.

Civ. P. 45(c); See, Shapiro Decl. ¶ 13.
Location of Books and Records
Because so much is stored electronically, this factor is
neutral.
ii.

The Public Factors

For similar reasons the public factors favor transfer.

To

permit two cases involving practically the same issues to be
simultaneously pending in different District Courts is wasteful
in time, energy and money.

See Continental Grain Co. V. Barge

FBL-585, 364 U.S. 19, 26 (1960).

“[I]t is in the interests of

justice to permit suits involving the same parties and issues to
proceed before one court and not simultaneously before two
tribunals.”

Job Haines Home for the Aged v. Young, 936 F. Supp.

223, 233 (D.N.J. 1996)(quoting Ricoh Co. v. Honeywell, Inc., F.
Supp. 473, 487 (D.N.J. 1993)).

The fact that there is already a

9

pending California action related to the same subject matter,
i.e., the existence or non-existence of a contract, dictates that
this controversy should be litigated in one forum where the claim
arose.6

This case involves a tragic accident that occurred in

California and the legal services performed as a result of the
ensuing litigation.

There is more of a local interest to have

this matter decided in California.

Finally, even assuming New

Jersey law applies, the District Court in California is fully
capable of applying settled New Jersey law.
Accordingly, after having considered the foregoing private
and public factors, the Court finds it appropriate to transfer
this action to the Central District of California pursuant to
Section 1404(a).7
s/Renée Marie Bumb
RENÉE MARIE BUMB

6

Defendants contend that this matter should also be
transferred pursuant to the “first-to-file rule.” This rule
applies where actions are truly duplicative such that a
determination in one leaves little to be determined in the other
action, though the issues and parties need not be identical. See
Wheaton Ind. Inc., v. Aalto Scientific, Ltd., No. 12-6965, 2013
U.S. Dist. LEXIS 118524, at *6 (D.N.J. Aug. 21, 2013). As the
first-to-file rule calls on the Court to examine the same factors
as a Section 1404(a) analysis, see id., this Court finds that it
need not engage in a separate first-to-file analysis.
7

The Court also ordered the Defendants to inform the Court
of the citizenship of the parties. Defendants have clarified the
citizenship of the parties. See Declaration of Robert Stoll, Jr.,
Docket No. 9. Because there is complete diversity of
citizenship, removal was proper. Plaintiff’s Motion to Remand is
denied.
10

United States District Judge
Dated: June 27, 2014

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