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Old October 15th 09, 02:47 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess
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Default Memorandum Decision and Order of Judge Patel

MEMORANDUM & ORDER

Defendant’s Motion to Disqualify Plaintiffs’ Counsel; Defendant
Alexander’s Motion to Dismiss for Lack of Personal Jurisdiction;
Transfer of Venue

The individual parties in this case are chess players who are involved
in the governance of the United States Chess Federation (“USCF”).
Plaintiffs USCF and Hough allege in this civil action that defendants
Alexander and Polgar violated state and federal law by accessing
plaintiff Hough’s electronic mail without authorization, in order to
intercept confidential information pertaining to a USCF investigation of
Polgar’s husband. Polgar counter-claimed against individual members of
the USCF executive board, alleging that the filing of this action was
improper. These parties and others are involved in related litigation in
Texas and Illinois. Now before the court is defendant/counter¬claimant
Polgar’s motion to disqualify plaintiffs’/counter-defendants’ attorney
Karl Kronenberger and his law firm (collectively “Kronenberger”). Polgar
previously moved to transfer this action to the Northern District of
Texas for consolidation with the related litigation in that forum. The
court continued Polgar’s motion until completion of a global mediation
led by this court’s Alternate Dispute Resolution (ADR) staff. Polgar
later withdrew her motion to transfer. Seeing that the mediation has
been unsuccessful, the court sua sponte addresses the question of
transfer, for the reasons discussed below.

I. Defendant’s Motion to Disqualify Plaintiffs’ Counsel

Kronenberger serves as counsel to the USCF and Hough. Polgar has named
Kronenberger as a defendant in the action she filed in Texas federal
court, see N.D. Tex. Case No. C 08-0169, and has counterclaimed against
Kronenberger in the instant action. Polgar contends that
disqualification of Kronenberger is appropriate for several alternative
reasons, including alleged misstatements to the court and alleged
failure to disclose his conflicts of interest. The court takes
particularly seriously, and closely scrutinizes, allegations that an
attorney has misrepresented facts to the court.

A. Facts Pertaining to Kronenberger’s Alleged Misstatements to the Court

On February 23, 2009, and April 13, 2009, the parties appeared for
motion hearings. Kronenberger made statements at those hearings which
Polgar contends constituted attempts to deceive the court. At the
February 23 hearing on Polgar’s motion for leave to amend her answer,
the following exchange took place:

THE COURT: And do any of these – does either of these organizations,
either the
World Chess Federation or the United States Chess Federation have any
provisions at all for arbitrating internal disputes?
MR. KRONENBERGER: No, your Honor. In fact, the delegates with the U.S.
Chess Federation suggested that the board – the executive board bring
this matter to a court, and that’s why the Federation filed in the state
of Illinois, because under the Illinois statute that’s the only place
they could file.

Docket No. 48 (Tr. of February 23 Hearing) at 14:24-15:8. While the USCF
bylaws do not specify arbitration procedures, they do provide certain
conflict resolution procedures, including a provision for the recall of
executive board members and an ethics committee with the power to
recommend the revocation of memberships. See Hall Dec., Exh. G at 26-33
(“USCF Bylaws”) art. II § 12, art. VI
§ 11. There is no evidence that the USCF board of delegates had
officially voted to approve, or otherwise acted to approve or ratify,
the filing of the Illinois lawsuit at the time Kronenberger made the
above statement.

The following exchange took place at the April 13 hearing on Polgar’s
motion to transfer this action to the Northern District of Texas,
Lubbock Division:

THE COURT: Well, you anticipate one of the questions I was going to ask,
and that is, was there a resolution by the board authorizing this lawsuit?
MR. KRONENBERGER: Absolutely, your Honor. MR. LEIGH [counsel for
Polgar]: There was not.
THE COURT: Well, I would presume that if there is one it would be in the
minutes of the – I presume they take minutes or is that too optimistic?
MR. KRONENBERGER: Your Honor, we have a record of everything, and we
were actually going to be turning over things in discovery before it was
stayed. Of course, there was a vote. Even if there was not a vote it’s
something that could be ratified within an hour. It’s just a non-issue.
THE COURT: No, no. It is an issue . . .

Docket No. 91 (Tr. of April 13 Hearing) at 12:15-13:3. Later in the
hearing, Kronenberger again asserted, “Your Honor, there was a vote. I
was there. I was on the phone and it was verified by e¬mail.” Id. at
16:1-2. The court ordered the USCF to produce minutes, resolutions,
bylaws or other documents that would show that the USCF had authorized
the instant action. Id. at 44:8-13; Docket No. 90 (Minute Order). In
response to the court’s order, USCF executive director Bill Hall filed a
declaration, on April 27, 2009.1 Polgar argues Hall’s declaration shows
that Kronenberger misrepresented the existence and nature of the
purported vote. The evidence submitted by Hall shows that Hall made a
unilateral decision to file the instant action in California state
court.2 Docket No. 97 (Hall Dec.) ¶ 16 (“. . . I directed the filing by
USCF counsel of a ‘John Doe’ lawsuit in California . . . .”). The action
was filed on June 25, 2008. The evidence also shows that a vote did take
place by e-mail to ratify the action. Specifically, the four members of
the executive board’s “legal subcommittee” voted in December 2008 to
officially ratify the decision to file this action. Id., Exh. C
(e-mails). The e-mails cc:ed Kronenberger. See id.

