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Leiderman Shelomith Alexander + Somodevilla, PLLC

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UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF FLORIDA

Fort Lauderdale Division

www.flsb.uscourts.gov

In re:

EMMA BUMSHTEYN,

Debtor.

___________________________________/

Case No. 18-23930-BKC-PDR 

Chapter 7

KENNETH A. WELT, Chapter 7 Trustee,

Plaintiff,

vs.

EMMA BUMSHTEYN and YEVGENIYA 

BUMSHTEYN, both Individually and as Trustee 

of the Bumshteyn Family Irrevocable Inter Vivos 

Trust,

Defendants.

_______________________________________/

Adv. Case No. 21-01069-PDR 

PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANT, YEVGENIYA 

BUMSHTEYN’S MOTION TO TRANSFER VENUE

Plaintiff, Kenneth A. Welt, Chapter 7 Trustee (the “Plaintiff”), by counsel, files his 

Response in Opposition to Defendant Yevgeniya Bumshteyn’s (the “Defendant”) Motion to 

Transfer Venue [Adv. ECF No. 16] (the “Motion”) and requests the Court enter an order denying 

the Motion, and states:

BACKGROUND

1. On February 26, 2021, the Plaintiff commenced this adversary proceeding by filing 

his Complaint (1) Objecting to Debtor’s Discharge; (2) Avoiding Certain Fraudulent Transfers; 

and (3) for the Recovery of Such Assets Transferred or the Value Thereof [Adv. ECF No. 1] (the 

“Complaint”). The counts of the Complaint relating to Yevgeniya Bumshteyn were based upon 

11 U.S.C. §§ 544 and 550.

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2. On April 8, 2021, the Defendant and the Debtor, Emma Bumshteyn (together, the 

“Defendants”) filed their Answer, admitting some paragraphs of the Complaint and denying 

others. Amongst the denied paragraphs is paragraph 5 of the Complaint, which asserts that venue 

is proper in this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

3. On May 17, 2021, the Defendant filed the Motion. The Defendant’s Motion argues 

that the Court should transfer the instant adversary proceeding (the “Adversary” or “Adversary 

Proceeding”) to the United States Bankruptcy Court for the Southern District of New York for 

various reasons, including the assertion that New York law governs the underlying “grievance”, 

the Defendant is located in New York and “all transactions are based in New York.” 

4. The Defendant correctly relies on 28 U.S.C. §§ 1404 and 1412 for the proposition 

that an adversary proceeding may be transferred to another district in the interest of justice or for 

the convenience of the parties. 

5. However, the Defendant fails to meet the burden placed on her to warrant a transfer 

of this Adversary Proceeding to New York, as more fully set forth below. 

6. The Defendant also alleges that this Court does not have personal jurisdiction over 

her, while simultaneously acknowledging that Fed. R. Bankr. P. 7004 permits for nationwide 

service of process. As set forth in the Plaintiff’s Motion to Strike Demand for Jury Trial and 

Affirmative Defenses [Adv. ECF No. 8], the Defendant is foreclosed from raising this argument 

due to her failure to timely file a motion as required in the Order Setting Deadlines [Adv. ECF No. 

3].

ARGUMENT

1. Venue is Proper Before This Court.

Pursuant to 28 U.S.C. § 1409(a), a “proceeding arising under title 11 or arising in or related 

to a case under title 11 may be commenced in the district court in which such case is pending." 

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“There is a strong presumption in favor of maintaining venue where the bankruptcy case is

pending.” Alexander v. The Steel Law Firm, P.C. (In re Terry Mfg. Co. Inc.), 323 B.R. 507, 509 

(Bankr. M.D. Ala. 2005).

There is no dispute that the Debtor’s underlying bankruptcy case is pending before this

Court. Accordingly, pursuant to 28 U.S.C. § 1409(a), the Adversary Proceeding is properly

before the same court, and should remain before the same court because as explained below, the 

Defendant has failed to meet her burden for transferring the Adversary Proceeding to another 

venue. 

2. Defendant Has Failed to Meet Her Burden of Demonstrating that the Interest of 

Justice or the Convenience of the Parties Require Transfer.

28 U.S.C. § 1412, made applicable to bankruptcy proceedings by Fed. R. Bankr. P. 7087, 

grants the Court discretion to transfer a bankruptcy case or proceeding to another district in the 

interest of justice or convenience of the parties. This same authority is also reflected in Fed. R. 

Bankr. P. 1014. “[T]he party requesting the transfer of venue must demonstrate by a 

preponderance of the evidence that in light of all the factors to be considered, it will be more 

convenient for both parties and will further the interest of justice. Absent such a showing, this 

Court will not disturb the choice of forum made by...[the] plaintiff, which choice should be

accorded great deference.” Unico Holdings, Inc. v. Nutramax Products, Inc., 264 B.R. 779, 783

(Bankr. S.D. Fla. 2001) (quoting Taca Int’l Airlines, S.A. v. Pan Am World Airways, Inc. (In re 

Pan Am Corp.), 177 B.R. 1014, 1018 (Bankr. S.D. Fla. 1995)).

