74 - Powerpoint Opposing Transfer

Case 1:17-cv-00536-LY Document 74 Filed 02/21/18 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JOHN F. GRAHAM, SR. §

Plaintiff, §
§
v. § CIVIL ACTION NO. 1:17-CV-00536
§
CRAIG A. HUFFMAN, SAEED “SAM” §
TALARI, and HEMPTECH CORP., §
Defendants. §
NOTICE OF FILING OF PRESENTATION IN SUPPORT OF

OPPOSITION TO TRANSFER PURSUANT TO 28 U.S.C. § 1404(a)
PLEASE TAKE NOTICE that, pursuant to the Court’s request, Plaintiff files a copy of its
February 21, 2018 hearing presentation attached hereto as Exhibit 1.
Dated: February 21, 2017 Respectfully submitted,
TAYLOR DUNHAM AND RODRIGUEZ LLP

301 Congress Ave., Suite 1050
Austin, Texas 78701
512.473.2257 Telephone
512.478.4409 Facsimile
By: /s/ Hannah M. Vahl

David E. Dunham
State Bar No. 06227700
Email: ddunham@taylordunham.com
Hannah M. Vahl
State Bar No.24082377
Email: hvahl@taylordunham.com
Isabelle M. Antongiorgi
State Bar No.24059386
Email: ima@taylordunham.com
COUNSEL FOR PLAINTIFF JOHN F. GRAHAM, SR.

Case 1:17-cv-00536-LY Document 74 Filed 02/21/18 Page 2 of 2
CERTIFICATE OF SERVICE
I hereby certify that Defendants Saeed “Sam” Talari and HempTech Corp. have been
served a copy of this document via hand delivery on this the 21th day of February, 2017. Defendant
Craig A. Huffman has been served a copy of this document by first-class mail at 13046 Racetrack
Road, #243, Tampa, FL 33626, with a courtesy copy by email to craig@securuslawgroup.com
/s/ Hannah M. Vahl

Hannah M. Vahl
Notice of Filing of Presentation Page 2

Case 1:17-cv-00536-LY Document 74-1 Filed 02/21/18 Page 1 of 71
EXHIBIT 1

AUSTIN DIVISION

Plaintiff, §
§
v. § CIVIL ACTION NO. 1:17-CV-00536-LY
§
Defendants. §
Hearing on Transfer under Section 1404(a)

February 21, 2018
1
Transfer should be denied for the
following reasons:
• Austin-based company: This case arises out of the exchange of
shares in an Austin-based company and related misrepresentations
made in Texas.
• Austin-based client: Defendant Huffman, Defendants’ conflicted
agent, was the attorney for Austin-based BLDW and represented
Plaintiff on the exchange.
• Texas witnesses: Key third-party witnesses are current and
former Texas residents.
• Texas law: As Defendants concede, Texas law generally applies.
• Acquiescence to forum: Hemptech does not challenge venue or

jurisdiction, and none of the defendants seek convenience transfer
under Section 1404(a). 2
Austin
Paul Severin
Texas Witnesses
Larry O’Connor Dallas-Frisco
Bernie Johnson Ft. Worth
Turner, Stone and Company
Ed Mercado John Havison
(Current HTCO CPA)
Dale Hyatt Gerry Graham
Rachel Graham
Jonathan Paden (HTCO Shareholder/Witnesses)
Kristen Graham
Derek Bridges (HTCO Shareholder/Witnesses)
James McDermott
Kathy Scott
Brandon Graham
(HTCO Shareholder/Witnesses)
San Antonio/New Braunfels

William Schmidt
Ben Marek Houston
(HTCO Shareholder/Witnesses) Bert Matthews
(HTCO CPA) 3
4
Howard, CO
Greg Miller
Salida, CO
Art Stone
5
This is both a legal malpractice and

securities fraud case.
• Graham exchanged shares in Austin-based Building

Turbines, Inc. for shares in HempTech Corp. but has
been unable to sell them.
• Graham was told he would have to wait six months,
then 12 months, before selling his shares.
6