Kronenberger also represented to the court during the April 13, 2009,
hearing that the USCF did not have independent counsel to advise it on
Polgar’s request for indemnification, but that USCF’s counsel in
Illinois handled “all of these corporate issues.” See Tr. of April 13
Hearing at 27:12-28:15, 30:8-32:10. He also stated that the issue was
“in their [Illinois counsel’s] hands.” Id. at 28:10-11. Per the court’s
instructions, counsel for Polgar contacted David A. Herman, the Illinois
attorney Kronenberger mentioned at the hearing, to inquire about the
status of Polgar’s indemnification request. Docket No. 108 (Springman
Dec.), Exh. J. Herman indicated that he could not act as the USCF’s
independent counsel. He also stated, “While we have been retained to
represent the USCF in the pending Illinois litigation and to advise it
on certain Illinois legal matters, because of our ethical obligations to
our client we are unable to disclose to you those specific legal
matters.” Id. Polgar believes that Kronenberger’s representations to the
court on the issue were misleading.
B. Facts Pertaining to Kronenberger’s Alleged Conflicts of Interest
Kronenberger represents both the USCF and individual
plaintiff/counter-defendant Hough, who is a former member of the USCF
executive board. Additionally, Kronenberger is a third-party defendant
in the instant action. One of Polgar’s defenses is that the four members
of the executive board “legal subcommittee,” including Hough, acted
ultra vires when they initiated this lawsuit. Resolution of the question
of whether Hough and the other executive board members acted with
authority will impact whether they are entitled to indemnification from
the USCF for claims arising from their actions. The USCF board of
delegates apparently voted in August 2009 to ratify the instant action.
According to Kronenberger and plaintiffs, such vote moots any ultra
vires defense; however, Polgar challenges the legitimacy of the vote. In
Polgar’s view, the USCF and Hough therefore have a conflict of interest
concerning the indemnification of Hough, and both are represented by
Kronenberger. Polgar asserts that Kronenberger has not fully disclosed
the conflicts to his clients.

C. Discussion

This court applies California law and looks to California standards of
professional responsibility in determining matters of disqualification.
In re County of Los Angeles, 223 F.3d 990, 995 (9th Cir. 2000) (holding
state law governs disqualification); N.D. Cal. Civ. L. R. 1 1-4(a)(1)
(attorneys must comply with standards of professional conduct required
of members of the State Bar of California). A trial court’s authority to
disqualify an attorney derives from the power inherent in every court to
control the conduct of its ministerial officers, in the furtherance of
justice. In re Charlisse C., 45 Cal.4th 145, 159 (Cal. 2008). The trial
court’s determination is generally reviewed for abuse of discretion. Id.
A disqualification motion may involve considerations such as a client’s
right to chosen counsel, an attorney’s interest in representing a
client, the financial burden on the client to replace disqualified
counsel, and the possibility that tactical abuse underlies the
disqualification motion. People ex rel. Dep’t of Corps. v. SpeeDee Oil
Change Sys., Inc., 20 Cal.4th 1135, 1145 (Cal. 1999). Such motions may
themselves threaten the integrity of the judicial process when they are
used to harass an adversary or its counsel. See Gregori v. Bank of
America, 207 Cal. App. 3d 291, 300-301 (1989). “Ultimately,
disqualification motions involve a conflict between the clients’ right
to counsel of their choice and the need to maintain ethical standards of
professional responsibility. The paramount concern must be to preserve
public trust in the scrupulous administration of justice and the
integrity of the bar.” SpeeDee, 20 Cal.4th at 1145 (internal citation
omitted).

A court may disqualify an attorney who has a conflict of interest. Id.
at 1139. Conflicts of interest commonly arise as a consequence of either
successive or simultaneous representation of potentially adverse
clients. In re Charlisse C., 45 Cal.4th at 159. The former situation
implicates the attorney’s duty of confidentiality, while the second
implicates the attorney’s duty of loyalty. See generally Flatt v.
Superior Ct. of Sonoma County, 9 Cal.4th 275, 283-284 (Cal. 1994). With
few exceptions, disqualification follows automatically where a lawyer
represents litigation adversaries, even in unrelated actions. See In re
Charlisse C., 45 Cal.4th at 160. The disqualification of an attorney due
to a conflict of interest will normally extend vicariously to the
attorney’s entire law firm. See SpeeDee, 20 Cal. 4th at 1139.

Preliminarily, Kronenberger argues that Polgar “lacks standing” to bring
the instant motion because “it is evident from the face” of California
Rule of Professional Conduct 3-310(C) that only a client or former
client of an attorney may move to disqualify him. The court does not
find this to be evident from the face of the rule.3 Considering the
court’s inherent duty to manage the conduct of attorneys before it and
to ensure the fair administration of justice, it makes little sense to
assert that a court must ignore evidence of ethical breaches or
conflicts of interest merely because such evidence has been brought
forward by a third-party litigant. See Colyer v. Smith, 50 F. Supp. 2d 966,
97 1-972 (C.D. Cal. 1999). Moreover, Polgar has Article III standing
because the questions her motion presents implicate her “interest in a
just and lawful determination of her claims.” Id. at 971.
The court has carefully reviewed the statements which Polgar asserts
constitute misrepresentations to the court. Kronenberger did not
misrepresent the status of David Herman vis- à-vis the indemnification
issue. Kronenberger clearly stated that Herman was not the independent
counsel—and indeed could not be, since he represents the USCF in the
Illinois action against Polgar. Nor does Herman’s response to the
inquiries of Polgar’s counsel contradict Kronenberger’s assertion that
Herman’s firm advises the USCF regarding procedures for making
indemnification decisions under Illinois law. Herman confirmed that his
firm had been retained “to advise [the USCF] on certain Illinois legal
matters” but stated that he could not say more about them due to his
ethical obligations to his client. While this does not confirm Herman is
involved with the indemnification issue, it also does not demonstrate
Kronenberger’s statements to the court to be false. Nor does
Kronenberger’s statement regarding arbitration provisions appear to be a
misrepresentation. The court specifically asked about mechanisms for
arbitrating disputes, not mechanisms for removing USCF members or
recalling executive board members. While it would have been enlightening
for Kronenberger (or for that matter, Polgar’s counsel, Mr. Leigh) to
note these provisions of the USCF bylaws, failing to note them did not
constitute an affirmative misrepresentation to the court.4

Finally, Kronenberger stated that the board had taken a vote to
authorize the instant lawsuit. As noted, the Hall Declaration includes
copies of e-mails showing a vote in December 2008 to ratify the action.
Polgar apparently challenges Kronenberger’s literal assertion that the
“board” voted to authorize the suit in December 2008, since in fact only
a part of the board (the “legal subcommittee,” i.e., everyone but Polgar
and her husband, Paul Truong) was given an opportunity to vote. While
Polgar may or may not ultimately succeed in showing that the board acted
ultra vires, such has not been established. At this stage it would be
parsing it far too finely for the court to find that Kronenberger’s
arguable misstatement rises to a level of deception meriting
disqualification.

