Alternative Global Two LLC v. Blackstream Development LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

GREENVILLE DIVISION

Alternative Global Two LLC, Alternative ) Case No.: 6:22-cv-4501-JDA

Global Four LLC, and Alternative Global )

Five LLC, Delaware limited liability )

companies, )

)

Plaintiffs, )

)

v. ) ORDER AND OPINION

)

Blackstream Development LLC, a South )

Carolina limited liability company, )

)

Defendant. )

)

This matter is before the Court on Defendant’s motion to transfer. [Doc. 49.] This

motion is ripe for review.

BACKGROUND

On December 13, 2022, Alternative Global Two LLC, Alternative Global Four LLC,

and Alternative Global Five LLC, all Delaware limited liability companies (collectively,

“Plaintiffs” or “Alternative Global Companies”) sued Blackstream Development LLC, a

South Carolina limited liability company (“Defendant” or “Blackstream”), primarily alleging

as follows:

The Alternative Global Companies are industry-specific

Delaware limited liability companies that invest in certain

targeted high growth industries. Between approximately May

2020 and January 26, 2022, the Alternative Global

Companies funded at least $17,561,300 to Blackstream in

exchange for an equity investment in underlying real estate

investments [in South Carolina.] In January 2022,

Blackstream shut off the flow of information to the Alternative

Global Companies, depriving the Alternative Global

Companies of all information on the status of the $17,561,300

in funds or the underlying real estate investments.

Notwithstanding repeated demands, Blackstream has failed

to provide critical information or otherwise account to the

Alternative Global Companies.

[Doc. 1 ¶¶ 1, 12.] Currently, Richard Cardinale (“Cardinale”) is the sole management

member and member of each of the Alternative Global Companies. [Id. ¶¶ 2–4.]1

Plaintiffs allege claims against Defendant for breach of fiduciary duty and for accounting

of the $17,561,300. [Id. ¶¶ 24–37.]

On January 26, 2023, Defendant filed a motion to dismiss that was denied by the

Honorable Timothy M. Cain, United States District Judge, on November 16, 2023. [Docs.

10; 30.] On February 13, 2024, this case was reassigned to the undersigned. [Doc. 46.]

On February 26, 2024, Defendant filed the instant motion to transfer, as well as a

motion to quash and for protective order concerning a subpoena Plaintiffs issued to

nonparty Southern First Bancshares, Inc. d/b/a Southern First Bank (“Southern First”),

the bank Plaintiffs allegedly wired the relevant funds to at Defendant’s direction. [Docs.

48; 49; 1 ¶ 13.] Relatedly, also pending before the Court is Defendant’s motion to compel

Southern First’s subpoena response. [Doc. 50.]

Also relevant, the Court notes the ongoing litigation in the Southern District of

Florida in Feingold v. Cardinale, C/A No. 1:22-20375-RKA (the “Florida Action”). On

February 5, 2022, Feingold and Dazzo sued Cardinale, his wife, and their company

RVCNY, LLC, in the Southern District of Florida, alleging that they entered into an

1 On or about January 28, 2022, two of the former managers of the Alternative Global

Companies, David Feingold (“Feingold”) and Michael Dazzo (“Dazzo”), sent notice to

Cardinale that they were resigning as managers and withdrawing as members of the

Alternative Global Companies, leaving Cardinale as Plaintiffs’ sole manager and member.

[Doc. 1 ¶ 16.] Plaintiffs allege Defendant’s “flow of information” concerning the relevant

investments “abruptly ceased in or around January 2022, which is when [Feingold] and

[Dazzo] resigned as Managers of the Global Entities.” [Doc. 1-1 at 2.]

agreement with Cardinale where, in part, Cardinale would handle the administrative

services for Alternative Global Companies, as well as additional companies (collectively,

“Alternative Named Entities”) and where, beginning in July 2019,

Over the next two and a half years, Cardinale billed the

Alternative Named Entities more than $1.3 million dollars.

