# Kabisch v. RealPage, Inc.

> District Court, M.D. Tennessee · March 7, 2024

URL: https://www.frixlaw.com/law-library/cases/10439180

## Case

- **Court:** District Court, M.D. Tennessee
- **Decided:** March 7, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10439180

## How later opinions describe it (automated extraction)

- noting that the phrase “in the interest of justice” is present in all three federal transfer statutes
- holding that “the plaintiff may not stand on his pleadings” to defeat a motion to dismiss, and instead “must show the specific facts demonstrating that the court has jurisdiction”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

IN RE: REALPAGE, INC., RENTAL ) Case No. 3:23-md-03071
SOFTWARE ANTITRUST ) MDL No. 3071
LITIGATION (NO. II) )
) THIS DOCUMENT RELATES TO:
) Case No. 3:23-cv-00742
)
)
MEMORANDUM OPINION
Before the Court in this putative nationwide antitrust class action is the Motion to Dismiss
Tennessee Actions for Lack of Personal Jurisdiction and Improper Venue (Doc. No. 583),1 filed
by Defendants Prometheus Real Estate Group, Inc. (“Prometheus”), Sares Regis Group
Commercial, Inc. (“Sares Regis”), Rose Associates, Inc. (“Rose”), Conti Texas Organization Inc.,
d/b/a CONTI Capital (“CONTI”), ConAm Management Corporation, Essex Property Trust, Inc.,
Sherman Associates, Inc., and Windsor Property Management Company. The Motion has been
fully briefed and is ripe for review. (See Doc. Nos. 585, 616, 645, 706, 774, 775). For the
following reasons, the Court will neither grant nor deny the Motion, and instead concludes that the
interest of justice is best served by severing the contested claims and transferring them to facially
proper jurisdictions. The intended practical effect of this ruling is that all claims subject to the
Motion will be transferred back to this Court expeditiously as part of the above-captioned
multidistrict litigation, In re: RealPage, Inc., Rental Software Antitrust Litig. (No. II), No. MDL
3071.

1 Unless otherwise noted, all record citations are made to the documents filed in Case No. 3:23-
md-03071.
I. BACKGROUND
This case arises out of allegations that U.S. multifamily rental housing markets have been
tainted by an illegal horizontal price-fixing conspiracy involving RealPage Inc.’s Revenue
Management Solutions (“RMS”) software. Plaintiffs—a putative class of individuals and entities
who rented multifamily rental units from property managers, owners, operators, or lessors that

used RealPage’s RMS (collectively with RealPage, “Defendants”)—filed lawsuits throughout the
United States claiming that, due to this conspiracy to fix, raise, maintain, and stabilize lease prices,
they “paid significant overcharges on rent, and suffered harm from the reduced availability of
rental units they could reasonably afford.” (Doc. No. 530 ¶ 43). On April 10, 2023, the United
States Judicial Panel on Multidistrict Litigation (“JPML”) transferred Plaintiffs’ various actions to
the United States District Court for the Middle District of Tennessee for coordinated or
consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407. See In re: RealPage, Inc., Rental
Software Antitrust Litig. (No. II), No. MDL 3071, Doc. No. 205 (U.S. Jd. Pan. Mult. Lit. Apr. 10,
2023) (the “RealPage MDL”). On September 7, 2023, Plaintiffs filed the operative Second Multi-
Family Amended Consolidated Complaint, which grouped together all of the individual Plaintiffs’

claims against all Defendants. (Doc. No. 530).
As relevant here, the instant Motion originally concerned two class action complaints filed
directly in the Middle District of Tennessee: Kabisch v. RealPage, Inc., No. 3:23-cv-00742 (M.D.
Tenn. July 24, 2023) (“Kabisch”) and Alexander v. RealPage, Inc., No. 3:23-cv-00440 (M.D.
Tenn. May 2, 2023) (“Alexander”). These cases were deemed related to, and became associated
with, the RealPage MDL, but they were not transferred by the JPML under § 1407. (See Doc. No.
712 at 2–3). Subsequently, in December 2023, the plaintiff in Alexander voluntarily dismissed
her action. (Doc. Nos. 676, 682). The lead plaintiff in Kabisch also voluntarily dismissed his
claims against ConAm Management Corporation, Essex Property Trust, Inc., Sherman Associates,
Inc., and Windsor Property Management Company. (Doc. Nos. 713, 765). Thus, the instant
Motion now pertains only to Defendants Prometheus, Sares Regis, Rose, and CONTI (collectively,
the “Moving Defendants”) in the Kabisch action.
The Kabisch Complaint alleges, and the Moving Defendants do not dispute, that:

