32 - reply re mtd - venue

7/29/2019 32 - Reply Re MTD - Venue

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DEFENDANTS REPLY TO THEIR MOTION TO DISMISS FOR IMPROPER VENUE OR IN THE

ALTERNATIVE TO TRANSFER

LAW OFFICE OF HARTWELL HARRISHartwell Harris (California Bar No. 241695)1809 Idaho AvenueSanta Monica, California 90403Telephone: (310) 497-8858Facsimile: (310) [email protected]

Attorney DefendantsRAYMOND MOBREZILIANA LLANERASASIA ECONOMIC INSTITUTE, LLC

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

XCENTRIC VENTURES, LLC, anArizona limited liability company,

Plaintiff,

vs.

LISA JEAN BORODKIN, et al.,

Defendants.

CASE NO.: 11-CV-1426-PHX-GMS

DEFENDANTS REPLY TO THEIRMOTION TO DISMISS FOR IMPROPERVENUE; OR IN ALTERNATIVE TOTRANSFER FOR IMPROPER VENUE(28 USC 1406(A)); OR IN THEALTERNATIVE TO TRANSFER FORCONVENIENCE (28 USC 1404(A))

(Oral Argument Requested)

DEFENDANTS ASIA ECONOMIC COUNCIL INSTITUTE, LLC (AEI),

RAYMOND MOBREZ, and ILLIANA MOBREZ (Defendants) submit this Reply to

address arguments raised by Plaintiff in its Response to Defendants Motion to Dismiss

for Improper Venue; or in the Alternative to Transfer.

MEMORANDUM OF POINTS AND AUTHORITIES

I. A SUBSTANTIAL PART OF THE EVENTS THAT GIVE RISE TOPLAINTIFFS CLAIMS OCCURRED IN CALIFORNIA.

Case 2:11-cv-01426-GMS Document 32 Filed 10/19/11 Page 1 of 7


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Plaintiff grounds its venue allegations on 20 U.S.C. 1391(a)(2)that a plaintiff

may bring a suit in a judicial district in which a substantial part of the events or

omissions giving rise to the claim occurred . . . . (Complaint (Compl.) at 11).

Plaintiff writes in its Response that all well-pleaded allegations in the complaint bear[]

on the venue question so turning to the complaint one will realize that the Complaint is

replete with activity that occurred in California, not in Arizona. The following paragraphs

in the Complaint describe events allegedly occurring in California: 1, 2, 22, 23, 24, 25, 26,

27, 28, 31, 32, 33, 34, 35, 37, 38, 39, 40, 42, 44, 45, 49, 50, 51, 52, 53, 54, 55, 57, 58, 59,

60, 61, 63, 64, 65, 67, 71. The following paragraphs in the Complaint refer to Arizona: 9,

41, 64. Plaintiffs own pleading reveals that the substantial part of the events or omissions

giving rise to the claim occurred in California. Necessarily, the activities that give rise to

an alleged abuse of process claim must occur in the state in which the judicial system

exists that was abused.

Plaintiff obfuscates a straightforward law about venue with case law about personal

jurisdiction. Plaintiff argues that this Court should consider where the harm was felt

rather than where the substantial events occurred. Plaintiff relies onMyers v. Bennett Law

Offices. 238 F.3d 1068 (9th Cir. 2001). The decision inMyers, however, primarily

addressed personal jurisdiction and only briefly addressed venue. Plaintiff offers no other

cases that followMyers for this proposition nor offers any other authority that venue has

some type of effects test like personal jurisdiction.

II. PLAINTIFF DOES NOT ADDRESS DEFENDANTS ARGUMENTTHAT TRANSFER IS PROPER PURSUANT TO 28 U.S.C. SECTION

1406(a)

In their motion, Defendants argue that if the Court does not dismiss, it should

transfer the case pursuant to 28 U.S.C. Section 1406(a) which mandates dismissal or

transfer when Plaintiff has filed in an improper venue. Plaintiff did not address the

argument regarding transfer based on Section 1406(a).



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III. CALIFORNIA IS A MORE CONVENIENT FORUMFinally, the Court also has the option to transfer this case based on convenience.

28 U.S.C. 1404(a). Plaintiff argues against transfer, in part, because necessary witnesses

are located in Arizona. The Complaint, however, fails to make even a prima facie

showing that these witnesses are involved. In fact, no factual allegations appear in the

Complaint involving three of these five: Maria Crimi Speth, Adam Kunz, or John F.

