Adachi v. Carlyle/Galaxy San Pedro L.P.

• Citation: 595 F.Supp.2d 1147
• Decision Date: 30 January 2009
• Docket Number: Case No. 08cv2052 JM(WMc).
• Court: U.S. District Court — Southern District of California
• Parties: Steve ADACHI, et al., Plaintiffs, v. CARLYLE/GALAXY SAN PEDRO L.P., et al., Defendants.

595 F.Supp.2d 1147

Steve ADACHI, et al., Plaintiffs, v. CARLYLE/GALAXY SAN PEDRO L.P., et al., Defendants.

Case No. 08cv2052 JM(WMc).

United States District Court, S.D. California.

January 30, 2009.

COPYRIGHT MATERIAL OMITTED

Gregory S. Weston, The Weston Firm, San Diego, CA, for Plaintiffs.

Daniel Scott Schecter, Julie Gerchik, Latham and Watkins LLP, Los Angeles, CA, for Defendants.

ORDER DENYING MOTION TO DISMISS FOR IMPROPER VENUE; GRANTING MOTION TO TRANFER ACTION TO CENTRAL DISTRICT OF CALIFORNIA

JEFFREY T. MILLER, District Judge.

Pursuant to Federal Rule of Civil Procedure 12(b)(3), Defendants move to dismiss the complaint for improper venue or, alternatively, to transfer the action to the Central District of California. Defendants also move to compel arbitration of Plaintiffs's claims pursuant to the Federal Arbitration Act. Plaintiffs oppose all motions and separately move for a protective order barring Defendants' communication with putative class members. Defendants oppose Plaintiffs' motion for a protective order. For the reasons set forth below, the court denies the motion to dismiss for improper venue, grants the motion to transfer to the Central District of California and denies all other pending motions as moot. The Clerk of Court is instructed to transfer this action to the Central District of California.

BACKGROUND

On November 5, 2008 Plaintiffs Steve Adachi, Jeremy Arson, Ericka Gardea, Michael Gardea, Glenn Henderson, Mary Henderson, Steve Henderson, Victoire Havland, Douglas Kim, Imman Mohammadpour, Riye Park, Eileen Peviani, Ted Sumida, and Jessica Vanderlan commenced this federal question action as a purported class action against Defendants Carlyle/Galaxy San Pedro, L.P., Carlyle San Pedro GP, L.L.C., Galaxy San Pedro, L.L.C., Carlyle San Pedro, L.L.C., Carlyle Realty Partners IV L.P., Galaxy Commercial Holding, L.L.C., Raffi Cohen, and Mara Escrow Company. Plaintiffs are purchasers of condominium units in the Vue development located in San Pedro, California (the "Development"). Carlyle/Galaxy San Pedro LP (the "Developer") is the developer of the project.

Each named Plaintiff resides within the Central District of California. (Samek Decl. ¶ 6). Of the approximately 239 putative class members only one potential plaintiff resides in the Southern District of California. (Id. ¶ 7).

Each of the seven defendant corporate entities resides in the Central District of California as well as the individual defendant, Raffi Cohen. (Carlyle Decl. ¶ 1; Cohen Decl. ¶¶ 1, 2). No Defendant regularly transacts or conducts any substantial or significant portion of their business in the Southern District. (Carlyle Decl. ¶ 41 Cohen Decl. ¶ 5).

In connection with the purchase of their condominium units, each Plaintiff entered into a written Purchase and Sale Agreement and Joint Escrow Instructions (the "Agreement"). The Agreement also contains an arbitration provision which provides, in pertinent part:

By initialing in the space below you are agreeing to have any dispute arising out of the matters unclouded in this Arbitration of Disputes provision, and in the Arbitration of Disputes provision in Paragraph 12 below, decided by neutral arbitration as provided by California law and you are giving up any right you might possess to have the dispute litigated in a court or jury trial. By initialing the space below, you are giving up your judicial rights to discovery and appeal, unless those rights are specifically included in the "Arbitration of Disputes" provision. If you refuse to submit to arbitration after agreeing to this provision, your may be compelled to arbitrate under the authority of the California Code of Civil Procedure. Your agreement to this arbitration provision is voluntary. We have read and understand the foregoing and agree to submit disputes arising out of the matters included in the "Arbitration of Disputes" provision to neutral arbitration.

(Defendants Exhs. A-I, ¶ 11). The arbitrator is "authorized to provide any remedies or relief in law and equity, other than punitive damages." Id.

Plaintiffs allege they signed purchase contracts for condominium units at the VUE. (Compl. ¶ 13-21). The Vue consists of about 250 condominiums with a price range from $350,000 to $1,400,000. (Samek Decl. ¶ 5). Based upon conduct associated with Plaintiffs' purchase of the condominiums, Plaintiffs allege seven causes of action for violation of the Interstate Land Sales Full Disclosure Act, violation of the Sherman Act, unfair competition, violation of Cal. Bus. & Prof.Code § 17200, fraud, breach of contract, and for constructive trust and equitable lien.

DISCUSSION

The Motion to Dismiss for Improper Venue

Plaintiffs assert venue under 28 U.S.C. § 1391 and 15 U.S.C. § 15, 22, 26. In federal question actions, venue is proper "only in

(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found if there is no district in which the action may otherwise be brought.

28 U.S.C. § 1391(b). While a corporation is only a citizen, or domicile, of the state of incorporation and the state where it maintains its principal place of business, see 28 U.S.C. § 1332(c)(1), a corporation resides, for purposes of venue, "in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced ..." 28 U.S.C. 1391(c). In antitrust actions, 15 U.S.C. § 22 provides:

Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.

This provision was adopted "to broaden venue in antitrust cases and to further the sound remedial policy of allowing an aggrieved party a larger number of available forums in which to litigate." National Auto Brokers Corp. v. General Motors Corp., 332 F.Supp. 280, 281 (S.D.N.Y. 1971); In re Automotive Refinishing Paint Antitrust Litig., 358 F.3d 288, 295 (3d Cir.2004). In motions challenging venue, courts must "draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the non-moving party." Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1138-39 (9th Cir.2004).

Here, the court concludes that venue is established under 15 U.S.C. § 22. Under the "transacts business" test, a plaintiffs cause of action need not directly arise from defendant's contacts with the forum. See Board of County Comm'rs v. Wilshire Oil Co., 523 F.2d 125, 132 (10th Cir.1975). Here, the sale of one condominium unit at a purchase price in excess of $350,000 to a San Diego resident, (Samek Decl. ¶ 7), satisfies the transacts business requirement of 15 U.S.C. § 22. See Courtesy Chevrolet, Inc. v. Tennessee Walking Horse Breeders' & Exhibitor's Ass'n, 344 F.2d 860, 865 (9th Cir.1965); Turbine Engine Corp. v. Chromalloy Am. Corp., 265 F.Supp. 766 (D.Conn.1967). Plaintiffs have also identified additional instances of Defendants transacting business in the Southern District: defendant Cohen, president of Galaxy Commercial Holdings, LLC, has sought to develop properties in the Southern District, (Weston Decl. Exh. A), and Mara Escrow is a consolidated subsidiary of Old Republic Title Co., located in the Southern District of California. (Weston Decl. ¶ 2).

In sum, the motion to dismiss for improper venue is denied.

The Motion to Transfer Venue

Defendants move to transfer this action to the Central District of California. Under 28 U.S.C. § 1404(a), the court may transfer an action to any other district or division where it might have been brought "[f]or...