Kesner v. Baker Botts, LLP

Background

Harvey J. Kesner sued Baker Botts, LLP and Jonathan A. Shapiro. He alleged that they threatened to sue him for fraud and other misconduct in order to obtain a settlement payment. His claims included alleged violations of the federal Racketeer Influenced and Corrupt Organizations Act, New York’s deceptive-business-practices statute, tortious interference with business expectancies, intentional infliction of emotional distress, prima facie tort, and New York Judiciary Law § 487.

The defendants moved to dismiss on several grounds, including lack of specific personal jurisdiction in New York and failure to state claims under federal and state law. They also asked the court to transfer the case to the Southern District of California under 28 U.S.C. § 1404(a), a statute allowing transfer for the convenience of the parties and witnesses and in the interest of justice. Kesner did not respond to the motion by the deadline or by the additional deadline set by the court. Instead, he filed a motion seeking permission to amend his complaint, explaining that one of his attorneys had been ill during March and April.

Reasoning

The court stated that it would focus solely on transfer and would not address every argument for dismissal. It found that the case had virtually no meaningful connection to the Southern District of New York. The complaint’s only concrete New York connection was an allegation that Shapiro and Baker Botts sent a letter and draft lawsuit from California to Kesner. The opinion stated that Shapiro worked from Baker Botts’ California office, that Shapiro and Baker Botts sent the materials from California, that the intended lawsuit was to be filed in California, and that Kesner was living in Florida when the letter was sent.

The court emphasized that a closely related action was already pending in the Southern District of California. That action involved the same complaint that Kesner identified in his claims, had been pending for nearly two years, had generated extensive document production and substantive rulings, and involved witnesses who were mostly in California. The California court had also denied Kesner’s efforts to dismiss or transfer that action to New York. The court concluded that efficiency, witness convenience, the California court’s familiarity with the dispute, and the limited weight given to Kesner’s choice of forum all supported transfer. It also found that the interest of justice favored preventing a duplicative action from continuing in New York.

Disposition

Judge Alvin K. Hellerstein granted the defendants’ motion and directed the Clerk to transfer the file to the Southern District of California. The order awarded costs to be taxed by the Clerk and $1,000 in reasonable attorney fees based on what the court called Kesner’s frivolous opposition to the motion. The court denied Kesner’s motion for leave to amend the complaint and instructed the Clerk to close both open motions. Because the court decided the matter on transfer grounds, the opinion did not resolve the personal-jurisdiction arguments, the failure-to-state-a-claim arguments, or the merits of Kesner’s substantive claims.