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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRCT OF FLORIDA

Case No.: 1:22-cv-23299-SMITH

GEORGE ANTAR, an individual )

) 

Plaintiff, )

)

vs. )

)

LEXINGTON NATIONAL )

INSURANCE CORPORATION, a )

Maryland corporation, and MARTIN ) 

KERRINS, an individual, )

)

Defendants. )

_______________________________/

DEFENDANT LEXINGTON NATIONAL INSURANCE 

CORPOPRATION’S MOTION TO DISMISS AMENDED COMPLAINT OR 

TRANSFER CASE PURSUANT TO FED. R. CIV. PROC. 12(b)(3) AND 28 

U.SC. §1406, AND ALTERNATIVE MOTION TO TRANFER VENUE OF 

THIS ACTION TO THE SOUTHEN DISTRICT OF CALIFORNIA 

PURSUANT TO 28 U.S.C. §1404(a); ATTACHED MEMORANDUM OF 

LAW

(Declaration of Mark Holtschneider and Proposed Order Filed Concurrently 

Herewith)

COMES NOW DEFENDANT, LEXINGTON NATIONAL INSURANCE 

CORPORATION (“Lexington”), by and through the undersigned counsel, and 

moves this Court, pursuant to Fed. R. Civ. Proc. 12(b)(3) and 28 U.S.C. §1406, for 

an order to dismiss Plaintiff’s Amended Complaint, or to transfer venue of this 

matter to the United States District Court for the Southern District of California on 

the grounds that this lawsuit has been filed in an improper venue. 

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Alternatively, Lexington moves this court, pursuant to 28 U.S.C. §1404(a), 

for an order transferring venue of this matter to the United States District Court for 

the Southern District of California on the grounds that such a transfer is necessary 

for the convenience of the parties and the witnesses, and is otherwise in the interests 

of justice, as all of the important witnesses and sources of evidence are located in 

that district, and the transaction at issue took place there.

In support of this motion, Defendant states:

MEMORANDUM OF LAW

INTRODUCTION

Plaintiff George Antar, a resident of San Diego, California, procured a bail 

bond from Lexington to secure the release of a friend who had been indicted in 

Florida. Plaintiff procured the bail bond from a Lexington agent in San Diego. 

Plaintiff’s application includes a home address in San Diego and a San Diego phone 

number. Plaintiff signed a contract in San Diego promising to indemnify and hold 

Lexington harmless if it was forced to pay the bond, and he put up an apartment 

building he owns in San Diego as collateral for that obligation. Plaintiff’s friend, 

criminal defendant Akrum Alrahib, did not comply with the conditions of release, 

causing the court to forfeit the bond and triggering Plaintiff’s indemnity obligations

to Lexington. When Lexington initiated a non-judicial foreclosure on the San Diego 

apartment building upon Plaintiff’s failure to honor those indemnity obligations, 

Plaintiff filed this lawsuit to enjoin the foreclosure –not in San Diego, where the 

entire transaction took place, but rather in the Southern District of Florida.

Plaintiff justifies filing this civil action in a district roughly 2,600 miles from 

where the transaction took place because he claims, “a substantial part of the events 

or omissions giving rise to the claim occurred in this District and the Defendants 

transacted affairs and conducted activity that gave rise to the claim of relief in this 

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District.” See Plaintiff’s Amended Complaint (Dkt. No. 7), ¶15. This is simply not 

true. Plaintiff’s Amended Complaint fails to identify any part of the transaction 

between Plaintiff and Lexington that took place in South Florida, nor has he

identified any “omissions” in this district which give rise to the claim. All of the 

“events or omissions” took place in the Southern District of California, a place three 

time zones away from this Court. 

Under 28 U.S.C. §1391(b), the proper venue for this lawsuit is the “judicial 

district in which a substantial part of the events or omissions giving rise to the claim 

occurred, or a substantial part of property that is the subject of the action is situated”. 

The Southern District of Florida is not that judicial district. 

The only “event” that happened in this district was that Lexington’s bond was 

deposited with the federal district court here. That “event” is not at issue. This case 

does not require the court to interpret the bond or apply its terms. It is not being 

asked to determine whether Mr. Alrahib breached the bond or whether the bond was 

properly declared forfeited – that has already been determined by the trial court in 

the criminal case and is now pending on appeal before the 11th Circuit. There are no 

legal or factual issues relating to the bond for this court to adjudicate. 