Feingold and Dazzo paid these amounts believing they were

paying for all administrative expenses and Cardinale’s

continued promise he had maintained all the records,

reporting, due diligence, and complete back-office services for

the Alternative Named Entities.

[Florida Action, Doc. 102 ¶¶ 12, 27.]

In the Florida Action, Feingold and Dazzo argue that Cardinale fraudulently billed

the Alternative Named Entities and failed to disclose millions of dollars in earnings he

made from these companies, suing “for failure to pay fair value for membership interests,

breach of fiduciary duty, conversion, fraudulent misrepresentations, conspiracy to commit

fraud, civil conspiracy, and aiding and abetting breach of fiduciary duty. [Id. ¶¶ 1, 31, 34.]

Both Feingold and Dazzo are Florida citizens. [Id. ¶¶ 2–3.]

In the Florida Action, Blackstream has filed an appearance and moved to quash a

subpoena issued to it. In opposition to that motion to quash, Cardinale has represented

as follows as to that action:

The narrowed requests of the Broadstreet Subpoena seek

relevant documents pertaining to [Feingold and Dazzo’s]

claim for the “fair value” of their interests in the six Alternative

Global Companies. Cardinale is the sole remaining Manager

of Alternative Global Two, LLC (“AG2”), Alternative Global

Four, LLC (“AG4”), and Alternative Global Five, LLC (“AG5”)

(the “AG Companies”), special purpose investment funds that

invested at least $17,561,300 in wire transfers to Blackstream

Development, LLC’s (“Blackstream”) bank account (“Project

Account”). Those investments, in turn, funded seven (7) real

estate projects owned by special purpose vehicles and two

restaurant investments in Culver’s fast-food restaurants

(“Blackstream SPVs”) and in which the AG Companies

received ownership interests . . . . [In Count I, Feingold and

Dazzo] assert that, upon their resignation, Cardinale failed to

pay [Feingold and Dazzo] the “fair value” of their interest in

AG6 in accordance with 6 Del. C. § 18-604. Cardinale,

Feingold, and Dazzo were the sole members and co-

managing members . . . of the AG Companies. Between May

8, 2020 and January 26, 2022, AG2, AG4, and AG5 funded at

least $17,561,300 in wire transfers to Blackstream’s Project

Account. Those investments, in turn, funded the Blackstream

SPV’s and in which the AG Companies received ownership

interest according to Feingold.

[Florida Action, Doc. 157 at 2–5 (footnotes and citation omitted).]

As of an order issued December 18, 2023, in response to a motion filed by

Cardinale, the Florida Action is currently stayed and administratively closed pending

resolution of certain outstanding motions; the court directed that once the motions are

resolved, the case will be reopened and a hearing set for a new scheduling order, and,

“[i]n the meantime, all deadlines including the trial period are stayed, but the parties may

continue to engage in discovery.” [Florida Action, Docs. 185; 186.]2

APPLICABLE LAW

A civil action may, except as otherwise provided by law, be brought only in

(1) a judicial district where any defendant resides, if all

defendants are residents of the State in which the district is

located;

2 Defendant notes other cases filed by Cardinale and/or Plaintiffs including: (1) the Florida

Action; (2) Alternative Global One, LLC, Alternative Global Two, LLC, Alternative Global

Three, LLC, Alternative Global Four, LLC, Alternative Global Five, LLC, Alternative Global

Six, LLC v. David Feingold and Michael Dazzo, C/A No. 2023-000688-CA-01 (11th

Judicial Circuit, Miami-Dade County Florida); (3) Alternative Global Six, LLC v. Durham

Homes LLC, Index No. 653837/2022 (Sup. Ct., NY Cty); (4) Alternative Global Three, LLC

vs. DCG Staten Island LLC, et al., C/A No. 2022-022016-CA-01 (11th Judicial Circuit,

Miami-Dade County Florida); (5) JAMS Arbitration styled L3 Capital Management, LLC v.

RIG Select Ventures, LLC; and (6) RCG Advances, LLC v. David Feingold and Feingold

Morgan Sanchez LLC, C/A No. 9:23-cv-81128-AMC (U.S.D.C. SD Florida). [See Doc. 49

at 4 n.2.]

