Levy v. Welsh
| Decision Date | 19 March 2013 |
| Docket Number | 12-CV-2056 (DLI) (VMS) |
| Parties | SUSAN LEVY, pro se, Plaintiff, v. JOSEPH WELSH, MOORE MACRO FUND, LP, MOORE GLOBAL FIXED INCOME MASTER FUND, LP, MOORE ADVISORS, LTD., MOORE CAPITAL ADVISORS, LLC, MOORE CAPITAL MANAGEMENT, LP, MOORE CAPITAL MANAGEMENT, LLC, LOUIS BACON, EUGENE BURGER, CHRISTOPHER PIA, THE NEW YORK MERCANTILE EXCHANGE, INC., THE CME GROUP, INC., NYMEX FLOOR BROKERS AND CLERKS JOHN DOES 1-20, MF GLOBAL FLOOR BROKERS AND CLERKS, JOHN DOES, 21-40, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Pro se plaintiff Susan Levy, an attorney duly admitted to practice law in New York State, filed the instant action in this district (the "EDNY") against defendants Joseph Welsh ("Welsh"); Moore Macro Fund, LP and Moore Global Fixed Income Master Fund, LP (collectively the "Moore Fund Defendants"); Moore Capital Advisors, LLC, Moore Advisors, Ltd., Moore Capital Management, LP and Moore Capital Management, LLC (collectively the "Moore Capital Defendants"); Louis Bacon ("Bacon"); Eugene Burger ("Burger"); Christopher Pia ("Pia"); the New York Mercantile Exchange, Inc. ("NYMEX") and the CME Group, Inc. (collectively the "NYMEX Enterprise Defendants"); NYMEX Floor Brokers and Clerks, John Does 1-20; MF Global Floor Brokers and Clerks, John Does, 21-40; (collectively "defendants"). Plaintiff alleges that defendants manipulated the platinum and palladium futures markets and causedplaintiff to lose her investments. Defendants moved to transfer the action to the United States District Court for the Southern District (the "SDNY") pursuant to 28 U.S.C. § 1404(a). Plaintiff opposes the motion. For the reasons set forth below, defendants' motion is granted.
Plaintiff is a resident of New York County and an attorney who purchased and sold New York Mercantile Exchange ("NYMEX") platinum futures through MF Global, her Futures Commission Merchant, from February 2008 through September 2008. ( Defendant Joseph Welsh is a resident of Suffolk County, New York ("NY") and was senior Vice President for MF Global, Inc. during the relevant time period. (Id ¶¶ 18-25.) The Moore Fund Defendants are investment funds organized under the laws of the Bahamas and doing business in New York, NY. (Id. ¶¶ 35-43.) Defendant Moore Capital Advisors, LLC is a Delaware limited liability company, headquartered in New York, NY, and is a registered commodity pool operator ("CPO") and commodity trading advisor ("CTA"). (Id. ¶¶ 44-46.) Defendant Moore Advisors, Ltd. is a Bahamian international company and is registered as a CPO. (Id. ¶¶ 47-49.) Defendant Moore Capital Management, LP is an investment firm organized as a Delaware limited partnership headquartered in New York, NY, and is registered as a CTA. (Id. ¶¶ 50-54.) Defendant Moore Capital Management, LLC is a Delaware limited liability company and was registered as a CTA during the relevant time period. (Id. ¶¶ 55-58.) Defendant Louis Bacon resides in New York State and conducts business in New York, NY in connection with the Moore Fund Defendants and the Moore Capital Defendants. (Id. ¶¶ 65-80.) Defendant Christopher Pia resides in Greenwich, CT and conducted business in New York, NY during the relevant time period as the portfolio manager for defendant Moore CapitalManagement, LLC. (Id. ¶¶ 81-90.) Defendant Eugene Burger resides in New York State and conducts business in New York, NY as a trader at Moore Capital Management, LP. (Id. ¶¶ 91-95.) Defendant NYMEX is a Delaware corporation licensed to do business in the state of New York, with its principle place of business in New York, NY. (Id. ¶¶ 96-104.) NYMEX is the world's largest platinum market and the exclusive market in the United States. (Id.) Defendant CME Group, Inc. is a Delaware corporation that does business in New York, NY, has its principal place of business in Chicago, IL, and owns NYMEX, as well as other exchanges. (Id. ¶¶ 105-11.) Lastly, defendants John Does #1-20 are NYMEX Floor Brokers and Clerks and John Does #21-40 are MF Global Floor Brokers and Clerks. (Id. ¶¶ 116-25.) From 2006 to 2008, each defendant was either employed by, represented, or conducted business with MF Global, Inc., a financial derivatives broker with its primary office located in New York, NY. (Id. ¶¶ 26-34.)
