Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Slobig v. Gannuscia

United States District Court, D. Utah

April 9, 2018

FRANK SLOBIG and JUDY SLOBIG, Plaintiffs,
v.
PHILIP EDWARD GANNUSCIA, DAVID GREGORY BEVAN, JESSICA BJARNSON, THOMAS JAMES RISKAS, III, AUSTIN BAWDEN Defendants.

          OPINION & ORDER

          NELSON S. ROMAN UNITED STATES DISTRICT JUDGE

         Plaintiffs Frank Slobig and Judy Slobig (collectively, the "Slobigs") bring this action against Defendants Philip Edward Gannuscia, David Gregory Bevan, Jessica Bjarnson, Thomas James Riskas, III, and Austin Bawden, alleging violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1964. (Compl. ¶ 1, ECF No. 1.)

         Presently before the Court is a motion to dismiss for lack of personal jurisdiction and improper venue pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3) filed by Defendants' Jessica Bjarnson, Phillip Gannuscia, and Thomas Riskas, III (collectively, the "Utah Defendants"). (ECF No. 22.) Alternatively, the Utah Defendants request that this action be transferred to the United States District Court for the District of Utah pursuant to 28 U.S.C. §§ 1404(a) and 1406(a). Plaintiffs concur that the District of Utah is the most convenient forum for this action, and consent to the transfer. For the reasons that follow, the Court giants the Utah Defendants' motion to transfer this action to the United States District Court for the District of Utah and, therefore, declines to reach the issue of personal jurisdiction.

         BACKGROUND

         Plaintiffs Frank and Judy Slobig (the “Slobigs”) commenced this suit on May 20, 2016 alleging that Defendants used deceptive Internet sites and sham entities to attract and defraud consumers interested in work-at home opportunities. (Compl. ¶¶ 10-18, 44.) On July 30, 2013, the Slobigs responded to one such promotion-a click through Internet advertisement about starting a home-based Internet business. (Id. ¶ 45.) The promotion indicated that for only $97.00, consumers could learn how to earn supplemental income online. (Id. ¶ 46.) The advertisement also linked to various allegedly fabricated testimonials from consumers about their purported successes through the program. (Id. ¶¶ 51-53.)

         After responding to Defendant's online promotion, the Slobigs received numerous aggressive and deceptive calls that included “sales pitches” for much more expensive services. (Id. ¶ 71.) Among these callers was Defendant Austin Bawden, who was allegedly working in concert with the other named Defendants. (Id. ¶ 56.) Defendant Bawden encouraged Plaintiffs to invest more of their money into Defendants' services, and to rely on their personal credit to fund their business. (Id. ¶¶ 55-67.) Relying on Defendant Bawden's representations and assurances, Plaintiffs agreed to engage with a company known as Supplier Source, LLC. (Id. ¶ 67.) That company then proceeded to further defraud Plaintiffs of thousands of dollars over the course of the next several months. (Id.) In particular, Supplier Source, LLC charged the Slobigs $7, 095 for the purchase of a “Global Mentors” coaching package. (Id. ¶ 68.) The Slobigs, however, never received any “coaching” or other services of value for any of their payments. (Id. ¶¶ 69-72.)

         The Slobigs commenced an action against the present Defendants along with a number of other Defendants in the District of Utah on May 19, 2015. One year later, the Slobigs commenced the present action alleging that Defendants' engaged in fraudulent “work-at-home” and “coaching” schemes, in violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). The Utah Defendants filed the instant motion to dismiss for lack of personal jurisdiction and improper venue, or alternatively, to transfer the venue of this action on August 15, 2017. (ECF No. 22.)

         APPLICABLE LAW

         “On a motion to dismiss for improper venue under Rule 12(b)(3), the burden of proof lies with the plaintiff to show that venue is proper.” Detroit Coffee Co., LLC v. Soup for You, LLC, No. 16-CV-9875 (JPO), 2018 WL 941747, at *1 (S.D.N.Y. Feb. 16, 2018) (internal quotations omitted) (quoting Cartier v. Micha, Inc., No. 06-CV-4699, 2007 WL 1187188, at *2 (S.D.N.Y. Apr. 20, 2007)). Where no evidentiary hearing has been held, “the plaintiff need only make a prima facie showing of [venue].” Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005) (alterations in original) (internal quotation marks omitted). “Such a showing entails making legally sufficient allegations, including an averment of fact that, if credited, would suffice to establish that . . . venue is proper.” Jenny Yoo Collection, Inc. v. Watters Design Inc., No. 16-CV-2205 (VSB), 2017 WL 4997838, at *4 (S.D.N.Y. Oct. 20, 2017) (internal quotation marks omitted) (quoting BMW of N. Am. LLC v. M/V Courage, No. 16-CV-4063 (JMF), 2017 WL 2223052, at *2 (S.D.N.Y. May 19, 2017)). In considering whether venue is proper, the Court “must view all facts in the light most favorable to the non-moving party.” Id. (internal quotation marks omitted) (quoting TradeComet.com LLC v. Google, Inc., 647 F.3d 472, 475 (2d Cir. 2011)).

         Upon a finding of improper venue, a court may either dismiss the action, or “if it be in the interest of justice, transfer such a case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). Further, “[e]ven when venue is proper in the Southern District of New York, the Court may transfer an action pursuant to 28 U.S.C § 1404(a).” Fleur v. Delta Air Lines, Inc., No. 15-CV-9513, 2016 WL 551622, at *1 (S.D.N.Y. Feb. 2, 2016) (internal quotation marks omitted) (quoting Solar v. Annetts, 707 F.Supp.2d 437, 441 (S.D.N.Y. 2010)). Specifically, § 1404(a) provides that “[f]or the convenience of the parties and witnesses, in the interest of justice, a district may transfer any civil action to any other district or division where it may have been brought . . . .” 28 U.S.C. § 1404 (a).

         Further, the Second Circuit has recognized that a court may “transfer venue even if it lacks personal jurisdiction over the defendants.” Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 112 (2d Cir. 2001). Accordingly, “[w]hen a defendant challenges both personal jurisdiction and venue, a court may consider venue first ‘when there is a sound prudential justification for doing so.'” Detroit Coffee Co., 2018 WL 941747, at *2 (quoting Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979)); see also In re Facebook, Inc., IPO Sec. & Derivative Litig., 922 F.Supp.2d 445, 455 (S.D.N.Y. 2013) (noting that a court may resolve the threshold question of venue before addressing jurisdiction), aff'd sub nom. In re Facebook, Inc., Initial Pub. Offering Derivative Litig., 797 F.3d 148 (2d Cir. 2015). Such prudential justification exists “where personal jurisdiction would likely exist in the transferee district over a defendant who contests personal jurisdiction in the Southern District of New York, . . . since a decision to transfer would render [the] personal jurisdiction analysis with respect to [the Southern District] irrelevant.” Detroit Coffee Co., 2018 WL 941747, at *2 (alteration in original) (internal quotation marks omitted) (quoting Everlast World's Boxing Headquarters Corp. v. Ringside, Inc., 928 F.Supp.2d 735, 741 (S.D.N.Y. 2013)).

         DISCUSSION

         I. Transfer

         The Utah Defendants contend that venue is improper in this District. Under 28 U.S.C. § 1391(b), ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.