Rather, Plaintiff is asking the Court to essentially abrogate the contract under 

which he promised to indemnify Lexington if the bond was declared forfeited. He

asks this Court to hold that the agreement does not require him to indemnify 

Lexington for its losses when it clearly and unequivocally does. The legal and factual 

issues relevant to that issue involve “events or omissions” which took place in and 

near San Diego. 

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Plaintiff has the burden of proof on this motion to demonstrate that venue is 

proper. Plaintiff’s Amended Complaint does not do so; in fact, the Amended 

Complaint conveniently omits that all of the events at issue here took place in 

California. Plaintiff will be unable to produce any facts to justify filing this lawsuit 

on the opposite side of the country from where the critical events occurred. 

Even if the court were to find this judicial district to be a proper venue, it 

should nonetheless order this case transferred to the Southern District of California 

pursuant to 28 U.S.C. §1404(a). Given that the transactions took place there, the 

contract was entered there, the witnesses reside there (chiefly, the Plaintiff and the 

bail bond agent who assisted Plaintiff in procuring the bond), and the property at 

issue is located there, transfer to the Southern District of California is necessary to 

“avoid unnecessary inconvenience to the litigants, witnesses, and the public, and to 

conserve time, energy, and money.” Game Controller Tech. v. Sony Comput. Entm't 

Am. LLC, 994 F.Supp.2d 1268, 1271 (S.D. Fla. 2014).

This is a California case filed in Florida. Under either analysis, the Southern 

District of California is the proper venue, and in the interests of justice, this lawsuit 

must either be dismissed or transferred to that district. 28 U.S.C. §1406(a).

STATEMENT OF FACTS

 Plaintiff is a resident of California (Dkt. No. 7, ¶11). Criminal defendant 

Akrum Alrahib is also a San Diego resident and since 2004, he and Plaintiff have 

been friends and business partners (Id. ¶¶16-18). Plaintiff alleges several business 

ventures with Alrahib, including a lucrative tobacco import and sales business. (Id. 

¶¶18-23). Alrahib skirted his obligation to pay excise taxes, and on March 28, 2019, 

he was indicted for conspiracy, wire fraud, tax evasion, and other charges.

Supposedly “pressured” by Alrahib’s family, Plaintiff offered collateral for a 

$1 million corporate surety bond to secure Alrahib’s release (Dkt. No. 7, ¶¶23-25). 

That bond was issued by Lexington, a Florida corporation with its principal place of 

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business in the State of Maryland (Declaration of Mark Holtschneider ¶¶3-4). 

Plaintiff procured the bond from Creative Bail Bonds, a Lexington bail bond agent 

located in Van Nuys, California, who was working with Watkins Bail Bonds, a subagent in San Diego, California (Holtschneider Dec. ¶5 and Exh. “A”). 

In connection with the bond, Plaintiff executed an “Indemnitor Application 

and Agreement” (hereinafter the “Indemnity Agreement”), and a “Deed of Trust 

with Assignment of Rents” (hereinafter the “Deed of Trust”) (Id., Exhs. “B” and 

“C”). Through the Indemnity Agreement, Plaintiff promised to indemnify Lexington 

and hold it harmless against from and against any and all losses, demands, liabilities, 

fees and expenses relating to, or arising out of, Surety's issuance or procurement of 

the Bond” (Id., Exh. “B”, ¶2). Plaintiff was essentially guaranteeing that Alrahib 

would comply with the terms of his release, and if he failed to do so and Lexington 

was forced to pay the bond, Plaintiff was agreeing to reimburse Lexington. 

To secure this $1 million liability, Plaintiff executed the Deed of Trust, which 

put up collateral in the form of real property located at 4131 Van Dyke Ave., San 

Diego, California (Id. ¶8). In both documents, Plaintiff identified his home address 

as 2236 Crandall Drive, San Diego, California, and he provided two San Diego-area 

phone numbers (Id. ¶9). Both the Indemnity Agreement and Deed of Trust were 

executed in San Diego (Id. ¶7). 

When Alrahib breached the terms of his release, the Florida court revoked and 

forfeited the bond. The $1 million forfeiture judgment is now on appeal in the 11th

Circuit. Lexington has demanded that Plaintiff indemnify Lexington for the legal 

fees incurred and deposit with Lexington $1 million of cash collateral for the 

appealed judgment. Plaintiff failed to do so. Lexington therefore initiated a nonjudicial foreclosure on the 4131 Van Dyke Ave., San Diego property. The Notice 

of Default was mailed to Mr. Antar at his home address, 2236 Crandall Drive, San 

Diego, California (Id. ¶10 and Exh. “D”). The company processing the foreclosure, 

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Peak Foreclosure Services, Inc., is located in Woodland Hills, California, and the 

foreclosure auction will take place in California (Id. ¶11).

