UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------- :I:

DEBORAH ABEEL, et al., Plaintiffs, -againstBANK OF AMERICA, N.A., et al., Defendants. Case No.1 : 12-cv-04269-(JBW) (RML)

ONEWEST BANK, FSB AND PNC BANK, N.A.'S NOTICE OF MOTION TO SEVER OR, ALTERNATIVELY, TO TRANSFER

---------------------------------------------------------- :I:

PLEASE TAKE NOTICE THAT upon the anne:l:ed declaration of Wale ad Esmail, Esq., sworn to on the 4th day of October, 2012, together with the emibits referenced and anne:l:ed to this declaration, and upon all of the pleadings and proceedings heretofore had herein, Defendants OneWest Bank, FSB and PNC Bank, National Association, will move this Court, before the Hon. Jack B. Weinstein, at the United States Courthouse located at 225 Cadman Plaza Easl., Brooklyn, New York 11201, on October 25,2012, at 10:00 a.m., or as soon thereafter as counsel can be heard, for an order severing and dismissing from this action all Plaintiffs e:l:cept for the first named Plaintiff or, in the alternative, transferring this action to the Central District of California, together with such other and further relief that this Court deems just, proper, equitable and appropriate under the circumstances herein.

Dated: October 4,2012

Respectfully submitted,

lsi Richard E. Gottlieb

Richard Gottlieb
DYKEMA GOSSETT PLLC
10 South Wacker Drive, Suite 2300
Chicago, Illinois 60606
Phone: (312) 876-1700
Fax: (312) 627-2302
rgottlieb@dvkema.com

Attorneysfor Defendants One West Bank, FSB and PNC Bank, National Association

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------DEBORAH ABEEL, et al., Plaintiffs, -againstBANK OF AMERICA, N.A., et al., Defendants.

)(

Case No. 1:12-cv-04269-(JBW) (RML)

ONEWEST BANK, FSB AND PNC BANK, N.A.'S MOTION

TO SEVER OR, ALTERNATIVELY, TO

TRANSFER

----------------------------------------------------------

)(

Richard E. Gottlieb DYKEMA GOSSETT PLLC 10 South Wacker Drive, Suite 2300 Chicago, Illinois 60606 Phone: (312) 876-1700 Fa}(: (312) 627-2302 rgottlieb@dykema.com Attorneysfor Defendants One West Bank, FSB and PNC Bank, National Association October 4,2012

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................................................... i

L II. PRELIMINARY STATEMENT ........................................................................................ 1
STATEMENT OF FACTS ................................................................................................. 2
A. B. III. Filing and Removal ................................................................................................. 2
Other Related Proceedings ...................................................................................... 4

ARGUMENT ...................................................................................................................... 5
A.
B.

THIS CASE SHOULD BE SEVERED PURSUANT TO FED. R. CIV. P. 21. .... 5 IN THE ALTERNATIVE, THIS CASE SHOULD BE TRANSFERRED TO THE CENTRAL DISTRICT OF CALIFORNIA ................................................... 8 1. 2. Venue Is Proper in the Central District of California Because Nearly Three Quarters of the Plaintiffs Reside in California..................... 9 The Balance of Convenience and the Interests of Justice Weigh in Favor of Transfer to the Central District of California............................... 9 a. The Convenience of the Parties and Witnesses, the Availability of Process to Compel the Attendance of Unwilling Witnesses, the Locus of Operative Facts, the Location of Relevant Evidence, and Judicial Economy and the Interests of Justice All Favor Transferring This Case to the Central District of California............................... '" ................ 10
1.

The Convenience of the Parties and Witnesses, and the Avai1ability of Process to Compel the Attendance of Unwilling Witnesses .................................. 10 The Locus of Operative Facts and the Location of Evidence ............................................................................ 11 Trial Efficiency, Judicial Economy, and the Interests of Justice ............................................................. 13

ii.

111.

b.

Given the Strong Nexus with California, Plaintiffs' Choice of Forum, the Forum's Familiarity with Governing Law, and the Relative Means of the Parties Should Be Afforded Little, if Any, Weight. ................................................................... 14

1.

Plaintiffs' Choice of Forum Is Entitled to Little

Weight. .............................................................................. 14
The Forum's Familiarity with Governing Law ................. 15
The Relative Means of the Parties Do Not Favor
Plaintiffs' Choice of Forum.............................................. 17

11. 111.

c.

The Related Litigation Filed in the Central District of

California Also Favors Transferring This Action to the
Central District of California........................................................ 17

IV.

CONCLUSION ................................................................................................................. 19

