seek a return of trademarks or trade dress what it is it's a fraud case it's a case based upon fraud in the inducement which motivated my client to execute a series of contracts the goetia asians took place in grade in this is said to be where the matter was filed so it has nothing to do with trademarks granted that the trademark case is peripheral in this  is not at the heart of this case as complaint is basically a fraud complaint is a sale of real estate which was personally own by my client there's no dispute that he personally owned that real estate does theory of injury in this case are what is your theory of injury in this case a theory of injury is that based upon the fraud which was induced during those negotiations the sale of the real estate took place as the first transfer the first contract was executed that then led to the bill of sale and the license agreement through those contracts my client lost his rights to the trademarks at carrol sounds to me like it's based on the same issues that were litigate in the first case based on the same issues it's based on some of those facts but not all of those facts this case is based upon one negotiations intensive negotiation which took place on two separate days in mississippi where the fan and his counsel flew up to convey to mississippi to negotiate had he been true in his statements there had he lived up to the statements he made in those negotiations we wouldn't be standing here today but for the fraud that was perpetrated during those negotiations my client would not have sold the real estate the sale of the real estate was for one purpose only that was so mr coder could operate a committee a grown restaurant there he didn't buy that real estate on the south carrollton haven't opened up a flower shop or an ice cream store he bought it to operate it can kamil your grill so it was all a series of dominoes that had to thaw without that fraud the fraud not been perpetrated the theory of recovery is had the fraud not been perpetrated my client would the in the position that he was prior to the negotiations he would still own that property on north carolina or south carrollton lissajous to sell it to someone else but for the fraud now the issues on appeal that we present today or three one the transfer of venue by judge mills from the northern district to the eastern district of louisiana to the granting of the motion to dismiss under twelve b six by judge mulatto which was based upon lack of standing and reza judicata i would suggest to the court that on the transfer of  there's only allowed for the convenience of the parties and the witnesses and in the interest of justice ok also judge mills makes that one statement there's plenty else in his discussion and in the argument that  is at least relevant evidence for transfer you saying that one he might say stray remark somehow invalidates the home transfer well if you're talking about the stray remarks of about the convenience of council i think it was one time he said which makes me use the word straight but you can tell me why that's an improper word well but it does seem to me that he relied on a number of other factors and he was certainly correct that the convenience of other identified participants can be considered south he did make that statement and he did rely point some of the factors he did not rely upon all of the factors and it is required to discuss and evaluate all of the factors of public interest factors and the private factors and then weigh those i would suggest to this court that if each of those factors was weighed it would be a neutral scale in which case then you would not france would not be appropriate  and let me let me back up a little bit on the venue issue the burden of proof is on the party seeking the transfer if you look at what the code or what mr coder presented in his motion to change venue it was and is currently addressing the same issues raised by schwarz well first of all fraud was never raised in any of the pleadings whether in louisiana state court or in the eastern just good louisiana in the matters that were pending there at the time never once was fraud raises an issue so to say that those matters are currently pending is disingenuous he also stated mr carter said he conducts no business in the northern district of mississippi while obviously he conducted business he flew to jack to grenada mississippi on two separate occasions to negotiate that's conducting business even judge mills said that mr coded left a large footprint in this district by charging a private plane negotiating contracts on two occasions and then he finally says that schwartz has chosen louisiana forms numerous times well the times that mr schwartz chose the louisiana forums was based upon a form clause which the parties contract it to in the license agreement it clearly stated that this form would be the state of louisiana so that's why that was chosen by mr schwartz now mr schwar is living in northern district of mississippi for the negotiations took place in the northern district of mississippi that's where he suffered his economic damages clearly that's a proper venue there no one disputed that that was improper venue so the burden then is judge mills picked up the reins and started to discussing the various issues so when he talks about what you just talked about  about the the convenes of consul that is that is the same argument which led to or reversal in the volkswagen case by this court that is not one of the factors to be looked at yet he looked at that that that was considered to be an abuse of discretion that led to their reversal dealing with the public factors there is no question but mississippi law controls the complaint so which court has greater familiarity with mississippi law the