Greenhouse

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ALBERT GREENHOUSE,

Plaintiff,

-against-

23-cv-9754 (DEH) (KHP)

WEBSITE SYMMETRY, VIDEO SYMMETRY,

LOGO SYMMETRY, BLITZ DESIGN, INC., TRANSFER ORDER

GHOSTWRITING UNIVERSE, AMY CONNOR,

SETH MILES, JASON PARKER, NICK FISHER,

and 360 ART STUDIO, INC.,

Defendants.

KATHARINE H. PARKER, United States Magistrate Judge:

Plaintiff, a resident of California, brings this action under 18 U.S.C. §§ 1343, 1962(C)-(D)

and Cal. Civ. Code § 1750, et seq., along with common law claims for fraud and breach of

contract under California law, alleging Defendants were involved in a scheme to deprive Plaintiff

of payments he made pursuant to a project contract with Defendants, where all of the relevant

individuals and entities reside in California. Named as Defendants are Website Symmetry

(“WS”), Video Symmetry (“VS”), Logo Symmetry (“LS”), Blitz Design (“BD”), Ghostwriting

Universe (“GU”), Amy Connor, Seth Miles, Jason Parker, Nick Fisher, and 360 Art Studio, Inc. (“Art

Studio”). However, the only Defendants who were served in this matter are BD and Art Studio

(the “Defaulting Defendants”) are both residents of Fremont, California (ECF No. 24 ¶¶ 5-6).

Additionally, none of the other defendants are alleged to be residents of New York. Neither BD

nor Art Studio has appeared in this action, and Plaintiff has moved for a default judgment and

damages against them. (ECF Nos. 90-91.) For the following reasons, this action is transferred to

the United States District Court for the Northern District of California.

DISCUSSION

Under 28 U.S.C. § 1391(b), a civil action may be brought in

(1) a judicial district in which any defendant resides, if all defendants are

residents of the State in which the district is located; (2) a judicial district in

which a substantial part of the events or omissions giving rise to the claim

occurred . . . ; 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.

For venue purposes, a “natural person” resides in the district where the person is

domiciled, and an “entity with the capacity to sue and be sued” resides in any judicial district

where it is subject to personal jurisdiction with respect to the civil action in question. See 28

U.S.C. § 1391(c)(1), (2).

Plaintiff alleges that Defendants breached a contract and engaged in various fraudulent

conduct in connection with a contract executed between the parties. Plaintiff’s economic losses

from the breach are most felt where he resides in Los Angeles, California. His only hook to bring

any of the parties to court in this District is a contract that only one of the Defendants, WS,

signed, providing for forum in New York. However, the same forum selection clause provided

for California federal courts to hear this case. Notably, WS is alleged to be a California-based

business with no known connection to New York. According to the pleading, none of the other

named defendants, served and unserved, reside in New York. Rather, according to the

complaint, almost all of the parties to this case reside in California (with the exception of GU,

which has a principal place of business in Saint Emilion Court, Spring, Texas) (ECF No. 24 ¶¶ 1-

12).1 Indeed, of the ten remaining Defendants, five allegedly reside in Berkeley, CA, and two—

0F

1 Defendant Evrima Chicago LLC is an Illinois corporation, but it has settled with Mr. Greenhouse and been

dismissed from this action. (ECF No. 98 ¶ 4-5; ECF No. 67.)

specifically, the Defaulting Defendants—are alleged to reside in Fremont, CA, both of which are

located in Alameda County, which falls within the Northern District of California. See 28 U.S.C. §

84. The remaining two California Defendants are allegedly located in Bakersfield, which is in

Kern County, which falls in the Eastern District of California.2 Id. Finally, GU is allegedly located

1F

in Spring, Texas, which is in Harris County, which falls in the Houston Division of the Southern

District of Texas. 28 U.S.C. § 124.

Because Defendants have not appeared, the Court has not been presented with the

issue of whether venue is proper under Section 1391(b)(1) in either this District or another

judicial district. Even if the Court did assume that that venue is proper here under Section

1391(b)(1), because the events giving rise to Plaintiff’s claims occurred in connection with a

contract governed by California law under a California forum selection clause with almost

entirely California parties, venue would also be proper under Section 1391(b)(2) in the Northern

District of California.

Under 28 U.S.C. § 1404(a), even if a case is filed in a jurisdiction where venue is proper, a

court may transfer the case to any other district where it might have been brought “[f]or the

convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). In

determining whether transfer is appropriate, courts consider the following ten factors: (1) the

convenience of witnesses; (2) the convenience of the parties; (3) the locus of operative facts;

(4) the availability of process to compel the attendance of the unwilling witnesses; (5) the

location of relevant documents and the relative ease of access to sources of proof; (6) the

2 Plaintiff resides in Los Angeles County, which is in the Western Division of the Central District of California. 28

U.S.C. § 84(c)(2).

relative means of the parties; (7) the forum’s familiarity with the governing law; (8) the weight

accorded to the plaintiff’s choice of forum; (9) trial efficiency; and (10) the interest of justice,

based on the totality of circumstances. Keitt v. N.Y. City, 882 F. Supp. 2d 412, 459-60 (S.D.N.Y.

