Novel v. Lowe et al

Filing 45

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Defendants' Motions, insofar as they seek transfer of venue to the Southern District of Ohio (Dkt. Nos. 16 , 28 , 35 ), are GRANTED; and the Court further ORDERS Defendants remaining motions (Dkt. Nos. 24 , 27 ) are DENIED without prejudice; and the Court further ORDERS that the Clerk of Court shall electronically transfer this action to the United States District Court for the Southern District of Ohio; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 6/24/2013. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SUR G. NOVEL,
Plaintiff,
vs.

1:12-CV-01447
(MAD/RFT)

WILLIAM DOUGLAS LOWE; REESE, PYLE,
DRAKE, & MEYER, PLL; PATRICK M.
MCGRATH; THE GLEN GALLWITZ LIVING
TRUST; THE ESTATE OF GLEN GALLWITZ;
WAYNE GALLWITZ; PAUL A. GALLWITZ;
DAVID R. GALLWITZ; MARY ANN TEET, RAY
S. GALLWITZ; EARL R. GALLWITZ; BETTY
SUE STREET; BRITTNEY BALLINGER; KEVIN
GALLWITZ; CRYSTAL GALLWITZ; JEFFERY
A. ZAPOR; DAVID C. MORRISON; AND FRED
W. MANKINS,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

SUR G. NOVEL
Empire Tower 47th Floor RWE
195 S. Sathorn Road
Yannawa, Bangkok, Thailand 10120
Plaintiff pro se
O'CONNOR, O'CONNOR,
BRESEE, & FIRST, P.C.
20 Corporate Woods Boulevard
Albany, New York 12211
Attorneys for Defendants William Douglas Lowe
and Reese, Pyle, Drake, & Meyer, PLL

MARGARET E. DUNHAM, ESQ.

DEVINE, MARKOVITS,
& SNYDER, L.L.P.
52 Corporate Circle, Suite 207
Albany, New York 12203
Attorneys for Defendant Patrick M. McGrath

THOMAS A. SNYDER, ESQ.

JAMES E. ARNOLD & ASSOCIATES, LPA
115 West Main Street
4th Floor
Columbus, Ohio 43215
Pro Hac Vice Attorneys for Defendant
Patrick M. McGrath

ALVIN E. MATTHEWS, ESQ.
CRYSTAL R. RITCHIE, ESQ.

HACKER & MURPHY, LLP
JOHN F. HARWICK, ESQ.
7 Airport Park Boulevard
THOMAS J. HIGGS, ESQ.
Latham, New York 12110
Attorneys for Defendants The Glen Gallwitz Living
Trust, Estate of Glen Gallwitz, Wayne E. Gallwitz,
Paul A. Gallwitz, David R. Gallwitz, Mary Ann
Teet, Earl R. Gallwitz, and Brittney Ballinger
LEWIS, BRISBOIS, BISGAARD &
PETER T. SHAPIRO, ESQ.
SMITH, LLP
77 Water Street, 21st Floor
New York, New York 10005
Attorneys for Defendants Ray Gallwitz, Betty Sue
Street, Kevin Gallwitz, and Crystal Gallwitz
Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Sur G. Novel ("Plaintiff") initiated the present action pro se on September 19,
2012; he submitted an amended complaint on November 7, 2012 to include additional
Defendants. See Dkt. No. 5 at 1-3.1 Plaintiff alleges eleven counts against eighteen different
Defendants: malicious prosecution, breach of contract, violation of federal and antitrust laws,
negligence, fraud, interference with the right of sepulcher, and unauthorized practice of law and
professional misconduct. See id. at 7, 16, 22, 26, 29, 34, 45, 50, 55-56, 59.
Presently before the Court are motions by fifteen of the eighteen Defendants.

To avoid confusion, anytime the Court references a specific page number for an entry on
the docket, it will cite to the page number assigned by the Court's electronic filing system.
1

