UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
____________________________________ ) THE AMERICAN CENTER FOR ) CIVIL JUSTICE, ) ) Plaintiff, ) ) v. ) Civil Action No. 09-0233 (PLF) ) JOSHUA M. AMBUSH, ESQ., ) ) Defendant. ) ____________________________________)
OPINION
On March 21, 2011, Magistrate Judge Deborah A. Robinson issued a
memorandum opinion and order in which she denied the motion of plaintiff, the American
Center for Civil Justice (“ACCJ”), for a stay of this case or, in the alternative, for a transfer to the
United States District Court for the District of Puerto Rico. See American Ctr. for Civil Justice
v. Ambush, Civil Action No. 09-0233, 2011 WL 971643, at *4 (D.D.C. Mar. 21, 2011). This
matter now is before the Court on ACCJ’s objection to that decision. Upon consideration of the
parties’ papers, the relevant legal authorities, and the entire record in this case, the Court
concludes that Magistrate Judge Robinson’s decision is neither clearly erroneous nor contrary to
law. Consequently, the Court will deny ACCJ’s objection, will affirm Magistrate Judge
Robinson’s decision, and will deny ACCJ’s motion for a stay or, in the alternative, for a transfer.1
1 The papers reviewed in connection with the pending motion include: plaintiff’s second amended complaint for declaratory judgment, permanent injunction, and damages (“Compl.”) [Dkt. No. 25]; defendant’s amended counterclaim for damages and declaratory relief (“Countercl.”) [Dkt. No. 87]; plaintiff’s motion for stay or, in the alternative, for transfer to the United States District Court for the District of Puerto Rico (“Stay/Transfer Mot.”) [Dkt. Nos. 95, I. BACKGROUND
Although the claims in this case are quite common — breach of contract, breach
of fiduciary duty, tortious interference with a contract or business expectancy, among others —
they ultimately arise out of an act of terrorism known as the Lod Airport Massacre. On May 30,
1972, three members of the Japanese Red Army, armed with submachine guns and hand
grenades, opened fire on passengers awaiting their baggage at the Lod International Airport,
located near Tel Aviv, Israel. See Compl. ¶ 14; see also Hernandez v. Air France, 545 F.2d 279,
281 (1st Cir. 1976).2 In total, 24 people were killed and 78 were wounded, many of whom were
Puerto Rican tourists on a pilgrimage trip to Israel. See Compl. ¶ 14; see also Hernandez v. Air
France, 545 F.2d at 281.
ACCJ, “a non-profit organization dedicated to recompense for victims of
terrorism,” Compl. ¶ 1, and Joshua M. Ambush, an attorney, originally worked together to help
pursue litigation on behalf of some of the Puerto Rican victims of this 1972 attack. See Compl.
¶ 18; Countercl. ¶ 5. In 2006, Mr. Ambush, on behalf of such victims and allegedly at the
96]; defendant’s opposition to plaintiff’s motion for stay or, in the alternative, for transfer (“Stay/Transfer Opp.”) [Dkt. No. 101]; plaintiff’s reply memorandum in support of its motion for stay or, in the alternative, for transfer (“Stay/Transfer Reply”) [Dkt. No. 103]; plaintiff’s supplemental memorandum in support of its motion for stay or, in the alternative, for transfer (“Pl. Supplemental Br.”) [Dkt. No. 104]; defendant’s response to plaintiff’s supplemental memorandum (“Def. Supplemental Br.”) [Dkt. No. 105]; plaintiff’s objection to Magistrate Judge Robinson’s March 21, 2011 memorandum opinion and order (“Objection”) [Dkt. No. 109]; defendant’s response to plaintiff’s objection to Magistrate Judge Robinson’s March 21, 2011 memorandum opinion and order (“Response”) [Dkt. No. 111]; and plaintiff’s reply in support of its objection to Magistrate Judge Robinson’s March 21, 2011 memorandum opinion and order (“Reply”) [Dkt. No. 112]. The Court also reviewed the transcript of the proceedings held before this Court on April 1, 2011, as well as the transcript of the proceedings held before Magistrate Judge Robinson on February 2, 2011. 2 This airport now is known as the Ben Gurion International Airport.