(1) Prometheus and Sares Regis are headquartered in California and have operations in
Washington state; (2) Rose operates and has its principal place of business in New York; and (3)
CONTI operates and is headquartered in Texas. (Kabisch Doc. No. 1 ¶¶ 96, 156, 162; see also
Kabisch Doc. No. 774 at 6 n.6). As to personal jurisdiction, the Kabisch Complaint further alleges
as follows:
This Court has personal jurisdiction over each Defendant to the same extent that
the transferor court had personal jurisdiction in each Related Action, pre-transfer.
Because each Defendant leased residential units to individuals in the transferor
District, and also: (a) transacted business throughout the United States; and (b)
engaged in an antitrust conspiracy that was directed at and had a direct, foreseeable,
and intended effect of causing injury to the business or property of persons residing
in, located in, or doing business throughout the United States; this Court has
personal jurisdiction over all Defendants. Moreover, this Court also has personal
jurisdiction over all incorporated Defendants pursuant to the Clayton Act, 15
U.S.C. § 22.
(Kabisch Doc. No. 1 ¶ 47).
Based on these allegations, the Moving Defendants argue that the Court should dismiss
them from this lawsuit under Federal Rule of Civil Procedure 12(b)(2) for lack of personal
jurisdiction, and under Rule 12(b)(3) for improper venue. (See Doc. Nos. 583, 585, 645).
Plaintiffs disagree and contend that personal jurisdiction and venue are appropriate in this district.
(Doc. No. 616). Per the Court’s instructions (Doc. No. 712 at 3), the parties also filed supplemental
briefs about whether transfer or dismissal is an appropriate remedy. (Doc. Nos. 774, 775; see also
Doc. No. 706 (Joint Status Report)).
II. DISCUSSION
A. Whether Personal Jurisdiction Exists and Whether Venue is Appropriate in this
District
“The personal jurisdiction issue presented here is unusual in an MDL case because this is
a directly filed suit rather than one transferred as part of the MDL.” In re Heartland Payment Sys.,
Inc. Customer Data Sec. Breach Litig., No. H-10-171, 2011 WL 1232352, at *4 (S.D. Tex. Mar.
31, 2011). Nevertheless, for a court to exercise personal jurisdiction over a nonresident defendant,
the Due Process Clause of the Fourteenth Amendment requires the nonresident to possess “certain
minimum contacts with the [forum state] such that the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945) (citations and internal quotation marks omitted). “Minimum contacts” exist

when the nonresident’s “conduct and connection with the forum State are such that he should
reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 297 (1980); see also Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475–76 (1985).
“Personal jurisdiction may be found either generally or specifically.” Miller v. AXA
Winterthur Ins. Co., 694 F.3d 675, 678 (6th Cir. 2012). “General jurisdiction exists when the
defendant’s affiliations with the forum state are so continuous and systematic as to render the
defendant essentially at home there.” Malone v. Stanley Black & Decker, Inc., 965 F.3d 499, 501
(6th Cir. 2020) (internal quotation marks omitted) (quoting Goodyear Dunlop Tires Operations,
S.A. v. Brown, 564 U.S. 915, 919 (2011)). “Specific jurisdiction, on the other hand, grants
jurisdiction only to the extent that a claim arises out of or relates to a defendant’s contacts in the

forum state.” Miller, 694 F.3d at 679 (citing Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d
147, 149 (6th Cir. 1997)).
Under the above-described test, it does not appear that this Court has general or specific
personal jurisdiction over the Moving Defendants in this direct-filed case. Indeed, the Moving
Defendants submitted several affidavits demonstrating that they “(i) are not incorporated or
registered to do business in Tennessee; (ii) do not lease apartment units or otherwise have