(2) a judicial district in which a substantial part of the events

or omissions giving rise to the claim occurred, or a substantial

part of property that is the subject of the action is situated; or

(3) if there is no district in which an action may otherwise be

brought as provided in this section, any judicial district in

which any defendant is subject to the court’s personal

jurisdiction with respect to such action.

28 U.S.C. § 1391(b).

Section 1404(a) of Title 28 of the United States Code provides: “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).

District courts have wide discretion to transfer an action under 1404(a) “to prevent the

waste of time, energy and money and to protect litigants, witnesses and the public against

unnecessary inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616

(1964) (internal quotation marks omitted). 28 U.S.C. Section 1404(a), however, cannot

be used by a defendant to defeat advantages accruing to a plaintiff who has chosen a

forum which, though inconvenient to defendant, is a proper forum. Van Dusen, 376 U.S.

at 633–34.

Section 1406(a) provides that “[t]he district court of a district in which is filed a case

laying venue in the wrong division or district shall dismiss, or if it be in the interest of

justice, transfer such case to any district or division in which it could have been brought.”

28 U.S.C. § 1406(a).

As stated by this Court:

Notwithstanding the fact there is no such as thing as a

specific, one-size-fits-all standard for the Court to employ

when adjudicating § 1404(a) motions, the Court is not bereft

of some guidance. For instance, the Court will weigh and

balance both Public and Private factors in its determination as

to whether it should transfer a case under this statute. Federal

Practice and Procedure § 3847. Public factors, which concern

the statutory consideration of the interest of justice, include

judicial economy, the district’s familiarity with the governing

law, the local interest in deciding local controversies at home,

and whether the docket in one court is more congested than

the other. Id. “Private factors include the statutory

considerations of convenience of the parties and witnesses,

but also often include the plaintiff’s forum preference, where

the claim arose, and the relative ease of access to sources of

proof.” Id. The Court notes, however, this list is by no means

an exclusive one.

Del Zotto v. Universal Physician Servs., LLC, 214 F. Supp. 3d 499, 502 (D.S.C. 2016).

DISCUSSION

As a preliminary matter, Plaintiffs do not dispute that this case could have been

brought in the Southern District of Florida. [Doc. 51 at 4 n.1.] Although it is a South

Carolina company, Defendant represents that it consents to jurisdiction and venue in the

Southern District of Florida and waives any argument to the contrary. [Docs. 49-10 ¶ 7;

49-11 ¶ 7.] Additionally, although Plaintiffs are Delaware companies, their primary

corporate and registered offices are in the Southern District of Florida. [Doc. 49-6 at 2,

10, 18.] Third, as noted above, both Dazzo and Feingold are Florida residents. The Court

therefore turns to the relevant public and private factors to assess Defendant’s motion to

transfer.

The parties’ primary dispute concerns whether Plaintiffs’ choice of venue should

be given deference and whether the first-filed rule applies in the instant case. As

explained by this Court:

“Ordinarily, when multiple suits are filed in different Federal

courts upon the same factual issues, the first or prior action is

permitted to proceed to the exclusion of another subsequently

filed.” Allied-General Nuclear Servs. v. Commonwealth

Edison Co., 675 F.2d 610, 611 n.1 (4th Cir. 1982) (citation

omitted); see also Ellicott Mach. Corp. v. Modern Welding Co.,

502 F.2d 178, 180 n.2 (4th Cir. 1974) (“[A]s a principal of

sound judicial administration, the first suit should have priority,

absent the showing of balance of convenience in favor of the

second action.”) (internal quotation marks and citation

omitted). “[C]ourts consider the following three factors in

determining whether the first-filed rule applies: ‘(1) the

chronology of the filings[,] (2) the similarity of the parties

involved, and (3) the similarity of the issues being raised.’”

