United States District Court, D. Delaware
BRETT J. MOSIMAN, an individual; PIPELINE PRODUCTIONS, INC., a Kansas Corporation; PIPELINE TICKETING, LLC; a Kansas Limited Liability Company, Plaintiffs,
THE MADISON COMPANIES, LLC, a Delaware Limited Liability Company; BRYAN GORDON, an individual; HORSEPOWER ENTERTAINMENT LLC, a Delaware Limited Liability Company; HORSEPOWER ENTERTAINMENT MANAGEMENT LLC, a Delaware Limited Liability Company; KAABOOWORKS SERVICES LLC, a Delaware Limited Liability Company; KAABOO WORKS LLC, a Delaware Limited Liability Company; KAABOO-DEL MAR, LLC, a Delaware Limited Liability Company; KAABOO-DEL MAR INVESTMENT, LLC, a Delaware Limited Liability Company; and DOES 1 through 20 inclusive, Defendants.
Brett J. Mosiman, Pipeline Productions, Inc., and Pipeline
Ticketing, LLC (collectively "Plaintiffs") have
sued Defendants The Madison Companies, LLC; Bryan Gordon;
Horsepower Entertainment, LLC; Horsepower Entertainment
Management, LLC; Kaabooworks Services, LLC; Kaabooworks, LLC;
Kaaboo-Del Mar, LLC; and Kaaboo-Del Mar Investment, LLC
(collectively, "Defendants") over a failed business
relationship they attempted to form to produce a music
festival. Currently pending before the court is
Plaintiffs' Motion to Retransfer and Stay for The Limited
Purpose of Moving for Reconsideration. D.I. 31. Plaintiffs
seek in their motion to transfer the case back to the United
States District Court for the Southern District of
California. For the reasons discussed below, I will deny
May 31, 2017, Plaintiffs brought suit against Defendants in
the Superior Court of the State of California, County of San
Diego, alleging breach of contract and related claims. D.I.
1-2. Defendants removed the litigation to the United States
District Court for the Southern District of California based
on diversity jurisdiction. D.I. 1. Plaintiffs then filed a
motion to transfer the case to this court pursuant to 28
U.S.C. § 1404(a) based on a mandatory forum selection
clause in a written letter of intent ("LOI")
executed by the parties. D.I. 3. On October 25, 2017, the
Honorable Dana M. Sabraw, United States District Judge for
the Southern District of California, issued an order granting
Defendants' motion to transfer. D.I. 18-1.
Plaintiffs did not move for an immediate stay of Judge
Sabraw's order; nor did they ever file a petition for a
writ of mandamus in the United States Court of Appeals for
the Ninth Circuit. On October 26, 2017, this court accepted
jurisdiction of the case. D.I. 19. Almost six months later,
on April 16, 2018, Plaintiffs filed their motion to transfer
this case back to the California district court. D.I. 31.
"[A] district court may transfer any civil action to any
other district ... where it might have been brought." 28
U.S.C. § 1404(a). "If the party opposing the
transfer believes the decision is erroneous, it can either
seek reconsideration in the transferor court, or else
petition for a writ of mandamus in the court of appeals of
the circuit in which the transferor court is located."
Hayman Cash Register Co. v. Sarokin, 669 F.2d 162,
168 (3d Cir. 1981). "Once the transferor court has
decided the issue of whether the suit 'could have been
brought' in the transferee court, this ruling becomes the
law of the case." Id.
Under the law of the case doctrine, "[a] transfer order
from a coordinate court should only be reversed upon a
showing of'manifest error' or 'unusual
circumstances.'" Edwards v. Leach lnt'n
2015 WL 7295440, at *2 (D. Del. Nov. 18, 2015) (quoting
Holland v. Consol. Rail Corp., 1998 WL 414722, at *1
(E.D. Pa. July 22, 1998)).
