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5th Avenue Partners, LLC v. Setai Group

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 22, 2008

5TH AVENUE PARTNERS, LLC, ET. AL., PLAINTIFF,
v.
THE SETAI GROUP, LLC, ET. AL. , DEFENDANT.

The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge

ORDER DENYING MOTION TO DISMISS AND STAYING CASE

Defendants, The Setai Group, Jonathan Breene and John Conroy, have moved to dismiss, or in the alternative, to stay or transfer the case based on the first-to-file rule. Defendants point out that another case involving the same parties and many of the same claims has already been filed in federal court in the Southern District of Florida. Plaintiffs, 5th Avenue Partners, LLC, Steve Rebeill and Tom Benjamin, do not dispute that the previously filed lawsuit in Florida involves the same parties and same claims as the instant suit. Instead, Plaintiffs argue that the first to file rule should not be given deference in this case because The Setai Group, Breene and Convoy (the defendants in this action) filed the first suit in a blatant attempt to forum shop when neither venue nor jurisdiction correctly lies in the Southern District of Florida.

On April 1, 2008, Judge King in the Southern District of Florida held oral argument on a motion to dismiss based on lack of jurisdiction and venue. It appears from the transcript that Judge King denied the motion to dismiss on the ground that the complaint was well-pled in alleging jurisdiction and venue but made no finding as to the truth of the facts asserted in the complaint. (Ex. A, p.45-46) Instead, Judge King stated that the truth of the factual allegations establishing jurisdiction and venue would be examined as part of the preliminary injunction hearing scheduled in June of 2008. (Id.) The Court will stay this action pending Judge King's ruling on venue and jurisdiction. Any party that contends that Judge King has reached a definitive ruling on venue and jurisdiction shall submit proof of such a decision within 10 days of receipt of that order.

Defendants' motion to dismiss or transfer this case is DENIED without prejudice. Defendants' alternative request to stay the case is GRANTED. Plaintiffs' request for oral argument on this motion is DENIED.

IT IS SO ORDERED.

20080522

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