PTA-FLA, Inc. v. ZTE Corp., C/A No. 3:12-cv-02616-CMC,

2015 WL 13593694, at *13 (D.S.C. July 27, 2015)

(unpublished) (quoting Remington Arms Co. v. Alliant

Techsystems, Inc., No. 1:03CV1051, 2004 WL 444574, at *2

(M.D.N.C. Feb. 25, 2004) (unpublished)). Pursuant to the first-

to-file rule, the “district court has the discretion to dismiss,

stay, or transfer a later-filed lawsuit in deference to the first

filed action.” Ace Prop. & Cas. Ins. Co. v. Specialty Logging,

LLC, No. 1:14-cv-00944-JMC, 2015 WL 1422181, at *2

(D.S.C. Mar. 27, 2015) (unpublished) (internal citation and

quotation omitted).

Daileader v. Certain Underwriters at Lloyd’s London - Syndicate 1861, No. 7:22-cv-916-

HMH, 2022 WL 2276461, at *2 (D.S.C. June 23, 2022).

Plaintiffs argue the first-filed rule is inapplicable here “where the earlier case in

question is a closed one.” [Doc. 51 at 7; see id. at 15.] However, Plaintiffs’ case cited in

support, King v. S. Poverty L. Ctr., Inc., No. 2:22-CV-207-WKW, 2023 WL 3061825 (M.D.

Ala. Apr. 24, 2023), appears inapplicable to the instant case. In King, the court explained:

Plaintiffs make two alternative arguments . . . but those ties

easily unravel because they are based on erroneous

understandings of the law. First, Plaintiffs ask the court to

“transfer this matter to the original civil action” in King I, but

they cite no authority that would permit a transfer of a later-

filed action to an earlier-filed action that is closed. (Doc. # 18

at 17.) This argument, although creative, lacks citation to

authority and would amount to a work-around for plaintiffs,

who when faced with an adverse final judgment, did not avail

themselves of available legal remedies, including the right to

appeal. Cf. Blanchard v. Walker, No. 2:20-CV-696-WKW,

2022 WL 4357449, at *1 (M.D. Ala. Sept. 20, 2022) (finding

that the plaintiff’s motion to consolidate his time-barred action

with his earlier-filed closed action amounted to an

impermissible attempt to circumvent the finality of the earlier

judgment).

Id. at *12. As noted above, the Florida Action has not been closed such that any final

judgment has been rendered. Plaintiffs are correct that this case is set to go to trial this

year, and because the Florida Action is administratively closed, there currently is no trial

date set in that case. [See Doc. 51 at 18.] However, the Florida Action is only temporarily

closed—at Plaintiffs’ request—while the Florida court addresses the parties’ substantive

arguments, arguments that likely overlap with the arguments the parties will present in

the instant case. See, e.g., Leagans v. LeMaitre Vascular, Inc., No. 2:21-CV-01866-DCN,

2021 WL 4753269, at *7 (D.S.C. Oct. 12, 2021) (“Even if the other factors weigh in [a

plaintiff’s] favor, other courts have determined that in the application of the first-to-file rule,

the interest of justice factor (i.e., promotion of judicial economy, avoidance of inconsistent

judgments) may be decisive in ruling on a transfer motion, even though the convenience

of the parties and witnesses point in a different direction.” (internal quotation marks

omitted)).3

Plaintiffs next argue the two cases are too dissimilar to warrant transfer:

The Florida case is limited to an internal dispute between the

Alternative Global Companies’ current and former members.

The Florida case centers around a claim by Feingold and

Dazzo, individually, against Cardinale, individually,

concerning the value, if any, of their membership interest in

the Alternative Global Companies. This case is not an internal

3 Plaintiffs additionally argue that “relative court congestion weighs in favor of this Court,”

while also noting that “[t]he District of South Carolina and the Southern District of Florida

are two of the busiest jurisdictions in the nation.” [Doc. 51 at 18.] The Court does not

find this factor dispositive.

company dispute. This case, by contrast, focuses on the

conduct of Blackstream and involves Blackstream absconding

with over $17 million in funds. The claims in this case are for

breach of fiduciary duty and accounting against Blackstream.