2 direction of ACCJ, filed suit in the United States District Court for the District of Columbia
against those purportedly responsible for the attack; that case was captioned Franqui v. Syria,
Civil Action No. 06-0734 (Walton, J.). Subsequently, one of the named defendants in Franqui v.
Syria, the government of Libya, established a $1.8 billion fund to compensate victims of state
sponsored terrorism, which included the 1972 attack. See Compl. ¶ 29; Countercl. ¶ 36. This
case is the result of a dispute between ACCJ and Mr. Ambush primarily over compensation
relating to disbursements from the $1.8 billion fund; it also involves various allegations of
tortious behavior. See generally Compl.; Countercl.
As ACCJ describes it, to accomplish the organization’s mission, it “enters into
written agreements with victims of terrorism or the estate representatives of murdered victims
(collectively, ‘claimants’),” whereby ACCJ “advances funds for litigation and retains law firms
and individual lawyers to prosecute the claims on behalf of” such claimants. Compl. ¶ 8. In
most instances, ACCJ “retains and supervises the efforts of counsel under a power of attorney
granted by [claimants] to a representative of [ACCJ] and advances the money for expenses and
experts as needed.” Id. In exchange, the claimants agree to pay ACCJ “20% of the net proceeds
of any recovery” and agree to reimburse ACCJ’s legal fees and expenses. Id. ¶ 9 (quotations
omitted). ACCJ emphasizes that, under the terms of these contracts, “payment of legal fees,
expenses, and pledges will not exceed 20% of the claimants’ recovery, enabling the claimant to
retain 80% of any recovery.” Id. ¶ 11; see also id. ¶ 9.
ACCJ alleges that, in 2001, it engaged Mr. Ambush to help pursue litigation on
behalf of victims of the Lod Airport Massacre and tasked him “with traveling to Puerto Rico,”
where he had spent part of his childhood, “to negotiate agreements between [ACCJ] and Puerto
3 Rican victims of the Lod Massacre.” Id. ¶ 19; see Countercl. ¶ 22. Mr. Ambush negotiated
agreements with ten Puerto Rican claimants: five claimant agreements were signed by
representatives of estates seeking wrongful death damages; five more were signed by victims
seeking compensation for physical injuries (collectively, the “Franqui claimants”). See Compl.
¶ 20; Countercl. ¶¶ 27, 28.
Subsequently, on April 21, 2006, Mr. Ambush — on behalf of victims of the Lod
Airport Massacre, including the Franqui claimants — filed a complaint in Franqui v. Syria
against, among others, the government of Libya. See Compl. ¶ 23; Countercl. ¶ 32. While
Franqui v. Syria was pending, Libya
entered into an agreement . . . whereby it would establish a fund in the amount of $1.8 billion . . . , to be administered by the United States Department of State, to compensate victims of terrorism sponsored by Libya. . . . The five Franqui wrongful death claimants would be entitled to approximately $10,000,000 each from the [f]und . . . . Additional sums of approximately $3,000,000 each [were] being made available . . . to compensate the personal injury claimants.
Compl. ¶ 29.
Thus, under the terms of the contracts that Mr. Ambush negotiated with the
Franqui claimants, ACCJ potentially would be entitled to more than $12 million. And with
millions of dollars now at stake, disputes between the parties arose over the issue of
compensation: specifically, whether Mr. Ambush was entitled to a portion of ACCJ’s total
recovery or only his hourly fees. See Compl. ¶¶ 29-31; Countercl. ¶¶ 34, 37-43. Furthermore,
ACCJ came to believe that Mr. Ambush “improperly induced each of the Franqui wrongful death
claimants and four of the personal injury claimants to revoke the powers of attorney that they had
4 granted to [ACCJ],” Compl. ¶ 36, and that Mr. Ambush “entered into agreements with [these]
claimants for a percentage share of their recovery in excess of the 20% of their recovery that is
payable to [ACCJ].” Id. ¶ 40.