• Huffman represented both sides of the transaction.
• Huffman deliberately mislead Graham about the

transferability of HempTech shares.
7
8
9
10

• Huffman and Talari represented to Graham when he

was in Austin that HempTech had entered into a
“$60+ million” contract with to sell products to the
“American Indians.”
• That contract is with Tinkerer’s Obsession Labs, LLC,
whose manager, Carmine DePalma, has been barred
by FINRA from acting as a broker and pleaded guilty
to grand larceny relating to fraudulent investing
activities.
11
12

• Huffman and Talari also told Graham HempTech had

entered into a “$60+ million” contract with to sell
products to the “American Indians.”
• That contract is with Tinkerer’s Obsession Labs, LLC,
whose manager, Carmine DePalma, has been barred by
FINRA from acting as a broker and pleaded guilty to
grand larceny relating to fraudulent investing activities.
13
14
15
Who is Carmine De Palma?
16
17
18
Section 1404(a) allows transfer for

convenience
“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 or to any district or division to which all
parties have consented.”
28 U.S.C. § 1404(a)
19
The transferee court must be “clearly

more convenient”
“When the transferee venue is not clearly more
convenient than the venue chosen by the plaintiff, the
plaintiff’s choice should be respected.”
In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (en banc)
(“Volkswagen II”)
20
The burden of proof is on the party

seeking transfer
“When the movant demonstrates that the transferee venue
is clearly more convenient, . . . it has shown good cause
and the district court should therefore grant transfer.”
Volkswagen II, 545 F.3d at 315
21
Private interest factors
Austin, Tampa,
Texas Florida
Relative ease of
access to proof
Availability of
compulsory process
Cost of attendance
of willing witness
Other practical
problems
22
Access to sources of proof

• Even with technological advances, this factor is not
“superfluous.”
Volkswagen II, 545 F.3d at 316
 Nevertheless, technological advances in storing and

transferring data may be considered.
Arenas v. Calhoun, No. SA-16-CV-1203, 2017 Tex. App. LEXIS 168452, at *10–11
(W.D. Tex. Oct. 12, 2017).
23
Austin, Tampa,
Texas Florida
Relative ease of
 Against transfer
access to proof
Availability of
compulsory process
Cost of attendance
of willing witness
Other practical
problems
24
Access to sources of proof

• Relevant communications, contracts, and share
certificates are maintained in Austin, Texas
• Relevant financial records are maintained by CPA Bert
Matthews in Houston, Texas, and accounting firm
Turner, Stone & Company in Dallas, Texas
• Additional Texas HempTech investors also maintain
relevant documents in Texas, including communications
with Defendants
• Other relevant documents—for example, HempTech’s
SEC filings—are accessible anywhere online.
25
26
27
28
29
30
Availability of Compulsory Process

and Cost of Attendance for
Willing Witnesses
“Convenience for the witnesses has been recognized as the most
important factor under § 1404(a).”
Healthpoint, Ltd. v. Derma Scis., Inc., 939 F. Supp. 2d 680, 690 (W.D. Tex. 2013) (internal
quotation omitted).
“‘It is the convenience of non-party witnesses, rather than of

party witnesses, that is more important and accorded greater
weight in a transfer of venue analysis.’”
Healthpoint, 939 F. Supp. 2d at 690 (quoting Frito-Lay N. Am. v. Medallion Foods, Inc., 867 F.
Supp. 2d 859, 870–71 (E.D. Tex. 2012))
31

Willing Witnesses
Beyond the parties themselves, Plaintiff’s Initial
Disclosures identify four additional witnesses based in
Florida, two witnesses based in New York, two witnesses
based in Colorado, and 20 witnesses based in Texas.
See Declaration of H. Vahl
32

Willing Witnesses
HempTech’s initial disclosures only identify the parties as
witnesses. No non-parties are identified.
33

Willing Witnesses
Talari and Huffman refused to provide initial disclosures
until after the motions to dismiss had been ruled upon.
34
35

Willing Witnesses
These Texas-based witnesses include witnesses to
Defendants’ fraudulent statements and fraudulent intent.
36
37
38
39
40