[Doc. 51 at 15-16 (footnotes omitted).] Plaintiffs further argue that neither they nor

Defendant are parties to the Florida Action and that the measure for the damages in the

Florida Action ended well over a year ago when Feingold and Dazzo resigned from

Plaintiffs, whereas, here, the measure of damages against Blackstream is continuing,

involving “the value of the benefit conferred upon [Blackstream], the amount of funds that

[Blackstream] took, the value of those funds and their proceeds, and the value of the

projects as currently existing, including the value of the interest that [Blackstream]

converted.” /d. at 16.

The Court is not persuaded. In July 2019, as alleged by Feingold and Dazzo in

the Florida Action, Cardinale approached them and, eventually, the three created the

following arrangement, as attested to by Cardinale:

Alternative Global Manager Structure (Pre-Resignation)

Beets ane

[Doc. 49-3 J] 5.]

As also attested to by Cardinale, the following arrangement also was formed:

Transfers to Blackstream From Alternative Global Two, Four and Five

May 2020 through January 26, 2022

Alternative Global Alternative Global Alternative Global

TWO, LLC □□□□□□□□□□□□□□□□□□□□□ LLC Rta Svcs Marne’ FiV@, LLC ooo incaie nonege

NEY Dazz0, Manager

Ss

[/d. J 11.]

In the Florida Action, Feingold and Dazzo seek recompense from Cardinale

regarding his handling of the Alternative Named Entities from July 2019 to early 2022,

including Plaintiffs’ transfer of at least $17,561,300 to Blackstream. In the instant action,

Cardinale, through Plaintiffs, seek recompense from Blackstream concerning the at least

$17,561,300 transferred to it from Plaintiffs, occurring between May 2020 and January

2022.

As Defendant argues, this case appears to be subsumed by the Florida Action.

[See Doc. 49 at 4.]* As this Court stated, “[t]o apply the First-Filed rule, the actions being

4 Defendant has submitted portions of a transcript from a hearing before this Court and

10

assessed need not be identical if there is substantial overlap with respect to the issues

and parties.” Daileader, 2022 WL 2276461, at *3 (internal quotation marks omitted); see

also Fitzgibbons ex rel. Dir. of S.C. Dep’t of Ins. v. Atkinson, No. 8:17-CV-02092-AMQ-

JDA, 2018 WL 11433972, at *10 (D.S.C. May 18, 2018) (“Suits are considered parallel if

substantially the same parties litigate substantially the same issues in different forums.”

(internal quotation marks omitted)), Report and Recommendation adopted by 2018 WL

3933728 (D.S.C. Aug. 16, 2018).

Next, Plaintiffs argue that even if this Court were to find the cases are similar

enough for the first-filed rule to be applicable, “there is a widely recognized exception to

it: ‘when the balance of convenience favors the second action,’ which essentially mirrors

the authority of the court to transfer under 1404(a).” [Doc. 51 at 17 (quoting Daileader,

2022 WL 2276461, at *3).]

The Court finds the first-filed rule applicable, weighing in favor of the transfer of

this case to the Southern District of Florida. Plaintiffs have presented other factors that

weigh otherwise. For example, it is certainly relevant that South Carolina substantive law

may govern this case and any judgment rendered would be enforced in South Carolina.

See, e.g., Swinton v. Charleston Cnty., No. 8:15-CV-04148-PMD-JDA, 2016 WL

Judge Cain on motions to quash subpoenas issued to Blackstream in the Florida Action,

where Cardinale’s attorney in the Florida Action, also Plaintiffs’ attorney in this action,

stated:

[T]he essential issue in the situation in the [Florida Action] and

the essential problem, the thread running through all of these

motions is Feingold and Dazzo directed the money to go to

[Blackstream], and to Durham Homes, LLC.

[Doc. 49-8 at 5:20–23.]