operations in Tennessee; and (iii) do not have employees in Tennessee.” (See Doc. No. 585 at 2;
see also Doc. Nos. 586-2, 586-4, 586-5, 586-6). Although the Kabisch Complaint alleges that
“certain Defendants leased residential units to individuals . . . in this District,” (Kabisch Doc. No.
1 ¶ 31), Plaintiffs have not presented any facts or arguments to substantiate those allegations
against any of the Moving Defendants. (See Doc. No. 585 at 6 n.5). Such conclusory allegations,
without more, are insufficient to establish a prima facie case of personal jurisdiction under the
traditional minimum contacts analysis. See Miller, 694 F.3d at 678 (holding that “the plaintiff
may not stand on his pleadings” to defeat a motion to dismiss, and instead “must show the specific
facts demonstrating that the court has jurisdiction”).
In their opposition brief, Plaintiffs effectively abandon any argument that the Moving

Defendants possess sufficient minimum contacts with Tennessee for purposes of personal
jurisdiction. (See generally Doc. No. 616). Instead, Plaintiffs contend that this Court can
nevertheless exercise personal jurisdiction over the Moving Defendants via Section 12 of the
Clayton Act.2 (Id. at 2–5). For context, Federal Rule of Civil Procedure 4(k)(1)(C) provides that
“[s]erving a summons or filing a waiver of service establishes personal jurisdiction over a

2 Following full briefing on the Moving Defendants’ Motion, Plaintiffs requested “the opportunity
to provide limited additional briefing concerning . . . alternative bases for personal jurisdiction in
M.D. Tenn., including conspiracy jurisdiction.” (Doc. No. 706 at 4). The Court denies this belated
request as unnecessary, and it also notes that no “Sixth Circuit case has explicitly adopted the
conspiracy theory of personal jurisdiction, nor has any . . . Sixth Circuit case found personal
jurisdiction to in fact exist based on the conspiracy theory of jurisdiction.” See Odish v. Peregrine
Semiconductor, Inc., No. 13-cv-14026, 2015 WL 1119951, at *13 n.6 (E.D. Mich. Mar. 11, 2015).
defendant . . . when authorized by a federal statute.” Fed. R. Civ. P. 4(k)(1)(C). “Congress can
authorize nationwide service of process in a regulatory statute permitting claimants to sue a
defendant in any of the federal district courts in the country.” See Peters Broad. Eng’g, Inc. v. 24
Capital, LLC, 40 F.4th 432, 438 (6th Cir. 2022) (citation omitted). Congress employed this power

by enacting Section 12 of the Clayton Act, 15 U.S.C. § 22, which authorizes nationwide service
of process on a corporate defendant in certain circumstances. The parties just disagree about
whether those circumstances exist here.
Section 12 of the Clayton Act includes a venue provision and a nationwide service-of-
process provision:
Any suit, action, or proceeding under the antitrust laws against a corporation may
be brought not only in the judicial district whereof it is an inhabitant, but also in
any district wherein it may be found or transacts business [“venue provision”]; and
all process in such cases may be served in the district of which it is an inhabitant,
or wherever it may be found [“nationwide service-of-process provision”].
15 U.S.C. § 22. The Moving Defendants argue that these two provisions must be read together,
and that Section 12 authorizes nationwide service of process only “in such cases” where the venue
provision has been satisfied. (Doc. No. 585 at 7–8). They further contend that because Plaintiffs
have not shown that any Moving Defendant “is an inhabitant” or “is found or transacts business”
in this district, Plaintiffs have not satisfied the venue provision, and the nationwide service-of-
process provision is irrelevant. (See id.). Plaintiffs respond that these two provisions can be read
separately, and that “a defendant’s minimum contacts with the United States as a whole confers
personal jurisdiction in any district court in the United States” via the Clayton Act. (Doc. No. 616
at 3, 6) (citing Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 449–50 (6th Cir. 2012)). And
because the Clayton Act subjects the Moving Defendants to personal jurisdiction in any district,
including the Middle District of Tennessee, they “reside” in this district under 28 U.S.C. §
1391(c)(2) and venue is proper here under the general venue statute in § 1391(b)(1).3 (See Doc.
No. 616 at 5).
The parties’ differing interpretations of Section 12 reflect a broader, ongoing “circuit split
regarding whether the venue and service-of-process provisions of the Clayton Act should be read