As regards Kronenberger’s alleged conflicts of interest, Polgar does not
appear to argue that Kronenberger should be disqualified merely because
she brought claims against him. Nor does the court find this to be the
case here. She instead contends that a conflict of interest exists
between the USCF and “certain members” of the executive board
Kronenberger represents. The court understands her theory to run as
follows: the “rogue” executive board members, i.e., all members except
Polgar and Truong, filed this action without proper authorization;
accordingly, the USCF should not indemnify them; but Kronenberger has
advocated indemnification, which is in the board members’ interest but
not in the interest of the USCF, which must pay the indemnification;
therefore, there is a conflict between the USCF and the board member(s)
who are Kronenberger’s clients. It is first to be noted that
Kronenberger only represents the USCF and Hough. Counsel from the law
firm of Cesari, Werner and Moriarty now represent Goichberg, Hall,
Bauer, Berry and Kronenberger himself in his capacity as a third-party
defendant. The question is whether Kronenberger may represent both the
USCF and Hough consistent with his professional obligations. This court
declines the invitation to reach this issue. As discussed below, the
court is transferring this action to the Northern District of Texas.
Accordingly, it will be the decision of Judge
Cummings whether Kronenberger can continue to represent parties in that
action in light of the conflicts of interest alleged by Polgar.

Finally, the court notes that Polgar has advanced several other reasons
why Kronenberger should be disqualified, namely: his alleged abuse of
California’s “Doe” discovery procedures; his alleged obstruction of
Polgar’s request for indemnification; and his alleged failure to
safeguard the confidentiality of certain information. None of these
issues provides grounds for disqualification. The first issue goes to
the merits of Polgar’s abuse of process counterclaim and should be
addressed in that context. The second issue may be moot in light of the
USCF board of delegates purported August 2009 decision not to indemnify
Polgar. See Docket No. 182 (Supplemental Hall Dec.) ¶ 9.5 In any event,
Polgar has failed to substantiate her assertion that Kronenberger’s
approach to the issue rises to the level of an ethical violation.

Finally, the court finds Polgar’s argument concerning the
confidentiality of certain information to be without merit. Polgar
asserts she and Truong, who were USCF directors, gave Kronenberger
information in response to a November 29, 2007, letter, unaware that
Kronenberger had taken a position adverse to them. See Cal. R. Prof.
Conduct 3- 600(D) (organization’s attorney shall not mislead director to
believe confidential information will not be used against director if
organization becomes adverse to her). In fact, the letter states that
Kronenberger’s firm represents the USCF; accuses Truong and Polgar of
inappropriate behavior; and threatens them with several causes of
action. Springman Dec., Exh. K. No reasonable person would fail to
recognize that Kronenberger represented a client that had taken an
adverse position to Polgar and Truong. The self-serving declarations of
Polgar and Truong do not compel a contrary conclusion.

The only question presented by this motion is whether an attorney should
be disqualified, not whether his tactics to date have represented the
best traditions of the bar. The instant motion is not frivolous, but it
is denied.6

The court would have been untroubled had it been necessary to disqualify
either Kronenberger Burgoyne, LLP, or Gonzalez & Leigh, LLP. For reasons
unknown to the court, the attorneys from these two firms have conducted
this litigation in a vituperative manner more consistent with a cage
fight than with zealous representation of clients in a court of law.
Counsel would do well to bear in mind that the attorney’s role is not
only to advocate, but to lubricate: to help the wheels of justice turn
efficiently and economically as well as fairly, so that the attorney’s
client will be able to achieve a resolution without undue expenditure of
time and money.

II. Venue

The court has serious concerns about the continued litigation of the
instant action and Polgar’s action in separate fora. Polgar has
withdrawn her motion to transfer; however, the issue of transfer of
venue has been fully briefed, and the court finds it appropriate to take
up the question sua sponte.

A. The Texas Action

On August 7, 2008, Polgar filed an action in state court in Lubbock,
Texas. The complaint named the USCF, each of the USCF’s executive board
members aside from Polgar and Truong, the USCF’s legal counsel, Karl
Kronenberger, former board member Sam Sloan and several other
defendants. It alleged slander, defamation, business disparagement and a
host of related claims stemming from comments and accusations directed
against Polgar. Polgar and Truong live in Lubbock. The action was
removed to federal court on August 20, 2008, on the basis of diversity
jurisdiction. Sloan counterclaimed. The defendants then filed a bevy of
motions to dismiss, motions for a more definite statement and motions to
strike. The federal court, Judge Sam R. Cummings presiding, disposed of
these motions in an order dated February 19, 2009. Now pending before
Judge Cummings is a motion for summary judgment as to all claims against
Kronenberger. Judge Cummings has set a trial date.

B. Personal Jurisdiction Over Defendant Alexander

As a preliminary matter, Alexander, a resident of the State of
Washington, has challenged the jurisdiction over his person of a court
sitting in California. This court cannot transfer this civil action as
against Alexander unless it has jurisdiction in the first instance.
It is undisputed that Alexander has no real or personal property or bank
account in California. The basis plaintiffs assert for the exercise of
jurisdiction is Alexander’s alleged purposeful availment of California
for the purposes of violating Hough’s email account. Plaintiffs allege
and Alexander does not deny that the Yahoo! server utilized by Hough’s
email is located in this district. Alexander has been indicted
criminally in the Northern District of California for the activity which
is the basis of the claims against him in the instant civil action.