11

TABLE OF AUTHORITIES
Page(s)
CASES

Al McZeal, et al. v. JP Morgan Chase Bank, NA, et at.,

CV 11-7739 ................................................................................................................................ 7
Cento Group, S.P.A. v. OroAmerica, Inc.,
822 F. Supp. 1058 (S.D.N.Y. 1993) ......................................................................................... 10
Coker v. Bank ofAm.,
984 F. Supp. 757 (S.D.N.Y. 1997) ........................................................................................... 13
Columbia Pictures Indus. Inc. v. Fung,
447 F. Supp. 2d 306 (S.D.N.Y. 2006) ..................................................................................... .18
D.H Blair & Co., Inc. v. Gottdiener,
462 F.3d 95 (2d Cir. 2006) ....................................................................................................... 10
Delta Air Lines, Inc. v. Ass'n ofFlight Attendants, CWA., 720 F. Supp. 2d 213 (E.D.N.Y. 2010) ................................................................. 8, 9, 10, 17, 18
Emerita Ross, et at., v. Mortgage Electronic Systems, Inc., et al.,
Case No. CV 12-4830-0DW (Ex) ('Ross") ................................................ .4, 5, 15, 17, 18, 19
Fink v. Time Warner Cable,
810 F. Supp. 2d 633 (S.D.N.Y. 2011) ..................................................................................... .16
First City Fed. Savings Bank v. Register,
677 F. Supp. 236 (S.D.N.Y. 1988) ........................................................................................... 10
Fox News Network, L.L.C v. Time Warner, Inc.,
No. 96-CV-4963, 1997 WL 271723 (E.D.N.Y. May 16, 1997)
(Weinstein, J.) .................................................................................................... 8, 11, 13, 17, 18
Ghaly v. u.s. Dept. ofAgriculture, 228 Supp. 2d. 283 (S.D.N.Y. 2002) ........................................................................................... 5
Gonzalez, et al. v. Bank ofAmerica, NA.,
12-1007-SC, Doc. 24 (N.D. Cal. Aug. 24, 2012) ...................................................................... 7
Guido v. L 'Oreal, USA, Inc.,
Nos. CV-11-1067 CAS (lCx), CV 11-5465 CAS (JCx), 2012 WL 1616912 (C.D. CaL
May 7, 2012) ............................................................................................................................ 16
Gutierrez, et at. v. u.s. Bank, NA., et aI.,
CV 12-4713-GHK, Doc. 21 (C.D. Cal. July 23, 2012).............................................................. 7
Hernandez v. Graebel Van Lines, 761 F. Supp. 983 (E.D.N.Y. 1991) .............................................................................. 10, 11, 14

In re Cuyahoga Equip._Corp., 980 F .2d 110 (2d Cir. 1992) ..................................................................................................... 10

In re Hanger Orthopedic Grp., Inc. Sec. Litig., 418 F. Supp. 2d 164 (E.D.N.Y. 2006) ....................................................................................... 9
In re WellPoint, Inc. Out-of-Network UCR Rates Litig., No. MDL 09-2074 PSG, 2011 WL 3555610 (C.D. Cal. Aug. 11,2011) ................................ 16
In re Zyprexa Products Liability Litig., MDL 1596, 04-CV-1615, 2004 WL 2812095 (E.D.N.Y. Dec. 3,2004) (Weinstein, 1)....... 6, 7
Kolko v. Holiday Inns, Inc.,
672 F. Supp. 713 (S.D.N.Y. 1987) ........................................................................................... 13
Laverde, et al. v. Bank ofNew York Mellon, et aJ.,
CV 12-4567-JFW, Doc. 25 (C.D. Cal. Aug. 17,2012) ............................................................. 7
Lifesavers Concepts Ass 'n v. Bank ofAm.,
1:12-cv-00923-TWT, Doc. 2 (N.D. Ga. Apr. 2,2012) .............................................................. 7
Morris v. Northrop Grumman Corp.,
37 F. Supp. 2d 556 (E.D.N.Y. 1999) ......................................................................................... 5
Murillo, et al. v. Bank ofAm., NA., et al.,
2:12-cv-04507-DDP, Doc. 9, at 2 (C.D. Cal. June 5, 2012) ...................................................... 7
New Son Yeng Produce, LLC v. A&S Produce, Inc., No. 07-CV-4292 (KAM), 2009 WL 2568566 (E.D.N.Y. Aug. 19,2009) ......................... 12, 14
Ocean Walk Mall LLC v. Kornitzer,
No. 01 CIV. 213 (DLC), 2001 WL 640847 (S.D.N.Y. June 11,2011) .................................. .15
Prudential Sec. Inc. v. Norcom Development, Inc.,
No. 97 Civ. 6308(DC), 1998 WL 397889 (S.D.N.Y. July 16, 1998) ...................................... 16
Quan v. Computer Scis. Corp.,
Nos. 06-CV-3927 (CBA) (10), 06-CV-5100 (CBA) (JO), 2008 WL 89679 (E.D.N.Y.
Jan. 7, 2008) ............................................................................................................................. 17
Rabbi Jacob Joseph Sch. V. Province ofMendoza, 342 F. Supp. 2d 124 (E.D.N.Y. 2004) ..................................................................................... 18
Richards, et aJ. v. Deutsche Bank, et al.,
CV 12-4786-DSF, Doc. 40 (CD. Cal. Aug. 31,2012).............................................................. 7
Robert v. Dept. ofJustice,
No. 05-CV-2543NGGETB, 2005 WL 3371480 (E.D.N.Y. Dec. 12,2005) .............................. 7

11

Sebrow v. Zucker, Goldberg & Ackerman, No. 1O-CV-4767(NGG), 2012 WL 911552 (E.D.N.Y. Mar. 16,2012) ..................... .10, 13, 16
Sony Music Entertainment Inc. v. Does 1-40,
326 F. Supp. 2d 556 (S.D.N.Y. 2004) ........................................................................................ 5
Strauss v. W Highland Capital, Inc., No. 00-Civ-01184 (GEL), 2000 WL 1505957 (S.D.N.Y. Oct. 6, 2000) ................................ .15
Sugay, et al. v. Wells Fargo Bank, N.A., et aI., 2:2012-cv-04712-JFW, Doc. 18 (C.D. CaL July 12,2012) ....................................................... 7
Tait v. BSH Home Appliances Corp., No. SACV 10-711 DOC (ANx), 2011 WL 1832941 (C.D. Cal. May 12,2011) .................... 16

us. Fid & Guar. Co. v. Republic Drug Co.,

800 F. Supp. 1076 (E.D.N.Y. 1992) .................................................................................... 8, 14

Wald v. Bank ofAm. Corp., No. l1-CV-5957 (ENV)(JO), 2012 WL 1388198 (E.D.N.Y. Apr. 19,2012) ................... 14, 18
Wine Markets Int'l, Inc. v. Bass, 939 F. Supp. 178 (E.D.N.Y. 1996) ......................................................................................... .14
Zaitsev v. State Farm Fire & Cas. Co., No. 05-CV -2098 (ILG), 2005 WL 3088326 (E.D.N.Y. Nov. 17,2005) ................................ .14

RULES

Fed. R. Civ. P. 8(a) ..........................................................................................................................4