Plaintiff alleges that defendants manipulated the platinum and palladium markets in order to artificially increase the settlement prices of NYMEX platinum and its related commodity, palladium. (Id. ¶¶ 1-4, 199-206.) Based on defendants' actions, the price of platinum rose as high as $1600 to $2200 per troy ounce. (Id. ¶ 172.) Plaintiff alleges that when defendants stopped manipulating the platinum market, the market collapsed and the price dropped to approximately $900 in late 2008. (Id. ¶¶ 172-73.) Investors, including plaintiff, allegedly relied almost exclusively on settlement prices to determine whether or not to enter the market, and, therefore, by manipulating the settling prices, defendants' conduct caused the entire market to become a "sham." (Id. ¶ 189.) Plaintiff lost her entire platinum investment of $280,000, as wellas $84,000 in non-platinum investments, when she liquidated her portfolio upon the markets' collapse. (Id. ¶¶ 9, 15, 383.)
In May 2008, four separate class actions pertaining to the same alleged manipulation of the platinum and palladium markets that form the basis for plaintiff's Complaint were filed in the SDNY and consolidated (the "Class Actions"). (Defendants' Letter-Brief in Support of Motion to Transfer ("Def. Mem.") at 2, Doc. Entry No. 27.); see In Re Platinum and Palladium, 10-CV-3617 (WHP). Plaintiff admits that, while she may be a class member, she prefers to proceed on her own and may opt out of the Class Actions, if necessary. (Compl. ¶ 9 n.6.) The Class Actions are assigned to the Honorable William H. Pauley, III, U.S. District Judge for the SDNY, who already has resolved substantive legal and discovery issues, including the striking of portions of the complaint as immaterial and dismissed, without prejudice, the second amended consolidated class action complaint. (Def. Mem. at 2); see In re: Platinum & Palladium Commodities Litig., 828 F. Supp. 2d 588 (S.D.N.Y. 2011). On January 27, 2011, plaintiff sent a letter to Judge Pauley requesting leave to file a motion to intervene in the Class Actions or, in the alternative, for permission to opt out of the class and pursue her own case. (Plaintiff's Memorandum in Opposition to Defendants' Motion to Transfer ("Pl. Mem."), Exh. 1, Doc. Entry No. 29.) The request was neither granted nor denied. (Id. at 3.)
On April 26, 2012, plaintiff filed the instant action against defendants in this Court, alleging that defendants' manipulation of the Platinum market from approximately 2006 through 2008 caused plaintiff to lose $364,000.00 in investments, for which she now seeks damages, including statutory treble damages, punitive damages, interest based on New York's Statutory rate, costs and disbursements, and attorney fees. (Id. ¶¶ 9, 383.)
On August 31, 2012, defendants moved to transfer the case to the SDNY pursuant to 28 U.S.C. § 1404(a). Plaintiff opposed the motion, asserting that deference should be given to plaintiff's choice of forum and that defendants failed to establish that a motion to transfer should be granted.
While Plaintiff is proceeding pro se, she is an attorney. Accordingly, the liberal construction courts generally give the pleadings of a pro se litigant does not apply here. Tracy v. Freshwater, 623 F. 3d 90 (2d Cir. 2010) (); Andrews v. Columbia Gas Transmission Corp., 544 F. 3d 618, 633 (6th Cir. 2008) (); Godlove v. Bamberger, Foreman, Oswald, & Hahn, 903 F. 2d 1145, 1148 (7th Cir. 1990) (); see also Walker v. Gormley, 1993 WL 453864, at *2 (S.D.N.Y. Nov. 4, 1993) ().
I. Transfer of Venue Pursuant to 28 U.S.C. § 1404
The transfer of venue statute provides that, "[f]or 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." 28 U.S.C. § 1404(a) (2006). "Section 1404(a) is intended 'to prevent waste of 'time, energy and money' and 'to protect litigants, witnesses and [the] public against unnecessary inconvenience and expense.'" EasyWeb Innovations, LLC v. Facebook, Inc., 2012 WL 3755410, at *3 (E.D.N.Y. Aug. 30, 2012) (quotingMasterCard Int'l Inc. v. Lexcel Solutions, Inc., 2004 WL 1368299, at *5 (S.D.N.Y. June 16, 2004)). Moreover, the transfer of venue provision was "designed and reserved for those instances where the transfer was sought to a District Court substantially distant from the district where the action had been instituted; otherwise it is difficult to imagine that there could be real inconvenience to the parties or witnesses." Buchanan v. Umhoefer, 2011 WL 3421502, at *2 (E.D.N.Y. Aug. 3, 2011) (quoting Schwartz v. Marriott Hotel Services, Inc., 186 F. Supp. 2d 245, 251 (E.D.N.Y. 2002)).
When making a motion to transfer venue, "[t]he party requesting transfer carries the 'burden of making out a strong case for transfer.'" Audiovox Corp. v. S. China Enter., Inc., 2012 WL 3061518, at *7 (E.D.N.Y. July 26, 2012) (quoting N.Y. Marine and Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F. 3d 102, 114 (2d Cir....
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