In determining whether an adversary proceeding should be transferred to a different venue, 

the following factors should be considered:

(1) Relative ease of access to sources of proof, including ease of travel for witnesses 

in terms of time and distance.

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(2) Availability of compulsory process for attendance of unwilling witnesses, and 

the cost of obtaining those witnesses’ attendance.

(3) Enforceability of a judgment if one is obtained. 

(4) Relative advantages and obstacles to a fair trial, including the familiarity of 

transferee court with the facts of the case.

(5) Local interest in having local controversies decided at home, taking into account 

where the acts giving rise to the cause of action at issue occurred. 

(6) Conducting the trial in the state the law of which will govern the action. 

In re Rohalmin, 598 B.R. 900, 906 (Bankr. S.D. Fla. 2019) (citing In re Pan Am, 177 B.R. 

1014-1018 (Bankr. S.D. Fla. 1995)). Taking each of the above in turn, an overall analysis of the 

factors results in favor of non-transfer to New York. 

Access to Proof. The relevant witnesses in this Adversary Proceeding include the two 

individuals who took part in the transactions - the Defendant and the Debtor. It bears noting that 

if the Court grants the transfer of the Adversary Proceeding, the entire proceeding would be 

transferred, meaning the Debtor would be forced to litigate the Plaintiff’s 11 U.S.C. § 727 

discharge claims in New York, as well. Other witnesses include the Trustee, who lives and works 

in South Florida.

Transferring the Adversary to New York would likely impose substantial hardship on the 

Debtor (even though the Debtor presumably consents to the Motion as it was filed by her own 

attorney). In her Motion, the Defendant proposes to have the Debtor, her 84-year-old

grandmother, travel to New York during the COVID-19 pandemic. Even if the Defendant were 

to seek to sever the causes of action contained in the Complaint, such that the discharge count(s) 

are prosecuted in this Court, the Debtor would still have to travel to New York, as she is the 

primary witness to the transactions at issue.

In addition, the Defendant states in the Motion that the “...Debtor is the grandmother of 

the Defendant, thus a home for the Debtor in New York]”. However, the Defendant fails to take 

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into consideration that the inverse is also true. The Debtor resides in Florida, and therefore the 

Defendant would have a “home” in which to stay in Florida should she need during the litigation. 

In fact, while the Defendant may reside in New York, as alleged in the Complaint, the Defendant 

is a 1⁄2 owner of the Debtor’s residence and therefore owns real property in Florida. Accordingly, 

the Defendant is in a better position to travel for the litigation than the Debtor (or the Trustee).

Merely because New York is more convenient to the Defendant than Florida does not 

warrant transferring the Adversary, as the Defendant’s burden is to prove that transfer would be 

more convenient for both parties, which includes the Debtor and the Plaintiff. Accordingly, for 

the reasons set forth above, this factor weighs heavily in favor of non-transfer. 

Availability of Compulsory Process. To the extent compulsory process is necessary, the 

Court can provide such process. Accordingly, this factor is “neutral” and weighs against transfer 

of the proceeding.1

Enforceability of Judgment. The type of relief sought by the Plaintiff, if awarded by the 

Court, will be equally valid and enforceable regardless of where it is issued. Accordingly, this 

factor is also “neutral” and weighs in favor of non-transfer.

Fair Trial. In her Motion, the Defendant does not allege at any point that the New York 

court would be more likely to provide the parties a fair trial than would this Court. Further, the 

transferee court in New York would have no knowledge nor familiarity whatsoever with the facts 

of the case. The New York court would have to expend time and resources in order to become 

familiar with the case, which would further delay the administration of the bankruptcy case. The 

instant bankruptcy case is a Chapter 7 proceeding, a primary goal of which is to provide an efficient 

and prompt procedure for an unfortunate Debtor to obtain a “fresh start.” Having to litigate in New 

1 “Because of the deference given to the plaintiff’s choice of forum, to the extent a given factor is neutral, it 

should weigh against transfer of the adversary proceeding.” In re Pan Am, 177 B.R. 1014 n. 5 (Bankr. S.D. Fla. 

1995).

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York would add substantial delay to the administration of the Debtor’s bankruptcy case. Thus, this 

factor also weighs in favor of non-transfer. 

Local Interest. The Defendant places an emphasis on the fact that the transactions

underlying the claims in the Complaint occurred in New York. While the Plaintiff concedes that 

the “local interest” factor would weigh in favor of transfer to New York for the sole reason that 

the events giving rise to the Plaintiff’s claims took place in New York, this is not the only factor 

to consider when determining whether the Adversary Proceeding should be transferred. Further, 

the Plaintiff believes that because the underlying bankruptcy case is pending in Florida, and any 

recovery or outcome of the adversary is to benefit the bankruptcy estate, these facts mitigate any 

weight that could be afforded in favor of transfer. 