7477609, at *6 (D.S.C. Nov. 21, 2016) (“Thus, with respect to convenience of the parties,

because no party is present in South Carolina, it would be more convenient if the case is

transferred to the District of Arizona. Further, any judgment obtained against the Unit

Defendants would be enforced in Arizona.”), Report and Recommendation adopted by

2016 WL 7451219 (D.S.C. Dec. 28, 2016); Massachusetts Mut. Life Ins. v. Factory Mut.

Ins. Co., No. CIV.A. 3:05-CV-69, 2007 WL 3273452, at *4 (N.D.W. Va. Nov. 2, 2007)

(“There is an appropriateness . . . in having the trial of a diversity case in a forum that is

at home with the state law that must govern the case, rather than having a court in some

other forum untangle problems in conflict of laws, and in law foreign to itself.” (internal

quotation marks omitted)). However, these factors are not dispositive and, as discussed

below, the balance of convenience does not favor retaining this case in this district.5

First, Plaintiffs argue that South Carolina provides the greatest ease of access to

the sources of proof, while also acknowledging the location of records and documents

are given less weight because of modern technology. [Doc. 51 at 7–9]; see, e.g., Red

Bone Alley Foods, LLC v. Nat’l Food & Beverage, Inc., No. 4:13-CV-3590-PMD, 2014 WL

1093052, at *10 (D.S.C. Mar. 14, 2014). Plaintiffs also note that the subject matter in

dispute is related to property physically located in South Carolina. [Doc. 51 at 8.] Finally,

Plaintiffs argue that Blackstream’s essential employees and most of the relevant

witnesses are in South Carolina. [Id. at 8–9.]

5 Indeed, case law Plaintiffs cite in support of the argument that this Court’s familiarity

with South Carolina law weighs against transfer does not wholly support their position,

where it appears the Southern District of Florida is “most familiar with the parties and their

histories.” Gregory v. FedEx Ground Package Sys., Inc., No. 2:10-CV-630, 2012 WL

2396873, at *15 (E.D. Va. May 9, 2012), Report and Recommendation adopted sub nom.

by Gregory v. Fedex Ground Packaging Sys. Inc., 2012 WL 2396861 (E.D. Va. June 25,

2012).

The Court does not find dispositive the location of records and documents, where

Defendant is in South Carolina, but also where Plaintiffs are Delaware limited liability

companies with primary corporate and registered offices in the Southern District of Florida

and which, during the relevant period, had either one managing member, Cardinale—a

New York citizen and resident—or two additional managing members, Feingold and

Dazzo— Florida citizens and residents.

The Court also does not find dispositive that the subject matter of this dispute

relates to property in South Carolina. Plaintiffs disagree, repeatedly relying on case law

that emphasizes the importance of retaining or transferring venue to where the property

in dispute is located. [Id. at 13–14.] However, this case law is of limited applicability here,

where the subject of the dispute is not real property found in South Carolina, per se, but

whether Defendant breached its responsibility to Plaintiffs concerning the funds Plaintiffs

transferred to Defendant to be invested in roughly 14 South Carolina real estate projects.

[See id. at 1–2.] This case stands in contrast to those cited by Plaintiffs where the

property location was significant to the case in a way not found here:

The rental property’s location in South Carolina weighs

heavily in favor of retaining venue. Contrary to the assertions

of Defendants, the location of the rental property is not

“happenstance,” and this dispute would not be the same if the

rental property involved was “in Maine, Florida, Alaska or

Hawaii.” Myrtle Beach and North Myrtle Beach are located

only a few miles apart. Both are oceanfront towns centered

around tourism. The consequences or damages from the

Defendants’ alleged listing mistake are impossible to

determine without reference to the specific properties and

locations involved. Plaintiffs assert that they intend to prove

damages, at least in part, by offering a witness who is an

expert in the South Carolina real estate market. This action is

based around an alleged breach of contract. The subject

matter of any contract or agreement between the parties was

the rental of property located in South Carolina. The State of

South Carolina has an interest in the resolution of this dispute.