In opposition to a defendant’s motion to dismiss for lack of personal
jurisdiction, a plaintiff bears the burden of establishing that
jurisdiction is proper. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th
Cir. 2008); Schwarzenegger v. Fred Motor Co., 374 F.3d 797, 800 (9th
Cir. 2004). If the jurisdictional challenge is based solely on written
papers, plaintiff need only make a prima facie showing of the
jurisdictional facts. Boschetto at 1015. Uncontroverted allegations in
the complaint must be taken as true, and conflicts between the parties
over statements contained in affidavits must be resolved in the
plaintiff’s favor. Id. (citation omitted).

Where there is no federal standard establishing personal jurisdiction,
district courts apply the jurisdictional standards of the state in which
the district court sits. Id. (citing Panavision Int’l, L.P. v. Toeppen,
141 F.3d 1316, 1320 (9th Cir. 1998)). California courts may properly
exercise personal jurisdiction to the extent allowed by federal
constitutional due process. Boschetto at 1015. A court’s exercise of
personal jurisdiction over a nonresident defendant is consistent with
due process if the defendant has “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.” Int’l Shoe
Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotations
omitted). Basic due process for this purpose requires that a defendant
has fair warning that a particular activity may subject him to
jurisdiction in the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462,
472 (1985).

If a nonresident defendant has contacts with the forum state that are
“substantial” or “continuous and systematic,” then courts may exercise
general personal jurisdiction over the defendant without regard to
whether the action arises from the defendant’s activities in the forum
state. Perkins v. Benguet, 342 U.S. 437 (1952). If a nonresident
defendant’s activities within the forum state are less substantial, then
courts may still exercise specific personal jurisdiction where the
action arises out of or is related to the defendant’s particular
activities within the forum state. Helicopteros Nacionales de Colombia,
S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984). For specific jurisdiction
over such a defendant to lie, the following is required: (1) the
nonresident defendant must do some act or consummate some transaction
within the forum or perform some act by which he purposefully avails
himself of the privilege of conducting activities in the forum, thereby
invoking the benefits and protections of its laws; (2) the claim must be
one which arises out of or results from the defendant’s forum-related
activities; and (3) the exercise of jurisdiction must be reasonable. Doe
v. Unocal Corp., 248 F.3d 915, 923 (9th Cir. 2001) (citation omitted).
When an intentional tort claim is asserted, purposeful availment of the
privilege of conducting activities in the forum state can be met by the
purposeful direction of a foreign act having effect in the forum state.
CE Distribution, LLC v. New Sensor Corp., 380 F.3d 1107, 1111 (9th Cir.
2004) (citation omitted). This so-called “effects test” is satisfied if
the defendant (1) commits an intentional act (2) expressly aimed at the
foreign state (3) causing harm in the foreign state that the defendant
knew was likely to be suffered in that state. Id. (citing Calder v.
Jones, 465 U.S. 783 (1984)).

Defendant Alexander argues that personal jurisdiction does not lie in
this forum because he has no contact with California. Plaintiffs do not
assert that California courts have general jurisdiction, but rather
argue that the events underlying their claims represent the purposeful
direction of acts having effects in California. Specifically, plaintiffs
allege that Alexander: accessed Hough’s Yahoo! email account, located on
a server in this district, without authorization; in some instances,
used an “anonymizer” service based in southern California to attempt to
hide his identity; and posted the illicitly-acquired emails on a blog
page maintained in this district on Google’s servers. Plaintiffs also
note that the terms of use for each of these services contain forum
selection provisions requiring the user to agree to submit himself to
jurisdiction in California for the purposes of any disputes between the
user and the respective service.

While Alexander denies plaintiffs’ allegations that he illicitly
accessed emails, he does not dispute the location of the servers in
California or the existence of the forum selection provisions. Alexander
instead argues in his papers that certain USCF officials have conspired
against him as part of a program to harm their political opposition.
While such a showing might or might not help Alexander defend himself on
the merits, it is irrelevant to the personal jurisdiction inquiry.7

On a motion to dismiss for lack of personal jurisdiction, Alexander’s
conclusory declaration that he did not access any email account without
authorization cannot overcome plaintiffs’ declarations and exhibits
evidencing such violations. Resolving the conflicts among the parties’
declarations in favor of plaintiffs, there is no doubt that plaintiffs
have made out a prima facie case that Alexander unlawfully authorized
Hough’s email account.8 See Boschetto, 539 F.3d at 1015.

This does not, however, end the inquiry. Even if Alexander did access
Hough’s email account using the services based in California, it is
necessary to determine whether such action amounted to “purposeful
availment” of the California forum for purposes of the due process
analysis. Plaintiffs urge that Alexander’s alleged actions meet the
“effects test” of Calder v. Jones. Logging into an email program using
someone else’s information and intercepting that person’s email is
undoubtedly an intentional act. The question is whether a prima facie
case exists that such activity was expressly aimed at California and
caused harm in California that the defendant knew was likely to be
suffered there. See CE Distribution, 380 F.3d at 1111 (citing Calder,
465 U.S. 783).

According to plaintiffs, Alexander knew that Hough was a resident of
California. Hough has lived at his current address in Alhambra,
California, for the past twenty years. See Docket No. 23 (Hough Dec.) ¶
2. Alexander does not deny such knowledge. As noted, he has also not
denied knowledge that the various services at issue here—Yahoo!, Google,
Anonymizer.com—maintain servers in California and have forum selection
clauses in their terms of use. Such clauses represent contractual
agreements between a user and the respective service and do not
necessarily subject a user to jurisdiction in California in disputes
between the user and a third party. However, they provide evidence that
Alexander may have adverted to the fact that he was carrying out
activities with an impact and interest in California. Plaintiffs have
shown enough to make out a prima facie that Alexander expressly aimed
his conduct at a California resident and at California more generally.
Certainly, it cannot be maintained that the violation of Hough’s email
had no effect on Hough, who is a California resident. Most likely, if
Alexander did invade Hough’s account, Hough was never intended to know
about it; nevertheless, the violation of Hough’s privacy was intended to
affect events related to the USCF investigation in which Hough was
involved. In summary, in view of plaintiffs’ prima facie showing of the
aforementioned jurisdiction facts, the court concludes that the activity
of Alexander at issue in this case meets the “effects test.” Alexander’s
alleged conduct meets the purposeful availment prong of the personal
jurisdiction inquiry.