The parties were unable to resolve their disputes and this litigation ensued. On
February 6, 2009, ACCJ filed suit against Mr. Ambush in this Court. After amending its
complaint twice, ACCJ asserts three claims against Mr. Ambush: it requests (1) a declaratory
judgment that Mr. Ambush is not entitled to compensation beyond his hourly rate for work
performed for ACCJ; (2) a claim for money damages for breach of fiduciary duty; and (3) a claim
for damages for tortious interference with a contract or business expectancy arising out of the
allegation that Mr. Ambush intentionally caused nine Franqui claimants to revoke the powers of
attorney previously granted to ACCJ. See id. ¶¶ 55-65. ACCJ also seeks injunctive relief. See
id. at 24-25. Mr. Ambush filed a counterclaim and subsequently filed an amended counterclaim
with leave of court. See generally Countercl.; see also Minute Entry, Sept. 30, 2010. Mr.
Ambush requests (1) a declaratory judgment; (2) a claim for money damages for breach of
contract; and (3) a claim for damages under quantum meruit. See Countcl. ¶¶ 56-69. Mr.
Ambush also appears to seek injunctive relief. See id. at 1.
Since the beginning of this case, “the often contentious litigation of this action has
proceeded apace.” American Ctr. for Civil Justice v. Ambush, 2011 WL 971643, at *1. Indeed,
as Magistrate Judge Robinson described,
[t]he litigation activity initiated by [ACCJ], in addition to the filing of the complaint . . . , includes — but is not limited to — the filing of an amended complaint; moving for a preliminary injunction; filing a second amended complaint; agreeing with [Mr. Ambush] to conduct discovery in two phases; moving for judgment on the
5 pleadings with respect to [Mr. Ambush’s] counterclaim; moving for [Magistrate Judge Robinson’s recusal]; moving to compel discovery[;] and filing an answer to [Mr. Ambush’s] amended counterclaim.
Id. (internal citations omitted). But on January 4, 2011 — after almost two years of vigorous
litigation — ACCJ requested that this case be stayed or transferred in light of the pendency of
Berganzo v. Ambush, Civil Action No. 10-1044, filed on January 25, 2010, in the United States
District Court for the District of Puerto Rico. See Stay/Transfer Mot. at 1-3. There, certain
Franqui claimants have filed suit against Mr. Ambush, seeking recovery of $2 million and
alleging that
[they] were led to believe by Mr. Ambush, through misrepresentations and nondisclosure by him and/or his agents, on the need to sign a certain additional “retainer agreement” for fees in excess of what the [plaintiffs] had originally agreed to pay [ACCJ] . . . , who had retained and was paying Mr. Ambush his legal fees for representing the [claimants in the Franqui v. Syria] action, a fact unbeknownst to plaintiffs.
See ACCJ’s Notice of Subsequent Developments, Ex. A, Complaint in Civil Action No. 10-1044
(D.P.R.) ¶ 2, Apr. 23, 2010 [Dkt. No. 69]. Thus, the plaintiffs in Berganzo request that the court
in Puerto Rico declare these purported retainer agreements null and void and request that the
court award damages. See id. ¶¶ 49, 52.
After briefing on ACCJ’s motion to stay or transfer was complete, Magistrate
Judge Robinson heard oral argument on February 2, 2011. See Minute Entry, Feb. 2, 2011; see
also Hr’g Tr., Feb. 2, 2011 [Dkt. No. 110]. On March 21, 2011, Magistrate Judge Robinson
denied ACCJ’s motion, concluding that ACCJ identified no ground warranting that this case be
stayed and that ACCJ had failed to carry its burden to show that a transfer was warranted. See
American Ctr. for Civil Justice v. Ambush, 2011 WL 971643, at *3-4.
6 On March 31, 2011, ACCJ filed a timely objection, and this Court held a status
conference the following day. See Minute Entry, Apr. 1, 2011. At that status, the parties
represented that Mr. Ambush was to be deposed in Berganzo v. Ambush on April 26, 2011.