mississippi court of louisiana court i would suggest to you that that that factor is clearly weighing against the transfer now judge mills addressed that as well yes but certainly judge mills was a position where he could have read the briefing in louisiana rather than requiring a new briefing on it if he wanted to do that and made that decision on raised judicata yet he punted the matter back to louisiana and i'm suggesting the court that it was not within his discretionary power to do so he talks about the remaining factors as being essentially neutral one of those is the administrative difficulties which he did not discuss at all i would suggest that getting a trial date in the northern district of mississippi would certainly be easier and quicker than getting one in louisiana and these from digital resented by way of example this court issue to remain and in march two thousand and sixteen of a companion case march two thousand and eighteen we finally tried that two years that's not expeditious in my view and finally the local interest factor clearly has to favor mississippi the people of the state of mississippi have a vested interest in torts which occur in their jurisdiction upon their state this clearly happened in mississippi and gauche ations took place to get out of no question about that mr resident of mississippi clearly the state of mississippi has a greater public interest than the argument being made well this involves the iconic kamil you grill we're not talking about committee you grill and the people  don't care what happens to that because that's another case we're talking about damages that occurred to mr schwartz individually as a result of this fraud surely mississippi has to have a more greater interest in that so if you take all these factors in the way i'm at best it's neutral iris at worst is due to a dastard favors mississippi so even a neutral situation transfer should not have been made so i suggest the judge mills was not within his discretion and abused it by by not considering all of the factors as is required to do so and by considering a factor which is not allowed that being the the convenience of counsel even if you talk about the expenses why would it be more expensive for mr schwartz and his counsel to come to louisiana than it is for mr code and his counsel to con the mississippi and both parties had local consul then rolled as well switching to the twelve the six interestingly judge mills found quote a plausible connection between the trips to grenada and the claims asserted there in that's in the record at ten sixty one in order to survive a twelve  six motion we only have to simply show that there is a possible theory of recovery say to another way that unless you can the less is beyond doubt that there is no plausible theory of recovery for the plaintiff than the twelve the six should not be granted paragraph forty seven of the complaint indicates that mr schwartz would not have transferred his assets had he been known t true intentions one of those assets was his real estate the real estate was personally sold that's in the record in the complaint and paragraph fourteen and nineteen again as i stated without that real estate being sold mr kotor had no use of that property for the committee grill he wasn't any use for any other purpose the complaint for declaratory judgment filed by the code in connection to bill of sale so again in their own complaint for declaratory judgment they're bringing in mr schwartz personally there yet they're saying now he has no personal standing to bring this fraud claim while obviously he owns the real estate personally b their pleading he owns the f f n e that was transferred in the bill of sale i would also suggest as i did in briefing that the issue of mister schwartz being the beneficial owner was report those cases and dealing with internal revenue code and granted they deal with tax issues there's nothing that says that they are restricted to tax issues the cases in those say the person who has the power to dispose of income has the power and that's what here that's with case here he is  rage what is the effect of that a full decision certainly certainly reza judicata is does not apply because the case was still pending in louisiana that were a final judgment so in that case there was a final judgment a partial final judgment not a final judgment on the entire matter that matter was remanded said we just tried it judge was finally rendered in april of this year isn't that the final judgment the one in april i believe that it doesn't completely resolve the matter not currently affect a final judgment at the time the complaint mississippi was filed in fact in briefing consul refers to the matters being pending in the us from disability into four separate occasions so it was not secondly we also want to do is he'll tell us about secondly on rebuttal thank you but please the court did more in your honour's scott henson's on behalf of the defendant has shown code i have here in the court house with me daniel burrell in my office and john which field are co counsel it seems to me the most appropriate place to start is the transfer issue because that's what got us to the twelve b six the question there is whether judge mills abused his discretion whether there was an appropriate finding of law a conclusion i'm sorry finding a fact a conclusion law or misapplication of the law to the facts that led to a patiently erroneous decision in this case there is no argument that is the case if you look at judge mills ruling which it's made very clear seventeen pages on a transfer of pretty impressive in my opinion he goes through every single public and private interest factor as well as the interest of justice relative ease of access to the source of the proof cost