together or separately.” See Kentucky v. Marathon Petroleum Co. LP, 464 F. Supp. 3d 880, 886–
87 (W.D. Ky. 2020); In re Blue Cross Blue Shield Antitrust Litig., 26 F. Supp. 3d 1172, 1194–95
(N.D. Ala. 2014). The majority view, adopted by the Second, Seventh, and D.C. Circuits, supports
the Moving Defendants’ position and holds that “[t]he extraterritorial service provision of Clayton
Act Section 12 may be invoked to establish personal jurisdiction only when the requirements of
the section’s venue provision are satisfied.” Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408,
424–25 (2d Cir. 2005) (emphasis added); KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d
718, 730 (7th Cir. 2013); GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1351
(D.C. Cir. 2000). The minority view, subscribed to by the Ninth and Third Circuits, supports
Plaintiffs’ position and holds that, “under Section 12 of the Clayton Act, the existence of personal

jurisdiction over an antitrust defendant does not depend upon there being proper venue in that
court.” Action Embroidery Corp. v. Atlantic Embroidery, Inc., 368 F.3d 1174, 1179–80 (9th Cir.
2004); In re Automotive Refinishing Paint Antitrust Litig., 358 F.3d 288, 296–97 (3d Cir. 2004).
As both parties recognize, however, neither the Supreme Court nor the Sixth Circuit has addressed
this discrete statutory issue. See Marathon Petroleum Co., 464 F. Supp. at 886.

3 Section 1391(c)(2) provides that a defendant entity “shall be deemed to reside . . . in any judicial
district in which such defendant is subject to the court’s personal jurisdiction with respect to the
civil action in question,” and Section 1391(b)(1) provides that venue is proper in “a judicial district
in which any defendant resides, if all defendants are residents of the State in which the district is
located.” 28 U.S.C. §§ 1391(c)(2), (b)(1).
In sum, whether the Court can exercise personal jurisdiction over the Moving Defendants,
and therefore whether venue is appropriate, depends entirely on this unresolved statutory-
interpretation issue that has deeply divided the circuit courts of appeals. But the Court need not
choose a side in this circuit split now. Instead, as explained below, the Court finds it more

appropriate to sever and transfer the claims in the Kabisch Complaint to districts where Plaintiffs
have at least made a prima facie showing that personal jurisdiction and venue are appropriate. See,
e.g., Grajeda v. Aeroil Prods. Co. Inc., 1999 WL 756507, at *3 (S.D.N.Y. Sept. 23, 1999) (“A
district court may transfer an action in which personal jurisdiction is in question without first
deciding the jurisdictional issue.”).
B. Regardless of Whether Personal Jurisdiction and Venue Exist in this District,
Transfer is Appropriate and in the Interest of Justice
The Court, having previously hinted to the parties that transfer may be appropriate under
these circumstances (Doc. No. 712), has now considered the parties’ joint status report (Doc. No.
706) and their competing briefs on this issue (Doc. Nos. 774, 775). The Court finds that it can and
should transfer the claims in the Kabisch Complaint to districts that likely have jurisdiction over
the Moving Defendants. The question, then, is how to best accomplish this goal.
There are three federal statutes that provide the Court with authority to transfer a case to
another district: (1) 28 U.S.C. § 1404(a) allows a properly filed case to be transferred “[f]or the
convenience of parties and witnesses, in the interests of justice”; (2) 28 U.S.C. § 1406(a) allows
an improperly filed case to be transferred to cure a venue defect; and (3) 28 U.S.C. § 1631 provides