Kraft Real Est. Invs., LLC v. HomeAway.com, Inc., No. 4:08-CV-3788-TLW, 2009 WL

10677930, at *3 (D.S.C. May 14, 2009); see also Marom v. Pierot, No. 5:17-CV-608-D,

2018 WL 8576927, at *1 (E.D.N.C. Nov. 7, 2018) (finding venue proper where “Plaintiff

asserts defamation claims against Defendants arising out of a town board meeting that

took place on April 18, 2017 in the Town of Greenburgh, New York. The alleged

defamatory statements relate to Plaintiff’s construction of a house on a lot adjacent to

Defendants’ residence in the Town of Greenburgh. Plaintiff previously resided in New

York where the parties have engaged in voluminous litigation.”); Williams v. Clement, No.

CV 0:18-437-JMC-SVH, 2020 WL 619929, at *6 (D.S.C. Jan. 9, 2020) (transferring to

North Carolina where the plaintiff alleged her personal property, located in a home in

North Carolina, had been damaged and where the “case concern[ed] real and personal

property that is or was located in Buncombe County and is or was subject to multiple

North Carolina court orders”), Report and Recommendation adopted by 2020 WL 615542

(D.S.C. Feb. 7, 2020).6

Regarding Plaintiffs’ argument concerning witnesses, Plaintiffs argue that

Blackstream’s essential employees Ford Elliot (“Elliot”), Josh Howard (“Howard”), Carlos

Salgado, and Maxine Turner all reside in South Carolina. [Doc. 51 at 10.] Plaintiffs note

they have identified 30 witnesses in their Fed. R. Civ. P. 26 disclosures, 19 of whom have

6 For similar reasons, the Court rejects Plaintiffs’ unexplained argument that “the jury in

this case would likely benefit from viewing a physical location to understand the expenses

involved in funding land infrastructure development and end product of such

development.” [Doc. 51 at 8, 14.] It is unclear how a viewing of any development would

assist the jury in determining Defendant’s fiduciary duty to Plaintiffs or assist the jury in

determining the allocation of the $17,561,300.

addresses in South Carolina. [Id.]7

However, examination of these disclosures show Plaintiffs have identified 30

people and corporate entities “likely to have discoverable information,” not necessarily

potential witnesses. [Doc. 51-4 at 2–12.] Notwithstanding, assuming these are potential

witnesses and where “courts typically afford greater weight to convenience of non-party

witnesses than party witnesses,” Brown v. Sullivan, No. 6:14-CV-04376-GRA, 2015 WL

12815281, at *3 (D.S.C. Mar. 3, 2015) (internal quotation marks omitted), the Court notes

Plaintiffs have identified the following non-parties and their locations: two South Carolina

banks, 13 South Carolina limited liability companies with 11 of those sharing the same

address, a Texas limited liability company, three Delaware limited liability companies with

two of those sharing the same address, a corporation listed with both a Texas and Florida

address, a corporation with a South Carolina address, a North Carolina limited liability

company, three individuals with South Carolina addresses, and one individual with a

Wisconsin address.8 [Doc. 51-4 at 2–12.]

Plaintiffs make multiple arguments concerning witnesses, including that South

Carolina is more convenient for the witnesses, that the cost of obtaining witness

attendance favors South Carolina, and the availability of compulsory process favors

7 Defendant identified three potential witnesses in their Fed. R. Civ. P. 26 disclosures, as

opposed to people likely to have discoverable information: Cardinale, Elliott, and Howard.

[Doc. 51-7 at 2.]

8 Plaintiffs note Ryan Feingold, Feingold’s son, “is an analyst with Broadstreet, Inc., the

company of which David Feingold serves as CEO and Michael Dazzo serves as Senior

Managing Director” and that, in contrast to what is identified in Plaintiffs’ disclosure, “Ryan

Feingold lives in Greenville, according to his biography.” [Doc. 51 at 10 (footnote

omitted).]