of attendance for witnesses all of the practical problems that make the trial case easy expeditious and inexpensive the only one he missed in the private factors was availability of compulsory process to secure the attendance of witnesses that one is the best one in our favor not a single witness in this case other than mr schwarz as any relationship to mississippi whatsoever every single one of them lives in the eastern discreet new orleans to our to our understanding that the court in new orleans has been a power over those witnesses the mississippi court does not it is almost three hundred miles away from those people and this tribe this case if it was to proceed in mississippi could very well be a case just on depositions which to me is unfair to all the parties but particular to my client who is being sued he also goes through the practical problems that associate with this case he judge mills i was very particular about the rez judicata issue he mentioned it several times in the ruling and said there was particular problems and the reason why this is important for the transfer case because he says that the best party of the best person to decide whether or not raise judicata would apply to these issues is the judge who tried the case to begin with the judge who had it for years and years not him could he do it sure but he would have to expend a bunch of time and resources to catch up to or judge mazo was interesting only enough that is supported by case law that we cited in our brief the mountain west mine case and there in there the court  made a comment that raised judicata if it's an issue in the case is best determined by the judge that had the case first that is the case here in very strong factor of the public interest factors in the ministry of difficulties flowing from the court congestion local interest in having localized interest cited at home those were as judge will says essentially neutral i believe they cut in our favor and i'm happy to go through them but the one that the factor that i believe was really important for that is the familiarity of the form with the law that governs cases that's the one that they they pound on so much that mississippi law is so important this case in a mississippi judge must interpret it again the mountain west case says when the question of state law is not complex the factor should be given little or no wait these issues are fraud conversion misrepresentation things of that sort very simple concepts a law that even a first year law student can in the interest of justice in his mind the overriding concern is to make sure the case is decided correctly again he says that he could catch up but it would be a considerable expense in relation to judge my laws of just mulatto had this case for almost a decade eight years i believe that she had this case or at least five she knew every detail about this case but he doesn't that is that is extremely important secondly judge mills questions whether or  not plaintiff is really doing what is patiently obvious to me in this case is trying to find a different form of last in the eastern district on multiple occasions and he files this lawsuit coincidentally in another forum hoping to find a better judge that might be sympathetic to his cause that is in appropriate form shopping that i think judge laws are sniffed out and was a major reason why in the interest of justice this case should have been transferred now we start two additional cases the first filed rule is very important the fifth circuit is that here is to the general rule that the court in which an action is first filed is the appropriate court to determine whether subsequently filed cases involving substantially similar is similar issues should proceed this is a first filed case in my in my estimation the doctrine should apply here again the parties litigated the issues surrounding these facts for years the fact that they filed a later f action in mississippi should be subject to that rule and it should be transferred when you say the cause of action for fraud of crude judge i say so we have a substantial difference of opinion of that i'm aware that if a fraud existed i think it's it's at the meeting that they describe in mississippi or at best at the confection of the contracts what they try to suggest in their after the horse that's that makes no sense to me the the action happened ok if there was a fraud it happened we don't need a court to tell us that it was fraud or that a bad result happened in order for them but to write it into  a particular case now why is it important even to their theory they had plenty of opportunities to file a lawsuit in the eastern district the first in their own petition they claim that august two thousand and thirteen was the first time that the code of parties that suggested that the bill of sale should be used for something other than in relation to the license agreement going to simmer of two thousand and thirteen we filed a declaratory judgment action in the eastern district seeking to using the bill of sale as the the clear and unambiguous contract that shows that we obtained our clients obtained the ownership of the trademarks four months later they filed an action against us they didn't bring up fraud they never mentioned it and in that answer to the declaratory judgment action they didn't bring up flaw fraud there was no affirmative defense that fraud was somehow an impediment to the contract a couple years later judge mazo rules on july tenth two thousand and fifteen that the contracts are clear and unambiguous and that transfer was case five days later they sued us again five days later on july fifteenth they sued us again in the in the c here in new orleans never mentioned fraud if the case ripe and when at the ruling they still