Furthermore, the claims at issue arise directly from the activity upon
which such purposeful availment is based—i.e., the alleged accessing of
Hough’s email account. See Doe v. Unocal, 248 F.3d at 923. Finally,
there is nothing unreasonable about the court’s exercise of jurisdiction
over Alexander. Plaintiffs have levied serious accusations against
Alexander, and although he would undoubtedly prefer to defend himself in
Washington, there is nothing unreasonable about adjudicating this case
in California, in light of the circumstances. Alexander has the
appropriate minimum contacts to California, and haling him into a
California court would not offend traditional notions of fair play and
substantial justice. See Int’l Shoe, 326 U.S. at 316.

C. Transfer

This court has personal jurisdiction over defendants.9 The next question
is whether the instant action is related to the Texas action and should
be transferred to the Northern District of Texas pursuant to 28 U.S.C
section 1404(a). When Polgar moved to transfer earlier this year, the
court delayed action on the motion to allow time for this court’s ADR
staff to conduct a global mediation involving all parties to all related
lawsuits. Despite heroic efforts by Mr. Bowling and this district’s ADR
program, no settlement has been reached. It is now time to consider
whether the action should be transferred.

“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.” 28 U.S.C. §
1404(a). A motion to transfer venue lies within the broad discretion of
the district court and must be determined on an individualized basis.
Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000)
(citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).
District courts use a two-step analysis to determine whether a transfer
is proper. The threshold question under section 1404(a) requires the
court to determine whether the case could have been brought in the forum
to which the transfer is sought. 28 U.S.C. § 1404(a); Hatch v. Reliance
Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985). If venue would be
appropriate in the would-be transferee court, then the court must make
an “individualized, case-by-case consideration of convenience and
fairness.” Jones, 211 F.3d at 498. Among the factors that a district
court may consider in deciding whether a transfer is in the interest of
justice a the location where any relevant agreements were negotiated
and executed; the state that is most familiar with the governing law;
the plaintiff’s choice of forum; the respective parties’ contacts with
the forum; the contacts relating to the plaintiff’s cause of action in
the chosen forum; the differences in the costs of litigation in the two
forums; the availability of compulsory process to compel attendance of
unwilling non-party witnesses; the ease of access to sources of proof;
any forum selection clause; and relevant public policy of the forum
state. Id. at 498-99 (citing Stewart, 487 U.S. at 29-3 1).

As a threshold matter, this action could have been brought in the
Northern District of Texas. Polgar has declared that she used her home
computer in Lubbock to access the internet throughout the period in
which plaintiffs allege she participated in a scheme to improperly view,
copy and distribute Hough’s emails. Docket No. 61 (Polgar Dec.) ¶ 10.
This being the case, a substantial part of the events giving rise to the
claim occurred in the Northern District of Texas, making venue proper in
that district. See 28 U.S.C. § 139 1(b)(2).

Since venue lies in the Northern District of Texas, as well as in this
district, the pertinent question is whether the factors of convenience
and justice weigh in favor of transfer. See Jones, 211 F.3d at 498-499.
Plaintiffs chose to file suit in this district. “Although plaintiffs
have chosen this district, and their choice of forum is certainly
entitled to some deference, the weight of this consideration is
mitigated where a plaintiff has commenced an action in a forum that is
not his or her residence.” Tulare County Audubon Soc. v. Espy, 1993 WL
204326, at *2 (N.D. Cal. June 3, 1993) (Lynch, J.) (citing New Image
Inc. v. Travelers Indem. Co., 536 F. Supp. 58 (E.D. Pa. 1981)). The USCF
is an Illinois corporation based in Tennessee. Hough is a California
resident but not a resident of this judicial district. As such,
plaintiffs’ choice of forum is entitled to somewhat less deference.

The other Jones factors weigh only somewhat in favor of maintaining the
action in this district, if at all. Northern California is probably
slightly more convenient to third-party witnesses from the internet
services allegedly used by Alexander, but there has been no showing, and
there is no reason to believe, that these major corporations are not
amenable to service of process in the Northern District of Texas. The
contacts of the parties to various fora are dispersed, so there is no
forum having a center of gravity of contacts. Factors like ease of
access to sources of proof and familiarity with the governing law are
basically neutral. None of the other factors strongly militate against
transfer.

Importantly, the case at bar deals not simply with the question of
whether to transfer a case from one district to another. Since a related
action is proceeding in Texas, the question of whether these two cases
are properly consolidated in the same district is implicated. The Jones
case does not set forth an exclusive list of factors, and the issue of
conservation of judicial resources arises in a case such as this. Where
actions are related, proceeding with two cases in two separate forums
undermines this priority. It is for this reason that an attorney who
multiplies proceedings unreasonably and vexatiously is subject to
sanctions. See 28 U.S.C. § 1927.

The issues in this action and the Texas action are not identical, but
they are intertwined. More to the point, the litigants have so far used
the existence of two separate civil actions to whipsaw the two courts,
for instance by complaining in this court about alleged discovery abuse
pertaining to the Texas action and, apparently, vice-versa. It appears
to this court that the litigants and their attorneys have taken every
opportunity to exploit the fact that two civil proceedings between many
of the same parties are currently ongoing. Consolidating these actions
before one judge would greatly aid the federal courts in establishing
some measure of appropriate guidance and control over the progress of
these lawsuits. Additionally, the operative complaint in the Texas case
alleges causes of action based in part on alleged misconduct in
prosecuting this action. Proceeding with two independent actions risks
inconsistent adjudication of the merits. The Texas court has already
dealt with several motions to dismiss and related motions. See, e.g.,
Springman Dec., Exh. H (Feb. 19, 2009, order). It makes little sense for
separate courts to spend time sorting through the same web of
accusations and counter-accusations.10 This action is part of the same
fray as the Texas action, and there is no reason to draw the resources
of multiple courts into it.