Because Mr. Ambush’s deposition might assist the parties and the Court with respect to the issue
of ACCJ’s objection, the Court ordered that Mr. Ambush’s response to ACCJ’s objection would
not be due until May 27, 2011, one month after Mr. Ambush’s deposition in Berganzo. See
Minute Order, Apr. 1, 2011. Mr. Ambush since has been deposed and has filed his response to
ACCJ’s objection; ACCJ has filed its reply. Thus, this matter now is ripe for the Court’s
decision.
II. DISCUSSION
A. Standard of Review
The decision whether to stay or transfer a case is a non-dispositive matter
committed to the broad discretion of a district court. See Hisler v. Gallaudet Univ., 344 F. Supp.
2d 29, 35 (D.D.C. 2004); Levin v. Majestik Surface Corp., 654 F. Supp. 2d 12, 14-15 (D.D.C.
2009). Where, as here, a party timely objects to a magistrate judge’s decision with respect to a
non-dispositive matter, the Court must modify or set aside all or part of that decision if it is
“clearly erroneous” or “contrary to law.” FED . R. CIV . P. 72(a); see also LOC. CIV . R. 72.2(c).
The “clearly erroneous” standard “applies to factual findings and discretionary
decisions[.]” Coleman v. Sterling, Civil Action No. 09-1595, 2011 WL 2005227, at *2 (S.D.
Cal. May 23, 2011). Under that deferential standard, a magistrate judge’s factual findings or
discretionary decisions must be affirmed unless, “although there is evidence to support [them],
7 the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” Federal Savs. & Loan Ins. Corp. v. Commonwealth Land Title
Ins. Co., 130 F.R.D. 507, 508 (D.D.C. 1990) (internal quotations and citation omitted); see also
Beale v. District of Columbia, 545 F. Supp. 2d 8, 13 (D.D.C. 2008). The “contrary to law”
standard, by contrast, permits de novo review of a magistrate judge’s legal conclusions. See First
Am. Corp. v. Al-Nahyan, 2 F. Supp. 2d 58, 60 (D.D.C. 1998); see also Haines v. Liggett Group
Inc., 975 F.2d 81, 91 (3d Cir. 1992) (“[T]he phrase ‘contrary to law’ indicates plenary review as
to matters of law.”) (quoting FED . R. CIV . P. 72(a)).
B. Motion to Stay
As the Supreme Court has stated:
[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.
Landis v. North Am. Co., 299 U.S. 248, 254-55 (1936). Thus, whether to stay a case is a matter
committed to a district court’s broad discretion. See Hisler v. Gallaudet Univ., 344 F. Supp. 2d
at 35 (“A trial court has broad discretion to stay all proceedings in an action pending the
resolution of independent proceedings elsewhere.”). Nevertheless, if, upon a party’s request,
“there is even a fair possibility that the stay for which [the movant] prays will work damage to
someone else,” then the movant “must make out a clear case of hardship or inequity in being
required to go forward.” Landis v. North Am. Co., 299 U.S. at 255.
8 Magistrate Judge Robinson concluded that ACCJ identified no ground warranting
a stay and therefore denied ACCJ’s request. In its objection to Magistrate Judge Robinson’s
decision, ACCJ asserts that Magistrate Judge Robinson incorrectly concluded that this case and
Berganzo v. Ambush were not inextricably intertwined. See Objection at 5. According to ACCJ,
Magistrate Judge Robinson “overlooked that, [sic] all of the claimants in the underlying Franqui
litigation and witnesses to [Mr.] Ambush’s activities that are involved in the Berganzo action are
located in Puerto Rico.” Id. at 5. Moreover, ACCJ contends that a determination on the legality
of the retainer agreements that Mr. Ambush executed with the plaintiffs in Berganzo “will clearly
have a direct bearing on [ACCJ’s] claims that [Mr.] Ambush violated his fiduciary duty as an
agent of [ACCJ] and tortiously interfered with [ACCJ’s] relationships with the Franqui
claimants.” Id. at 6. Thus, ACCJ asserts that this case should be stayed until after the
completion of proceedings in Berganzo in order “[t]o preserve judicial resources, avoid
contradictory or inconsistent rulings and safeguard against the unnecessary expenditure of
resources on duplicate and costly discovery[.]” Id.3
The Court disagrees. Although this case and Berganzo v. Ambush may have some
interrelated issues, they certainly are not inextricably intertwined. First, it is undisputed that
ACCJ is not a party to Berganzo v. Ambush. Nor are the plaintiffs in Berganzo parties to this
case. And of the six claims and counterclaims made in this case, the issues raised in Berganzo v.