had multiple opportunities to do something and they didn't rather after that this court affirmed that decision our victory they file in another form in mississippi that to me is the quintessential example of forum shopping and it shouldn't be allowed in this case so there is no question in my mind that judge mills was right on the money in h ruling that there is no abuse of discretion here and that there is no argument that the mississippi court is a more convenient form for this case and transfers should be allowed now regardless of the transfer issue because when it comes down to these substan i think it's fairly immaterial but the standing issue is where this case dies period what is this case about this case is about the ownership of those trademarks he can say a million times that it's not he says it is brief that it's not but it is period now standing issue it's a it this is a just this is not just a pleading issue did he say it right in his pleadings this is an indispensable part of his case he has to show an injury in fact a concrete and particularized injury in fact him personally not the company that he owned not the stock in the company that he personally had to have an injury there is no one when you look at the complaint itself the trademarks are reasonable value of the marks and his use there of count three conversion code or intentionally interfered with torches ownership of the marks depriving schwartz of possession use in revenue derived from the marks in question count for fraudulent section he says by reason of coders fraudulent actions devaluation of schwartz's potential use of them and the value of the brain and i didn't make this up he wrote it down and multiplications seventy three times at least seventy three he wants to be paid more for the marks that he lost he's not seeking cancellation of the seller's now she can return of the problems not seeking a written cancellation so your honor he is seeking to be made whole those are his terms and in my opinion that is the single most dangerous portion of this we have a case that is proceeded to final judgment through it through a summary judgment in the eastern district this court affirmed a clear and unambiguous transfer of that asset to my clients and after the fact instead of living with it now they go backwards and say wait a minute it's really fraud mr mr silverstein said fraud was never raised never once is a quote never once in this case before then imagine the chilling effect on this very simple proposition of contract law we have a clear and unambiguous contract the most basic contract statute we have here in louisiana no further investigation can be taken to determine the intent of the parties i lose i happen to own stock in that company so i will go backwards and sue everybody for fraud now nonsense that is a bastardization of the law of this state of mississippi and everywhere in between that cannot be allowed if we have anything anything at stake here is whether or not contract interpretation in the final ruling a law is going to be allowed to stand or whether we're going to allow people to go back and challenge this thing ad infinitum after multiple attempts to plead these things after multiple times to fail to plead these things we're going to go backwards and allow that that seems like an an injustice to me so the question is if he did know him what does that mean mississippi lost pretty clear we have cited a couple of cases that i think are directly on point the b c seating case where says the mississippi and in mississippi an action to redress injuries to a corporation  whether rising and contractor and tort cannot be maintained by a stockholder in his own name but must be brought by the corporation because the corporation and not the individual stockholders are absurd because because the action belongs to the corporation not the interviewer's talks even though the complaining stockholder owns all or substantially all the stock in question it doesn't matter that he owned it all the case that he cites wilson versus the commissioner of the internal revenue could not be more off point if it tried there is nothing in that case that suggests that mr schwartz own anything in fact the fist circuit in that case says we do not today write for all shareholders or all corporations in the shadow of subject or ask we simply posit the proposition that not every person whose name appears on the certificate of stock on a stock ledger is a shareholder who must consent to subchapter s election that's the limited purpose that ruling and they try to use it to say that he owns one hundred percent of the assets of a corporation that makes no sense important injury to a shareholder in the form of a diminution in the value the stock is a loss that is recoverable only by the corporation in a direct action or by the shareholders in a derivative action if his stock value was diminished it's not his personal claim mississippi law is very clear on that that is a claim that belongs to the corporation itself community holdings has been a party to a bunch of these actions they sued the six different times five times before this one community holdings is all over it never once never once did it plea to demean the damages for diminution of value of the stock never once did plead fraud none of that happened mr schwarz does not under any reading of these laws does are four elements only two of which are really at issue the first of those being that the prior action was concluded to a final judgment i don't know how much final this one could be the eastern district ruled issued a final judgment which was appealed this court affirmed that ruling and it to me it just doesn't get any more clear than that the case was remanded on other things it is now final leg and unfortunately