Accordingly, it is now time for parties to embrace the words of Mac
Davis’s classic country
tune:

“I guess happiness was Lubbock, Texas, in my rear view mirror.
But now happiness is Lubbock, Texas, growing nearer and dearer.”

CONCLUSION

For the foregoing reasons, defendant/counter-claimant Polgar’s motion to
disqualify opposing counsel is DENIED. Defendant Alexander’s motion to
dismiss for lack of personal jurisdiction is DENIED. This action is
TRANSFERRED forthwith to the Northern District of Texas, Lubbock
Division. The Clerk shall close the file.11

IT IS SO ORDERED.

ENDNOTES

1. Polgar contends that this submission was untimely. Although the court
set an earlier deadline at the hearing, the court’s minute order
reflected a deadline of April 27, 2009. Accordingly, the submission is
deemed timely.
2. Polgar was subsequently named as a defendant and removed the action
to federal court.
3. Subsection 3-310(C) reads in its entirety: “(C) A member [of the bar]
shall not, without the informed written consent of each client: (1)
Accept representation of more than one client in a matter in which the
interests of the clients potentially conflict; or (2) Accept or continue
representation of more than one client in a matter in which the
interests of the clients actually conflict; or (3) Represent a client in
a matter and at the same time in a separate matter accept as a client a
person or entity whose interest in the first matter is adverse to the
client in the first matter.” Cal. R. Prof. Conduct 3-310(C). The rule
does not appear on its face to address standing at all but merely states
that an attorney “shall not” engage in any of the listed actions. Nor
does Rule 3-600(D) address the issue of standing. See Rule 3-600(D).
Polgar also asserts Kronenberger has violated Rules 3-310(B) (written
disclosure of conflict) and 3-310 (E) (protecting confidential
information in a successive representation).
4. Kronenberger’ s representation that “the delegates with the U.S.
Chess Federation suggested” the executive board file suit in Illinois is
perhaps more questionable. There is no evidence that the idea of
initiating the Illinois action originated with the board of delegates.
See Hall. Dec. ¶ 28. However, considering the proliferation of lawsuits
and USCF internal proceedings, the court infers that Kronenberger simply
misspoke.
5. Hall’s supplemental declaration includes only a copy of the
recommendation by the executive board to the board of delegates to expel
Polgar and Truong; no record of the delegates’ vote was attached to the
declaration. Polgar does not dispute that the delegates voted
unanimously not to indemnify her but instead challenges the
circumstances of the vote.
6. Of course, Judge Cummings may disqualify or sanction any attorney as
he finds appropriate following the transfer of this action to Texas.
7. Alexander also argues that plaintiffs’ counsel, Kronenberger,
attempted to mislead the court by redacting pertinent information in one
of his exhibits. See Docket No. 20, Exh. G. Kronenberger did redact a
portion of the Anonymizer.com employee’s message stating that he was
“unable to find anything concerning the requested ip addresses.” The
import of this remark is uncertain, since the exhibit does not include
the language of the request from Kronenberger to Anonymizer.com. In any
event, the unredacted Exhibit G does not exculpate Alexander, since it
provides evidence of a link between him and the 76.121.230.165 IP
address used to access Hough’s email account. See id., Exh. A.
8. To be clear, holding merely that a prima facie case exists is not a
decision that plaintiffs can prevail on their claims. “Prima facie”
literally means “at first sight.” As noted, this is all that is required
to find personal jurisdiction.
9. Defendant Polgar has waived any challenge to personal jurisdiction.
10. These considerations outweigh any benefit to be derived from
adjudicating the criminal and civil cases against Alexander in the same
district.
11. Nothing in this order affects the criminal case against defendant
Alexander proceeding in the Northern District of California.
  #2   Report Post  
Old October 15th 09, 03:36 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess,misc.legal
external usenet poster
 
First recorded activity by ChessBanter: May 2006
Posts: 14,870
Default Memorandum Decision and Order of Judge Patel

Good decision and thank you for posting it.

Sam Sloan


Accordingly, it is now time for parties to embrace the words of Mac
Davis’s classic country
tune:

“I guess happiness was Lubbock, Texas, in my rear view mirror.
But now happiness is Lubbock, Texas, growing nearer and dearer.”

CONCLUSION

For the foregoing reasons, defendant/counter-claimant Polgar’s motion to
disqualify opposing counsel is DENIED. Defendant Alexander’s motion to
dismiss for lack of personal jurisdiction is DENIED. This action is
TRANSFERRED forthwith to the Northern District of Texas, Lubbock
Division. The Clerk shall close the file.11

IT IS SO ORDERED.