Willing Witnesses
Many of these witnesses either live in Texas or else
regularly travel to Texas, and it would be more convenient
for them to testify in Texas.
41
Austin, Tampa,
Texas Florida
Relative ease of
access to proof
Availability of  Against transfer
compulsory process
Cost of attendance  Against transfer
of willing witness
Other practical
problems
42
43
44
45
46
Public interest factors

Austin, Tampa,
Texas Florida
Court congestion
Local interest
Familiarity of the
forum with the law
Avoidance of
unnecessary
problems of conflict
47
Court congestion
“‘Generally, this factor favors a district that can bring a case to

trial faster.’”
Arenas v. Calhoun, No. SA-16-CV-1203, 2017 Tex. App. LEXIS 168452, at *22 (W.D. Tex. Oct.
12, 2017) (quoting Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., 867 F. Supp. 2d 859, 871
(E.D. Tex. 2012)).
48
Court congestion
The most recent Federal Court Management Statistics

show that, on average, a litigant gets to trial faster in the
Western District of Texas than the Middle District of
Florida (within 19.2 months, as opposed to 22.1 months).
49
Florida, Middle District
50
Texas, Western District
51

Austin, Tampa,
Texas Florida
Court congestion  Against transfer
Local interest
Familiarity of the
forum with the law
Avoidance of
unnecessary
52
Local Interest
Texas has an interest in deciding cases involving
misrepresentations to its citizens.
See, e.g., Wein Air Alaska, Inc. v. Brandt, 195 F.3d 208, 215 (5th Cir. 1999) (“Texas
clearly has an interest because the dispute involves a corporation whose principal place
of business is in Texas, and the corporation allegedly was defrauded.”); Bacchanal
Hospitality, LLC v. Cured, LLC, No. 16-cv-207 (RCL), No. 16-cv-207, 2017 U.S. Dist.
LEXIS 27205, at *16 (W.D. Tex. Feb. 24, 2017) (denying transfer where case involved
allegations of deception of Texas consumers).
53
Local Interest
Texas has an interest in protecting its citizens from legal
malpractice.
See, e.g., Streber v. Hunter, 221 F.2d 701, 720 (5th Cir. 2000) (noting, in applying
Texas over Louisiana law, that “Texas’s policy of protecting its citizens against the
‘inherently undiscoverable’ malpractice of attorneys is well-established”)
54
Local Interest
Here, the local interest also weighs in favor of
maintaining the suit in Texas because of the existence of
other Texas investors who have likewise been unable to
deposit and sell HempTech shares.
55
Local Interest
“Second and most importantly, there are strong local
interests favoring maintaining this case. While some of
the alleged infringing activity occurred in Massachusetts,
[the Texas Association of Realtors] is a Texas non-profit
concerned with real property rights and transactions in
Texas and a professional membership organization for
Texas realtors.”
Tex. Ass’n of Realtors, Inc. v. PDFFiller, Inc., No. A-16-CA-1304-SS, 2017 U.S. Dist.
LEXIS 140580, at *10 (W.D. Tex. Aug. 31, 2017) (denying transfer)
56

Austin, Tampa,
Texas Florida
Local interest  Against transfer
Familiarity of the
forum with the law
Avoidance of
unnecessary
57
Familiarity with the Law

Plaintiff asserts a claim under the Texas Securities Act,
and this Court’s familiarity with that statute weighs
against transfer.
See Tex. Ass’n of Realtors, Inc., 2017 U.S. Dist. LEXIS 140580, at *10 (W.D. Tex.
Aug. 31, 2017) (noting, in denying transfer, that “this Court has greater experience and
familiarity with TAR’s unfair competition claims under Texas law”)
58
Familiarity with the Law