Ambush relate only, if at all, to two of such claims: ACCJ’s claims that Mr. Ambush breached
his fiduciary duty to them and tortiously interfered with their contract or business expectancy by
3 ACCJ notes that Berganzo v. Ambush now is scheduled for a four-day trial, beginning on September 19, 2011. See Reply at 4.
9 allegedly causing nine of the Franqui claimants to revoke the powers of attorney that they
previously granted to ACCJ. See Compl. ¶¶ 57, 64.
Even assuming, however, that the two cases are inextricably intertwined, ACCJ
“has failed to demonstrate how that fact serves to prejudice, or in any way disadvantage,
[ACCJ].” American Ctr. for Civil Justice, 2011 WL 971643, at *3. Indeed, as Magistrate Judge
Robinson concluded, “the only party who possibly could be prejudiced by the litigation of two
action[s] against him in two different districts” — Mr. Ambush — “opposes a stay.” Id. And
ACCJ “has made no effort to demonstrate that a stay of this action would further the court’s case
management objectives, or otherwise ensure a more fair and just resolution of this action.” Id.
Moreover, ACCJ’s argument with respect to duplicative and costly discovery is moot, “as the
Berganzo action had an effective discovery cut-off of April 30, 2011.” Response at 8. Any
purportedly overlapping discovery “has already been taken and can be used as appropriate in this
matter to avoid duplication.” Id. at 9.
Under these circumstances, ACCJ has failed to “make out a clear case of hardship
or inequity in being required to go forward.” Landis v. North Am. Co., 299 U.S. at 255. The
Court therefore concludes that Magistrate Judge Robinson’s decision denying ACCJ’s motion to
stay is neither clearly erroneous nor contrary to law.
C. Motion to Transfer
Section 1404(a) of Title 28 provides: “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.” 28 U.S.C. § 1404(a). A party requesting
10 such transfer “bears the burden of showing that transfer is proper.” Onyeneho v. Allstate Ins.
Co., 466 F. Supp. 2d 1, 3 (D.D.C. 2006).
It is established that Section 1404 imposes two threshold prerequisites to
transferability. Specifically, a court must find (1) that venue is “‘proper in the transferee
district’” and (2) that the defendant was “‘subject to the process of the federal court in the
transferee district at the time the action was originally filed.’” Levin v. Majestik Surface Corp.,
654 F. Supp. 2d at 15 (quoting Relf v. Gasch, 511 F.2d 804, 806-07 (D.C. Cir. 1975)); see
Jumpit, AS v. Why ASAP, LLC, Civil Action No. 04-1079, 2005 WL 607914, at *1-2 (D.D.C.
Mar. 16, 2005). Even if the moving party establishes the two prerequisites for transfer, “the
movant must still demonstrate that the ‘balance of convenience of the parties and witnesses and
the interest of justice are in [its] favor.’” Levin v. Majestik Surface Corp., 654 F. Supp. 2d at 15
(quoting Consolidated Metal Prods., Inc. v. American Petroleum Inst., 569 F. Supp. 773, 774
(D.D.C. 1983)) (alteration in original).