ENDNOTES

1. Polgar contends that this submission was untimely. Although the court
set an earlier deadline at the hearing, the court’s minute order
reflected a deadline of April 27, 2009. Accordingly, the submission is
deemed timely.
2. Polgar was subsequently named as a defendant and removed the action
to federal court.
3. Subsection 3-310(C) reads in its entirety: “(C) A member [of the bar]
shall not, without the informed written consent of each client: (1)
Accept representation of more than one client in a matter in which the
interests of the clients potentially conflict; or (2) Accept or continue
representation of more than one client in a matter in which the
interests of the clients actually conflict; or (3) Represent a client in
a matter and at the same time in a separate matter accept as a client a
person or entity whose interest in the first matter is adverse to the
client in the first matter.” Cal. R. Prof. Conduct 3-310(C). The rule
does not appear on its face to address standing at all but merely states
that an attorney “shall not” engage in any of the listed actions. Nor
does Rule 3-600(D) address the issue of standing. See Rule 3-600(D).
Polgar also asserts Kronenberger has violated Rules 3-310(B) (written
disclosure of conflict) and 3-310 (E) (protecting confidential
information in a successive representation).
4. Kronenberger’ s representation that “the delegates with the U.S.
Chess Federation suggested” the executive board file suit in Illinois is
perhaps more questionable. There is no evidence that the idea of
initiating the Illinois action originated with the board of delegates.
See Hall. Dec. ¶ 28. However, considering the proliferation of lawsuits
and USCF internal proceedings, the court infers that Kronenberger simply
misspoke.
5. Hall’s supplemental declaration includes only a copy of the
recommendation by the executive board to the board of delegates to expel
Polgar and Truong; no record of the delegates’ vote was attached to the
declaration. Polgar does not dispute that the delegates voted
unanimously not to indemnify her but instead challenges the
circumstances of the vote.
6. Of course, Judge Cummings may disqualify or sanction any attorney as
he finds appropriate following the transfer of this action to Texas.
7. Alexander also argues that plaintiffs’ counsel, Kronenberger,
attempted to mislead the court by redacting pertinent information in one
of his exhibits. See Docket No. 20, Exh. G. Kronenberger did redact a
portion of the Anonymizer.com employee’s message stating that he was
“unable to find anything concerning the requested ip addresses.” The
import of this remark is uncertain, since the exhibit does not include
the language of the request from Kronenberger to Anonymizer.com. In any
event, the unredacted Exhibit G does not exculpate Alexander, since it
provides evidence of a link between him and the 76.121.230.165 IP
address used to access Hough’s email account. See id., Exh. A.
8. To be clear, holding merely that a prima facie case exists is not a
decision that plaintiffs can prevail on their claims. “Prima facie”
literally means “at first sight.” As noted, this is all that is required
to find personal jurisdiction.
9. Defendant Polgar has waived any challenge to personal jurisdiction.
10. These considerations outweigh any benefit to be derived from
adjudicating the criminal and civil cases against Alexander in the same
district.
11. Nothing in this order affects the criminal case against defendant
Alexander proceeding in the Northern District of California.


  #3   Report Post  
Old October 15th 09, 05:47 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess,misc.legal
external usenet poster
 
First recorded activity by ChessBanter: Sep 2009
Posts: 24
Default Memorandum Decision and Order of Judge Patel

On Oct 14, 10:36*pm, samsloan wrote:
Good decision and thank you for posting it.

Sam Sloan

Accordingly, it is now time for parties to embrace the words of Mac
Davis’s classic country
tune:


“I guess happiness was Lubbock, Texas, in my rear view mirror.
But now happiness is Lubbock, Texas, growing nearer and dearer.”


CONCLUSION


For the foregoing reasons, defendant/counter-claimant Polgar’s motion to
disqualify opposing counsel is DENIED. Defendant Alexander’s motion to
dismiss for lack of personal jurisdiction is DENIED. This action is
TRANSFERRED forthwith to the Northern District of Texas, Lubbock
Division. The Clerk shall close the file.11


IT IS SO ORDERED.


ENDNOTES


1. Polgar contends that this submission was untimely. Although the court
set an earlier deadline at the hearing, the court’s minute order
reflected a deadline of April 27, 2009. Accordingly, the submission is
deemed timely.
2. Polgar was subsequently named as a defendant and removed the action
to federal court.
3. Subsection 3-310(C) reads in its entirety: “(C) A member [of the bar]
shall not, without the informed written consent of each client: (1)
Accept representation of more than one client in a matter in which the
interests of the clients potentially conflict; or (2) Accept or continue
representation of more than one client in a matter in which the
interests of the clients actually conflict; or (3) Represent a client in
a matter and at the same time in a separate matter accept as a client a
person or entity whose interest in the first matter is adverse to the
client in the first matter.” Cal. R. Prof. Conduct 3-310(C). The rule
does not appear on its face to address standing at all but merely states
that an attorney “shall not” engage in any of the listed actions. Nor
does Rule 3-600(D) address the issue of standing. See Rule 3-600(D).
Polgar also asserts Kronenberger has violated Rules 3-310(B) (written
disclosure of conflict) and 3-310 (E) (protecting confidential
information in a successive representation).
4. Kronenberger’ s representation that “the delegates with the U.S.
Chess Federation suggested” the executive board file suit in Illinois is
perhaps more questionable. There is no evidence that the idea of
initiating the Illinois action originated with the board of delegates.
See Hall. Dec. ¶ 28. However, considering the proliferation of lawsuits
and USCF internal proceedings, the court infers that Kronenberger simply
misspoke.
5. Hall’s supplemental declaration includes only a copy of the
recommendation by the executive board to the board of delegates to expel
Polgar and Truong; no record of the delegates’ vote was attached to the
declaration. Polgar does not dispute that the delegates voted
unanimously not to indemnify her but instead challenges the
circumstances of the vote.
6. Of course, Judge Cummings may disqualify or sanction any attorney as
he finds appropriate following the transfer of this action to Texas.
7. Alexander also argues that plaintiffs’ counsel, Kronenberger,
attempted to mislead the court by redacting pertinent information in one
of his exhibits. See Docket No. 20, Exh. G. Kronenberger did redact a
portion of the Anonymizer.com employee’s message stating that he was
“unable to find anything concerning the requested ip addresses.” The
import of this remark is uncertain, since the exhibit does not include
the language of the request from Kronenberger to Anonymizer.com. In any
event, the unredacted Exhibit G does not exculpate Alexander, since it
provides evidence of a link between him and the 76.121.230.165 IP
address used to access Hough’s email account. See id., Exh. A.
8. To be clear, holding merely that a prima facie case exists is not a
decision that plaintiffs can prevail on their claims. “Prima facie”
literally means “at first sight.” As noted, this is all that is required
to find personal jurisdiction.
9. Defendant Polgar has waived any challenge to personal jurisdiction.
10. These considerations outweigh any benefit to be derived from
adjudicating the criminal and civil cases against Alexander in the same
district.
11. Nothing in this order affects the criminal case against defendant
Alexander proceeding in the Northern District of California.


