UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

THE AMERICAN CENTER FOR CIVIL JUSTICE,

Plaintiff, Civil Action No. 09-0233 v. PLF/DAR

JOSHUA M. AMBUSH,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff commenced this action for declaratory relief, disgorgement of fees, and damages

by filing a complaint against Defendant in this district more than two years ago. Plaintiff’s

claims arise from Defendant’s alleged actions with respect to plaintiffs in litigation styled

Franqui, et al. v. Syria, Civil Action No. 06-734 (hereinafter “the Franqui Claimants”), which

proceeded to conclusion in this court.

Since the instant action was commenced by Plaintiff, the often contentious litigation of

this action has proceeded apace. The litigation activity initiated by Plaintiff, in addition to the

filing of the complaint by which this action was commenced, includes – but is not limited to –

the filing of an amended complaint (see Document No. 11); moving for a preliminary injunction

(see Document No. 12); filing a second amended complaint (see Document No. 25); agreeing

with Defendant to conduct discovery in two phases (see Document No. 31 at 8; 04/13/2010

Minute Entry); moving for judgment on the pleadings with respect to Defendant’s counterclaim

(see Document No. 39); moving for recusal of the undersigned (see Document No. 45); moving

to compel discovery (see Document No. 47), and filing an answer to Defendant’s amended American Center for Civil Justice v. Ambush

counterclaim (see Document No. 94).

In April, 2010, Plaintiff advised this court that in January, 2010, certain of the Franqui

Claimants (termed “the Berganzo Plaintiffs”) filed a lawsuit against Defendant in the United

States District Court for the District of Puerto Rico. Notice of Subsequent Developments

(Document No. 69) at 2. Plaintiff asserted that the action in Puerto Rico brought by the

Berganzo Plaintiffs “is directly relevant to the [Motion for Judgment on the Pleadings

(Document No. 39) and Motion for Leave to File An Amended Counterclaim (Document No.

40)] currently pending before this Court[.]” Notice of Subsequent Developments at 2; see also

id. at 3 (“[Plaintiff] provides notice of these events because it believes these events are likely to

bear on the Court’s resolution of the pending motions.”). Plaintiff maintained that the District of

Puerto Rico action is “directly relevant” to the motions then pending for two reasons: (1) “[the

plaintiffs in the Puerto Rico action] allege that [Defendant] wrongfully demanded that they enter

into retainer agreements with [Defendant] ex post facto, in which they were obligated to pay

[Defendant] ‘an additional 10% in fees over the 20% agreed upon’ according to the Claimant and

Center Agreements[,]” and (2) “[Defendant’s] Counterclaim against [Plaintiff] seeks

compensation from [Plaintiff] above and beyond the hourly fees already paid to him by [Plaintiff]

for his work on the Franqui Litigation.” Id. at 2-3.

In September, 2010, the undersigned denied Plaintiff/Counterclaim Defendant’s motion

for judgment on the pleadings without prejudice, and granted Defendant/Counterclaim Plaintiff’s

motion for leave to file an amended counterclaim. See 09/30/2010 Minute Order.

Plaintiff/Counterclaim Defendant filed an answer to the amended counterclaim on December 29, American Center for Civil Justice v. Ambush

2010. Answer to Amended Counterclaim (Document No. 94).1

Six days later, Plaintiff filed the pending motion to stay this proceeding, or, in the

alternative, to transfer it to the United States District Court for the District of Puerto Rico

pursuant to

(a). Plaintiff’s Motion for Stay, or in the Alternative, for Transfer

to the United States District Court for the for Puerto Rico (“Motion for Stay or for Transfer”)

(Document No. 95/96). As grounds, Plaintiff, relying on the declaration of a lawyer for the

Berganzo Plaintiffs, states that discovery is proceeding in that case, and that a subpoena to testify

at a deposition had been served upon a member of Plaintiff’s board of directors. Motion for Stay

or for Transfer at 2-3. More broadly, Plaintiff asserts that “[t]he matters alleged in the [action

pending in Puerto Rico] are inextricably intertwined with the allegations in the Second Amended

Complaint (Dkt. No. 25) and the Amended Answer and Counterclaim in this action. (Dkt. Nos.

87 and 94). All of the witnesses to [Defendant’s] activities that are involved in the [action

pending in Puerto Rico] are located in Puerto Rico.”

.2 Plaintiff asks that this action be

stayed “until the claims in [the action pending in Puerto Rico] are resolved,” or alternatively,

transferred to that district, “in order to avoid potential contradictory and conflicting resolution of

the claims . . . and duplicative costly discovery[.]” Id.; see also Plaintiff’s Memorandum in

Support of the Motion for Stay, or in the Alternative, for Transfer to the United States District

Court for Puerto Rico (“Plaintiff’s Reply”) (Document No. 103) at 2-12.