“Courts are afforded broad discretion to adjudicate motions for transfer based on
an ‘individualized, case-by-case consideration of convenience and fairness.’” Levin v. Majestik
Surface Corp., 654 F. Supp. 2d at 14-15 (quoting Van Dusen v. Barrack, 376 U.S. 612, 622
(1964)). Thus, “[w]hile the burden is on the moving party to demonstrate that the ‘balance and
convenience of the parties and witnesses and the interest of justice are in [its] favor,’ [a court]
has broad discretion to determine where the proper balance lies.” Rhee Bros, Inc. v. Seoul Shik
Poom, Inc., 869 F. Supp. 31, 33-34 (D.D.C. 1994) (quoting Armco Steel Co., L.P. v. CSX Corp.,
790 F. Supp. 311, 323 (D.D.C. 1991)).
11 In determining whether to transfer a case under Section 1404(a), a court may
weigh a number of factors, including:
“The convenience of the witnesses of plaintiff and defendant; ease of access to sources of proof; availability of compulsory process to compel the attendance of unwilling witnesses; the amount of expense for willing witnesses; the relative congestion of the calendars of potential transferee and transferor courts; and other practical aspect[s] of expeditiously and conveniently conducting a trial.”
Jumpit, AS v. Why ASAP, LLC, 2005 WL 607914, at *2 (quoting Chung v. Chrysler Corp.,
903 F. Supp. 160, 163-64 (D.D.C. 1995)). Probably the most critical of these factors “is the
convenience of the witnesses.” Rhee Bros, Inc. v. Seoul Shik Poom, Inc., 869 F. Supp. at 34; see
also JTH Tax, Inc. v. Lee, 482 F. Supp. 2d 731, 737 (E.D. Va. 2007). A plaintiff’s initial choice
of forum also will often be “of paramount consideration.” Levin v. Majestik Surface Corp.,
654 F. Supp. 2d at 16 (internal quotations and citation omitted). Yet deference to a plaintiff’s
choice of forum will be mitigated “where the forum has no meaningful ties to the controversy
and no particular interest in the parties or subject matter.” Id. (internal quotations and citations
omitted).
Magistrate Judge Robinson denied ACCJ’s request that she transfer this case to
the United States District Court for the District of Puerto Rico, concluding that ACCJ “failed to
carry its burden to show that the court should exercise its discretion” to transfer. American Ctr.
for Civil Justice v. Ambush, 2011 WL 971643, at *4.4 In its objection to Magistrate Judge
4 Magistrate Judge Robinson also found “troublesome” the procedural context in which ACCJ’s transfer request arose — as well as ACCJ’s failure to discuss that context in its papers. American Ctr. for Civil Justice v. Ambush, 2011 WL 971643, at *4. Under the terms of the Court’s Scheduling and Case Management Order, the parties were required to “file a joint request for referral to mediation” when ACCJ otherwise filed its request for transfer. Scheduling and Case Management Order ¶¶ 2, Aug. 5, 2009 [Dkt. No. 33]. Thus, Magistrate Judge Robinson found that a “transfer would frustrate the interest of justice by effectively allowing a party” — that is, ACCJ — “to opt out of the [C]ourt’s scheduling order.” American Ctr. for Civil Justice v. Ambush, 2011 WL 971643, at *4.
12 Robinson’s decision, ACCJ contends that Magistrate Judge Robinson “did not give appropriate
consideration to the [Section 1404(a)] factors[.]” Objection at 7 n.3. ACCJ admits that it is
“unusual” for a plaintiff to seek transfer of a case that it initiated. Objection at 8. It argues,
however, that transfer is appropriate here because
the witnesses are located in Puerto Rico and would be available to be deposed and to appear at trial. The conduct and activities that [Mr.] Ambush engaged in with the Franqui claimants, to the detriment of [ACCJ], took place in Puerto Rico. The representatives of [ACCJ] have consented to be deposed in Puerto Rico. Moreover, [Mr.] Ambush is already defending an action brought by the Berganzo complainants in the [d]istrict [c]ourt in Puerto Rico, he is actively engaged in discovery in that [c]ourt, and has already noticed the deposition of representatives of [ACCJ].
Id. at 10-11.