for maybe one or more you you will be seeing us again at some point suggested to judge jones when we were here last time we will be back but this is the final judgment it's it's very clear and by the way they cite nothing in their brief to suggest that it's not the last factor is the same claim or cause of action has to be involved in both the question is whether it's the same nucleus of operative facts there's a lot more than just the new it's the whole  have a complaint that is eighty eight paragraphs long i could have written myself from the briefs that have been filed in the eastern district there is not a thing in there that is new to what has been brought he just couches it in different terms it's the same contracts it's the same parties it is the same everything he even goes so far as to cite deposition testimony from the eastern district case in his complaint and affidavit testimony from the eastern district his complaint that this isn't the same set of nuclear i'm sorry the case whether where the court had termed whether a letter that had been previously used in a breach of contract place could be admitted into any trust case doesn't seem terribly a political base case that when he cites for the proper proposition that the same facts can arise two separate occasions in that case and what is very different here is that the first lawsuit was a breach of state law breach of contract case the second suit that they claim res judicata was for it and it federal any trust case the original court the first court did not the last thing i would like to cover because i think it's important it is on the transfer issue let's assume that abuse of discretion is found and that judge mills abus discretion and transfer in the case which you know in his ruling and on its face would be wrong in my opinion but let's assume that was the case the standing issue in the race judicata you should at least substantive issues of law should still be ruled upon by this court should not back to the eastern to the northern mississippi to do this all over again in the interest of judicial economy if nothing else this needs to die in these cases need to be ruled upon and there is precedent for that we were unable to find any cases  under any anybody's terms had subject matter proper subject matter jurisdiction over and because it did the substantive rulings that judge mulago made in this case should stand and they should be ruled upon a remand would  in the fourth element under komi is and must be the same claim or cause of action as i stated in my original presentation there is not one single allegation of fraud in the underlying proceedings in louisiana nor has consul point anything of that nature this morning so if the fraud was never raised in louisiana how could it be residue get caught it's not the same claim not same cause of action so  know that why why is that not relevant here very simply your honor because under mississippi law a fraud claim does not arise until injury has occurred the injury in this case did not occur until the bill a sale and then the license agreement so the question is did the bill of sale in our mind transfer the trademarks answer that is obviously no otherwise we would not have fought that and taken the appeal now granted this court determined that the bill of sale did transfer trademarks because the inclusion of that word trademarks however they the issue was was that bill of sale supposed to be a placeholder which led to the final document executed the license agreement the license agreement indicates that at all times c t h is considered to be the owner of the marks and that the licensee mr coders company would not attack that yet that's obviously what they did in the bill of sale this did not become apparent until the bill of sale surfaced in two thousand and thirteen seven years following the execution of the license agreement that they operated under wasn't raised one time judgment judgment lazo at that stage at that stage only did my client incur an injury and louisiana mississippi laws clear that there without injury you have no fraud claim that is mature so that's cotters not apply and that's why even though it's not actually before this corporate why the statute of limitations is not apply that wasn't it wasn't addressed by judge when i was doing her twelve or six missiles she thinks that she didn't need to get to that because it resonated like a personal standing but if if if you look at some of the language from judge mills he says it certainly seems arguable that this hearing on remand is talking about the remand issued by this court and not the complaint in this case is the proper format in which to address any arguments regarding the broader trademark issue again we're not talking about the trademarks getting those back that was before judge mulatto that case was his final come to conclusion in april the trade the further broader trademark whether or not my client had a right to trademarks outside of six twenty six south carrollton avenue so in discussing that it shows a judge mills was not viewing the case in its proper posture he's saying send it back to judgment because that's on remand that's what she's going to determine the broader trademark issues this is not a broader trademark issue case that was going on simultaneously this is a fraud case from the negotiations which led to the execution of the sale the real estate the bill of sale and the license agreement again in addressing the twelve is six the probably entitle to believe i believe if you read the complaint you'll see numerous instances where it talks about mr schwartz personal ownership of real estate and that he would not have transferred his assets obviously including the real estate had he been aware of the project intentions of mr