Fogel v. Wolfgang

48 F.R.D. 286
District Court, S.D. New York·Decided August 28, 1969·No. No. 67 Civ. 1629·Published·Cited by 18 cases

Opinion

LASKER, District Judge.

This is a motion pursuant to 28 U.S.C. § 1404(a) to transfer this class action to the Northern District of Ohio, Eastern Division. In a complaint filed in April 1967, plaintiffs allege a violation of Section 10(b) of the Securities Exchange Act of 1834 1 and Rule 10b-5 2 promulgated thereunder. Jurisdiction is based upon Section 27 of that Act.

Plaintiffs are New York residents and represent the class of shareholders 3 of Rand Development Corporation stock who purchased said securities between July 13, 1966 and January 20, 1967. Defendant Rand Development Corporation (hereinafter “Rand”) is an Ohio corporation with its principal place of business in Cleveland.4 It is engaged in the research and development business. The individual defendants were directors or officers of Rand during the relevant period. The complaint alleges that the defendants manipulated and inflated the price of Rand’s stock during the period July 13, 1966 to January 20, 1967, by widely publicizing the fact that Rand had developed an effective cancer vaccine, as well as a reliable test for the detection of cancer, when they knew this to be in fact untrue. During the period in question, the market price of Rand stock rose from $6.00 per share to more than $50.00 per share. Plaintiffs further allege that during the period of the rise of Rand stock the officers and directors of Rand were selling large amounts of the stock and consequently realizing extraordinary profits. Rand issued a clarifying statement in compliance with a request from the Securities and Exchange Commission, and subsequently the market price of Rand stock fell back to the $7.00 to $8.00 range.

28 U.S.C. § 1404(a) provides that:

“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.”

The instant motion, brought under this section, thus raises two basic issues: first, whether the Northern District of [289]*289Ohio, Eastern Division, is a district where the action “might have been brought”; and second, whether the convenience of parties and witnesses and the interest of justice would best be served by a transfer to that district.

I. WHERE THE ACTION MIGHT HAVE BEEN BROUGHT

There can be no doubt that the Northern District of Ohio is a district where this action “might have been brought.” Van Dusen v. Barrack, 376 U.S. 612, 616ff, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). As the court states in Wyndham Associates v. Bintliff, 398 F.2d 614, 620 (2d Cir., 1968):

“Section 27 of the Securities Exchange Act provides that suit to enforce liabilities under the Act or any rule or regulation thereunder may be brought in any district wherein any act or transaction constituting the violation occurred.”

See also Rothenberg v. Silberman, 278 F. Supp. 116 (S.D.N.Y., 1968); and Peyser v. Meehan Fund, Inc., 264 F.Supp. 1 (S.D.N.Y., 1966).

The allegations in the complaint necessarily place at least some of the “act[s]. or transaction[s] constituting the violation” in the Northern District of Ohio. It should be noted that all of the named defendants need not have committed an act or transaction in the Northern District of Ohio in order for venue to be placed properly in that district as to them. It is enough “if there occurred in that district ‘any act or transaction’ by any defendant in furtherance of a manipulative scheme in which [the specific defendant] knowingly participated.” Wyndham Associates v. Bintliff, supra, 398 F.2d at 620. There the court further stated:

“In this case the alleged acts by other defendants in Texas are sufficient to satisfy this venue requirement.”

Accordingly, the action “might have been brought” in the Northern District of Ohio as to all of the named defendants.

II. THE CONVENIENCE OF PARTIES AND WITNESSES AND THE INTEREST OF JUSTICE

Criteria under Section 1404(a) as to the convenience of witnesses and the interest of justice are broader than those applicable under the older doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955). The determinative factors were summarized in United States v. General Motors Corp., 183 F. Supp. 858, 860 (S.D.N.Y., 1960):

“The principal desiderata are: relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; cost of obtaining attendance of witnesses ; possibility of a view, if appropriate; and all other practical problems that would make the trial of a case easy, expeditious and inexpensive. In appraising the factors of public interest, it is also appropriate to give some consideration to the relative state of trial calendar congestion in the districts involved.”

The cases generally accord substantial weight to the plaintiff’s choice of forum. Zorn v. Anderson, 263 F.Supp. 745, 749 (S.D.N.Y., 1966); Oil and Gas Ventures v. Kung, 250 F.Supp. 744 (S.D. N.Y., 1966). In the latter case, the court remarked (at 754) that under Section 1404(a) “the plaintiff’s choice of forum, formerly ‘rarely [to] be disturbed,’ is now of diminished significance, although it is still to be considered.” As the Supreme Court stated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947) :

“ * * * unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”

[290]*290A presumption in favor of the plaintiff’s choice of forum is not so rigidly applied, however, in the case of derivative suits on behalf of a corporation. The Supreme Court, referring to a stockholder’s derivative action, stated in Koster v. Lumbermen’s Mut. Casualty Co., 330 U.S. 518, 524, 67 S.Ct. 828, 832, 91 L.Ed. 1067 (1947):

“ * * * where there are hundreds of potential plaintiffs, all equally entitled voluntarily to invest themselves with the corporation’s cause of action and all of whom could with equal show of right go into their many home courts, the claim of any one plaintiff that a forum is appropriate merely because it is his home forum is considerably weakened.”

See also Schlusselberg v. Werly, 274 F. Supp. 758, 763 (S.D.N.Y., 1967) ; Miller v. Steinbach, 268 F.Supp. 255, 283 (S.D.N.Y., 1967); Gold v. Scurlock, 290 F. Supp. 926 (S.D.N.Y., 1968). The Koster rationale has been held to be applicable to class actions as well as to derivative suits. Schneider v. Sears, 265 F.Supp. 257, 266 (S.D.N.Y., 1967).

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Fogel v. Wolfgang, 48 F.R.D. 286 (S.D.N.Y. 1969).

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