Again, the Court disagrees. First, ACCJ — the plaintiff in this case — chose this
forum when it filed its original complaint in this Court on February 6, 2009. In that complaint,
and in its two amendments, ACCJ asserts that “[v]enue lies in this district . . . because a
substantial part of the events giving rise to the claim occurred here.” Compl. ¶ 6. Moreover, as
Magistrate Judge Robinson noted,
[t]he litigation activity initiated by [ACCJ], in addition to the filing of the complaint . . . , includes — but is not limited to — the filing of an amended complaint; moving for a preliminary injunction; filing a second amended complaint; agreeing with [Mr. Ambush] to conduct discovery in two phases; moving for judgment on the pleadings with respect to [Mr. Ambush’s] counterclaim; moving for [Magistrate Judge Robinson’s recusal]; moving to compel discovery[;] and filing an answer to [Mr. Ambush’s] amended counterclaim.
American Ctr. for Civil Justice v. Ambush, 2011 WL 971643, at *1 (internal citations omitted).
The Court agrees with Magistrate Judge Robinson’s conclusion that ACCJ “has vigorously
13 litigated this action in this district, and has offered no reason that it cannot continue to do so.” Id.
at *4.
Second, and more important, although some witnesses in this case may be located
in Puerto Rico, ACCJ has not alleged that any of these potential witnesses would be unavailable
for trial here. See Response at 11. Moreover, Mr. Ambush points out that ACCJ’s initial
disclosure “lists eight possible witnesses [who] are not located in Puerto Rico.” Id. (emphasis
added).5 Furthermore, Mr. Ambush himself resides in Maryland, and ACCJ has its principal
place of business in New York. Thus, ACCJ entirely has failed to show that the consideration of
witness convenience — probably the most critical of the Section 1404(a) factors, see Rhee Bros,
Inc. v. Seoul Shik Poom, Inc., 869 F. Supp. at 34 — weighs in favor of transfer. The Court
therefore concludes that Magistrate Judge Robinson’s decision denying ACCJ’s motion to
transfer is neither clearly erroneous nor contrary to law.
5 As ACCJ’s counsel admitted at oral argument before Magistrate Judge Robinson: “We’re willing to make the representation that of the witnesses that we have identified in our initial disclosure, they are equally convenient to be deposed in Washington, D.C. as they are in Puerto Rico. Those that we have direct control over” — ACCJ employees — “we would make them available in Puerto Rico. . . . The other witnesses are in Toronto, Israel . . . and New York, and they are equally inconvenient to Washington, D.C. as they are to Puerto Rico, and they’ll be deposed wherever they are, so their status doesn’t make much difference.” Hr’g Tr. at 6:11-24, Feb. 2, 2011 [Dkt. No. 110] (emphasis added).
14 III. CONCLUSION
For the foregoing reasons, ACCJ’s objection to Magistrate Judge Robinson’s
memorandum opinion and order will be denied, her decision will be affirmed, and ACCJ’s
motion for a stay or, in the alternative, for a transfer will be denied. Furthermore, the Court’s
Scheduling and Case Management Order provides:
Following the conclusion of the first phase of discovery and a ruling on plaintiff’s yet-to-be-filed motion for judgment on the pleadings, the parties shall file a joint request for referral to mediation before a magistrate judge. . . . In the event that mediation is unsuccessful, the parties shall begin the second phase of discovery, which shall include written discovery and depositions of the other party or of third parties.
Scheduling and Case Management Order ¶¶ 2-3, Aug. 5, 2009 [Dkt. No. 33]. The first phase of
discovery has concluded, and Magistrate Judge Robinson denied (without prejudice) ACCJ’s
motion for judgment on the pleadings on September 30, 2010. Consequently, unless the parties
otherwise agree to a different form of mediation, the parties shall either (1) proceed to mediation
before a magistrate judge or (2) begin the second phase of discovery. In light of these options, by
July 15, 2011, the parties shall file a joint statement regarding how they wish to proceed in this
case.
A separate Order consistent with this Opinion shall issue this same day.
SO ORDERED.
/s/ PAUL L. FRIEDMAN DATE: July 1, 2011 United States District Judge