Plaintiff filed this lawsuit on October 11, 2022. He correctly alleges that he 

is a resident of California and that Lexington has its principle place of business in 

Maryland (Dkt. No. 7, ¶11, 12). He also sued Martin Kerrins, who also provided 

surety for Alrahib’s bond. Mr. Kerrins is alleged to be a resident of Illinois (Id. ¶13). 

ARGUMENT

I. PLAINTIFF HAS FAILED TO DEMONSTRATE THAT VENUE 

IN THE SOUTHERN DISTRICT OF FLORIDA IS PROPER

On a motion to dismiss for improper venue, the plaintiff bears the burden of 

showing that venue in the forum is proper. In determining whether that burden has 

been met, the court must accept all allegations of the complaint as true, unless 

contradicted by the defendant's affidavits, and when an allegation is so challenged 

the court may examine facts outside of the complaint to determine whether venue is 

proper. The court must draw all reasonable inferences and resolve all factual 

conflicts in favor of the plaintiff. Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 

1268 (S.D. Fla. 2004); see also Hobbs v. US Health Advisors, LLC, 2020 WL 

13220417 (S.D. Fla. August 25, 2020), p. 1.

28 U.S.C. §1391(b) provides:

“(b) Venue in general.--A civil action may be brought in--

“(1) a judicial district in which any defendant resides, if all defendants 

are residents of the State in which the district is located;

“(2) a judicial district in which a substantial part of the events or 

omissions giving rise to the claim occurred, or a substantial part of 

property that is the subject of the action is situated; or

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“(3) if there is no district in which an action may otherwise be brought 

as provided in this section, any judicial district in which any defendant 

is subject to the court's personal jurisdiction with respect to such 

action.”

Because Defendant Kerrins is not alleged to be resident of Florida, 

§1391(b)(1) is inapplicable. Plaintiff’s Amended Complaint, ¶15, relies solely on 

§1391(b)(2) in its allegation that “a substantial part of the events or omissions giving 

rise to the claim occurred in this District and the Defendants transacted affairs and 

conducted activity that gave rise to the claim of relief in this District.” (Dkt. No. 7 

¶15)1.

Other than this conclusory allegation, however, the Amended Complaint fails 

to allege the location of any “events or omissions giving rise to the claim occurred”. 

Because of this omission, and because Defendant’s evidence (the accompanying 

Mark Holtschneider Declaration) clearly demonstrates that such “events or 

omissions” took place in and near San Diego, California, it is appropriate for this 

Court to determine this Rule 12(b)(3) motion based upon extrinsic evidence. 

To be clear, the deposit of Lexington’s surety bond in this judicial district is 

not an “event or omission” which gives rise to Plaintiff’s claim. There is no dispute 

over the bond’s terms, meaning, or requirements, and there is no dispute over 

Alrahib’s breach of the bond. There is no dispute over the criminal court’s revoking 

Alrahib’s release or declaring it forfeited. Those issues have already been decided 

in the criminal case and are pending appeal in the 11th Circuit. 

1 Paragraph 15 also cites 18 U.S.C. §1965(a) as a basis for venue in this district. This 

statute, however, governs venue for civil actions under the Racketeering Influenced 

and Corrupt Organizations Act. As no RICO violation is alleged here, it is 

inapplicable to this case. 

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The “events or omissions” in this case stem, rather, from the Plaintiff’s 

attempt to avoid the consequence of the criminal court’s action – specifically, his 

contractual promise to indemnify Lexington and hold it harmless from the $1 million 

bond forfeiture. The legal and factual issues do not relate to the bond, but rather to 

the Indemnity Agreement and the non-judicial foreclosure initiated pursuant to that 

contract and to the Deed of Trust. 

This case, then, is simply a matter of interpreting a contract. Plaintiff contends, 

essentially (and wrongly)2, that under the Indemnity Agreement, he was only 

obligated to indemnify Lexington if the bond was revoked because Alrahib failed to 

appear at a court hearing in his criminal case. Because the bond was revoked on 

other grounds, Plaintiff claims he should not have to indemnify Lexington against 

the forfeiture (Dkt. No. 7, ¶30). 