Plaintiffs have not demonstrated that Judge Sabraw's
transfer order was based on manifest error. A transferee
court may revisit a transfer decision that is "clearly
erroneous." Christianson v. Colt Indus. Operating
Corp., 486 U.S. 800, 817, 819 (1988). "[B]orderline
case[s]" or "close questions" are not clear
error. Id. at 818-19. "Under law-of-the-case
principles, if the transferee court can find the transfer
decision plausible, its jurisdictional inquiry is at an
end." Id. at 819. Here, there is more than a
plausible basis for the transfer decision. Judge Sabraw found
that the parties' LOI includes a forum selection clause
that survived the termination of the LOI and required that
all disputes "arising from or related to" the LOI
be litigated in Delaware. D.I. 18-1 at 3. According to Judge
Sabraw, the claims in the complaint relate to the LOI because
the complaint "alleges obligations of Defendants that
are identical to those provided in the LOI."
Id. at 7.
their reply brief, Plaintiffs argue for the first time that
it was clear error for Judge Sabraw to construe the LOI as a
"two-part agreement" or "two separate
agreements." D.I. 37 at 2. But Plaintiffs did not
elaborate on this argument or point to where Judge Sabraw
construed the LOI as two separate agreements; and, after
reviewing the transfer order, I find no such construction by
Judge Sabrow. Instead, I find that Judge Sabraw carefully
examined the LOI and rejected Plaintiffs' argument that
Defendants were collaterally estopped from invoking the
LOI's forum selection clause. Id. at 5-6.
Accordingly, I do not see any clear error in Judge
Sabraw's transfer order.
Plaintiffs have also not demonstrated unusual circumstances
that would warrant reversal of Judge Sabrow's transfer
order. The Third Circuit has identified a handful of unusual
circumstances where it would be proper for this court to
entertain a motion to return a case to the transferor court:
(1) new evidence is available; (2) a supervening rule of law
is issued; (3) the successor judge is "clarifying or
correcting an earlier, ambiguous ruling;" or (4) the
successor judge is "entertain[ing] a timely motion to
reconsider the conclusions of an unavailable predecessor,
because otherwise the right to move for reconsideration would
be effectively denied." Hayman, 669 F.2d at
169; In re Pharmacy Benefit Managers Antitrust
Litig., 582 F.3d 432, 439 (3d Cir. 2009). Here,
Plaintiffs do not claim there is new evidence, a supervening
rule of law, or a prior ambiguous ruling, which means
Plaintiffs must demonstrate the fourth unusual circumstance:
namely, a timely motion to reconsider the conclusions of an
Plaintiffs argue that they were denied an opportunity to have
Judge Sabraw reconsider his order granting the motion to
transfer because the District of Delaware accepted
jurisdiction within 24 hours of the transfer order being
issued. D.I. 31 at 3-5. Even if this circumstance qualified
to make Judge Sabraw an "unavailable predecessor,"
Plaintiffs failed to take timely action to warrant
reconsideration. Plaintiffs did not seek an immediate stay of
Judge Sabrow's order; nor did they ever file a petition
for a writ of mandamus in the Ninth Circuit. Plaintiffs also
did not timely file a motion in this court for
reconsideration of Judge Sabraw's transfer order. Judge
Sabraw ordered the transfer on October 25, 2017. D.I. 18.
Plaintiffs did not file their motion to retransfer the case
until April 16, 2018, almost six months after the transfer to
this court occurred. D.I. 31. This court's Local Rules
require motions for reconsideration to be filed within 14
days of the opinion or decision in question. See
Del. L.R. 7.1.5. Because Plaintiffs did not timely file a
motion for reconsideration, I will not revisit Judge
Sabrow's decision on the motion to transfer.
Because I will deny Plaintiffs' motion to retransfer,
Plaintiffs' request to stay this action after
transferring it back to the Southern District of California
is rendered moot.
it is hereby ORDERED that Plaintiffs' Motion to
Retransfer and Stay for The Limited Purpose of Moving ...