Fed. R. Civ. P. 20 ............................................................................................................................. 6
Fed. R. Civ. P. 20(a) ........................................................................................................................ 5
Fed. R. Civ. P. 20(a)(I) .................................................................................................................... 5
Fed. R. Civ. P. 21 ....................................................................................................... 1,4,5,6,8, 15

STATUTES

28 U.S.C. 1332(d) ......................................................................................................................... 3

28 U.S.C. 1367, 1441, 1446, and 1453 ....................................................................................... 3
28 U.S.C. 1391(b)(2) .................................................................................................................... 9
28 U.S.C. 1404(a) ............................................................................................................... passim
Cal. Bus. & Prof. Code 17200 et seq. ......................................................................................... 16

11l

N.Y. Gen. Bus. Law 349 ......................................................................................................... 3, 16

IV

Defendants OneWest Bank, FSB ("OneWest") and PNC Bank, National Association ("PNC Bank"), collectively, "Defendants," respectfully submit this memorandum of law in support of their motion to sever the action pursuant to Fed. R. Civ. P. 21 for improper joinder, or, in the alternative, to transfer venue to the Central District of California pursuant to 28 U.S.c.

1404(a).
I. PRELIMINARY STATEMENT

This case involves approximately 838 separately named and unrelated Plaintiffs filing an action against Defendants and approximately 1,806 other financial institution and trust

defendants for vague allegations of wrongful foreclosures and servicing of loans. This action
was removed from the Supreme Court of the State of New York to the Eastern District of New York, and Defendants now move to sever this action because Plaintiffs improperly joined a total of over 2,500 parties in an action involving a multitude of unrelated transactions and occurrences in different states. All of Plaintiffs' claims arise from different transactions, loans, and

foreclosures with different defendants, and therefore none of the questions of law or fact are common to all 838 Plaintiffs. This is, in short, an attempt by Plaintiffs' counsel to circumvent the rules and save on filing fees by misjoining 838 different cases into one action. This is just one of numerous mass action lawsuits that have been filed throughout the United States over the last three and a half years. Like the other mass joinder actions, the various Plaintiffs' claims are unrelated as they obtained different types of loans from different lenders, at different times, and in different states. Courts have repeatedly rejected the joining of unrelated. borrowers in a lawsuit, dismissing all but the lead plaintiff and requiring the other borrowers to file individual lawsuits. Accordingly, as in the numerous similar cases that have been severed across the country, pursuant to Fed. R. Civ. P. 21, the 838 Plaintiffs here should all be dismissed except for the first named Plaintiff.

Should the Court not sever the Plaintiffs and, instead, allow all 838 Plaintiffs' cases to proceed, then pursuant to 28 U.S.C. 1404(a), the Court should transfer this action to a more appropriate venue, the Central District of California, which would be more convenient for the parties and witnesses. Indeed, 73.5% of Plaintiffs reside in California, along with a majority of the defendants. Only 2.3% of Plaintiffs, meanwhile, reside in New York. A balance of factors relevant to convenience and the interests of justice overwhelmingly favor transfer to the Central District of California. First and foremost, not only do almost three quarters of Plaintiffs reside in California, but the locus of most of the operative events also occurred in California, where the real property at issue is located, where the mortgages and deeds were executed and locally recorded, and where the foreclosures are pending. Accordingly, the majority of evidence and sources of proof are also located in California, including documents and witnesses who may need to be deposed. Maintaining this action in New York, where this Court has yet to invest significant resources, and where a fraction of the parties are located and a fraction of the operative events occurred, would only cause unnecessary judicial inefficiency, particularly where a nearly-identical case was recently filed in the Central District of California. Defendants respectfully request that this motion be granted and this action be severed so that only the first named Plaintiff s case proceeds and the remaining Plaintiffs' cases are dismissed without prejudice. In the alternative, if this case is not severed, this action should be transferred to the Central District of California.

II. A. Filing and Removal

STATEMENT OF FACTS

On April 17, 2012, approximately 838 separately named and unrelated Plaintiffs filed a
complaint in the Supreme Court of the State of New York, County of Kings, Index Number

500827/2012 ("Complaint"), styled as Abeel, et al. v. Bank ofAmerica, NA., et al. (the "Abeel

Action"). The Complaint alleges claims against defendants OneWest Bank, FSB ("One West") and PNC Bank, N.A. ("PNC Bank") (collectively, "Defendants"), along with approximately

1,806 other financial institutions and trust defendants for: (1) conversion; (2) conspiracy to
commit conversion; (3) intentional misrepresentation (third and fourth claims); (4) fraudulent concealment (fifth and sixth claims); (5) promissory estoppel; (6) negligent misrepresentation; (7) breach of the covenant of good faith and fair dealing; (8) unjust enrichment; and (9) violations of the New York General Business Law 349, all relating to allegations of wrongful servicing ofloans and foreclosures. See generally CompL On August 24, 2012, co-defendant Bank of America Corporation filed a Notice of Removal removing the Abeel Action to this Court pursuant to the Class Action Fairness Act, 23 U.S.C. 1332(d) ("CAFA") and 28 U.S.c. 1367, 1441, 1446, and 1453. See Notice of Removal. The Notice of Filing of Removal was filed with the Supreme Court of the State of New York, County of Kings, on August 27,2012. See Notice of Filing of Removal. Of the 838 separately named Plaintiffs in the Complaint, based on Plaintiffs' own allegations in the Complaint, 616 (or 73.5%) of the Plaintiffs reside in California, while only 20 (or 2.3%) of Plaintiffs reside in New York.

See Compl. ,-r,-r 4-841.

Nine of the largest

defendants, including OneWest, Bank of America, N.A. (and affiliates), Wells Fargo Bank, N.A. (and affiliates), Countrywide Financial Corporation (and numerous affiliates), Wachovia Bank (now part of Wells Fargo), and Deutsche Bank National Trust Company (which is the trustee of most, if not all, of the 1658 named trust defendants) have, or are alleged by Plaintiffs to have,

headquarters or significant corporate offices in the Central District of California. See Compl.
~~ 847-2538. 1

B.