that if the Court lacks jurisdiction in a civil action, it “shall, if it is in the interest of justice, transfer
such action . . . to any other such court in which the action . . . could have been brought at the time
it was filed or noticed.” 28 U.S.C. §§ 1404(a), 1406(a), 1631; see also LefFilter N., LLC v. Home
Craft Builders, Inc., 487 F. Supp. 3d 643, 651 (N.D. Ohio 2020) (quoting Jackson v. L & F Martin
Landscape, 421 F. App’x 482, 483 (6th Cir. 2009)). “Although some federal courts favor one
statute over the others, in fact the transfer provision applied—whether Section 1404(a) or Section
1406(a) or Section 1631—generally has little or no effect on the case or the transfer motion itself.”
See Wright & Miller, Relation to Other Transfer Provisions, 15 Fed. Pract. & Proc. Juris. § 3842

(4th ed.). Indeed, courts sometimes “find it unnecessary to decide whether § 1404(a), § 1406(a),
or § 1631 is the proper vehicle” when transfer “can be achieved either way.” See Relation to Other
Transfer Provisions at § 3844.
The Court declines to specify which statute is the most appropriate vehicle for transfer at
this time, as doing so would require the Court to pick a side in the Clayton Act circuit split. For
example, transferring the action under § 1404(a) necessarily implies that venue is proper in this
district, and venue is only proper in this district if the Court finds that the Clayton Act subjects the
Moving Defendants to personal jurisdiction here. See, e.g., Honorato v. Mt. Olympus Enters.,
Inc., 2020 WL 5800730, at *4 (N.D. Ill. Sept. 29, 2020) (“Transfer under § 1404(a) is proper only
if venue is proper in the transferor court[.]”). Likewise, transferring the action under §§ 1406(a)

or 1631 necessarily requires a finding that the Clayton Act does not confer personal jurisdiction
over the Moving Defendants. See 28 U.S.C. §§ 1406 (permitting transfer when venue is improper),
1631 (permitting transfer when the district court lacks jurisdiction). Regardless of which specific
provision applies, however, the ultimate inquiry under all three statutes is the same: (1) whether
the action “might have been brought” or “could have been brought” in the proposed transferee
district at the time it was first filed,4 and (2) whether transfer is in the “interest of justice.” See
Parker v. Hazelwood, 2019 WL 4261832, at *6 (D.N.H. Sept. 9, 2019) (noting that all three transfer

4 Section 1404(a) also allows a district court to transfer a case to “any district or division to which
all parties have consented.” 28 U.S.C. § 1404(a).
statutes “limit transfer to a district where the action could have been brought in the first instance”);
Gerena v. Korb, 617 F.3d 197, 205 & n.2 (2d Cir. 2010) (noting that the phrase “in the interest of
justice” is present in all three federal transfer statutes). The Court will analyze both requirements
below.

1. Personal Jurisdiction Appears Proper in Plaintiffs’ Proposed Transferee
Courts
As explained above, the relevant transfer statutes—28 U.S.C. §§ 1404(a), 1406(a), and
1631—allow for a transfer only if the action “might have been brought” or “could have been
brought” in the transferee district at the time it was first filed. Plaintiffs argue that the Kabisch
claims could have been brought against Prometheus and Sares Regis in the Western District of
Washington, against Rose in the Southern District of New York, and against CONTI in the
Western District of Texas. (See Doc. No. 706 at 4–5). The Moving Defendants have not contested
that personal jurisdiction would exist in these districts for purposes of transfer. (See Doc. No. 774
at 1, 6 n.6). Thus, the “could have been brought” requirement for transfer is easily satisfied here.
2. Transfer to Plaintiffs’ Proposed Transferee Courts is in the Interest of Justice
The Court has “broad discretion” to determine whether transfer to another district is in the
interest of justice. See Reese v. CNH Am. LLC, 574 F.3d 315, 320 (6th Cir. 2009) (Section
1404(a)); Stanifer v. Brannan, 564 F.3d 455, 456–57 (6th Cir. 2009) (Sections 1406(a) and 1631).
Here, the Court finds that transfer furthers the interest of justice because it “serves the ultimate
goal of allowing cases to be decided on their substantive merits, as opposed to being decided on
procedural grounds.” Flynn v. Greg Anthony Constr. Co., 95 F. App’x 726, 739 (6th Cir. 2003)