Brewington. Moreover, Plaintiff has already demonstrated that a necessary witness is in

California by requesting early discovery in its Motion for Leave to Perform

Expedited/Early Discovery (Doc. # 28). Plaintiffs own behavior supports transfer to

California. Plus, Plaintiff has been unable to locate a named defendant: Daniel Blackert.

Mr. Blackert was the lead attorney in the underlying action and would be a critical witness

and/or party in this matter. But, Plaintiff cannot find him.

Plaintiff also argues, in part, against transfer by alleging that California is not the

state most familiar with governing law. This is false. Californias law regarding recorded

conversations will play a critical role in this matter. A major part of Plaintiffs case relies

on recorded telephone calls. Plaintiff alleges in its Complaint that Defendants conspired

to trap it in some kind of extortion plot and points to seven telephone calls made by

Mobrez. (Compl. at 25-26). Plaintiff further alleges that after the telephone calls,

Defendants filed suit. (Compl. at 28). These telephone calls were recorded

unbeknownst to Defendants. (Compl. at 41). Plaintiff next details how Defendants

described the contents of these conversation in declarations filed with the Central District

of California. (Compl. at 32-39). Next Plaintiff alleges that these recordings show that

Defendants lied their declarations and that Defendants fabricated allegations against it.

(Compl. at 42-43).

These allegations and the admissibility of these recorded conversations are key to

Plaintiffs case. A court in California is more familiar with California law regarding

unlawfully recorded conversations than another forum. The fact that the parties are



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already arguing about the admissibility of these tapes proves Defendants pointthat the

admissibility of these tapes will be a critical issue in this matter. Plaintiff relies on an

order in the underlying action to support its contention that the recordings are admissible

under federal law, but the underlying action included federal questions whereas the matter

at hand does not. This case is based solely on diversity and does not include any federal

question; thus, the laws of the forum govern the admissibility of recorded conversations.

Feldman v. Allstate Insurance Comp., 322 F.3d 660, 666-68 (9th Cir. 2003). InFeldman

the Ninth Circuit held:

The instant case is distinguishable, however, because it is a

diversity action. In diversity cases, a federal court must

conform to state law to the extent mandated by the principles

set forth in the seminal case ofEric R.R. v. Tompkins, 304

U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Pursuant to

Erie and its progeny, federal courts sitting in diversity apply

state substantive law and federal procedural law. . . . We

hold that California Penal Code 632, like the Nevada law

at issue in Wray, is an exception to the general rule that the

Federal Rules govern the admissibility of evidence in

diversity cases. California Penal Code 632 both makes

taping a confidential conversation a crime and limits the

admissibility of illegally intercepted conversations. CAL.PENAL CODE 632(a), (d). The statute thereby embodies a

state substantive interest in the privacy of California citizens

from exposure of their confidential conversations to third

parties. We also note that the California Constitution

expressly guarantees a right to privacy, and that having

one's personal conversations secretly recorded [and replayed]

may well infringe upon the right to privacy guaranteed by

the California Constitution. [citation omitted] For these

reasons, we hold that Penal Code 632 is an integral

component of California's substantive state policy ofprotecting the privacy of its citizens, and is properly

characterized as substantive law within the meaning ofErie.

Id. at 667-68.



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IV. CONCLUSIONDefendants request that this Court dismiss this action for improper venue. Plaintiff

would not be prejudiced since it could re-file in a proper forum. In the alternative,

Defendants request that this Court transfer this matter to the Central District of California

where the underlying case was litigated.

DATE: Oct. 19, 2011 LAW OFFICES OF HARTWELL HARRIS

By /s/ Hartwell Harris

Hartwell HarrisAttorney for Raymond Mobrez, Iliana Llaneras,and Asia Economic Institute, LLC.



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CERTIFICATE OF SERVICE

I hereby certify that on October 19, 2011 I electronically transmitted the attached

document to the Clerks Office using the CM/ECF System for filing, and for transmittal of

a Notice of Electronic Filing to the following:

David Gingras

Gingras Law Office, PLLC

3941 E. Chandler Blvd., #106-243

Phoenix, AZ 85048

David Edward Funkhouser, III

Quarles & Brady LLP

1 Renaissance Sq.

2 N Central Ave

Phoenix, AZ 85004-2391

And a courtesy copy of the foregoing delivered to:

HONORABLE G. MURRAY SNOW

United States District Court Sandra Day OConnor U.S. Courthouse

Suite 622 401 West Washington Street, SPC

80 Phoenix, AZ 85003

__/s/ Hartwell Harris_________



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32 - reply re mtd - venue

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