1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

JIM ROAKE,

Plaintiff,

v.

FELDMAN SHERB & CO., a

corporation, GRASSI & CO., a

corporation, EXACT ID, a

corporation (previously known as

ADVANCED PRECISION TECHNOLOGY,

INC.), and DOES 1 through 10,

 Defendants.

CIV. S-04-2513 GEB PAN PS

ORDER

-o0oOn November 10, 2005, this court directed defendants to

file and serve a motion for change of venue or dismissal, or file

a status report prepared jointly with plaintiff. On December 9,

2006, defendants filed a motion for change of venue and scheduled

the motion for hearing on January 18, 2006. Plaintiff has not

filed an opposition. As oral argument is unnecessary to resolve

Case 2:04-cv-02513-GEB-PAN Document 14 Filed 02/14/06 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1 Although residency does not establish domicile for purposes of

diversity jurisdiction, Matin v. Broadcast Music, Inc., 244 F.2d 204, 206 (9th

Cir. 1957), nothing in the record contradicts the assumption that plaintiff

intends to maintain his residence in Washington permanently or indefinitely. 

See, e.g., Williamson v. Osenton, 232 U.S. 619, 624 (1914), Mitchell v. U.S.,

88 U.S. 350, 353 (1874). 

2

this matter, the hearing was vacated and the court makes this

order granting defendants’ motion.

Plaintiff commenced this action in pro se on October 4,

2004, in the Sacramento County Superior Court, alleging breach of

contract and negligence by defendants Feldman Sherb & Co.

(“Feldman”) and Grassi & Co. (“Grassi”) in providing accounting

services to defendant Exact ID Corporation (previously known as

Advanced Precision Technology, Inc.). The complaint alleges

defendants’ action resulted in the suspension of Exact ID by the

Securities Exchange Commission and a diminution in the value of

Exact ID stock. 

Plaintiff resides1 in Washington and is a shareholder of

Exact ID. Plaintiff brought this action in Sacramento County

Superior Court asserting that Exact ID is a California

corporation and that defendants “came to Sacramento, California,

to perform [their] services.” Complaint, ¶¶ 1,9. 

Exact ID is in fact a Nevada corporation. This court’s

review of records maintained by the Secretaries of State for

California and Nevada demonstrates that Exact ID was incorporated

in Nevada February 11, 1985, where it remains in good standing. 

However, at the time plaintiff commenced this action, October

2004, Exact ID’s corporate status in California was “forfeited”

Case 2:04-cv-02513-GEB-PAN Document 14 Filed 02/14/06 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

3

effective July 25, 2002. The current status of Advanced

Precision Technology, Inc., in both California and Nevada is,

respectively, “forfeited” and “revoked.”

Defendants Feldman and Grassi are New York corporations.

These defendants removed this action to federal court on November

24, 2004, pursuant to 28 U.S.C. §§ 1332(a) and 1441(b), and now

seek to change venue to the U.S. District Court for the Southern

District of New York pursuant to 28 U.S.C. § 1404(a). 

28 U.S.C. § 1404(a) provides, “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.” 

This action alleges only state causes of action in

contract and negligence; the only basis for federal subject

matter jurisdiction is diversity of citizenship pursuant to 28

U.S.C. § 1332 (requiring that each plaintiff be diverse from each

defendant). Pursuant to 28 U.S.C. § 1391(a), venue is proper in

diversity actions “only in (1) a judicial district where any

defendant resides, if all defendants reside in the same State,

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

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

part of property is the subject of the action is situated, or (3)

a judicial district in which any defendant is subject to personal

jurisdiction at the time the action is commenced, if there is no

district in which the action may otherwise be brought.” 

Plaintiff brought this action in California based on the

Case 2:04-cv-02513-GEB-PAN Document 14 Filed 02/14/06 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2 “A motion to transfer venue under § 1404(a) requires the court to

weigh multiple factors in its determination whether transfer is appropriate in

a particular case. For example, the court may consider: (1) the location

where the relevant agreements were negotiated and executed, (2) the state that

is most familiar with the governing law, (3) the plaintiff's choice of forum,

(4) the respective parties’ contacts with the forum, (5) the contacts relating

to the plaintiff's cause of action in the chosen forum, (6) the differences in

the costs of litigation in the two forums, (7) the availability of compulsory

process to compel attendance of unwilling non-party witnesses, and (8) the

ease of access to sources of proof.” Jones, 211 F.3d at 498-499 (fns. and

internal quotations omitted), again citing Stewart Organization, 487 U.S. at

29-31.

4

assumptions that Exact ID was a California corporation and

substantially all of the events giving rise to plaintiff’s claim

occurred in California. As defendants do not dispute the latter,

the court finds venue proper in this, the transferor, district. 

28 U.S.C. § 1391(a)(2).

Nonetheless, venue is both proper and more appropriate in

the U.S. District Court for the Southern District of New York. 

Since Exact ID is a nominal defendant and plaintiff has not

demonstrated service upon it, the only active defendants are

domiciled in New York. Venue is therefore proper in the

transferee court pursuant to 28 U.S.C. § 1391(a)(1).

Additional considerations of convenience and justice

support the transfer of venue. “Under § 1404(a), the district

court has discretion to adjudicate motions for transfer according

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

and fairness.”2 Jones v. GNC Franchising, Inc., 211 F.3d 495,

498 (9th Cir. 2000) (fns. and internal quotations omitted),

citing Stewart Organization, Inc. v. Ricoh Corporation, 487 U.S.

22, 29 (1988). The disputed contract and attendant sources of

Case 2:04-cv-02513-GEB-PAN Document 14 Filed 02/14/06 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

proof are in the possession of defendants. The principal

witnesses will be from defendant corporations and their proximity

for depositions and trial will save both time and expense. The

normal deference accorded to plaintiff’s choice of forum does not

apply when plaintiff does not reside in the forum. Lou v.

Belzber, 834 F.2d 730, 739 (9th Cir. 1987). Additionally, the

contracting parties (not including plaintiff per se) agreed to

resolve any disputes among Exact ID, Feldman and Grassi in New

York. See Exhibit A to Defendants’ Answer. Plaintiff’s failure

to oppose defendants’ requested change of venue is also a

significant consideration. 

Accordingly, defendants motion to transfer venue to the

U.S. District Court for the Southern District of New York is

granted.

So ordered.

Dated: February 13, 2006. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

Case 2:04-cv-02513-GEB-PAN Document 14 Filed 02/14/06 Page 5 of 5