Other Related Proceedings

The 838 separately named Plaintiffs in the Abeel Action are not the only group of plaintiffs to make allegations of wrongful servicing of loans and foreclosures against these same major banks. On June 1,2012,350 separately named Plaintiffs filed a nearly identical word-for word complaint in the Central District of California against 661 separately named defendants, including many of the major banks sued in the Abeel Action. styled as Emerita Ross, et al., v.
Mortgage Electronic Systems, Inc., et al., Case No. CV l2-4830-0DW (Ex) ("Ross"). See Ross

CompI., attached as Exhibit ("Exh.") A to the Declaration of Walead Esmail ("Esmail Decl."). On June 26, 2012, the Central District of California in the Ross Action ordered the plaintiffs to show cause for why the court should not dismiss the complaint for various infractions, including, inter alia, violating the "short and plain" complaint standard under Fed. R. Civ. P. 8(a) and for misjoinder of parties under Fed. R. Civ. P. 21, and threatened to sanction plaintiffs' attorney for "presenting this lawsuit for an improper purpose under [Fed. R. Civ. P.]
11 (b)." See Esmail Decl., Exh. B (Order to Show Cause in Ross Action).

Deutsche Bank National Trust Company is headquartered in Los Angeles, California (http;!/investing.businessweekcomiresearchistocks/private/snapshot.asp?privcapId=4292180). Defendant OneWest is headquartered in Pasadena, California (https;//w"\vw.owb.com/Contact Us!). Bank of America, N.A. has corporate offices in Brea and Calabasas, California (http://start.cortera.comicompany/researchlk3m40\vI7j!bank-of-america-na/; http://www.memphisdailynews.comJeditorial/ArticleEmaiLaspx?id=42159). Countrywide Financial Corporation (now part of Bank of America) was headquartered in Calabasas, California (http://w\v.W.theacom.com/news/2008-05-0 11community/O 14.html; http://investing.businessweekcomlresearchlstocksfprivate/snapshot.asp?privcapld=264656). W;,:, lls Fargo has corporate offices in Los Angeles, California (https:llw\vw.weUsfargo.com/hel.p/address). Wachovia Bank is now part of Wells Fargo (https://w'Ww.weUsfargo.comiabout/corporate/wachovia).
1

On July 30, 2012, the Central District of California dismissed the Ross Action without prejudice for lack of prosecution. Action).

See Esmail Decl., Exh. C (Order of Dismissal in Ross

III. A.

ARGUMENT

TIDS CASE SHOULD BE SEVERED PURSUANT TO FED. R. CIV. P. 21.

Plaintiffs have improperly joined 838 named Plaintiffs in this action against 1,808

defendants, in direct violation of the Federal Rules. Fed. R. Civ. P. 20(a)(l) sets forth the requirements for permissive joinder of plaintiffs: Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. Fed. R. Civ. P. 20(a)(I). "[T]he remedy for improper joinder is severance ... " Sony Music Entertainment Inc. v.

Does 1-40, 326 F. Supp. 2d 556, 567 (S.D.N.Y. 2004) (citing Fed. R. Civ. P. 21). In addition,
"[d]istrict courts have broad discretion to decide whether joinder is appropriate, even when the requirements of Rule 20(a) have been met" Ghaly v. Us. Dept. ofAgriculture, 228 F. Supp. 2d 283, 292 (S.D.N.Y. 2002). Factors relevant to a determination of whether a court should sever the plaintiffs' claims include: "(1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for the separate claims." Morris v. Northrop Grumman Corp., 37 F. Supp. 2d

556, 580 (E.D.N.Y. 1999); see also In re Zyprexa Products Liability Litig., MDL 1596, 04-CV 1615,2004 WL 2812095, at *5-6 (E.D.N.Y. Dec. 3, 2004) (Weinstein, J.) (granting a motion to sever where the claims arose out of separate transactional issues, the claims implicated different questions of law, there was no prejudice to plaintiffs, and the claims involved different sets of witnesses, evidence, and proof). Here, the 838 Plaintiffs'claims against 1,808 defendants plainly do not arise out of the same transaction or occurrence. Although all of Plaintiffs' claims are vaguely related to

mortgage foreclosures, almost all if not all of them arise from completely different transactions, loans, and foreclosures in multiple states. The Complaint makes no suggestion that any of Plaintiffs are related, and so it can be presumed that almost all, if not all, of Plaintiffs' claims concern only that particular Plaintiff and involve entirely individual allegations against different bank defendants. Indeed, the Complaint does not even identify which of the 1,808 defendants

each ofthe 838 Plaintiffs have claims against.

Moreover, because the facts and issues are individual to each Plaintiff, Plaintiffs also cannot show that there are any questions of law or fact that will arise in this action that are common to all Plaintiffs. Rather, the Court will be asked to use its limited resources to

essentially adjudicate each of the 838 individual Plaintiffs' claims against one or more defendants pursuant to that Plaintiff's particular set of facts and issues, requiring different witnesses and documentary proof for each Plaintiff. This is the antithesis of judicial economy and the very circumstance Fed. R. Civ. P. 20 & 21 are crafted to prohibit. This action is only one of numerous mass action lawsuits that have been filed throughout the United States over the last three and a half years, and courts have repeatedly rejected the joining of unrelated borrowers in a lawsuit based on Fed. R. Civ. P. 20, dismissing all but the

lead plaintiff and requiring the other borrowers to file individual lawsuits. See, e.g., Lifesavers Concepts Ass'n v. Bank of Am., 1:12-cv-00923-TWT, Doc. 2 (N.D. Ga. Apr. 2, 2012) (dismissing all but first plaintiff); Murillo, et al. v. Bank ofAm., NA., et al., 2: 12-cv-04507-DDP, Doc. 9, at 2 n.l (C.D. Cal. June 5, 2012) (same); Sugay, et al. v. Wells Fargo Bank, NA., et al., 2:2012-cv-04712-JFW, Doc. 18 (C.D. Cal. July 12,2012) (same); Gutierrez, et al. v. US. Bank, NA., et al., CV 12-4713-GHK, Doc. 21 (C.D. CaL July 23, 2012) (same); Laverde, et al. v. Bank of New York
~Mellon,

et al., CV 12-4567-JFW, Doc. 25 (C.D. Cal. Aug. 17, 2012) (same);