The Texas Disciplinary Rules of Professional Conduct
may also help define the appropriate standard of care for
Plaintiff’s legal malpractice and breach of fiduciary duty
claims against Huffman.
See Two Thirty Nine Joint Venture v. Joe, 60 S.W.3d 896, 9-5 (Tex. App.—Dallas 2001,
rev’d on other grounds, 145 S.W.3d 150 (Tex. 2004) (noting that the Texas Rules can
be considered by the trier of fact as evidence of a violation of an existing duty of care
for claims of legal malpractice or breach of fiduciary duty).
59

Austin, Tampa,
Texas Florida
Local interest  Against transfer
Familiarity of the
forum with the law
Avoidance of
unnecessary
60
Rule 1.12 Organization as Client
(e) In dealing with an organization’s directors, officers,

members, shareholders or other constituents, a lawyer shall
explain the identity of the client when it is apparent that the
organization’s interests are adverse to those of the
constituents with whom the lawyer is dealing or when
explanation appears reasonably necessary to avoid
misunderstanding on their part.
Tex. Disciplinary R. Prof’l. Conduct, Rule 1.12(e)
61
Huffman misrepresented the conflict he

had to his Austin-based client,
John Graham
62
63
64
65
66
“Legal Fees and Jurisdiction”
67
“Such Agreement” is the legal fees

agreement
“Such Agreement” refers to the agreement in the
preceding sentence regarding legal fees:
• “Each Party shall bear its own legal fees for the
execution of any provisions herein contained” is
enforceable in Pinellas County, Florida.”
68
“Legal Fees and Jurisdiction”
69

AUSTIN DIVISION

Plaintiff, §
§
v. § CIVIL ACTION NO. 1:17-CV-00536-LY
§
Defendants. §
Hearing on Transfer under Section 1404(a)

February 21, 2018
70

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Case 1:17-cv-00536-LY Document 74 Filed 02/21/18 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

JOHN F. GRAHAM, SR. §

NOTICE OF FILING OF PRESENTATION IN SUPPORT OF

February 21, 2018 hearing presentation attached hereto as Exhibit 1.

Dated: February 21, 2017 Respectfully submitted,

TAYLOR DUNHAM AND RODRIGUEZ LLP

By: /s/ Hannah M. Vahl

COUNSEL FOR PLAINTIFF JOHN F. GRAHAM, SR.

/s/ Hannah M. Vahl

Notice of Filing of Presentation Page 2

IN THE UNITED STATES DISTRICT COURT

JOHN F. GRAHAM, SR. §

Hearing on Transfer under Section 1404(a)

• Acquiescence to forum: Hemptech does not challenge venue or

San Antonio/New Braunfels

This is both a legal malpractice and

• Graham exchanged shares in Austin-based Building

This is both a legal malpractice and

• Huffman represented both sides of the transaction.

• Huffman deliberately mislead Graham about the

This is both a legal malpractice and

• Huffman and Talari represented to Graham when he

This is both a legal malpractice and

• Huffman and Talari also told Graham HempTech had

Who is Carmine De Palma?

Section 1404(a) allows transfer for

“For the convenience of parties and witnesses, in the

The transferee court must be “clearly

The burden of proof is on the party

Volkswagen II, 545 F.3d at 315

Private interest factors

Access to sources of proof

 Nevertheless, technological advances in storing and

Private interest factors

Access to sources of proof

Availability of Compulsory Process

“‘It is the convenience of non-party witnesses, rather than of

Availability of Compulsory Process

See Declaration of H. Vahl

Availability of Compulsory Process

Availability of Compulsory Process

Availability of Compulsory Process

Availability of Compulsory Process

Private interest factors

Public interest factors

“‘Generally, this factor favors a district that can bring a case to

The most recent Federal Court Management Statistics

Florida, Middle District

Texas, Western District

Public interest factors

Public interest factors

Local interest  Against transfer

Familiarity with the Law

Familiarity with the Law

Public interest factors

Local interest  Against transfer

Rule 1.12 Organization as Client

(e) In dealing with an organization’s directors, officers,

Tex. Disciplinary R. Prof’l. Conduct, Rule 1.12(e)

Huffman misrepresented the conflict he

“Legal Fees and Jurisdiction”

“Such Agreement” is the legal fees

“Legal Fees and Jurisdiction”