Defendant opposes the motion. Defendant observes that “pursuant to the Court’s

1 In its answer to the amended counterclaim, Plaintiff “admits that venue is proper in this judicial district[.]” Answer to Amended Counterclaim ¶ 4. While not responsive to a corresponding allegation of the amended counterclaim, Plaintiff “also admits that venue would be proper in the judicial district in Puerto Rico[.]”

2 Plaintiff does not suggest that it is a party to the action pending in Puerto Rico. American Center for Civil Justice v. Ambush

Scheduling and Case Management Order[,]” the parties “are now obligated to participate in

mediation[.]” Defendant/Counter-Plaintiff’s Opposition to Plaintiff/Counter-Defendant’s

Motion for Stay, or in the Alternative, for Transfer to the United States District Court for Puerto

Rico (“Defendant’s Opposition”) (Document No. 101) at 1; see also

. Defendant submits

that Plaintiff’s motion “should also be denied as it is untimely and unsupported by any

compelling reason or any relevant change in circumstance which would justify a transfer of

venue away from the forum of Plaintiff’s choosing[,]” and that “the balance of interests weighs

against transfer[.]” Id.; see also

.

The undersigned heard the arguments of counsel at a hearing on February 2, 2011. See

02/02/2011 Minute Entry. As a consequence of the undersigned’s concern that Plaintiff had

offered no authority in support of its motion in the circumstances presented here – i.e., a motion

for a stay pending the conclusion of an action in another district, or for transfer to the other

district, where the movant (1) commenced the case in its chosen forum, (2) concedes that venue

of the counterclaim against it is proper, and (3) is not a party to the action in the other district –

the undersigned directed Plaintiff to file a supplemental memorandum in which such authority is

cited. See 02/02/2011 Minute Order. Plaintiff filed a supplemental memorandum, and

Defendant, a response thereto, in accordance with the undersigned’s order. See Supplemental

Memorandum in Support of Plaintiff’s Motion for Stay, or in the Alternative, for Transfer tot he

United States District Court for Puerto Rico (“Plaintiff’s Supplemental Memorandum”)

(Document No. 104); Response to Plaintiff’s Supplemental Memorandum in Support of

Plaintiff’s Motion for Stay, or in the Alternative, for Transfer to the United States District Court

for Puerto Rico (“Defendant’s Response”) (Document No. 105). American Center for Civil Justice v. Ambush

Upon consideration of the parties’ written submissions, their proffers and arguments

during the hearing on the motion and the entire record herein, Plaintiff’s motion will be denied.

DISCUSSION

Plaintiff has identified no ground warranting a stay of this action

Plaintiff commenced the instant action by filing a complaint in this district more than two

years ago. Plaintiff continues to assert that venue is proper in this district; Plaintiff moved for

injunctive and other relief in this district; Plaintiff completed the first phase of discovery in this

district. While Plaintiff maintains that “[t]he matters alleged [in the action pending in Puerto

Rico” are “inextricably intertwined” with the allegations pled in the instant action, Plaintiff has

failed to offer any support for that proposition. Plaintiff is not a party to the action pending in

Puerto Rico, and none of the Berganzo Plaintiffs is a party to the action pending in this district.

The only relationship between the two actions which the undersigned is able to discern is that

Defendant is the defendant in both cases. Defendant – the only party who possibly could be

prejudiced by the litigation of two action against him in two different districts – opposes a stay.

Even assuming, arguendo, that the two actions are indeed “inextricably intertwined[,]”

Plaintiff has failed to demonstrate how that fact serves to prejudice, or in any way disadvantage,

Plaintiff. While the action pending in Puerto Rico is clearly of more than passing interest to

Plaintiff, such interest is not a basis upon which to stay an action for an indeterminate period to

await the resolution of the action pending there.

Plaintiff cites no authority in support of its request for a stay, and relies on the court’s

“inherent authority[.]” However, Plaintiff’s request that the court exercise its inherent authority American Center for Civil Justice v. Ambush

is devoid of any basis warranting such action. Plaintiff 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. Nor has Plaintiff shown that its concern that one of

its officers could be deposed in the case pending in Puerto Rico (see, e.g., Plaintiff’s Reply at 5)

is a basis upon which this action should be stayed: to the extent which Plaintiff, or one of its

officers, objects to the proposed discovery in the action pending in Puerto Rico, a judge in that

district is empowered to rule with respect to the appropriate limits of discovery.