2011); see also N.Y. Marine and Gen. Ins. Co. v. LaFarge No. Am., Inc., 599 F.3d 102, 112 (2d Cir.

2010) (setting forth similar factors). A plaintiff’s choice of forum is accorded less deference

where the plaintiff does not reside in the chosen forum and the operative events did not occur

there. See Iragorri v. United Tech. Corp., 274 F.3d 65, 72 (2d Cir. 2001).

Under Section 1404(a), transfer is appropriate in this case. The underlying events

occurred overwhelmingly between California residents (seventy percent of whom reside in

jurisdictions falling within the Northern District of California, and only one of whom—WS—

Plaintiff has said expressly consented to New York courts) under a contract governed by

California law and providing for forum to be proper in the federal courts of California, where

Plaintiff also resides, and it is reasonable to expect that virtually all relevant documents and

witnesses also would be at in or around Berkeley, Bakersfield, and Fremont. The Northern

District of California appears, therefore, to be a more convenient forum for this action.

After the Court raised the issue of personal jurisdiction at a virtual hearing with the

Plaintiff’s counsel, Plaintiff submitted supplemental briefing regarding personal jurisdiction and

the forum non conveniens factors. (ECF No. 98.) However, the additional briefing is not

persuasive.

Plaintiff devotes much of his supplemental brief to arguing that the Court should enforce

the forum selection clause against the Defaulting Defendants. This argument is unpersuasive

given that the Court’s transfer of venue does not decline to enforce the forum selection clause

against the Defaulting Defendants. Rather, it suggests only that, on the facts as alleged, there

will be no doubt about personal jurisdiction over the Defaulting Defendants in the Northern

District of California. Indeed, the forum selection provision did not provide for exclusive

jurisdiction in New York; it also provided for forum in California. While the Court can easily

enforce this clause against the signatory, the Court’s continued exercise of authority requires

finding that the Defaulting Defendants and unserved, non-signatory Defendants are bound by

the forum selection clause. In the absence of their ability to argue to the contrary—particularly

given most of them have not yet been served—the Court finds it more prudent for venue to be

in a district where forum would still be enforceable under the contract against any relevant

parties, including potentially the Defaulting Defendants, and where the overwhelming majority

of Defendants reside. Thus, even assuming Plaintiff is right that Defaulting Defendants are

bound by the forum selection clause, these facts and alleged benefits to the Defaulting

Defendants resulting from the contract are, at best, equivocal and not decisive. They certainly

do not weigh against transfer. Indeed, given that the question whether the Defaulting

Defendants are bound by the contract, which is governed by California law under the terms of

the contract, and Plaintiff has cited no cases decided by California courts to establish that they

are bound (ECF No. 98 ¶¶ 30-39 (citing exclusively New York case law to argue that Defaulting

Defendants are bound by the contract)), this factor weighs in favor of transfer.

Plaintiff next raises arguments that personal jurisdiction over the Defaulting Defendants

can be found under New York’s long-arm statute, N.Y. C.P.L.R. 302(a)(1). Specifically, he asks for

an exercise of specific jurisdiction for having committed acts in the state which form the basis of

the Complaint. The basis of this argument is that the Defaulting Defendants’ underlying

conduct giving rise to the Complaint involved use of bank accounts at banks which are

headquartered in New York, and the Fedwire service was utilized. However, Plaintiff’s cited

cases do not support a finding of personal jurisdiction over the Defaulting Defendants. In Licci v.

Lebanese Canadian Bank, 984 N.E.2d 893 (N.Y. 2012), the New York Court of Appeals concluded

that whether a defendant’s use of a correspondent account qualifies as purposeful availment

sufficient to satisfy the long-arm statute or merely coincidental is fact-bound and commonly

requires jurisdictional discovery. Id. at 334-39; see also Rushaid v. Pictet & Cie, 68 N.E.3d 1 (N.Y.

