Page 1 - PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER 

VENUE AND CONSOLIDATE ACTIONS 

Lisa A. Kaner, OSB #881373 

LisaKaner@MHGM.com 

Emily Teplin Fox, OSB #121720 

EmilyFox@MHGM.com

MARKOWITZ, HERBOLD, GLADE 

 & MEHLHAF, P.C. 

Suite 3000 Pacwest Center 

1211 SW Fifth Avenue 

Portland, OR 97204 

Tel: (503) 295-3085 

Fax: (503) 323-9105 

 Attorneys for Plaintiff 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

EUGENE DIVISION 

THE LANCE AND LINDA NEIBAUER 

JOINT TRUST, by and through LANCE 

NEIBAUER, as trustee, 

Plaintiff,

vs. 

MICHAEL J. KURGAN, an individual, 

Defendant.

No. 6:14-cv-01192-MC

PLAINTIFF’S OPPOSITION TO 

DEFENDANT’S MOTION TO 

TRANSFER VENUE AND 

CONSOLIDATE ACTIONS

**Oral Argument Requested**

INTRODUCTION 

Defendant Michael Kurgan instigated a baseless federal lawsuit in San Diego (“the 

California Lawsuit”), despite knowing that a lawsuit involving the same parties and the same 

issues had already been filed against him in Oregon state court (“the Oregon Lawsuit”). After 

unsuccessfully evading service of the summons and complaint in this matter, Kurgan tried again 

to avoid being held accountable for his misdeeds in Oregon by removing the Oregon Lawsuit to 

federal court and moving this Court to transfer venue to the Southern District of California and 

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consolidate it with the California Lawsuit. The court presiding over the California Lawsuit 

(“California Court”), however, recently dismissed that case for lack of personal jurisdiction over 

the Trust. 

In short, after thorough briefing, another federal district court decided that the Southern 

District of California, Kurgan’s proposed transferee court, is not the right place for this case to 

unfold. This Court is. Kurgan’s motion must be denied because the Southern District of 

California is not a venue where this case might have been brought, and because Kurgan has 

failed to make the strong showing required to support transfer. Transferring this matter to 

California, moreover, would be manifestly unjust, because it would functionally obviate the 

California Court’s dismissal. The Court should end Kurgan’s forum-shopping efforts, deny his 

motion to transfer venue, and allow the parties to litigate the substance of their dispute. 

BACKGROUND 

Plaintiff The Lance and Linda Neibauer Joint Trust (“the Trust”) leased Kurgan a 2001 

Piper Meridian aircraft (“the Aircraft”) for six months commencing in August 2013 (“the 

Lease”). (Decl. of Emily Teplin Fox (“Fox Decl.”), Ex. 1 (Neibuaer Decl.) ¶ 3; Ex. 2 (Lease).1

) 

The Lease provided Kurgan the right to purchase the Aircraft during the lease term. (Ex. 2 

(Lease) ¶ 6.) Kurgan did not exercise his purchase option during the lease term. (Ex. 1 

(Neibauer Decl.) ¶ 11; Ex. 3 (Mem. in Support) at 8 (noting the parties’ agreement that the Lease 

terminated on March 20, 2014); id. at 27-29 (moving for summary judgment).) Instead, more 

than a month after the expiration of the lease and several weeks after he returned the Aircraft to 

the Trust, Kurgan attempted to assert his expired purchase option, disrupting the Trust’s sale of 

the Aircraft to a third party. (Id.; see also Ex. 4 (Second Neibauer Decl.) ¶¶ 3-7.) Among other 

damages, the Trust was compelled to reduce the purchase price of the Aircraft by $20,000 to 

compensate the buyer for the legal fees it expended on a) assessing Kurgan’s meritless claim of 

right to the Aircraft and b) negotiating an indemnity agreement with Kurgan. (Ex. 4 (Second 

Neibauer Decl.) ¶¶ 6-7.) 

 1

 All exhibit cites are attachments to the Fox declaration. 

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On May 12, 2014, the Trust instigated the instant Oregon Lawsuit against Kurgan in 

Deschutes County Circuit Court, asserting claims including tortious interference with contract 

and breach of contract. (Ex. 5 (Compl.).) Although his counsel was well aware of the pending 

Oregon Lawsuit (see Ex. 6 (Kaner Decl.) ¶ 2 and attached email), Kurgan nonetheless instigated 

the California Lawsuit against the Trust and its sole trustees, Lance and Linda Neibauer 

(collectively “Neibauer”). See Kurgan v. Neibauer, et al., No. CV-14-1190 LAB JMA (S.D. 