Richards, et al. v. Deutsche Bank, et al., CV 12-4786-DSF, Doc. 40 (C.D. Cal. Aug. 31,2012) (same); Gonzalez, et al. v. Bank of America, NA., 12-1007-SC, Doc. 24 (N.D. CaL Aug. 24, 2012) (same). As in those cases, this purported mass action is plainly "ripe for severance that will serve the ends ofjustice and further the prompt and efficient disposition of litigation." In re Zyprexa Products Liability Litig., 2004 WL 2812095, at *6 (citations and internal quotations omitted). As in these other cases, here too "there is no logical relationship" between Plaintiffs and their various claims, and thus as a matter of law, Plaintiffs are misjoined in this action. See Robert v. Dept. of Justice, No. 05-CV-2543NGGETB, 2005 WL 3371480, at *10 (E.D.N.Y. Dec. 12, 2005) (granting defendants' motion to sever a plaintiff); see also Al McZeal, et al. v. JP Morgarz Chase Bank, NA, et al., CV 11-7739 PA (PJWx), In Chambers - Court Order, dated Dec. 21, 2011, attached as Exh. D to Esmail Dec!. (ordering the severance of 21 named plaintiffs who brought mortgage foreclosure claims against various banking institutions, dropping all but the first named plaintiff and allowing the other named plaintiffs to file individual claims in separate actions).

Accordingly, pursuant to Fed. R. Civ. P. 21, the 838 Plaintiffs here should all be dismissed except for the first named Plaintiff. The remaining Plaintiffs may, if they choose, file their individual claims in separate actions in the proper venues.

B.

IN THE ALTERNATIVE, THIS CASE SHOULD BE TRANSFERRED TO THE CENTRAL DISTRICT OF CALIFORNIA
Should the Court not grant Defendants' motion to sever and, instead, allow this action to

continue with all 838 Plaintiffs, Defendants respectfully request that, in the alternative, the Court transfer this action to the Central District of California, where venue is more proper. In pertinent part, 28 U.S.C. 1404(a) provides that: "For 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); accord Delta Air Lines, Inc. v. Ass'n

of Flight Attendants, CWA., 720 F. Supp. 2d 213, 217 (E.D.N.Y. 2010). A district court has
broad discretion to transfer cases pursuant to 1404(a) "to prevent waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense."

u.s.

Fid & Guar. Co. v. Republic Drug Co., 800 F. Supp. 1076, 1079 (E.D.N.Y.

1992) (citation omitted) (internal quotation marks omitted). In evaluating a motion to transfer, the court conducts a two-part inquiry: (i) determining whether the case could have been brought in the proposed district; and (ii) evaluating whether transfer is warranted using certain factors relating to the convenience of transfer and the interests of justice. See Delta Air Lines, 720 F. Supp. 2d at 217; see also Fox News Network, L.L.c. v. Time Warner, Inc., No. 96-CV-4963, 1997 WL 271723, *3-4 (E.D.N.Y. May 16, 1997) (Weinstein, J.) (granting transfer of case to location where most of the facts occurred and where most of the parties and witnesses are, and where the court in that district already examined the same events in a related case), In this case,

the Central District of California is an appropriate venue, and the factors relevant to convenience and the interests ofjustice overwhelmingly favor transfer to that court.
1.

Venue Is Proper in the Central District of California Because Nearly Three Quarters of the Plaintiffs Reside in California.

The threshold consideration in a Section 1404(a) motion is whether the action could have been brought in the proposed transferee forum. Id; see also In re Hanger Orthopedic Grp., Inc. Sec. Litig., 418 F. Supp. 2d 164, 168 n.3 (E.D.N.Y. 2006) (granting motion to transfer and noting that jurisdiction was proper in the proposed forum). Venue in the Central District of California is appropriate under 28 U.S.C. 1391(b)(2), which allows a civil action to be brought in the 'judicial district in which a substantial part of th~ events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated." Here, 73.5% of the Plaintiffs reside in California and bring this action claiming wrongful servicing of loans and foreclosures on real property located in California. Therefore, the substantial majority of the real property at issue are located in

California and the substantial majority of foreclosure actions which gave rise to the claims in the Complaint are pending in California. Thus, venue is proper under Section 1391(b)(2).
2. The Balance of Convenience and the Interests of Justice Weigh in Favor of Transfer to the Central District of California.

Having met the threshold requirement under Section 1404(a), the Court must next evaluate whether transfer is warranted by considering multiple factors relating to the convenience of transfer and the interests ofjustice. See Delta Air Lines, 720 F. Supp. 2d at 217. Specifically, the factors courts consider in determining whether the balance of convenience and the interests of justice favor transfer are: (1) the convenience of the parties; (2) the convenience of witnesses; (3) the location of relevant documents and other physical evidence; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses;

(6) plaintiffs choice of forum; (7) the relative means of the parties; (8) the forum's familiarity with governing law; and (9) judicial economy and the interests of justice. Id.; see also D.H

Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006); In re Cuyahoga Equip. Corp., 980 F .2d 11 0, 117 (2d Cir. 1992).
Here, the factors weigh strongly in favor of transfer to the Central District of California.

a.

The Convenience of the Parties and Witnesses, the Availability of Process to Compel the Attendance of Unwilling Witnesses, the Locus of Operative Facts, the Location of Relevant Evidence, and Judicial Economy and the Interests of Justice All Favor Transferring This Case to the Central District of California.