2

Defendants Ray S. Gallwitz, Betty Sue Street, Crystal Gallwitz, and Kevin Gallwitz move
for an order seeking the following relief: (1) dismissing Plaintiff's amended complaint for the
Court's lack of in personam jurisdiction over Defendants pursuant to Fed. R. Civ. P. 12(b)(2); (2)
dismissing Plaintiff's amended complaint for improper venue, pursuant to Fed. R. Civ. P.
12(b)(3); or, in the alternative, (3) transferring venue pursuant to 28 U.S.C. § 1404(a). These
Defendants also seek a stay on discovery pursuant to Fed. R. Civ. P. 26(c). See Dkt. No. 21 at 2.
Defendant Patrick McGrath moves for an order: (1) dismissing Plaintiff's amended
complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P.
12(b)(6); (2) dismissing Plaintiff's amended complaint because Defendant McGrath enjoys
judicial immunity; (3) dismissing Plaintiff's amended complaint for the Court's lack of in
personam jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2); and (4) dismissing Plaintiff's amended
complaint for improper venue pursuant to Fed. R. Civ. P. 12(b)(3).2 See Dkt. No. 27 at 3.
Defendants William M. Douglas and Reese, Pyle, Drake, & Meyer, PLL move for an
order: (1) dismissing Plaintiff's amended complaint for the Court's lack of in personam
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2); (2) dismissing Plaintiff's complaint for improper
venue pursuant to Fed. R. Civ. P. 12(b)(3); (3) dismissing Plaintiff's complaint for failure to state
a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6); or, in the
alternative, (4) transferring venue to the United States District Court for the Southern District of
Ohio pursuant to 28 U.S.C. § 1404(a). See Dkt. No. 28-8 at 3.
Defendants The Glen Gallwitz Living Trust, Estate of Glen Gallwitz, Wayne E. Gallwitz,
Paul A. Gallwitz, David R. Gallwitz, David R. Gallwitz, Mary Anne Teet, Earl R. Gallwitz, and

Defendant McGrath also asserts that while he believes it is in the interest of justice to
dismiss for improper venue, if the Court does not dismiss, the action should be transferred to the
Southern District of Ohio pursuant to 28 U.S.C. § 1404(a). See Dkt. No. 44 at 6, n.2.
2

3

Brittney Ballinger move for an order: (1) dismissing Plaintiff's amended complaint for the Court's
lack of in personam jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2); (2) dismissing Plaintiff's
amended complaint for improper venue pursuant to Fed. R. Civ. P. 12(b)(3); (3) dismissing for
improper service pursuant to Fed. R. Civ. P. 12(b)(5); or, in the alternative, (4) transferring venue
to the United States District Court for the Southern District of Ohio pursuant to 28 U.S.C. §
1404(a). See Dkt. No. 35-11 at 5, 15.
Plaintiff has opposed Defendants' motions. See generally, Dkt. Nos. 39; 41.

II. BACKGROUND
The facts of this case are taken from Plaintiff's amended complaint and are, for the
purposes of Defendants' motions, presumed to be true. Plaintiff is a United States citizen
permanently residing in Bangkok, Thailand. See Dkt. No. 5 at 7, 39. Plaintiff attended high
school, college, and law school in Ohio. See id. at 39. He then moved to New York State to take
the New York State Bar exam, which he passed in 2002. See id. at 7, 9. Plaintiff retains
residences in both Brooklyn, New York, and Hoboken, New Jersey, but has lived and worked in
Thailand since either 2001 or 2002.3 See id. at 5, 9, 39; Dkt. No. 5-2 at 1.
William Douglas Lowe ("Lowe") is a lawyer working and residing in Ohio. See id. at 7.
Lowe represented some of the other defendants in Ohio claims. See id. at 11. Reese, Pyle, Drake,
& Meyer, PLL ("Reese Pyle") is a law firm with its head office in Newark, Ohio. See id. Lowe is
a lawyer at Reese Pyle. See id. Judge Patrick M. McGrath ("McGrath") is a retired Ohio judge
residing in Ohio. See id. The Glen Gallwitz Living Trust ("The Trust") is an Ohio trust; its
trustee is Wayne Gallwitz ("W. Gallwitz"), an Ohio resident. See id. The Estate of Glen Gallwitz

Plaintiff asserts he was permanently in New York State until 2002, but later states he has
lived in Thailand since 2001. See Dkt. No. 5 at 5, 39.
3