State Law. The Plaintiff concedes this factor weighs in favor of transfer due to the 

transactions taking place in New York. However, this Court is more than qualified to determine 

issues of state law, and this is not the only factor to consider when determining whether the 

Adversary Proceeding should be transferred.

“The Court has also considered all ‘additional factors that may be relevant to the 

convenience of the parties and the interest of justice.’” In re Rohalmin, 598 B.R. 900, 906 (Bankr.

S.D. Fla. 2019). In determining whether this proceeding should be transferred, the Court should 

also consider the additional expense that will be incurred by the estate by having to litigate in New 

York. The Trustee would have to incur costs by traveling to New York if this case were transferred. 

Furthermore, undersigned counsel is not admitted to practice in New York, and additional expense 

may be incurred by the retention of local counsel. The bankruptcy estate should not be burdened 

solely because one of the defendants to the Adversary prefers to litigate in New York. The costs 

and attorneys’ fees are likely to be significantly less in South Florida than in New York. This 

consideration weighs in favor of non-transfer of the proceeding. 

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3. The Court has Personal Jurisdiction Over the Defendant. 

As stated above, the Defendant is foreclosed from raising a personal jurisdiction argument 

due to her failure to timely file a motion as required in the Order Setting Deadlines [Adv. ECF No. 

3]. Notwithstanding same, as the Defendant correctly recognized in her Motion, Fed. R. Bankr. P. 

7004 provides for nationwide service of process, which in turn becomes the basis for personal 

jurisdiction over the Defendant in this proceeding. See In re McCallan, 599 B.R. 361, 367 (Bankr. 

M.D. Fla. 2019). “The summons and complaint and all other process except a subpoena may be 

served anywhere in the United States.” Fed. R. Bankr. P. Rule 7004(d). 

Further, Defendant’s “minimum contacts” argument is misplaced. In fact, the Eleventh 

Circuit has expressly rejected the minimum contacts argument in the context of personal 

jurisdiction over a defendant in an adversary proceeding. See Republic of Panama v. BCCI 

Holdings (Luxembourg) S.A., 119 F.3d 935, 942 (11th Cir. 1997) (“[a] court must therefore 

examine a defendant’s aggregate contacts with the nation as a whole rather than his contacts with 

the forum state in conducting the Fifth Amendment analysis.”) (emphasis added). Absent a 

showing of inconvenience that rises to “a level of constitutional concern,” a defendant that has 

sufficient minimum contacts with the United States will be found to be within the personal 

jurisdiction of the bankruptcy court. See In re McCallan, 599 B.R. 361, 367 (Bankr. M.D. Fla. 

2019). 

The Defendant lives in New York and has not made a showing that litigating this adversary 

is an inconvenience rising to the level of constitutional concern (because it does not). The 

Defendant was properly served with the summons and complaint for this adversary proceeding

and has sufficient minimum contacts with the United States such that the Court has in personam

jurisdiction over her. 

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CONCLUSION

It is not enough for the party seeking transfer of an adversary proceeding to show that the 

current venue is less convenient for it than the proposed venue; rather, the party must show that 

transfer would be more convenient for both parties or will further the interests of justice. In re Pan 

Am, 177 B.R. 1014, 1018 (Bankr. S.D. Fla. 1995). The Defendant has not demonstrated by a 

preponderance of the evidence that New York would be more convenient for both parties, only 

that New York is more convenient for her. Similarly, the Defendant has not demonstrated that 

transferring this proceeding is in the interest of justice. As such, the deference afforded to the 

Plaintiff’s choice of venue weighs in favor of keeping this adversary proceeding in Florida and 

before this Court. Further, the Court properly has in personam jurisdiction over the Defendant by 

virtue of Fed. R. Bankr. P. Rule 7004(d). For all of the above reasons, the Motion should be 

denied.

WHEREFORE, the Plaintiff respectfully requests the Court enter an order: (a) denying the 

Motion; and (b) granting such other and further relief as the Court deems just and proper.

Dated: June 8, 2021 LEIDERMAN SHELOMITH 

ALEXANDER + SOMODEVILLA, PLLC 

Attorneys for the Plaintiff

2699 Stirling Road, Suite C401

Ft. Lauderdale, Florida 33312

Telephone: (954) 920-5355

Facsimile: (954) 920-5371

By:_________/s/__________________

ZACH B. SHELOMITH

Florida Bar No. 0122548

zbs@lsaslaw.com

MARIA J. GONZALEZ

Florida Bar No. 1024946

mjg@lsaslaw.com

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CERTIFICATE OF SERVICE

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

June 8, 2021 to all parties on the list to receive e-mail notice/service for this case, via the Notice 

of Electronic Filing (which is incorporated herein by reference).

By:_________/s/________________

Zach B. Shelomith

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