The Am. Ctr. For Civil Justice v. Ambush

• Decision Date: 21 March 2011
• Docket Number: Civil Action No. 09–0233 PLF/DAR.
• Citation: 770 F.Supp.2d 303
• Parties: The AMERICAN CENTER FOR CIVIL JUSTICE, Plaintiff,v.Joshua M. AMBUSH, Defendant.
• Court: U.S. District Court — District of Columbia

770 F.Supp.2d 303

The AMERICAN CENTER FOR CIVIL JUSTICE, Plaintiff,

v.Joshua M. AMBUSH, Defendant.

Civil Action No. 09–0233 PLF/DAR.

United States District Court, District of Columbia.

March 21, 2011.

American Center For Civil Justice, Brooklyn, NY, pro se.Charles R. Both, Law Offices of Charles R. Both, Washington, DC, for Plaintiff.Aaron L. Handleman, Justin Michael Flint, Eccleston & Wolf, P.C., E. John Steren, Ober, Kaler, Grimes & Shriver, Washington, DC, James E. Edwards, Jr., Michael A. Schollaert, Ober, Kaler, Grimes & Shriver PC, Baltimore, MD, for Defendant.

MEMORANDUM OPINION AND ORDER

DEBORAH A. ROBINSON, United States Magistrate Judge.

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 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, 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 28 U.S.C. § 1404(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.” Id. at 3. 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 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 id. at 6. 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 id. at 7–11.

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).

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 [i]n 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 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.

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