4

("The Estate") is an Ohio estate; its executor is W. Gallwitz. See id. at 8. W. Gallwitz, Paul A.
Gallwitz ("P. Gallwitz"), David R. Gallwitz ("D. Gallwitz"), Mary Ann Teet ("Teet"), Ray S.
Gallwitz ("R. Gallwitz"), Earl R. Gallwitz ("E. Gallwitz"), Betty Sue Street ("Street"), and
Brittney Ballinger ("Ballinger") are all residents of Ohio and beneficiaries of The Trust and The
Estate. See id. at 8-9. Kevin Gallwitz ("K. Gallwitz") and Crystal Gallwitz ("C. Gallwitz") are
married Ohio residents. See id. at 9. Jeffery A. Zapor ("Zapor") represented some of the other
defendants in Ohio claims. See id. at 11. David C. Morrison ("Morrison") and Fred W. Mankins
("Mankins") are listed as Defendants in the amended complaint, but Plaintiff fails to provide any
details about these individuals or allege conduct in which they engaged. Plaintiff also does not
include the residences of Zapor, Morrison, or Mankins.
Plaintiff's grandmother, Carrie Gallwitz, married Glen Gallwitz in 1989. See Dkt. No. 5 at
29. The couple signed a prenuptial agreement in Ohio prohibiting any legal challenges to each
others' last will and testament.4 See id. at 29, 87. Eleven years later, Plaintiff became Trustee of
the Carrie Gallwitz Living Trust. See id. at 9. Carrie Gallwitz died on August 20, 2007, leaving
behind real property in Ohio. See id. at 10. Both Plaintiff and Glen Gallwitz claimed ownership
of the property. See id. As a result, litigation ensued between the two parties. On October 5,
2007, Glen Gallwitz filed a quiet title action in the Knox County, Ohio Court of Common Pleas
against Plaintiff (as an individual and as Trustee of the Carrie Gallwitz Living Trust). See id.
The court then, at Glen Gallwitz's request, placed a temporary injunction on the property,
enjoining Plaintiff from selling, mortgaging, or encumbering the estate and from evicting Glen
Gallwitz. See id. at 10. The injunction was made permanent in November 2007, and lasted until

Plaintiff alleges that this agreement and Carrie Gallwitz's will were concealed initially by
Glen Gallwitz. See Dkt. No. 5 at 31.
4

5

November 2009. See id. at 10-12. Glen Gallwitz died on July 2, 2009, and later that year, on
October 28, all parties involved in the property dispute reached a settlement agreement.5 See id.
In addition to the property disputes between the parties, actions were also filed against
Plaintiff's mother. See id. at 27. On November 30, 2007, Glen Gallwitz filed an action to reopen
the Estate of Carrie Gallwitz to bring an action against Plaintiff's mother, Executrix of Carrie
Galliwtz's will, for misappropriation of $40,000. See id. at 30. In 2009, this claim was dismissed
in favor of Plaintiff and his mother. See id. at 32. On May 3, 2010, Lowe, Reese Pyle, and The
Estate obtained an order indebting her to The Estate, and a year later, obtained an order to
foreclose on her house in order to pay that debt. See id. at 27.
Throughout the litigation over the disputed property, Glen Gallwitz retained different
counsel, including Zapor and Lowe. See id. at 11. On March 31, 2010, Plaintiff, acting pro se,
initiated a suit against Zapor, alleging professional misconduct, fraud, and abuse of process. See
id. at 22. Plaintiff requested that Lowe and W. Gallwitz voluntarily cooperate with his action;
after they refused, Plaintiff issued them subpoenas. See id. at 23. In response, Lowe and Reese
Pyle moved to quash the subpoenas and accused Plaintiff of unauthorized practice of the law. See
id. at 24. On March 10, 2011, Judge McGrath was assigned, after numerous judges recused
themselves, to Plaintiff's case against Zapor. See id. at 38. On April 12, 2011, Judge McGrath
dismissed the case, concluding Plaintiff could not appear Pro Hac Vice, and that Plaintiff was
engaged in the unauthorized practice of law. See id at 39, 41-42. In 2011, disciplinary
proceedings were initiated against Plaintiff in both Ohio and New York regarding unauthorized
practice of the law in Ohio. See id. at 13-14. According to Plaintiff, both proceedings were

Plaintiff asserts that he, Lowe, W. Gallwitz, The Trust, and The Estate were all parties to
the agreement, requiring all of them to agree not to bring any actions on behalf of The Estate
against any parties released by the agreement. See Dkt. No. 5 at 16-20.
5

6

initiated by Lowe, possibly on behalf of members of the Gallwitz family. See id at 13-14, 59.
Lowe traveled to New York on October 23, 2012 to testify at a disciplinary hearing against
Plaintiff.6 See id. at 57. The disciplinary hearing occurred a week before Plaintiff's father's
original funeral and memorial date. See id. at 56.
Plaintiff asserts that eleven claims have arisen from these actions. Count 1 alleges
malicious prosecution against Lowe.7 See id. at 6, 14. Counts 2 , 3, and 4 all allege breach of
contract of the October 2009 settlement agreement.8 See id. at 16, 22, 26. Count 5 alleges breach
of contract of the prenuptial agreement of Carrie Gallwitz and Glen Gallwitz against The Estate
and The Trust.9 See id. at 29. Count 6 alleges violation of United States Federal and Antitrust
Laws against Judge McGrath.10 See id. at 34, 41-44. Count 7 alleges negligence against The
Lowe is the only Defendant who traveled to New York for the disciplinary hearing.