While framed as a Declaratory Judgment action, Plaintiff’s single count 

against Lexington is a simple contract case. In actions based on a contract, courts 

consider the following factors when determining whether a claim arose in a 

particular district: “(1) where payments were to be made under the contract, (2) 

where the contract was to be performed, (3) where negotiations occurred, and (4) 

2 Though not determinative of this motion, Plaintiff’s interpretation of the bond is at 

best mistaken. The Indemnity Agreement, which is attached as an exhibit to 

Plaintiff’s Amended Complaint, requires Plaintiff to “indemnify the Surety and keep 

the Surety indemnified and hold it harmless from and against any and all losses, 

demands, liabilities, fees and expenses relating to, or arising out of, Surety's issuance 

or procurement of the Bond” (Exh. “B” to Holtschneider Dec. ¶2). The bond itself, 

which likewise is attached to Plaintiff’s Amended Complaint, contains numerous 

conditions governing Alrahib’s pre-trial release beyond merely appearing at court 

hearings (Exh. “A” to Holtschneider Dec., p. 2, “Special Conditions of Bond). The 

court revoked the bond because Alrahib breached one such condition, continuing to 

work relating to the sale/import of tobacco products when the bond specifically 

precluded him from doing so. As Plaintiff agreed to indemnify Lexington against 

“any and all losses” arising out of the issuance or procurement of the bond, his 

argument for limitation of that requirement does not hold water. 

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where the contract was executed.” Burger King Corp. v. Thomas, 755 F.Supp. 1026, 

1029 (S.D. Fla. 1991). Mr. Holtschneider’s supporting declaration establishes that 

under that analysis, all of the actions giving rise to Plaintiff’s claims occurred in the 

Southern District of California – and none in the Southern District of Florida. 

Plaintiff’s Amended Complaint provides no contrary allegations, and Plaintiff can

produce no evidence to the contrary. 

This claim, in sum, did not arise in the Southern District of Florida. This is 

an improper venue under 28 U.S.C. §1391(b), and this case must be dismissed or 

transferred to the Southern District of California. 

II. THE COURT SHOULD ORDER THIS MATTER TRANSFERRED 

PURSUANT TO 28 U.S.C. §1404(a)

Even if the Court could find this district to be a proper venue, it should still 

order this matter transferred to the Southern District of California under 28 U.S.C. 

§1404(a), which reads:

“(a) For the convenience of parties and witnesses, in the interest of 

justice, a district court may transfer any civil action to any other district 

or division where it might have been brought or to any district or 

division to which all parties have consented.”

As Your Honor has noted in the past, “The purpose of section 1404(a) is to 

‘avoid unnecessary inconvenience to the litigants, witnesses, and the public, and to 

conserve time, energy, and money.’” Chicken Kitchen USA, LLC v. Tyson Foods, 

Inc., 2017 WL 6760811 (S.D. Fla. Oct. 4, 2017) at p. 2, citing Game Controller 

Tech. v. Sony Comput. Entm't Am. LLC, 994 F.Supp.2d 1268, 1271 (S.D. Fla. 2014). 

Under §1404(a), courts have broad discretion “to adjudicate motions for transfer 

according to an individualized, case-by-case consideration of convenience and 

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fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 

L.Ed.2d 22 (1988).

To prevail on a motion to transfer venue, Lexington must show (1) an 

adequate alternative forum is available; (2) the public and private factors weigh in 

favor of transfer; and (3) the plaintiff can reinstate his suit in the alternative forum 

without undue inconvenience or prejudice. GDG Acquisitions, LLC v. Government 

of Belize, 749 F.3d 1024, 1028 (11th Cir. 2014). The public and private factors are:

“(1) the convenience of the witnesses; (2) the location of relevant 

documents and the relative ease of access to sources of proof; (3) the 

convenience of the parties; (4) the locus of operative facts; (5) the 

availability of process to compel the attendance of unwilling witnesses; 

(6) the relative means of the parties; (7) a forum's familiarity with the 

governing law; (8) the weight accorded a plaintiff’s choice of forum; 

and (9) trial efficiency and the interests of justice, based on the totality 

of the circumstances.” Chicken Kitchen, supra, 2017 WL 6760811 at 

p. 2.