With an overwhelming majority of the Plaintiffs residing in California - based on Plaintiffs' own Complaint (see Compl. California)
~~

4-841, showing that 73.5% of Plaintiffs reside in

and where the overwhelming majority of the real property at issue and the relevant

witnesses, evidence, and sources of proof are located, the convenience to the parties and tril'll efficiently "plainly weigh[s] in favor of transfer." See Sebrow v. Zucker, Goldberg & Ackerman, No. 1O-CV-4767(NGG), 2012 WL 911552, at *4 (E.D.N.Y. Mar. 16, 2012) (granting motion to transfer); see also Fox News Network, 1997 WL 271723, at *3-4 (granting motion to transfer case where it would "prevent a waste of time, energy and money, and would also protect the parties, witnesses, and the public against unnecessary inconvenience and expense.").
L

The Convenience of the Parties and Witnesses. and the Availability of Process to Compel the Attendance of Unwilling Witnesses

"The convenience of parties and witnesses is considered 'the essential criteria under the venue statute' and 'the most significant factor.'"

Cento Group, S.P.A. v. OroAmerica, Inc.,

822F. Supp. 1058, 1060 (S.D.N.Y. 1993) (quoting First City Fed. Savings Bankv. Register, 677 F. SUpp. 236, 237 (S.D.N.Y. 1988); see also Hernandez v. Graebel Van Lines, 761 F. SUpp. 983,988 (E.D.N.Y. 1991) (same).

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Here, the convenience of the parties and witnesses points plainly to the Central District of California as the most appropriate and practical venue for this action. Almost three quarters of the claims involved in this action arise from allegations of wrongful servicing of loans for, or foreclosures of, real property located in California. Further, almost three quarters of Plaintiffs reside in California for purposes of personal jurisdiction. Conversely, only 2.3% of Plaintiffs reside in New York or involve foreclosures of real property or loans on real property in New York. Furthermore, nine of the major bank defendants (and their numerous affiliates), including Deutsche Bank National Trust Company, which is the trustee of most, if not all, of the 1658 named trust defendants, have, or are alleged by Plaintiffs to have, corporate offices in the Central District of California. Thus, a substantial majority of the defendants in this case, like the
It is, therefore, unquestionable that the most convenient

Plaintiffs, "reside" in California.

location for the parties to litigate this action is the Central District of California, militating in favor of transfer. See Hernandez 761 F. Supp. at 991-92; see also Fox News Network, 1997 WL 271723, at *3-4 (granting motion to transfer case to where a majority of parties and witnesses reside or work). Moreover, the majority of the key witnesses in this case will likely be the Plaintiffs themselves, as well as the relevant employees and agents of the defendants, who maintain the relevant records, the majority of whom reside in California or are employed at the defendants' Central District of California offices. See Fox News Network, 1997 WL 271723, at *3 (granting motion to transfer case where witnesses "who may be called on behalf of [parties] are likely to work"). These witnesses may offer key testimony regarding, inter alia, payments made and received, communications between the parties, the facts surrounding the defaults and foreclosure proceedings, and the nature and condition of the real property at issue. Moreover, deposing or

11

compelling the attendance of nonparty witnesses for trial (including nonparty witnesses who may testifY in support of Plaintiffs' claims, or nonparty appraisers and local officials, etc.) - many cf whom may be in California, where the majority of the relevant documents were drafted and the majority of the real property at issue is located will be unnecessarily difficult in New York,

particularly where California witnesses will be asked to travel across the country to appear here. Indeed, "not only would it be inconvenient for [unwilling] witnesses to come to New York, but [the parties] could not compel their appearance if they chose not to come voluntarily." See New

Son Yeng Produce, LLC v. A&S Produce, Inc., No. 07-CV-4292 (KAM), 2009 WL 2568566, at
*4 (E.D.N.Y. Aug. 19,2009).
11.

The Locus of Operative Facts and the Location of Evidence

Similarly, with a fraction of the alleged wrongful acts originating in New York, and an overwhelming number of the alleged wrongful acts originating in California, that state is the primary locus of operative facts. See id., at *4-5 (transferring the case to the Central District of California because "there is a local interest in having this controversy decided in California," where "almost all" of the operative events occurred). Here, the operative events involve the execution, transfer, and recording of mortgage documents, the servicing of loans, and foreclosure proceedings. Because almost three quarters of Plaintiffs reside in California, where real property at issue is located, where the mortgage documents were executed and recorded, where the loans were serviced, and where the foreclosure proceedings are currently pending, California is where "almost all" of the operative events occurred, and California, more than any other state, has the primary interest in adjudicating this largely local dispute. See id Accordingly, the substantial majority of the evidence and sources of proof in this case are also located in California, including the real property at issue and the locally recorded mortgages, deeds, and transfers. The defendants, including the nine major financial institutions and

12

Deutsche Bank National Trust Company, which is the trustee of most, if not all, of the 1658 named trust defendants, maintain, or are alleged by Plaintiffs to maintain, corporate offices in the Central District of California and maintain the relevant documents, including original copies of mortgages, deeds, and transfers, and mortgage payment schedules and foreclosure documents, in the state where the corresponding real property is located. Here, with 73.5% of Plaintiffs residing in California, the vast majority of key and physical evidence and sources of proof related to the real property at issue Plaintiffs themselves and other witnesses defendants may seek to depose including the are located in

California. Thus, "obtaining the required documents and developing a factual record may be done more efficiently" in California, and thus transfer is strongly favored. See Sebrow, 2012 WL 911552, at *4 (finding that it would be more efficient to transfer the action to New Jersey, where the underlying real estate transaction and the foreclosure proceeding both occurred); see also Fox

News Network, 1997 WL 271723, at *3-4.

iii. Trial Efficiency, Judicial Economy, and the Interests of Justice

Balancing the material circumstances of this case and the factors as weighed above, trial efficiency, judicial economy, and the interests ofjustice plainly favor adjudicating this action in California. See id; see also Coker v. Bank of Am., 984 F. Supp. 757, 765 (S.D.N.Y. 1997) (citing Kolko v. Holiday Inns, Inc., 672 F. Supp. 713, 716 (S.D.N.Y. 1987) ("the public interest requires that, 'localized controversies [be] decided at home"')). The facts demonstrate that this action has very little connection with New York and an overwhelming connection to California.
It is undisputable that the Central District of California can more efficiently adjudicate this

matter, where at least 73.5% of the relevant Plaintiffs, and a majority of defendants, witnesses, physical evidence, and documents are located. As one court put, the '''center of gravity' of this action plainly lies in" California. See Coker, 984 F. Supp. at 767 (citations omitted).