6

Plaintiff asserts that Lowe acted with malice during the dispute over Carrie Gallwitz's
property and when he initiated disciplinary hearings against him in both Ohio and in New York.
See Dkt. No. 5 at 14-15.
7

In Count 2, Plaintiff asserts that The Estate and The Trust breached when they enticed
Lowe and Reese Pyle to file disciplinary actions against Plaintiff in Ohio and New York. See
Dkt. No. 5 at 20. In Count 3, Plaintiff asserts that Lowe, Reese Pyle, The Estate, and The Trust
breached by failing to cooperate with Plaintiff in his suits subsequent to the settlement agreement,
by trying to force Plaintiff to claim Glen Gallwitz owned the former disputed property in fee
simple, and by causing Plaintiff to lose opportunities to sell the former disputed property. See id.
at 24-25. In Count 4, Plaintiff asserts that Lowe, Reese Pyle, The Estate, and The Trust breached
by failing to acquit Plaintiff's mother of their causes of action against her and by attempting to
foreclose on Plaintiff's mother's home to pay a debt she owed to The Estate. See id. at 27-28.
8

Plaintiff asserts The Trust and The Estate breached by bringing claims regarding the
disputed property, by concealing the prenuptial agreement along with other documents, for filing
an illegally backdated quit claim deed, and by filing a disciplinary action in Ohio and in New
York against Plaintiff. See Dkt. No. 5 at 32-33.
9

Plaintiff asserts McGrath violated United States antitrust laws when he dismissed
Plaintiff's case against Zapor for Plaintiff's unauthorized practice of the law in Ohio because the
ruling restricts competition in Ohio by an attorney licensed in a different state, drives up the legal
costs for out-of-state litigants, ignored the fact that the party filing the allegations was not a
consumer of Plaintiff's legal services, ignored Plaintiff's New York licence and Pro Hac Vice
10

7

Trust, The Estate, W. Gallwitz, P. Gallwitz, D. Gallwitz, Teet, R. Gallwitz, E. Gallwitz, Street,
and Ballinger.11 See id. at 49. Counts 8 and 9 allege fraud against Defendants Lowe, Reese Pyle,
W. Gallwitz, Street, R. Gallwitz, K. Gallwitz, and C. Gallwitz.12 See id. at 50, 53-55. Count 10
alleges interference with Plaintiff's right of sepulcher against "Defendants."13 See id. at 56, 58.
Count 11 alleges unauthorized practice of law in New York and professional misconduct against
Lowe.14 See id. at 59-60.
motion, ignored Plaintiff's agreement with an Ohio attorney to assist and associate with Plaintiff,
ignored the Ohio attorney's Notice of Appearance, applied the incorrect Pro Hac Vice rules, and
is being used against Plaintiff in his New York disciplinary action. See Dkt. No. 5 at 41-43.
Plaintiff asserts McGrath violated United States federal laws by failing his duty to report and not
compound the unlawful acts of a convicted felon, engaging in "ex-parte" communications with
another judge and opposing counsel, acting under color of law when he acted, failing to serve a
judgment entry to a defendant, and by using the United States Mail Service to further his
dismissal of Plaintiff's case. See id. at 43-44.
Plaintiff asserts that The Trust, The Estate, and their beneficiaries owed Plaintiff a duty
not to bring actions or entice others to bring actions against Plaintiff. See Dkt. No. 5 at 48. He
alleges that these defendants breached this duty in numerous ways, including enticing Lowe and
Reese Pyle to initiate the disciplinary proceedings in Ohio and New York. See id. at 48-49. He
also asserts that Glen Gallwitz owed him, as Trustee of Carrie Gallwitz's estate, a duty not to
bring frivolous litigation, not to conceal documents, not to forge or backdate documents, not to
conceal marital assets, and not to misappropriate Carrie Gallwitz's savings after her death. See id.
at 45. He alleges these duties were breached in numerous ways. See generally id. at 45-48.
11

In Count 8, Plaintiff asserts that Lowe, Reese Pyle, W. Gallwitz, Street. K. Gallwitz, and
C. Gallwitz acted to hinder the prosecution of a crime or assisted in committing a crime, enabled
each other to avoid apprehension, failed to disclose facts and documents material to lawsuits,
concealed and destroyed evidence and convinced others to do so, and communicated false
information to the courts and Plaintiff. See Dkt. No. 5 at 50-51. Plaintiff specifically enumerates
his allegations against each defendant thereafter. See generally id. at 51-54. In Count 9, Plaintiff
asserts Lowe, Reese Pyle, and W. Gallwitz knowingly made false statements to a court of law.
See id. at 55.
12