Applying these factors, it is overwhelmingly obvious that this court should 

transfer venue to the Southern District of California. The “locus of operative facts” 

is San Diego, where the contract was entered into. The witnesses are there. The 

documents were entered into there, and the sources of proof are there. 

The relative means of the parties is not a factor. Plaintiff is a resident of 

California. There is obviously no burden on Plaintiff to litigate and, if necessary try, 

this case in his home state and home county. Also not a factor is the forum’s 

familiarity with the governing law – California is just as capable of applying the 

rules relating to contracts and declaratory relief as any other forum, and this case 

presents no Florida-specific claims. 

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Plaintiff’s choice of forum should be accorded very little weight. “[W]here 

the operative facts underlying the cause of action did not occur within the forum 

chosen by the Plaintiff, the choice of forum is entitled to less consideration.” Id. at 

p. 4, quoting Motorola Mobility, Inc. v. Microsoft Corp., 804 F.Supp.2d 1271, 1276 

(S.D. Fla. 2011). The operative facts occurred in California, not in the Southern 

District of Florida. 

Finally, with the events giving rise to this dispute having occurred in 

California, and the witnesses and proof there, it is more than evident that any trial 

will be conducted more efficiently in the Southern District of California. Thus, the 

“totality of the circumstances” mandate that this case be transferred there in the 

interests of justice. 

CONCLUSION

This is a California case. It involves a contract entered into by a California 

resident in California, through the auspices of a California bail agent. The case seeks 

to enjoin the non-judicial foreclosure of property located in California. Florida has 

next-to-no connection to this case. Florida is the wrong forum under 28 U.S.C. 

§1391, and given that there is a much better forum, if the case is not dismissed, it 

should be transferred under 28 U.S.C. §1404(a). It is mystifying that Plaintiff is 

forcing Lexington to adjudicate the facts of this case 2,600 miles away from where 

the events at issue took place and 2,600 miles away from the witnesses and sources 

of evidence. 

WHEREFORE, Defendant Lexington prays for an order dismissing this 

action or transferring this matter to the United States District Court for the Southern 

District of California.

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Undersigned counsel, Vincent S. Gannuscio, certifies pursuant to Local Rule 

7.1(a)(3) that counsel for the movant has conferred with all parties or non-parties 

who may be affected by the relief sought in the motion in a good faith effort to 

resolve the issues raised in the motion and has been unable to do so.

Dated: December 16, 2022.

Respectfully submitted.

ROXBOROUGH, POMERANCE, 

NYE & ADREANI, LLP

_/s Vincent S. Gannuscio_____________

Vincent S. Gannuscio

Fl. Bar No. 18110

5900 Canoga Ave., Ste. 450

Woodland Hills, CA 93010

Tel: 818-992-9999

FAX: 818-992-9991

Email: vsg@rpnalaw.com

Attorneys for Defendant

Lexington National Insurance Corporation

JEFFREY S. WEINER, P.A.

___/s Jeffrey S. Weiner____________

Jeffrey S. Weiner

Fl. Bar No. 185214

Yisel Villar

Fl. Bar No. 1015657

9130 S. Dadeland Blvd., Ste. 1910

Miami, FL 33156

Tel: 305-670-9919

Fax: 305-670-9299

Email: lawfirm@jeffweiner.com

Attorneys for Defendant

Lexington National Insurance 

Corporation

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was 

electronically filed with the Clerk of Court by using CM/ECF system which will 

send a notice of electronic filing to all counsel of record this 16th day of December,

2022. 

Case 1:22-cv-23299-RS Document 25 Entered on FLSD Docket 12/16/2022 Page 12 of 13
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ROXBOROUGH, POMERANCE, 

NYE & ADREANI, LLP

_/s Vincent S. Gannuscio_____________

Vincent S. Gannuscio

Fl. Bar No. 18110

5900 Canoga Ave., Ste. 450

Woodland Hills, CA 93010

Tel: 818-992-9999

FAX: 818-992-9991

Email: vsg@rpnalaw.com

Attorneys for Defendant

Lexington National Insurance Corporation

JEFFREY S. WEINER, P.A.

___/s Jeffrey S. Weiner____________

Jeffrey S. Weiner

Fl. Bar No. 185214

Yisel Villar

Fl. Bar No. 1015657

9130 S. Dadeland Blvd., Ste. 1910

Miami, FL 33156

Tel: 305-670-9919

Fax: 305-670-9299

Email: lawfirm@jeffweiner.com

Attorneys for Defendant

Lexington National Insurance 

Corporation

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