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Where "litigation has not progressed so much in the Eastern District of New York that transfer at this juncture would constitute a waste of this court's resources so far spent on the case," the interests of justice and the "local interest in having this controversy decided in California" outweighs maintaining this action here. See New Son Yeng Produce, 2009 WL 2568566, at *5; see also Hernandez 761 F. Supp. at 991-92 (holding that it is more "practical" and thus in the interest of justice to transfer a case to the state that is most convenient for the parties and witnesses, and where the operative facts occurred). h. Given the Strong Nexus with California, Plaintiffs' Choice of Forum, the Forum's Familiarity with Governing Law, and the Relative Means ofthe Parties Should Be Afforded Little, if Any, Weight.
1.

Plaintiffs' Choice of Forum Is Entitled to Little Weight.

Plaintiffs' choice of forum is entitled to virtually no weight where, as here, there is little connection between the chosen forum and the facts or issues of the case, see Wine ll1arkets Int'l, Inc. v. Bass, 939 F. Supp. 178, 179 (B.D.N.Y. 1996), and because deference to a plaintiff's chosen forum in class actions is "markedly diminishe[d]" where numerous diverse plaintiffs may have different and competing choice forums. Wald v. Bank of Am. Corp., No. ll-CV-5957

(ENV)(JO), 2012 WL 1388198, at *3-4 (E.D.N.Y. Apr. 19,2012) (granting motion to transfer). First, "where the transactions or facts giving rise to the action have no material relation or significant connection to the plaintiff's chosen forum, then the plaintiffs choice is not accorded the same 'great weight' and, in fact, is given reduced significance."

u.s. Fid. & Guar. Co., 800

F. Supp. at 1082 (citation omitted); see also Zaitsev v. State Farm Fire & Cas. Co., No. 05-CV 2098 (lLG), 2005 WL 3088326, at *3 (B.D.N.Y. Nov. 17, 2005) ("much less deference should be given to [a plaintiff s choice of forums] when the chosen forum has no other nexus to the facts underlying the action.") (granting motion to transfer).

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Moreover, although Plaintiffs did not bring this action as a putative class action, with 838 separately named Plaintiffs and 1,808 defendants, were this action to continue, Plaintiffs risk having parties dropped or severed for misjoinder under Fed. R. Civ. P. 21, as in the Ross Action.

See Esmail Decl., Exh. B (Order to Show Cause in Ross Action). In either case, '" [t]he weight
given plaintiff[s'] choice of forum is 'considerably weakened' [where] the plaintiff[s] [are] only one of many potential plaintiffs, 'all of whom could with equal show of right go into their many home courts ....'" Strauss v. W Highland Capital, Inc., No. 00-Civ-01184 (GEL), 2000 WI., 1505957, at *2 (S.D.N.Y. Oct. 6,2000). Here, 73.5% of Plaintiffs reside in California, yet this action was brought in New York, where only 2.3% of Plaintiffs reside. Accordingly, 73.5% ofthe substantive events and activities giving rise to Plaintiffs' claims originated and, in many cases, are ongoing in California and concern real property in California. Other than the 2.3% of Plaintiffs who reside in New York, there exists essentially no material relationship or significant connection between this case and New York other than that Plaintiffs' attorney, presumably, chose to file it here for his own convenience because his office is in New York. This, of course, deserves no weight. See Ocean

Walk Mall LLC v. Kornitzer, No. 01 CIV. 213 (DLC), 2001 WL 640847, at *4 (S.D.N.Y. June
11, 2011) ("Inconveniences stemming from the plaintiffs' need to retain counsel in the transferee district 'is oflittle, ifany, weight on a motion to transfer."') (citations omitted). Where all the potential Plaintiffs have an "equal show of right [to] go into their many home courts," California, where 73.5% of Plaintiffs reside, represents the most equitable location for this action to proceed. See Strauss, 2000 WL 1505957, at *2. Thus, the relative importance of Plaintiffs' choice of forum is greatly, if not entirely, diminished.
11.

The Forum's Familiarity with Governing Law

15

Likewise, the forum's familiarity with governing law is given little, if any, weight.
Prudential Sec. Inc. v. Norcom Development, Inc., No. 97 Civ. 6308(DC), 1998 WL 397889, at

*6 (S.D.N.Y. July 16, 1998) ("the 'governing law' factor is to be accorded little weight on a motion to transfer venue because federal courts are deemed capable of applying the substantive law of other states."); see also Sebrow, 2012 WL 911552, at *4. Here, ten of the eleven claims brought by Plaintiffs are common law claims which both New York and California district courts are equally capable of interpreting and applying.
Th~

final claim, for violation of New York General Business Law 349, alleges "deceptive acts and practices," a common state statute that is "analogous" to California's Business and Professions Code 17200 et seq., which prohibits "any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." See Fink v. Time Warner Cable, 810 F. Supp. 2d 633,646-47 (S.D.N.Y. 2011) (because plaintiffs' claims under New York GBL 349 failed, plaintiffs' attempt to state claims "under the analogous California [Business and Professions Code 17200 et seq.] statute must also fail."). There is, in short, nothing extraordinary or unique about Plaintiffs' claims, and the Central District of California is as capable of interpreting and applying the governing law as is a New York district court, and, indeed, Central District of California courts often do interpret and apply New York General Business Law 349. See, e.g., Guido v. L 'Oreal, USA, Inc., Nos. CV 11-1067 CAS (lCx), CV 11-5465 CAS (JCx), 2012 WL 1616912 (C.D. Cal. May 7, 2012) (interpreting and applying New York General Business Law 349); In re WellPoint, Inc. Out-oj
Network UCR Rates Litig., No. MDL 09-2074 PSG (FFMx), 2011 WL 3555610 (C.D. Cal. Aug.