Plaintiff asserts that unnamed Defendants' unlawful actions forced him to put his father's
funeral and memorial on hold due to lack of funds. See Dkt. No. 5 at 58.
13

Plaintiff asserts Lowe was representing members of the Gallwitz family illegally when
he filed documents in New York regarding disciplinary actions against Plaintiff. See Dkt. No. 5
at 59. He also asserts Lowe made intentional misrepresentations to the Committee on
Professional Standards, New York, Third Judicial Department. See id. at 60.
14

8

III. DISCUSSION
A.

Defendants' Motion to Transfer Venue to the United States District Court for the
Southern District of Ohio
Defendants argue that this action should be transferred to the United States District Court

for the Southern District of Ohio pursuant to 28 U.S.C. § 1404(a). Defendants assert a venue
transfer will promote the interests of justice and convenience for the parties and witnesses.
Plaintiff disagrees, arguing his choice of forum should not be disturbed.
Under 28 U.S.C. § 1404(a), "for 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, or to any district or division to which all parties have consented." 28
U.S.C. § 1404(a) (2013). This section, "reflects an increased desire to have federal civil suits
tried in the federal system at the place called for in the particular case by considerations of
convenience and justice . . . To this end it empowers a district court to transfer any 'civil action'
to another district court if the transfer is warranted by the convenience of parties and witnesses
and promotes the interest of justice." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964).
"'[M]otions for transfer lie within the broad discretion of the district court and are determined
upon notions of convenience and fairness on a case-by-case basis.'" View 360 Solutions, LLC v.
Google, Inc., No. 1:12CV1352(GTS/TWD), 2013 U.S. Dist. LEXIS 34480, *3 (N.D.N.Y. Mar.
13, 2013) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992)) (citation
omitted).
In considering a transfer of venue, the Court must determine: "(1) whether the action
sought to be transferred is one that 'might have been brought' in the transferee court; and (2)
whether, considering the 'convenience of parties and witnesses,' and the interests of justice, a
9

transfer is appropriate." Litton v. Avomex, Inc., No. 08CV1340(NAM/DRH), 2010 U.S. Dist.
LEXIS 2881, *39 (N.D.N.Y. Jan. 14, 2010) (quotation omitted). The moving party has the
burden of proving a § 1404(a) venue transfer meets these elements. See id. (citation omitted).

1. Whether the action might have been brought.
To determine whether this action might have been brought in the Southern District of
Ohio, the Court must consider whether it is the proper venue, and whether the district had in
personam jurisdiction over Defendants and subject matter jurisdiction when the action was
commenced. See Anglo Am. Ins. Group, PLC v. CalFed, Inc., 916 F. Supp. 1324, 1330 (S.D.N.Y.
1996). Plaintiff contests neither the Southern District of Ohio's in personam jurisdiction over
Defendants, nor subject matter jurisdiction over his claims.
Plaintiff appears to contest whether the Southern District of Ohio is a venue where the
claim might have been brought. See Dkt. No. 39 at 26; Dkt. 41 at 22. To determine whether
Plaintiff might have brought this action in the Southern District of Ohio, the Court must consider
whether it is "a judicial district in which a substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property that is the subject of the action is situated."
28 U.S.C. § 1391(b)(2) (2013). "The statutory standard for venue focuses . . . on the location
where the events occurred . . . [and the court] must determine only whether a substantial part of
the events giving rise to the claim occurred in [the district]." Bates v. C & S Adjusters, Inc., 980
F.2d 865, 868 (2d Cir. 1992) (quotations omitted). In most instances, the "substantial"
requirement is "meant to protect defendants against the risk that a plaintiff will select an unfair or
inconvenient place for trial." Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir.
1992) (citing Leroy v. Great W. United Corp., 443 U.S. 173 (1979)). "'Substantiality' for venue
purposes is more a qualitative than quantitative inquiry, determined by assessing the overall
10

nature of the plaintiff's claims and the nature of the specific events or omissions in the forum."
Id. at 432-33 (citations omitted).
In Plaintiff's replies to Defendants' motions, he asserts the venue should not be transferred
because the disciplinary hearing initiated against him in New York is a "substantial event." See
Dkt. No. 39 at 26; see also Dkt. No. 41 at 22. Plaintiff also, however, alleges that seven lawsuits
were filed against him and his mother by Defendants. See Dkt. No. 29 at 25. The disciplinary
hearing is only one of those seven, and Plaintiff admits that the disciplinary hearing arose from
actions and disputes in Ohio. See Dkt. No. 39 at 25, 29; see also Dkt. No. 41 at 24. Looking at
the overall nature of Plaintiff's amended complaint, a substantial part of the events giving rise to
Plaintiff's eleven claims occurred in Ohio, including the settlement agreement and its alleged
breach, the prenuptial agreement and its alleged breach, the property dispute, and prior lawsuits.
Thus, venue would have been appropriate in the Southern District of Ohio.

