Case 2:11-cv-01426-GMS Document 32 Filed 10/19/11 Page 1 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

LAW OFFICE OF HARTWELL HARRIS Hartwell Harris (California Bar No. 241695) 1809 Idaho Avenue Santa Monica, California 90403 Telephone: (310) 497-8858 Facsimile: (310) 998-1167 hartwell@hartwellharris.com Attorney Defendants RAYMOND MOBREZ ILIANA LLANERAS ASIA ECONOMIC INSTITUTE, LLC UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

XCENTRIC VENTURES, LLC, an Arizona limited liability company, Plaintiff, vs. LISA JEAN BORODKIN, et al., Defendants.

CASE NO.: 11-CV-1426-PHX-GMS DEFENDANTS REPLY TO THEIR MOTION TO DISMISS FOR IMPROPER VENUE; OR IN ALTERNATIVE TO TRANSFER FOR IMPROPER VENUE (28 USC 1406(A)); OR IN THE ALTERNATIVE TO TRANSFER FOR CONVENIENCE (28 USC 1404(A)) (Oral Argument Requested)

DEFENDANTS ASIA ECONOMIC COUNCIL INSTITUTE, LLC (AEI), RAYMOND MOBREZ, and ILLIANA MOBREZ (Defendants) submit this Reply to address arguments raised by Plaintiff in its Response to Defendants Motion to Dismiss for Improper Venue; or in the Alternative to Transfer. MEMORANDUM OF POINTS AND AUTHORITIES I. A SUBSTANTIAL PART OF THE EVENTS THAT GIVE RISE TO PLAINTIFFS CLAIMS OCCURRED IN CALIFORNIA.
DEFENDANTS REPLY TO THEIR MOTION TO DISMISS FOR IMPROPER VENUE OR IN THE ALTERNATIVE TO TRANSFER

Case 2:11-cv-01426-GMS Document 32 Filed 10/19/11 Page 2 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff grounds its venue allegations on 20 U.S.C. 1391(a)(2)that a plaintiff may bring a suit in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . . (Complaint (Compl.) at 11). Plaintiff writes in its Response that all well-pleaded allegations in the complaint bear[] on the venue question so turning to the complaint one will realize that the Complaint is replete with activity that occurred in California, not in Arizona. The following paragraphs in the Complaint describe events allegedly occurring in California: 1, 2, 22, 23, 24, 25, 26, 27, 28, 31, 32, 33, 34, 35, 37, 38, 39, 40, 42, 44, 45, 49, 50, 51, 52, 53, 54, 55, 57, 58, 59, 60, 61, 63, 64, 65, 67, 71. The following paragraphs in the Complaint refer to Arizona: 9, 41, 64. Plaintiffs own pleading reveals that the substantial part of the events or omissions giving rise to the claim occurred in California. Necessarily, the activities that give rise to an alleged abuse of process claim must occur in the state in which the judicial system exists that was abused. Plaintiff obfuscates a straightforward law about venue with case law about personal jurisdiction. Plaintiff argues that this Court should consider where the harm was felt rather than where the substantial events occurred. Plaintiff relies on Myers v. Bennett Law Offices. 238 F.3d 1068 (9th Cir. 2001). The decision in Myers, however, primarily addressed personal jurisdiction and only briefly addressed venue. Plaintiff offers no other cases that follow Myers for this proposition nor offers any other authority that venue has some type of effects test like personal jurisdiction. II. PLAINTIFF DOES NOT ADDRESS DEFENDANTS ARGUMENT THAT TRANSFER IS PROPER PURSUANT TO 28 U.S.C. SECTION 1406(a) In their motion, Defendants argue that if the Court does not dismiss, it should transfer the case pursuant to 28 U.S.C. Section 1406(a) which mandates dismissal or transfer when Plaintiff has filed in an improper venue. Plaintiff did not address the argument regarding transfer based on Section 1406(a).
-2DEFENDANTS REPLY TO THEIR MOTION TO DISMISS FOR IMPROPER VENUE OR IN THE ALTERNATIVE TO TRANSFER

Case 2:11-cv-01426-GMS Document 32 Filed 10/19/11 Page 3 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

III.