11,2011) (same); Taif v. BSH Home Appliances Corp., No. SACV 10-711 DOC (ANx), 2011 WL 1832941 (C.D. Cal. May 12,2011) (same).

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111.

The Relative Means of the Parties Do Not Favor Plaintiffs' Choice of Forum.

The relative means of the parties also do not favor maintaining this action in New York. First and foremost, Plaintiffs have presented no evidence showing their lack of means and that they would be financially prejudiced by having to litigate in California, and thus "this factor adds nothing to [the] analysis." See Quan v. Computer Scis. Corp., Nos. 06-CV-3927 (CBA) (JO), 06-CV-5100 (CBA) (10), 2008 WL 89679, at *7 (E.D.N.Y. Jan. 7, 2008). In addition, to the extent Plaintiffs have less means than defendants, this factor would favor transferring the case to the Central District of California, where 73.5% of the Plaintiffs reside. Indeed, by filing this case in New York, where only 2.3% of Plaintiffs reside, Plaintiffs' counsel risks burdening 73.5% of his clients and their witnesses with traveling across the country or delivering documents and evidence across the country. In short, if Plaintiffs have means, then this factor does not favor Plaintiffs' choice of forum, and if Plaintiffs lack means, then this factor still does not favor Plaintiffs' choice of forum because it would be less expensive for the substantial majority of Plaintiffs to litigate this action in California, where most of them reside. c.
The Related Litigation Filed in the Central District of California Also Favors Transferring This Action to the Central District of California.

As Judge Vitaliano observed in Delta Air Lines, even if the other transfer factors were ill "equipoise" which, Defendants submit, they plainly are not here the pendency of related

litigation in the Central District of California is "decisive" in favor of transfer. Delta Air Lines, 720 F. Supp. 2d at 219; see also Fox News Network, 1997 WL 271723, at *3 (granting motion to transfer case to where a related case had been heard "for reasons of judicial efficiency."). The
Ross Action, which was recently filed in the Central District of California on June 26, 2012,

alleged nearly identical claims and facts against many of the same defendants as in this action. Accordingly, trial efficiency and the interests of justice weigh heavily in favor of transferring

17

this case to the Central District of California, thereby conserving judicial resources and avoiding the risk of overlapping or inconsistent results. The "existence of a related action in the transferee district is a strong factor to be weighed with regard to judicial economy," and such transfer saves judicial resources, and avoids the possibility of inconsistent results. Rabbi Jacob Joseph Sch. V. Province of ll1endoza, 342 F. Supp. 2d 124, 130 (E.D.N.Y. 2004) (transferring case from E.D.N.Y. to S.D.N.Y. pursuant to

1404(a) because the interests of justice would be served by such a transfer); see also Delta Air
Lines, 720 F. Supp. 2d at 219 (transferring case to jurisdiction where related case was pending,
noting the '''strong policy favoring the litigation of related claims in the same tribunal'" (citation omitted)). The case in the transferee district need only be "'related, not identical.'" Columbia

Pictures Indus. Inc. v. Fung, 447 F. Supp. 2d 306, 309-10 (S.D.N.Y. 2006) (citation omitted); see also Delta Air Lines, 720 F. Supp. 2d at 219, n.4; see also Wald, 2012 WL 1388198, at *5
(transferring case with "similar allegations" and "some of the same defendants"). Although the Ross Action was recently dismissed, the dismissal was without prejudice, leaving the plaintiffs in the Ross Action the opportunity to refile in the Central District of California. See Esmail Decl., Exh. C (Order of Dismissal in Ross Action). Indeed, in Delta Air

Lines, the court transferred the action, even though a motion to dismiss the related case was
pending. See Delta Air Lines, 720 F. Supp. 2d at 219. Whether the case has been dismissed or not, a "judge's familiarity with much of the background events [in a related case] will further a speedy, efficient and just resolution of the current action on the merits." Fox News Network, 1997 WL 271723, at *3. Therefore, in addition to the balance of factors above, transfer to the Central District of California is also appropriate because the nearly-identical Ross Action was filed in the Central

18

District of California, where Judge Wright has already had an opportunity to review a nearlyidentical complaint, and where the plaintiffs could refile their complaint and risk unnecessarily wasting judicial resources and the possibility of inconsistent results against the same defendants in two different states. In conjunction with the factors above that overwhelmingly favor a transfer to the Central District of California, the Ross Action only strengthens the argument that, in the interests of justice, the most appropriate venue for this case to be heard is the Central District of California.

IV.

CONCLUSION

F or all the foregoing reasons, Defendants respectfully request that all but the first named Plaintiff be severed and dismissed from this action. In the alternative, Defendants respectfully request that the Court transfer this action to the Central District of California because the majority of factors, including the most crucial factors, weigh heavily in favor of transfer, and grant any other reliefthat the Court deems just and proper. Dated: October 4,2012 Respectfully submitted,

lsi Richard E. Gottlieb Richard E. Gottlieb DYKEMA GOSSETT PLLC 10 South Wacker Drive, Suite 2300 Chicago, Illinois 60606 Phone: (312) 876-1700 Fax: (312) 627-2302 rgottlieb(a),dykema.com
Attorneysfor Defendants One West Bank, FSB and PNC Bank, National Association

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