2. Whether the convenience of parties and witnesses and the interests of justice make
transfer is appropriate.
To determine whether a transfer to the Southern District of Ohio is appropriate
considering the convenience of parties and witnesses and the interests of justice, the Court will
weigh relevant factors, including,
(1) the plaintiff's choice of forum, (2) the convenience of the
witnesses, (3) the location of relevant documents and relative ease
of access to sources of proof, (4) the convenience of parties, (5) the
locus of operative facts, (6) the availability of process to compel the
attendance of unwilling witnesses, and (7) the relative means of the
parties.
D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006) (citing Albert Fadem Trust v.
Duke Energy Corp., 214 F. Supp. 2d 341, 343 (S.D.N.Y. 2002)). There is no strict formula for
the application of these factors. See, e.g., Indian Harbor Ins. Co. v. Factory Mut. Ins. Co., 419 F.
11

Supp. 2d 395, 402 (S.D.N.Y. 2005); Andrews v. A.C. Roman & Assocs., No. 5:12CV551, 2012
U.S. Dist. LEXIS No. 180014, *14-15 (N.D.N.Y. Dec. 20, 2012). Instead, the Court will balance
these factors to determine the appropriate forum. See Emplrs. Ins. v. Fox Entm't Group, Inc., 522
F.3d 271, 275 (2d Cir. 2008).

a. Plaintiff's choice of forum.
While a plaintiff's choice of forum usually receives greater weight than other factors, its
weight diminishes when the facts demonstrate little material relation or significant connection to
the plaintiff's chosen forum. See, e.g., Andrews, No. 5:12CV551, 2012 U.S. Dist. LEXIS 180014,
*14 (citing Ramos De Almeida v. Powell, No. 01CV11630, 2002 U.S. Dist. LEXIS 24200, *4
(S.D.N.Y. Dec. 16, 2002); see also Romano v. Banc of Am. Ins. Servs., 528 F. Supp. 2d 127, 13031 (E.D.N.Y. 2007). The choice receives even less weight when the plaintiff does not reside in
his chosen forum. See, e.g., Morales v. Navieras de Puerto Rico, 713 F. Supp. 711, 713
(S.D.N.Y. 1989).
The facts of Plaintiff's case have little relation or connection to the Northern District of
New York. Plaintiff's status as a licensed New York State attorney and the disciplinary
proceeding initiated against him in New York State are the only connections to the Northern
District of New York in this matter. See Dkt. No. 39 at 28. The core of Plaintiff's claims arise
from facts related to Ohio contracts, property, and lawsuits. See, generally., Dkt. No. 5. Even the
disciplinary proceeding initiated against him in New York State occurred because of actions taken
in Ohio. See Dkt. No. 39 at 29; see also Dkt. No. 41 at 24. Furthermore, Plaintiff does not reside
in his chosen forum; he permanently resides in Thailand. See, Dkt. No. 5 at 3, 7, 10, 39. Since
the core facts bear little relation or connection with the Northern District of New York and
Plaintiff does not reside in the Northern District of New York, his chosen forum, Plaintiff's choice
12

does not receive great weight. Thus, this factor favors transfer.

b. Convenience of witnesses
The convenience of witnesses, both party and nonparty, is one of the most important
factors in determining whether to transfer venue. See, e.g., Litton, 2010 U.S. Dist. LEXIS 2881 at
*41; Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 988 (E.D.N.Y. 1991). To satisfy this
factor, movants must provide detailed factual statements of "potential principal witnesses
expected to be called and a general statement of the substance of their testimony." Hernandez,
761 F. Supp. at 987. It is not enough for a party to list witnesses living near the forum without
enumerating the importance of their testimony. See Litton, 2010 U.S. Dist. LEXIS 2881, at *42
(citing Kwartra v. MCI, Inc., No. 96CIV2491(DC), 1996 U.S. Dist. LEXIS 17883, *2 (S.D.N.Y.
1996)).
Neither Plaintiff nor Defendants provide general statements of witness testimony in their
affidavits. While Plaintiff lists witnesses living in and around New York, he fails to demonstrate
the importance of their testimony. See Dkt. No. 39 at 20. Defendants assert they are unaware of
any non-party witnesses in New York State, but that they are aware of numerous non-party
witnesses in Ohio State. See Dkt. No. 17 at 4; Dkt. No. 18 at 4; Dkt. No. 19 at 4; Dkt. No. 20 at
3-4; Dkt. No. 27-4 at 17; Dkt. No. 28-3 at 6; Dkt. No. 35-5 at 4; Dkt. No. 35-6 at 3; Dkt. No. 35-7
at 3; Dkt. No. 35-8 at 3; Dkt. No. 35-9 at 3; Dkt. No. 35-10 at 3. Therefore, this factor is neutral
in the analysis. See Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 696
(S.D.N.Y. 2009).

