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concluding that "a Florida court does have a greater interest than this Court in reviewing the conduct of a Florida-licensed attorney."
Summary of this case from Arunachalam v. PazuniakOpinion
No. C 04-1402 SI.
August 27, 2004
ORDER TRANSFERRING ACTION TO THE SOUTHERN DISTRICT OF FLORIDA
On August 27, 2004, this Court heard argument on the motion by defendants Gregory Martin and Adorno Yoss to dismiss for (i) lack of personal jurisdiction and for improper venue or (ii) for failure to state a claim. Alternatively, defendants move to transfer this action for improper venue or for inconvenience. Having carefully considered the argument of counsel and the papers submitted, this Court finds that it lacks personal jurisdiction over defendants Gregory Martin and Adorno Yoss and accordingly, pursuant to 28 U.S.C. § 1406(a), TRANSFERS this action to the United States District Court for the Southern District of Florida, where it might appropriately have been brought.
The current motion was filed by the Florida-resident defendants, Gregory Martin and Adorno Yoss, who are apparently the only defendants who have been served. The other defendants in the action are alleged to be citizens of Pennsylvania, but they have not been heard from. The action was filed in this court on April 9, 2004, so the 120 day limit on service of process set out in Rule 4 of the Federal Rules of Civil Procedure expired on August 9, 2004. No extension of time for service was sought by or granted to plaintiff.
DISCUSSION
Plaintiff Robert Vener brought suit against defendants Gregory Martin and Adorno Yoss, among others, alleging against these two defendants fraud, legal malpractice, breach of fiduciary duty, and dual representation of adverse interests. The events constituting the alleged legal malpractice took place within the State of Florida. Defendants move to dismiss or transfer the action to the Southern District of Florida, contending that they have had no minimum contacts with California. They argue in the alternative that, if the Court does not elect to dismiss or transfer the action on grounds of lack of personal jurisdiction or improper or inconvenient venue, then it should dismiss the entire action under Rules 12(b)(6) and 17(a). Defendants contend that under California law, claims for legal malpractice are not assignable and, accordingly, plaintiff is not a real party in interest and has no standing to bring this action.In his opposition, plaintiff concedes to the latter point, and has amended his complaint such that the third, fifth, sixth and seventh causes of action would be brought on behalf of DynaCorp Financial Strategies, Inc. and CapitalWorks Financial Corporation only, and not on behalf of their assignee Robert E. Vener. Plaintiff also concedes that there is no basis for general jurisdiction over defendants in this forum. Plaintiff does, however, assert that there are sufficient minimum contacts for this Court to exercise specific jurisdiction over these defendants. The Court disagrees.
Defendants, in their Reply, argue that plaintiff's amended complaint, intended to cure the real party in interest defect, was filed late and should be stricken, and that their motion to dismiss should be granted based on Vener's lack of capacity to bring the suit against these defendants. The Court finds that transfer is appropriate at this time and all remaining questions are best resolved by the trial court in Florida.
Adorno Yoss ("AY") "is a professional association organized under the laws of the state of Florida and is engaged in the practice of law, having its principal place of business in Miami, Florida." Compl. at ¶ 16. Gregory Martin "is an individual and attorney at law residing in the state of Florida and is a shareholder of defendant Adorno Yoss." Id. at 17. Martin is the attorney that dealt with Vener and DynaCorp. All of the meetings and communications concerning the underlying funding issues took place in Florida. Plaintiff does not dispute that neither Martin nor A Y have ever performed any legal services for DynaCorp or CapitalWorks in California. As of the date of the filing of the complaint, A Y had no offices, members or employees in California, did not direct advertising at California residents, and did not derive business from California. The Court agrees with defendants' assertion that there is no way a Florida attorney, who performed no legal services for DynaCorp or CapitalWorks in California, should be required to defend himself in California. Further, a Florida court does have a greater interest than this Court in reviewing the conduct of a Florida-licensed attorney.
It is plaintiff's burden, in response to defendants' motion, to present evidence demonstrating that defendants purposefully directed their activities at residents of California (Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)); that this action results from injuries that arise out of or relate to defendants' activities directed at California (id.); and that it is reasonable and fair to require defendants to defend themselves in California (Checker Motors Corp. v. Superior Court, 13 Cal.App.4th 1007, 1016 (1993). Plaintiff has failed to present such evidence, particularly with respect to the third requirement.
It would be unreasonable for the Court to require defendants to defend themselves in this forum, and plaintiff's interest in bringing suit in California does not outweigh the burden that would be carried by defendant if this action stayed in this forum. The Court therefore finds that it lacks personal jurisdiction over these claims against this defendant.
CONCLUSION
Plaintiff has not established that this Court may properly exercise personal jurisdiction over defendants. For the foregoing reasons and for good cause shown, the Court hereby TRANSFERS this action to the Southern District of Florida. [docket # 7].
IT IS SO ORDERED.