(citation omitted). Assuming, without deciding, that this Court may lack personal jurisdiction over
the Moving Defendants, transfer at this early stage of the case would allow the parties to proceed
with coordinated pretrial proceedings in the RealPage MDL quickly without having to wait for the
Supreme Court or Sixth Circuit to resolve the Clayton Act issue. The alternate course of
dismissing the Moving Defendants and requiring Plaintiff Kabisch to refile new cases against them
would be a waste of judicial and party resources. See id. Moreover, the Moving Defendants
“would not be prejudiced by transfer to districts where they reside, where they conducted their

business, or where the acts giving rise to the liability occurred.” Does 1-144 v. Chiquita Brands
Int’l, Inc., 285 F. Supp. 3d 228, 236 (D.D.C. 2018).
The Moving Defendants argue that the interest of justice favors dismissal, rather than
transfer, because Plaintiffs acted “deliberately or carelessly” by filing and maintaining this action
in the wrong district. (Doc. No. 774 at 5–7). For the reasons stated above, however, Plaintiffs
have made a non-frivolous argument that Section 12 of the Clayton Act allows for the exercise of
personal jurisdiction here. See Chiquita Brands, 285 F. Supp. 3d at 236–37 (holding that a
“colorable argument” in support of personal jurisdiction, even if mistaken, “does not constitute
bad faith or justify dismissal”). Regardless of whether the Court can, in fact, exercise personal
jurisdiction over the Moving Defendants via the Clayton Act, Plaintiffs’ good-faith arguments in

favor of their position do not justify dismissal. Thus, the Court finds that it would be in the interest
of justice to transfer this case to districts in which personal jurisdiction and venue do not hinge on
a contested and unresolved issue of statutory interpretation.
C. Severance Under Rule 21 is Proper to Effectuate Transfer
That brings the Court to the parties’ final contested issue: severance. The parties agree that
no single court has personal jurisdiction over all the Moving Defendants. As a result, the Moving
Defendants argue that transfer is neither possible nor appropriate because the Court cannot split
the Kabisch case into multiple districts. (See Doc. No. 774 at 1–5). The Court disagrees.
Under Federal Rule of Civil Procedure 21, “[o]n motion or on its own, the court may at
any time, on just terms, add or drop a party” or “sever any claim against a party.” Fed. R. Civ. P.
21. “District courts have broad discretion to determine whether to sever claims when doing so
advances the administration of justice.” Productive MD, LLC v. Aetna Health, Inc., 969 F. Supp.
2d 901, 940 (M.D. Tenn. 2013); see also Parchman v. SLM Corp., 896 F.3d 728, 733 (6th Cir.
2018) (“The permissive language of Rule 21 permits the district court broad discretion in

determining whether or not actions should be severed.”). “Once a claim has been severed,
however, it proceeds as a discrete unit with its own final judgment[.]” Disparte v. Corp. Exec.
Bd., 223 F.R.D. 7, 12 (D.D.C. 2004) (citation omitted).
The parties cite dueling (albeit nonbinding) cases to demonstrate why severance is or is not
proper under these circumstances. The Moving Defendants rely heavily on Shrader v. Biddinger,
a case where the Tenth Circuit found that it was not an abuse of discretion to dismiss, rather than
transfer, a multi-defendant action to cure deficiencies relating to personal jurisdiction. 633 F.3d
1235, 1249–50 (10th Cir. 2011). The Shrader panel noted that “[w]e are aware of no authority
even permitting, much less requiring, a district court to unilaterally split up an action” where “the
three sets of defendants reside in different states . . . and transfer the resultant components to