c. Location of sources of proof.
Unlike the convenience of witnesses, the location of relevant documents is given little
13

weight in determining whether venue transfer is appropriate. See Litton, 2010 U.S. Dist. LEXIS
2881 at *48 (citing Aerotel Ltd. v. Sprint Corp., 100 F. Supp. 2d 189, 197 (S.D.N.Y. 2000)). A
party must demonstrate whether obtaining documents would be a burden without transfer. See id.
(citing Oubre v. Clinical Supplies Mgmt., Inc., 2005 U.S. Dist. LEXIS 28877 at *3 (S.D.N.Y.
2005)).
Neither party maintains there will be a burden in obtaining materials. Defendants assert
that pertinent materials are in Ohio, but do not allege any difficulty regarding transporting them to
New York. See Dkt. No. 17 at 3; Dkt. No. 18 at 3; Dkt. No. 19 at 3; Dkt. No. 20 at 3; Dkt. No.
28-3 at 6; Dkt. No. 35-5 at 4; Dkt. No. 35-6 at 3; Dkt. No. 35-7 at 3; Dkt. No. 35-8 at 3; Dkt. No.
35-9 at 3; Dkt. No. 35-10 at 3. Similarly, Plaintiff asserts no burden in obtaining or transporting
documents. See generally Dkt. No. 39. Therefore, this factor is neutral.

d. Convenience of the parties.
As to whether the convenience of the parties favors transfer, the Court first looks to the
residence of the parties, and then ensures an order of transfer would not simply switch the burden
of inconvenience from one party to another. See Hernandez, 761 F. Supp. at 988. (citations and
quotations omitted). None of the parties in this case reside in New York. The moving
Defendants are residents or entities organized under the laws of Ohio, and have lived there for
most of their lives. None of the moving Defendants has ever lived in New York. See Dkt. No. 17
at 1; Dkt. No. 18 at 1; Dkt. No. 19 at 2; Dkt. No. 20 at 1; Dkt. No. 27-4 at 1; Dkt. No. 28-3 at 2;
Dkt. No. 35-5 at 2; Dkt. No. 35-6 at 2; Dkt. No. 35-7 at 2; Dkt. No. 35-8 at 2; Dkt. No. 35-9 at 2;
Dkt. No. 35-10 at 2. Plaintiff is a resident of Bangkok, Thailand. See Dkt. No. 5 at 7. Moreover,
Plaintiff does not dispute that nothing in this case, other than the disciplinary hearing, occurred in
New York State. He connects events that occurred in Ohio to the disciplinary hearing, but does
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not assert any other connection arising from New York alone. Regardless of whether Plaintiff
travels from his residence to New York or to Ohio, he will encounter long travel time and the
same regional time difference. On the other hand, Defendants will have substantially less travel
time if the case is transferred to the Southern District of Ohio. Accordingly, this factor favors
transfer. See Hernandez, 761 F. Supp. at 988 (finding that this factor does not favor transfer
when a transfer provides no difference in convenience for the party requesting transfer).

e. Locus of operative events.
In considering where the operative events occurred, the Court considers whether a cause
of action arises from claims of alleged wrongdoing in the proposed transferee district. See Sheet
Metal Workers' Nat'l Pension Fund v. Gallagher, 669 F. Supp. 88, 92-93 (S.D.N.Y. 1987).
"Transfer is not precluded where the operative facts have some connection to the initial forum if
the transferee district has a stronger connection with the operative facts raised in the pleadings."
View 360 Solutions, LLC, 2013 U.S. Dist. LEXIS 34480, at *14 (citing Sheet Metal Workers'
Nat'l Pension Fund, 669 F. Supp. at 92-93).
Plaintiff's eleven counts stem from property disputes occurring in Ohio after the death of
Plaintiff's grandmother. Plaintiff asserts that the disputes in Ohio "proximately caused" the
disciplinary hearing in New York. See Dkt. No. 41 at 24. Besides the disciplinary hearing, the
other causes of action giving rise to Plaintiff's claims occurred in Ohio. For example, the
settlement agreement and prenuptial agreement are both documents forged in Ohio and allegedly
breached in Ohio, the fraud counts allegedly occurred in Ohio, the antitrust counts allegedly
occurred in Ohio courts, and much of the malicious prosecution count occurred in Ohio. While
the operative facts from the disciplinary hearing have a connection to the Northern District of
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New York, the Southern District of Ohio has a stronger connection with the operative facts in
Plaintiff's pleadings. Thus, this factor favors transfer.