CALIFORNIA IS A MORE CONVENIENT FORUM

Finally, the Court also has the option to transfer this case based on convenience. 28 U.S.C. 1404(a). Plaintiff argues against transfer, in part, because necessary witnesses are located in Arizona. The Complaint, however, fails to make even a prima facie showing that these witnesses are involved. In fact, no factual allegations appear in the Complaint involving three of these five: Maria Crimi Speth, Adam Kunz, or John F. Brewington. Moreover, Plaintiff has already demonstrated that a necessary witness is in California by requesting early discovery in its Motion for Leave to Perform Expedited/Early Discovery (Doc. # 28). Plaintiffs own behavior supports transfer to California. Plus, Plaintiff has been unable to locate a named defendant: Daniel Blackert. Mr. Blackert was the lead attorney in the underlying action and would be a critical witness and/or party in this matter. But, Plaintiff cannot find him. Plaintiff also argues, in part, against transfer by alleging that California is not the state most familiar with governing law. This is false. Californias law regarding recorded conversations will play a critical role in this matter. A major part of Plaintiffs case relies on recorded telephone calls. Plaintiff alleges in its Complaint that Defendants conspired to trap it in some kind of extortion plot and points to seven telephone calls made by Mobrez. (Compl. at 25-26). Plaintiff further alleges that after the telephone calls, Defendants filed suit. (Compl. at 28). These telephone calls were recorded unbeknownst to Defendants. (Compl. at 41). Plaintiff next details how Defendants described the contents of these conversation in declarations filed with the Central District of California. (Compl. at 32-39). Next Plaintiff alleges that these recordings show that Defendants lied their declarations and that Defendants fabricated allegations against it. (Compl. at 42-43). These allegations and the admissibility of these recorded conversations are key to Plaintiffs case. A court in California is more familiar with California law regarding unlawfully recorded conversations than another forum. The fact that the parties are
-3DEFENDANTS REPLY TO THEIR MOTION TO DISMISS FOR IMPROPER VENUE OR IN THE ALTERNATIVE TO TRANSFER

Case 2:11-cv-01426-GMS Document 32 Filed 10/19/11 Page 4 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

already arguing about the admissibility of these tapes proves Defendants pointthat the admissibility of these tapes will be a critical issue in this matter. Plaintiff relies on an order in the underlying action to support its contention that the recordings are admissible under federal law, but the underlying action included federal questions whereas the matter at hand does not. This case is based solely on diversity and does not include any federal question; thus, the laws of the forum govern the admissibility of recorded conversations. Feldman v. Allstate Insurance Comp., 322 F.3d 660, 666-68 (9th Cir. 2003). In Feldman the Ninth Circuit held: The instant case is distinguishable, however, because it is a diversity action. In diversity cases, a federal court must conform to state law to the extent mandated by the principles set forth in the seminal case of Eric R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Pursuant to Erie and its progeny, federal courts sitting in diversity apply state substantive law and federal procedural law. . . . We hold that California Penal Code 632, like the Nevada law at issue in Wray, is an exception to the general rule that the Federal Rules govern the admissibility of evidence in diversity cases. California Penal Code 632 both makes taping a confidential conversation a crime and limits the admissibility of illegally intercepted conversations. CAL. PENAL CODE 632(a), (d). The statute thereby embodies a state substantive interest in the privacy of California citizens from exposure of their confidential conversations to third parties. We also note that the California Constitution expressly guarantees a right to privacy, and that having one's personal conversations secretly recorded [and replayed] may well infringe upon the right to privacy guaranteed by the California Constitution. [citation omitted] For these reasons, we hold that Penal Code 632 is an integral component of California's substantive state policy of protecting the privacy of its citizens, and is properly characterized as substantive law within the meaning of Erie. Id. at 667-68.

-4DEFENDANTS REPLY TO THEIR MOTION TO DISMISS FOR IMPROPER VENUE OR IN THE ALTERNATIVE TO TRANSFER

Case 2:11-cv-01426-GMS Document 32 Filed 10/19/11 Page 5 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IV.

CONCLUSION Defendants request that this Court dismiss this action for improper venue. Plaintiff

would not be prejudiced since it could re-file in a proper forum. In the alternative, Defendants request that this Court transfer this matter to the Central District of California where the underlying case was litigated.

DATE: Oct. 19, 2011

LAW OFFICES OF HARTWELL HARRIS

By /s/ Hartwell Harris Hartwell Harris Attorney for Raymond Mobrez, Iliana Llaneras, and Asia Economic Institute, LLC.

-5DEFENDANTS REPLY TO THEIR MOTION TO DISMISS FOR IMPROPER VENUE OR IN THE ALTERNATIVE TO TRANSFER

Case 2:11-cv-01426-GMS Document 32 Filed 10/19/11 Page 6 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CERTIFICATE OF SERVICE I hereby certify that on October 19, 2011 I electronically transmitted the attached document to the Clerks Office using the CM/ECF System for filing, and for transmittal of a Notice of Electronic Filing to the following: David Gingras Gingras Law Office, PLLC 3941 E. Chandler Blvd., #106-243 Phoenix, AZ 85048 David Edward Funkhouser, III Quarles & Brady LLP 1 Renaissance Sq. 2 N Central Ave Phoenix, AZ 85004-2391 And a courtesy copy of the foregoing delivered to: HONORABLE G. MURRAY SNOW United States District Court Sandra Day OConnor U.S. Courthouse Suite 622 401 West Washington Street, SPC 80 Phoenix, AZ 85003 __/s/ Hartwell Harris_________

-6DEFENDANTS REPLY TO THEIR MOTION TO DISMISS FOR IMPROPER VENUE OR IN THE ALTERNATIVE TO TRANSFER

Case 2:11-cv-01426-GMS Document 32 Filed 10/19/11 Page 7 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28