diverse jurisdictions[.]” Id. Plaintiffs counter with Does 1-144 v. Chiquita Brands International,
a case in which the U.S. District Court for the District of Columbia exercised the very authority
that Shrader was not “aware” of. 285 F. Supp. 3d 228 (D.D.C. 2018). There, the court lacked
personal jurisdiction over the defendants but held “that severance of the claims for purposes of
transfer to the proper jurisdiction is appropriate” even though “severance would result in multiple
courts assessing the same set of claims and facts.” Id. at 239. The Chiquita Brands court then
severed the plaintiffs’ claims into three separate actions and transferred two of them to other
districts. Id. at 239–40.
After carefully weighing the parties’ arguments and relevant case law, the Court finds the
reasoning in Chiquita Brands persuasive and has decided to use its discretion to sever the Kabisch
Complaint for purposes of transfer to proper jurisdictions. Although “severance would result in
multiple courts assessing the same set of claims and facts, the prospect of multiple suits in different

jurisdictions is unavoidable here—and not unusual in multidistrict litigation cases—because” the
Moving Defendants “and other defendants already are facing trial in different districts after pretrial
coordination” concludes in this Court. See id. at 239 (citing Sharp Elecs. Corp. v. Hayman Cash
Register Co., 655 F.2d 1228, 1230 (D.C. Cir. 1981)). And where, as here, the Court severs claims
against multiple defendants, the resulting lawsuits “may be regarded as [four] separate and
independent actions, each of which is then transferrable[.]” See D’Jamoos ex rel. Est. of
Weingeroff v. Pilatus Aircraft Ltd., 566 F.3d 94, 110 (3d Cir. 2009).
Accordingly, the Court will sever the claims in the Kabisch Complaint, and the Kabisch
action will become four separate actions involving the claims against: (1) Prometheus and Sares
Regis; (2) Rose; (3) CONTI; and (4) the remaining non-moving defendants.5 Once severed, the

claims against Prometheus and Sares Regis will be transferred to the United States District Court

5 The current non-moving defendants consist of the following entities: RealPage, Inc.; Thoma
Bravo Fund XIII, L.P.; Thoma Bravo Fund XIV, L.P.; Thoma Bravo L.P; Apartment Income REIT
Corp., d/b/a Air Communities; Apartment Management Consultants, LLC; Avenue5 Residential,
LLC; Bell Partners, Inc.; BH Management Services, LLC; Bozzuto Management Company;
Brookfield Properties Multifamily LLC; Camden Property Trust; CH Real Estate Services, LLC;
Cortland Management, LLC; CWS Apartment Homes LLC; FPI Management, Inc.; Highmark
Residential, LLC; Independence Realty Trust, Inc.; Knightvest Residential; Lincoln Property
Company; Mid-America Apartment Communities, Inc.; Mission Rock Residential, LLC; Morgan
Properties Management Company, LLC; Pinnacle Property Management Services, LLC; Related
Management Company L.P.; RPM Living, LLC; Security Properties Residential, LLC; Simpson
Property Group, LLC; Crow Holdings, LP; Trammell Crow Residential Company; UDR, Inc.;
WinnCompanies LLC; WinnResidential Manager Corp.; ZRS Management, LLC; and ECI
Management, LLC.
for the Western District of Washington. The claims against Rose will be transferred to the United
States District Court for the Southern District of New York. The claims against CONTI will be
transferred to the United States District Court for the Western District of Texas. And the claims
against the non-moving defendants will remain in this Court.
It is reasonably expected that the respective transferee courts will send these three severed
cases to the JPML as “tag along” actions. This Court will then request the JPML to transfer those
cases back to this Court under § 1407. While this circular process may create some minimal delay,
it is the most efficient way to cure potential jurisdictional issues quickly so that the parties may
move forward with coordinated pretrial proceedings here as intended. See Groesbeck v. Bumbo
Trust, 2013 WL 3157922, at *2 (S.D. Tex. June 20, 2013) (“Given the difficult nature of the
personal jurisdiction issue, the Court avoids it in this case and . . . transfers the matter to the District
of Utah, where Defendants have conceded personal jurisdiction exists.”).
I. CONCLUSION
For the foregoing reasons, the claims in the Kabisch Complaint will be severed into a total
of four cases, and the claims against Prometheus, Sares Regis, Rose, and CONTI will be
transferred.
An appropriate order will enter.

Web. Eusbe
CHIEF UNITED STATES DISTRICT JUDGE

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10439180. Public record. Not legal advice.