f. Ability of the transferee court to compel unwilling witnesses.
"'In determining whether a change of venue is appropriate, the Court will . . . examine the
ability to compel the attendance of witnesses.'" View 360 Solutions LLC., 2013 U.S. Dist. LEXIS
34480, at *16 (quoting Neil Bros. Ltd. v. World Wide Lines, Inc., 425 F. Supp. 2d 325, 332-33
(E.D.N.Y. 2006)). A district court can compel the attendance of witnesses within the district or
within one hundred miles of the place specified in the subpoena. See Fed. R. Civ. P. 45(b)(2).
Defendants assert that they know of no witnesses to the claims outside of Ohio, and do not
allude to any unwilling witnesses. Plaintiff asserts that of his more than six witnesses, all reside
in or near New York, and that two of them are "very hostile," and from Albany, New York. See
Dkt. No. 39 at 20. Plaintiff states that former United States Attorney General Ramsey Clark is
one of his "primary 'non-hostile'" witnesses, who is currently a New York attorney. See id.
Plaintiff, however, fails to indicate how Mr. Clark's testimony is in any way relevant to Plaintiff's
claims, and the Court is at a loss to find any relevant connection. Similarly, Plaintiff names three
additional New York attorneys he claims that he intends to call as witnesses, but he provides no
indication how or why their testimony is relevant or necessary to support his claims. See id.
Since there is no indication that the two unnamed third-party "hostile" witnesses are material or
able to provide relevant testimony, this factor favors transfer. See ATEN Intern. Co. Ltd. v. Emine
Technology Co., Ltd., 261 F.R.D. 112, 124 (E.D. Tex. 2009) (citation omitted).

g. Relative means of the parties.
When there is a financial disparity between parties, the Court may consider their relative
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means to determine whether transfer is appropriate. See Hernandez, 761 F. Supp. at 989.
Plaintiff asserts he is paying back loans from college and law school, and that traveling to and
from Thailand is expensive. See Dkt. No. 5 at 57; Dkt. No. 39 at 26. Defendants assert traveling
to New York for litigation and absence from their jobs will be costly. See Dkt. No. 17 at 2; Dkt.
No. 18 at 3-4; Dkt. No. 19 at 3-4; Dkt. No. 20 at 3; Dkt. No. 27-4 at 3; Dkt. No. 28-3 at 6; Dkt.
No. 35-5 at 3; Dkt. No. 35-6 at 3; Dkt. No. 35-7 at 3; Dkt. No. 35-8 at 3; Dkt. No. 35-9 at 3; Dkt.
No. 35-10 at 3. Plaintiff, however, will have to travel from Thailand to prosecute this case
regardless of whether this case is tried in New York or Ohio.
Considering all of the relevant factors, the Court finds that Defendants have met their
burden of establishing that the Southern District of Ohio is the proper forum for this matter. It is
clear that the claims and parties in this matter have almost no relationship to New York or this
District. The Court will not determine the other substantive or procedural matters, leaving it to
the transferee venue for their consideration.
IV. CONCLUSION
After carefully reviewing the record in this matter, the parties' submissions, and the applicable
law, for the above-stated reasons, the Court hereby
ORDERS that Defendants' Motions, insofar as they seek transfer of venue to the Southern
District of Ohio (Dkt. Nos. 16, 28, 35), are GRANTED;15 and the Court further
ORDERS Defendants remaining motions are DENIED without prejudice; and the Court

Although not all Defendants moved for a transfer of venue, the Court may sua sponte
transfer a case "'[f]or the convenience of parties and witnesses,' and 'in the interest of justice[.]'"
Delgado v. Villanueva, No. 12 Civ. 3113, 2013 WL 3009649, *3 (S.D.N.Y. June 18, 2013)
(quotation and other citation omitted). Pursuant to section 1406, a district court may transfer a
case even when it lacks personal jurisdiction over some or all of the defendants. See 28 U.S.C. §
1406(a). Accordingly, the Court exercises its discretion pursuant to section 1404(a) to transfer
the entire case to the Southern District of Ohio. See Delgado, 2013 WL 3009649 at *5.
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further
ORDERS that the Clerk of Court shall electronically transfer this action to the United
States District Court for the Southern District of Ohio; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: June 24, 2013
Albany, New York

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