Cal. 2014). The California Lawsuit was essentially a mirror image of the Oregon Lawsuit. In it, 

Kurgan sued the Trust and its trustees, alleging that he was entitled to exercise his purchase 

option on the Aircraft well over a month after the Lease expired. He sought damages in the 

amount of the difference between what he believes the Trust sold the Aircraft for and what he 

believes he should have paid for the Aircraft. (See Ex. 7 (Calif. Compl.).) 

Neibauer moved the court presiding over the California Lawsuit (“California Court”) for 

dismissal, a stay, or for summary judgment. (See generally Ex. 3.) Specifically, Neibauer 

argued that the California Court (1) lacked personal jurisdiction over Neibauer; (2) should 

abstain from adjudicating the California Lawsuit pursuant to the Colorado River doctrine; (3) 

should dismiss the action for failure to state a claim upon which relief can be granted and/or 

failure to plead fraud with the specificity required by Fed. R. Civ. P. 9(b); or (4) to grant 

summary judgment to Neibauer. (Id.) 

While the parties briefed dismissal of the California Lawsuit, Kurgan evaded service of 

the Oregon Lawsuit. (See generally Ex. 6 (Kaner Decl.).) The court then presiding over the 

Oregon Lawsuit granted the Trust’s Motion for Service of Complaint by Alternate Method 

pursuant to Or. R. Civ. P. 7D(6)(a). (Ex. 8 (Order Permitting Alternative Service).) 

Having finally been served with the Oregon Lawsuit pursuant to court order, Kurgan 

continued his efforts to avoid litigation in Oregon. Specifically, he removed the case to federal 

district court, and then moved this Court to transfer venue.2

 (ECF #2-1 (Mem. in Support).) 

 2

 In addition to moving to transfer venue, Kurgan also moved the Court to consolidate the 

California Lawsuit and Oregon Lawsuit under Fed. R. Civ. P. 42. Although such a request was 

not properly before this Court, it has been rendered moot by the dismissal of the California 

Lawsuit. 

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Kurgan falsely certified to the Court that he conferred with Neibauer’s counsel on his Motion to 

Transfer. (Fox Decl. ¶ 11.) The parties reached a stipulation to stay the proceedings pending the 

outcome of the Trust’s Motion to Dismiss. (ECF # 8 (Stipulated Mot. to Stay); ECF #9 (Order 

Granting Stipulated Mot.).) 

On August 11, 2014, the California Court dismissed the California Lawsuit because it 

lacked personal jurisdiction over Neibauer. (See generally Ex. 9 (Order Dismissing Case).) The 

instant matter is currently the sole active case concerning Kurgan, the Trust, and their dispute 

over the Aircraft, the Lease, and the third party sale. 

ANALYSIS 

 Kurgan moves to transfer this action under 28 U.S.C. § 1404(a), which 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 or to any 

district or division to which all parties have consented.” “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.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 

(9th Cir. 2000) (internal quotation marks omitted). However, “[t]he defendant has the burden of 

making a strong showing of inconvenience before a transfer is allowed.” Tel. Mgmt. Corp. v. 

Goodyear Tire & Rubber Co., 5 F. Supp. 2d 896, 897-98 (D. Or. 1998). “[U]nless the balance is 

strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” 

Gulf Oil Corp v. Gilbert, 330 U.S. 501, 508 (1947). Kurgan cannot meet his burden here. 

I. The Southern District of California is not a district in which this case might have 

been brought. 

A district court can transfer only to a “district or division where [the case] might have 

been brought or to any district or division to which all parties have consented.” 28 USC § 

1404(a). Kurgan’s proposed venue – the Southern District of California – is neither. The Trust 

never consented to jurisdiction in the Southern District of California; to the contrary, it 

successfully moved for and obtained dismissal of the California Lawsuit by arguing that the 

California Court lacked personal jurisdiction over it. 

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Further, the Southern District of California is not a jurisdiction where this case might 

have been brought. A transferee court “where action might have been brought” means, among 

other things, a court in which venue would have been proper. E. & J. Gallo Winery v. F. & P. 

S.p.A., 899 F. Supp. 465, 466 (E.D. Cal. 1994). Had the Trust instigated this action in the 

Southern District of California, venue would have been improper. Where, as here, “the only 

basis for federal subject matter jurisdiction in this case is diversity of citizenship, the applicable 

venue statute is 28 U.S.C. § 1391(a).” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 

834, 841 (9th Cir. 1986). Section 1391(b) provides that a civil action may be brought (1) where 

Kurgan resides, (2) where “a substantial part of the events or omissions giving rise to the claim 

occurred,” or (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.” 28 U.S.C. § 1391(b). 