2016) (finding “intentional and repeated use of New York correspondent bank accounts to

launder their customers’ illegally obtained funds constitute[d] purposeful transaction of

business” sufficient for CPLR 302(a)(1)). Here, there are sufficient doubts over whether the New

York long-arm statute would be satisfied, which would likely justify jurisdictional discovery, but

Plaintiff has opted not to serve most defendants yet and moves against non-signatories to the

contract that is the subject of the action. Moreover, Plaintiff’s Amended Complaint contains no

allegation that any Defendant actually used or purposefully directed funds to correspondent

New York bank accounts; at most, he says “the acts of which Greenhouse complains involve

banking transactions which impact banks located in the State of New York.” (See ECF No. 24 ¶

15.) Indeed, the documents he attaches clearly show that the JPMorgan Chase Bank account

referenced is in West Covina, California (in Los Angeles County). (See ECF No. 98-4.) Further,

Plaintiff has not cited any case to show that his use of an allegedly New York-based account at

Chase Bank (an assertion for which he provides no clear documentation) to direct funds to a

California bank would satisfy the long-arm statute. While the Court makes no jurisdictional

findings on in this opinion, these facts, with Plaintiff’s elections and allegations, seem unlikely

even to make a “sufficient start” in terms of showing jurisdiction under New York’s long-arm

statute, which might merit further jurisdictional discovery. See Peterson v. Spartan Ind., 310

N.E.2d 513, 515 (N.Y. 1974). Thus, the Court’s doubt of its own authority, with Plaintiff’s

threadbare arguments and allegations of Defaulting Defendants’ purposeful availment, counsels

against it acting any further in this case.

Finally, Plaintiff argues that the forum non conveniens factors weigh against transfer. The

Court disagrees. The mere fact that the parties have not appeared to argue inconvenience to

witnesses or document discovery is not necessarily decisive that there is no inconvenience. Nor

is Plaintiff’s choice of forum decisive for the reasons explained above: this factor gets less

weight when he does not reside here. Further, it is not clear that a Plaintiff who agrees to a

non-exclusive forum selection clause providing for forum in either of two states may object to

transfer of venue to the other state on the grounds that he did not choose to file the case there.

He did choose California forums when he signed the contract, and unlike the Defaulting

Defendants, he undoubtedly would be bound as a signatory by that forum selection clause if WS

brought an action against him in California.

Aguas Lenders Recovery Group v. Suez, S.A., 585 F.3d 696, 700 (2d Cir. 2009), which

Plaintiff cites, does not help him. There, the Second Circuit concluded that the fact that a party

was not a signatory to the contracts at issue did not operate as a “per se” bar on its ability to be

bound by those contracts for the purposes of forum non conveniens. Here, as the Court has

explained, it has not concluded one way or the other which non-signatories are or are not

bound by the contract. It has only observed that regardless of whether all defendants or only

WS may be bound by the forum selection clause, those same parties will be bound to the

jurisdiction of California courts. This is consistent with what the Aguas Lenders case says, where

it distinguishes between permissive forum selection clauses and exclusive forum selection

clauses. Id. Here, there is no forum selection clause “in which the[ parties] agree” to one forum

“that is exclusive of all others.” Id. Rather, this is a case “where parties contract to” a forum

selection clause “that designates a forum in advance, but does not preclude a different choice.”

Id. In such a case, the “traditional” forum non conveniens factors will apply. Id. Moreover, in

Aguas Lenders, “[a]t least one of the contracts” contained “a waiver of” forum non conveniens

arguments. Id. Plaintiff does not even attempt to argue that the contract at issue in this case

contains such a waiver. He cannot; the contract does not contain a waiver of forum non

conveniens. (See ECF No. 98-2.) Thus, it is the permissive nature of the forum selection clause—

permissive at least as between the choice of New York or California—which provides greatest

support for transfer.

Finally, the Court does not agree with the Plaintiff that transferring this case is against

judicial economy. This case has not advanced very far in the last two-and-a-half years since it

was first filed. Cf. Starr Indemnity & Liability Co. v. Brightstar Corp., 324 F. Supp. 3d 421, 442

(S.D.N.Y. 2018) (noting “discovery has completed, . . . [t]he Court has adjudicated a number of

discovery disputes and held multiple conferences,” giving it “familiarity with this action that

would be lost upon transfer”). No discovery has taken place, and only two remaining

defendants have been served (by substituted service as to Blitz (ECF No. 53)). While it is true

that the default judgment has been granted as against the Defaulting Defendants (ECF No. 73),

there will be no bar to the ability of the Plaintiff to re-file his damages inquest with the

California court. Accordingly, judicial economy does not weigh against transfer.

Accordingly, the Court transfers this action to the United States District Court for the

Northern District of California. 28 U.S.C. § 1404(a); see D.H. Blair & Co. v. Gottdiener, 462 F.3d

95, 106 (2d Cir. 2006) (“District courts have broad discretion in making determinations of

convenience under Section 1404(a) and notions of convenience and fairness are considered on

a case-by-case basis.”).

CONCLUSION

The Clerk of Court is directed to transfer this action to the United States District Court

for the Northern District of California. This order closes this case in this District.

SO ORDERED.

DATED: New York, New York

March 12, 2026

Ket hawt H fi abt

KATHARINE H. PARKER

United States Magistrate Judge