South Carolina. [Doc. 51 at 8–13.]9 However, these arguments are difficult to assess in

that Plaintiffs speak in general terms about the witnesses. Additionally, although party

witnesses, Plaintiffs do not dispute Defendant’s affidavit evidence from Elliot and Howard

stating the Southern District of Florida is a more convenient forum for them [Docs. 49-10

¶¶ 5–6; 49-11 ¶¶ 5–6], nor that the Southern District of Florida is a more convenient forum

for Feingold and Dazzo.10

Based on the above, Plaintiffs’ argument that “the overwhelming amount of

identified witnesses are located in South Carolina” is not persuasive, particularly where

Plaintiffs have failed to offer any specifics beyond addresses for the non-party, non-South

Carolina potential witnesses. See, e.g., Michelin N. Am. Inc. v. Vehicular Testing Servs.

LLC, No. 6:15-CV-01261-TMC-JDA, 2016 WL 4770054, at *3 (D.S.C. Aug. 22, 2016)

(“‘Affidavits from the concerned parties and/or witnesses [are] important in determining

whether the moving party has met its burden of proof.’”) (quoting Figgie Int’l, Inc. v.

Destileria Serralles, Inc., 925 F. Supp. 411, 414 (D.S.C. 1996)), Report and

9 Plaintiffs’ argument regarding the availability of compulsory process favoring South

Carolina, and case cited in support, appears inapposite where, in the relevant case, the

defendants contended, and the plaintiff did not dispute, “that they would be prejudiced if

they were required to present all of their non-party witnesses’s testimony by deposition,”

Liam Motors, LLC v. M & A Auto Sales, No. CIV.A. 4:13-1810-MGL, 2013 WL 5888581,

at *4 (D.S.C. Oct. 31, 2013), an issue not argued in the present case. [See Doc. 51 at

13.] Additionally, Plaintiffs have failed to identify any specific witness that only one court

would be able to compel exclusively of the other.

10 Plaintiffs argue “Blackstream did not identify Feingold and Dazzo as its witnesses—

which it now belatedly attempts to do via its Motion” [Doc. 51 at 11 (footnote omitted)],

but do not dispute that Feingold and Dazzo are in Florida and are potential witnesses.

The Court accepts, for purposes of the resolution of Defendant’s motion to transfer,

Plaintiffs’ argument that Feingold and Dazzo are not true non-party witnesses because

they are closely related to the party. [Id. at 10 n.26.]

Recommendation adopted by 2016 WL 4761616 (D.S.C. Sept. 13, 2016); Virginia

Innovation Scis., Inc. v. Samsung Elecs. Co., 928 F. Supp. 2d 863, 870 (E.D. Va. 2013)

(“The party asserting witness inconvenience ‘has the burden to proffer, by affidavit or

otherwise, sufficient details respecting the witnesses and their potential testimony to

enable the court to assess the materiality of evidence and the degree of inconvenience.’”

(internal quotation marks omitted)).11

CONCLUSION

Based on the above, Defendants’ motion to transfer [Doc. 49] is granted. This

case, including all remaining pending motions, is transferred to the Southern District of

Florida.

IT IS SO ORDERED.

s/Jacquelyn D. Austin

United States District Judge

Greenville, South Carolina

March 26, 2024

11 The Court rejects Plaintiffs’ argument that Defendant’s delay of 14 months before

moving to transfer this case weighs against transfer. [Doc. 51 at 17.] Discovery is not

set to close in this matter until October 18, 2024 [Doc. 37]. See e.g., Herring v. LaPolla

Indus., No. 2:12-CV-2705-RMG, 2013 WL 12148849, at *5 (D.S.C. Oct. 7, 2013) (holding

that judicial economy weighed against transferring partly because the “case ha[d] been

pending for over a year [and the movant] waited until less than a week before discovery

was set to expire . . . to move for a transfer”). The Court likewise rejects Plaintiffs’

argument that Defendant’s “procedural fencing weighs against transfer,” where Plaintiffs’

focus is on Defendant’s failure to identify alleged “indispensable persons” to this case and

other discovery disputes. [Doc. 51 at 19.] At this juncture, the Court has limited insight

into these issues, and these issues do not impact its analysis of Defendant’s motion to

transfer.