The Southern District of California does not fit any of the three criteria supporting venue 

in California. First, Kurgan does not reside in California; he has admitted in judicial pleadings 

that he is a resident of Florida. (See, e.g., Ex. 7 (Calif. Compl.) ¶¶ 1, 6.) Second, a substantial 

part of the events giving rise to the Trust’s claims did not occur in California. While Kurgan 

does not specifically address this point in his memorandum, he appears to base his motion on 

two primary factual bases: the existence of the California Lawsuit and the allegation that the 

Lease was to be performed in California. Cf. Decker Coal, 805 F.2d at 842 (designating the 

place of intended performance as the proper venue for a claim based on breach of contract). 

Both bases are factually wrong. The California Lawsuit has been dismissed, and the 

California Court explicitly rejected Kurgan’s assertion that the Lease required performance in 

California. (Ex. 8 (Order Dismissing Case) at 13 (“It’s simply inaccurate to say, as Kurgan does, 

that the lease required the contract to be performed in California. It did not.”).) Instead, the 

California Court found that “[t]he Neibauers are right to argue that ‘[t]he only performance 

requirements of the Lease that have definitive, mandatory locations attached to them all point to 

Oregon.’” (Id.) Oregon is where Kurgan visited to view the Aircraft, where he took possession, 

where the contested hot section inspection was to be performed, and where he was required to 

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and did in fact return the Aircraft. (Id.) Kurgan may have hangared the Aircraft in California for 

a time, but the Lease did not require him to do so; he “could presumably have picked the plane 

up in Oregon, flown it straight to Anchorage, Alaska, and stayed there for 6 months.” (Id. at 13.) 

Moreover, the question is where a substantial part of the events giving rise to the Trust’s claims, 

not Kurgan’s claims, arose. Kurgan has utterly failed to establish how a substantial part (or any 

part) of the events giving rise to the Trust’s claims occurred in California. 

The third venue criteria applies only if there is no district in which this action may 

otherwise have been brought. That is not the case here. For the reasons set forth in the 

preceding paragraph and further below, venue is proper in this Court. 

Because the Southern District of California is not a “district or division where [the case] 

might have been brought or to any district or division to which all parties have consented[,]” 28 

USC § 1404(a), Kurgan’s motion to transfer venue should be denied. 

II. Kurgan has not made a strong showing that the convenience of parties and 

witnesses and the interest of justice warrants transfer. 

Even if venue was proper in the Southern District of California, the Court should still 

deny Kurgan’s motion because he has not proffered facts or argument sufficient to support 

transfer. In considering whether the defendant has made a “strong showing” to warrant transfer 

from the plaintiff’s chosen forum, courts consider factors such as the plaintiff’s choice of forum, 

the parties’ contacts with the forum, the courts’ familiarity with the governing law, and ease of 

access to sources of proof. Jones, 211 F.3d at 498-99; Indoor Billboard Nw. Inc. v. M2 Sys. 

Corp., 922 F. Supp. 2d 1154, 1159 (D. Or. 2013). Ultimately, the court makes an individualized, 

case-specific assessment of whether the defendant has met his burden. Jones, 211 F.3d at 498. 

Here, the circumstances militate against transfer. 

A. Plaintiff’s choice of forum militates against transfer. 

“In this circuit, a plaintiff’s choice of forum is generally granted great weight[.]” 

DeFazio v. Hollister Employee Share Ownership Trust, 406 F. Supp. 2d 1085, 1089 (E.D. Cal. 

2005). The Trust instigated this action in Deschutes County, and does not contest this Court’s 

removal jurisdiction. Although a plaintiff's choice of forum is afforded less deference if the facts 

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giving rise to his claims have little connection to his chosen forum, Pacific Car & Foundry Co. 

v. Pence, 403 F.2d 949, 954 (9th Cir. 1968), here the facts underlying the Trust’s claims for 

intentional interference and breach have a strong Oregon connection. Oregon is: 

 where the Trust resides (Ex. 1 (Neibauer Decl.) ¶ 1); 

 where the Trust’s sole trustees reside (Id.); 

 where the Trust signed the Lease (Id. ¶ 23); 

 where the Aircraft was hangared during the Trust’s negotiations with the third-party 

buyer (Id. ¶ 2); 

 where the closing and actual delivery of the third-party sale Kurgan disrupted occurred 

(Id. ¶ 10); 

 where, as the California Court correctly concluded, “[t]he only performance requirements 

of the Lease that have definitive, mandatory locations attached to them all point to” (Ex. 

9 (Order Dismissing Case) at 13 (quotations omitted)), including required pre-possession 

maintenance, pick up, delivery, and required post-delivery inspection of the Aircraft (all 

in Aurora, Oregon); and 

 where “Kurgan concedes that he visited . . . three times in connection with this case: 

‘once to view the subject aircraft, once to pick up the subject aircraft at the beginning of 

the lease term, and once to return the subject aircraft, at the end of the lease term.’” (Id.

(quoting from Kurgan’s own declaration).) 

