Cox ex rel. ING Global Real Estate Fund v. ING Investments LLC

47 F. Supp. 3d 209, 2014 WL 2567970, 2014 U.S. Dist. LEXIS 76998
CourtDistrict Court, D. Delaware
DecidedJune 6, 2014
DocketCiv. No. 13-1521-SLR
StatusPublished
Cited by4 cases

This text of 47 F. Supp. 3d 209 (Cox ex rel. ING Global Real Estate Fund v. ING Investments LLC) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cox ex rel. ING Global Real Estate Fund v. ING Investments LLC, 47 F. Supp. 3d 209, 2014 WL 2567970, 2014 U.S. Dist. LEXIS 76998 (D. Del. 2014).

Opinion

MEMORANDUM OPINION

ROBINSON, District Judge

I. INTRODUCTION

On August 30, 2013, plaintiff Jeremie Cox (“Cox”) filed a complaint derivatively on behalf of ING Global Real Estate Fund (“the Fund”) against defendant ING Investments LLC (“ING”) alleging that ING breached its fiduciary duty under Section 36(b) of the Investment Company Act of 1940, as amended 15 U.S.C. § 80a-35(b) (“Section 36(b)”), by charging the Fund excessive management fees. (D.I. 1) Presently before the court is ING’s motion to transfer this action to the District of Arizona. (D.I. 12) The court has jurisdiction over this matter pursuant to 15 U.S.C. §§ 80a-43 and 80a-35(b)(5), and 28 U.S.C. § 1331. For the reasons that follow, the motion is denied.

II. BACKGROUND

Cox is a shareholder of the Fund. (D.I. 1 at ¶ 9) The Fund is a management investment company within the ING Mutual [211]*211Funds, a Delaware statutory trust (“the Trust”). (Id. at ¶¶ 2, 10) Its executive offices are located at 7337 East Doubletree Ranch Road, Suite 100, Scottsdale, Arizona. (Id. at ¶ 10) The Fund does not have any employees. (D.I. 13 at 5) Shares of the Fund are sold nationwide. (Id.) Moreover, 34% of the Fund’s shares are held by Delaware entities, with additional shares held by individuals residing in Delaware. (D.I. 15 at 7)

The Trust is organized pursuant to Delaware law. (D.I. 1 at ¶ 7) It maintains a registered agent in Delaware and any amendments to the Trust’s Certificate of Trust would be filed in Delaware. (D.I. 13 at 5)

ING acts as investment manager and advisor to the Fund, providing services for which the Fund pays ING fees. (D.I. 1 at 112; D.I. 13 at 4) ING is an Arizona limited liability company and maintains its principal place of business at 7337 East Doubletree Ranch Road, Suite 100, Scottsdale, Arizona. (D.I. 13 at 4) It does not have any offices in Delaware, and none of its officers live or work in Delaware. (Id.) Many of ING’s officers and employees who provide services to the Fund live and work in Arizona. (Id. at 4-5)

The Fund’s board of trustees (“the Board”) oversees the Fund and approves the annual management agreement between the Fund and ING. (Id. at 2, 6) The management agreement is governed by Delaware law. (D.I. 15 at 7) The Board is made up of eleven independent trustees, who are located throughout the country, including in Georgia, Tennessee, Florida, and North Carolina. (D.I. 13 at 6) None of the independent trustees are located in Delaware or Arizona. (Id.; D.I. 15 at 12)

III. STANDARD OF REVIEW

Section 1404(a) of Title 28 of the United States Code grants district courts the authority to transfer venue “[f]or the convenience of parties and witnesses, in the interests of justice ... to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). Much has been written about the legal standard for motions to transfer under 28 U.S.C. § 1404(a). See, e.g., In re Link-A-Media Devices Corp., 662 F.3d 1221 (Fed.Cir. 2011); Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir.1995); Helicos Biosciences Corp. v. Illumina, Inc., 858 F.Supp.2d 367 (D.Del.2012).

Referring specifically to the analytical framework described in Helicos, the court starts with the premise that a defendant’s state of incorporation has always been “a predictable, legitimate venue for bringing suit”1 and that “a plaintiff, as the injured party, generally ha[s] been ‘accorded [the] privilege of bringing an action where he chooses.’ ” 858 F.Supp.2d at 371 (quoting Norwood v. Kirkpatrick, 349 U.S. 29, 31, 75 S.Ct. 544, 99 L.Ed. 789 (1955)). Indeed, the Third Circuit in Jumara reminds the reader that “[t]he burden of establishing the need for transfer ... rests with the movant” and that, “in ruling on defendants’ motion, the plaintiffs choice of venue should not be lightly disturbed.” 55 F.3d at 879 (citation omitted).

The Third Circuit goes on to recognize that,

[i]n ruling on § 1404(a) motions, courts have not limited their consideration to the three enumerated factors in § 1404(a) (convenience of parties, convenience of witnesses, or interests of justice), and, indeed, commentators have [212]*212called on the courts to “consider all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.”

Id. (citation omitted). The Court then describes some of the “many variants of the private and public interests protected by the language of § 1404(a).” Id.

The private interests have included: plaintiffs forum of preference as manifested in the original choice; the defendant’s preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses — but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum). The public interests have included: the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, of inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; the public policies of the fora; and the familiarity of the trial judge with the applicable state law in diversity cases.

/¿(citations omitted) (emphasis added).

IV. DISCUSSION

With the above “jurisdictional guideposts” in mind, the court turns to the “difficult issue of federal comity” that transfer motions present. E.E.O.C. v. Univ. of Pa., 850 F.2d 969, 976 (3d Cir.1988). Cox has not challenged ING’s assertion that the instant action could have been brought in the District of Arizona. See 28 U.S.C. § 1404(a); (D.I. 15 at 2)

The parties have all chosen legitimate forums in which to pursue the instant litigation. Given that “convenience” is separately considered in the transfer analysis, the court declip.es of elevate a defendant’s choice of venue over that of a plaintiff based on defendant’s convenience.

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Bluebook (online)
47 F. Supp. 3d 209, 2014 WL 2567970, 2014 U.S. Dist. LEXIS 76998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-ex-rel-ing-global-real-estate-fund-v-ing-investments-llc-ded-2014.