Plaintiff has not satisfied the requirements for transfer

District courts “[are] afforded broad discretion to decide whether transfer from one

jurisdiction to another is proper under

(a).” Malveaux v. Christian Brothers

Services,

, No. 10-587, at *4 (D.D.C. November 30, 2010) (citation omitted).

The determination of a motion to transfer “is made by an ‘individualized, case-by-case

consideration of convenience and fairness . . . .”

(citation omitted); see also Chauhan v.

Napolitano, No. 10-491,

(D.D.C. October 25, 2010) (citation omitted).

“The moving party ‘bear[s] a heavy burden of establishing that plaintiff[’s] choice of forum is

appropriate.’”

(citation omitted).

The undersigned observes that while Plaintiff discusses the requirements of Section

1404(a) of Title 28, pursuant to which he asks that this action be transferred to the District of

Puerto Rico (see, e.g., Plaintiff’s Reply at 6-12), it has failed to carry its burden to show that the American Center for Civil Justice v. Ambush

court should exercise its discretion to do so.3

The undersigned finds that Plaintiff has failed to show that the governing considerations

support its request. More troublesome, however, is the absence from Plaintiff’s argument of the

context in which the request arises: (1) Plaintiff filed this action in this district more than two

years ago; (2) Plaintiff advised the court in April, 2010 that the action in Puerto Rico was filed in

January, 2010; (3) Plaintiff made no effort at that time to request that this action be transferred to

the District of Puerto Rico, and instead, advised only that the action pending in Puerto Rico was

relevant to the motions then pending in this court; (4) only after those motions were denied, and

mediation was the next scheduled activity in this court, did Plaintiff suggest that the action

pending in Puerto Rico was actually relevant to the amended complaint and Defendant’s

counterclaim; and (5) Plaintiff admits that venue of Defendant’s counterclaim is proper in this

district. See Joint Status Report (Document No. 97) at 1-2 (“Pursuant to Paragraph 1 of the

Scheduling and Case Management Order[,] . . . the parties have completed the first phase of

discovery. On September 30, 2010, Magistrate Judge Deborah A. Robinson with the consent of

all counsel, denied without prejudice Plaintiff’s Motion for Judgment on the Pleadings . . . ;

granted Defendant leave to file an Amended Counterclaim . . . ; and ordered

Plaintiff/Counterclaim Defendant to either file a responsive pleading to the Amended

3 “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 may have been brought.” Sibley v. Sibley,

(D.D.C. 2010) (citation omitted). “To assess whether transfer is appropriate, the court will ‘balance a number of case-specific factors which include the private interests of the parties as well as public interests such as efficiency and fairness.’”

(citation omitted). “The private interest factors include: (1) plaintiff’s choice of forum, (2) defendant’s choice of forum, (3) whether the claim arose elsewhere, (4) convenience of the parties, (5) the convenience of the witnesses, and (6) the ease of access to sources of proof.”

“The public interest factors include: (1) the transferee district’s familiarity with the governing law, (2) the relative congestion of both the transferor and transferee courts, and (3) the local interest in deciding local controversies at home.”

“The party seeking transfer bears the burden of demonstrating that the ‘balance of convenience of the parties and witnesses and the interest of justice are in [its] favor.’”

(citation omitted). American Center for Civil Justice v. Ambush

Counterclaim or supplement the memorandum in support of its Motion for Judgment on the

Pleadings. On December 29, 2010, Plaintiff/Counterclaim Defendant filed its answer to the

Amended Counterclaim[.]”).4

The undersigned finds that in these circumstances, transfer would frustrate the interest of

justice by effectively allowing a party to opt out of the court’s scheduling order. Plaintiff has

vigorously litigated this action in this district, and has offered no reason that it cannot continue to

do so. In sum, Plaintiff has failed to carry its burden to show that transfer is warranted.5

CONCLUSION

For all of the foregoing reasons, it is, this 21st day of March, 2011,

ORDERED that Plaintiff’s Motion for Stay, or in the Alternative, for Transfer to the

United States District Court for Puerto Rico (Document No. 95/96) is DENIED.

____________/s/_____________________ DEBORAH A. ROBINSON United States Magistrate Judge

4 See also n.1, supra.

5 The undersigned finds that all of the authorities on which Plaintiff relies in support of its motion to transfer pursuant to Section 1404(a) are distinguishable. See Defendant’s Response at 2-4. While no judge of this district has expressly so held, Section 1404(a) appears to contemplate that transfer pursuant to that section is to be considered largely as an alternative to dismissal, and not simply as a device by which to ease a party’s discovery and other litigation obligations. Cf. Gordon v. Gutierrez, No. 05-1926,

, at * 3 (D.D.C. July 6, 2006) (case transferred “[b]ecause the Court concludes that it is in the interest of justice to transfer this action as oppose to dismissing it[.]”).