You gotta love this line (about half way through):

"For reasons
unknown to the court, the attorneys from these two firms have
conducted
this litigation in a vituperative manner more consistent with a cage
fight than with zealous representation of clients in a court of law."

and the followup:

"Counsel would do well to bear in mind that the attorney’s role is not
only to advocate, but to lubricate: to help the wheels of justice turn
efficiently and economically as well as fairly, so that the attorney’s
client will be able to achieve a resolution without undue expenditure
of
time and money. "

K
  #4   Report Post  
Old October 15th 09, 05:51 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess,misc.legal
external usenet poster
 
First recorded activity by ChessBanter: May 2006
Posts: 14,870
Default Memorandum Decision and Order of Judge Patel

This decision is a major blow to Polgar and Truong. If you could see
the volume of paper exchanged on this motion you would understand.

Polgar and Truong believed that their motions would be granted, which
would both knock out Kronenberger as the USCF's attorney and caused
the USCF's case to be dismissed, leaving only Polgar vs the USCF and
everybody else in Texas as the only viable lawsuit.

The detailed and comprehensive decision by Judge Patel leaves no
chance for reversal. Shall we say that Polgar and Truong are now in
deep trouble. Perhaps it is not an exaggeration to state that their
noose is tightening.

Sam Sloan
  #5   Report Post  
Old October 15th 09, 06:51 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess,misc.legal
external usenet poster
 
First recorded activity by ChessBanter: May 2006
Posts: 14,870
Default Memorandum Decision and Order of Judge Patel

Where did you find that decision? It is not on PACER.

Sam Sloan


  #6   Report Post  
Old October 15th 09, 07:13 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess,misc.legal
external usenet poster
 
First recorded activity by ChessBanter: May 2006
Posts: 14,870
Default Memorandum Decision and Order of Judge Patel

On Oct 15, 1:51*am, samsloan wrote:
Where did you find that decision? It is not on PACER.

Sam Sloan


It is not on litmaven.com either.

https://www.litmaven.com/Track.aspx
  #7   Report Post  
Old October 15th 09, 09:15 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess,misc.legal
external usenet poster
 
First recorded activity by ChessBanter: May 2006
Posts: 9,302
Default Memorandum Decision and Order of Judge Patel

On Oct 15, 12:47*am, klgore wrote:

You gotta love this line (about half way through):

"For reasons
unknown to the court, the attorneys from these two firms have
conducted
this litigation in a vituperative manner more consistent with a cage
fight than with zealous representation of clients in a court of law."

and the followup:

"Counsel would do well to bear in mind that the attorney’s role is not
only to advocate, but to lubricate: to help the wheels of justice turn
efficiently and economically as well as fairly, so that the attorney’s
client will be able to achieve a resolution without undue expenditure
of time and money. "



Well, it displays an astounding naivete regarding the
true purpose of these proceedings; apparently, the
high and mighty delude themselves into believing that
it's not just petty infighting and/or greed which brought
all this about. The bit about "undue" expenditure of
time and money was particularly rich.

I am reminded of a movie I watched not long ago
called Rumpole of the Bailey; in this movie the main
character, Mr. Rumpole, has appeared before the
same, arrogant judge time and again, defending his
probably-guilty and definitely-sleazy clients without
success, the judge taking particular pleasure in his
defeats. Mr. Rumpole comes back out of an early
retirement to solve a case involving tecnical mastery
of bloodwork, which is heard before this same judge.
All through the proceedings, the two go at it-- but
this time Mr. Rumpole prevails, and the judge's self-
assured arrogance leaves him looking rather silly.

Anyway, one wonders if stroking one's own ego by
talking down to other jurists is really a fundamental
part of the job of judge. By his own admission, the
alleged purpose of the proceedings has nought to
do with such things as a judge's ego, but rather it
is supposedly connected with something called, ah,
justice. Nevertheless, when real judges are filmed
in action and it is shown on TV, the ego problems
seem to predominate the entire proceedings, as if
psychological issues were the primary qualification
for getting the job. Others might say they are just
being jerks-- not loony, just very obnoxious people.


-- help bot



  #8   Report Post  
Old October 15th 09, 11:00 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess,misc.legal
external usenet poster
 
First recorded activity by ChessBanter: May 2009
Posts: 1,132
Default Memorandum Decision and Order of Judge Patel

help bot wrote:

Well, it displays an astounding naivete regarding the
true purpose of these proceedings; apparently, the
high and mighty delude themselves into believing that
it's not just petty infighting and/or greed which brought
all this about. The bit about "undue" expenditure of
time and money was particularly rich.


It is quite clear that Judge Patel is upset that the case did not settle
during ADR. Why that was will remain a mystery due to the constraints
of court rules regarding confidentiality.
  #9   Report Post  
Old October 15th 09, 11:24 AM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess,misc.legal
external usenet poster
 
First recorded activity by ChessBanter: May 2009
Posts: 1,132
Default Memorandum Decision and Order of Judge Patel

pdf is available at

http://rapidshare.com/files/29328390...risdiction.pdf
  #10   Report Post  
Old October 15th 09, 03:36 PM posted to rec.games.chess.politics,rec.games.chess.misc,alt.chess,misc.legal
external usenet poster
 
First recorded activity by ChessBanter: Oct 2007
Posts: 3,073
Default Memorandum Decision and Order of Judge Patel

On Oct 15, 4:15*am, help bot wrote:


There is a lot of arrogance to go around there. You all should take
note of this and look at yourselves to see if perhaps you have a
little arrogance going on that might lead you down some slipery slope.
Of course this wouldn't apply to you or me.
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