There is no reason in this case to deviate from the general rule of deference to the 

plaintiff’s choice of forum. 

B. The parties’ contacts with the forum militate against transfer. 

In deciding a motion to transfer venue, courts consider the parties’ contacts with the 

forum. Kurgan discusses his and the Trust’s California connections, but “this factor considers 

the parties’ contacts with the [transferor] forum, not . . . whether the parties have contacts with 

other forums.” In re Ferrero Litig., 768 F. Supp. 2d 1074, 1080 (S.D. Cal. 2011). See also 

Operation: Heroes, Ltd. v. Procter & Gamble Prods., Inc., 903 F. Supp. 2d 1106, 1113-14 (D. 

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Nev. 2012) (denying motion to transfer where “at least some of the events giving rise to this 

lawsuit occurred in [plaintiff’s chosen forum], all parties have contact with [plaintiff’s chosen 

forum] . . . [and] [c]onversely, there is no evidence that Plaintiff has had contact with [the 

proposed transferee district]”). 

The intimate relationship of this case to, and both parties’ contacts with, Oregon is 

discussed above. This case concerns an Oregon resident who executed an aircraft Lease in 

Oregon after showing the Aircraft to the lessee in Oregon; the Lease required a hot section in 

Oregon, pick up in Oregon, delivery in Oregon, and post-delivery inspection in Oregon (Ex. 2 

(Lease) ¶¶ 1, 2, 7); and the Aircraft was hangared in Oregon while the defendant interfered with 

the Oregonian’s third-party sale of the Aircraft. And as in Operation: Heroes, the Trust has not 

had contact with California, as evidenced by the California Court’s conclusion that it lacked 

personal jurisdiction over the Trust. The “local interest in having localized controversies decided 

at home” disfavors transfer in this case. Decker Coal, 805 F.2d at 843. 

C. Governing substantive law weighs against transfer. 

The courts’ relative familiarity with the governing substantive law is another factor courts 

consider in deciding the appropriateness of transfer. Jones, 211 F.3d at 498. “Federal courts 

sitting in diversity must apply the forum state's choice of law rules to determine the controlling 

substantive law.” Fields v. Legacy Health Sys., 413 F.3d 943, 950 (9th Cir. 2005) (internal 

quotation marks omitted). 

Oregon law governs the Trust’s breach of contract claim against Kurgan, regardless of 

whether the Court grants Kurgan’s motion. Pursuant to California Civil Code § 1646, a contract 

without a choice-of-law provision “is to be interpreted according to the law and usage of the 

place where it is to be performed . . . .” See also Costco Wholesale Corp. v. Liberty Mut. Ins. 

Co., 472 F. Supp. 2d 1183, 1197 (S.D. Cal. 2007). Likewise, when determining the governing 

substantive law of a contract that does not specify the governing law, Oregon courts consider, 

among other factors, “the states that have a relevant connection with the transaction or the 

parties, such as the place of negotiation, making, performance or subject matter of the contract.” 

Or. Rev. Stat. § 15.360. Here, as the California Court concluded, “[t]he only performance 

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requirements of the Lease that have definitive, mandatory locations attached to them all point to 

Oregon.” (Ex. 9 (Order Dismissing Case) at 13 (quotations omitted).) Moreover, Oregon courts 

will apply Oregon law in the absence of any conflict between it and the law of another 

jurisdiction’s laws a party suggests should govern. See Official Airline Guides, Inc. v. 

Churchfield Pub., Inc., 756 F. Supp. 1393, 1407 (D. Or. 1990). Kurgan has not suggested the 

existence of any conflict between California and Oregon contract law here. 

Accordingly, regardless of whether this case remains in Oregon or transfers to California, 

Oregon law will govern the Trust’s contract claim and likely governs the Trust’s intentional 

interference claim. See, e.g., Arno v. Club Med Inc., 22 F.3d 1464, 1467 (9th Cir. 1994) 

(describing California’s “amorphous and somewhat result-oriented approach” to conflicts of law 

in tort claims); Spirit Partners, LP v. Stoel Rives LLP, 212 Or. App. 295, 301, 157 P.3d 1194, 

1198 (2007) (Oregon courts apply Oregon law to tort claims in the absence of a conflict between 

it and the law of another proposed jurisdiction). An Oregon federal court will be more familiar 

with Oregon’s contract law than a California federal court. As such, this factor weighs against 

transfer. 

D. Ease of access to sources of proof does not support transfer. 

The relative ease of access to sources of proof, and the availability of compulsory process 

for unwilling witnesses, are factors courts consider in assessing a § 1404(a) motion. See Decker 

Coal, 805 F.2d at 843. Kurgan emphasizes the convenience of third-party witnesses. Kurgan 

has not actually proffered a list of actual witnesses, but rather a list of entities he deems relevant 

– a) Neal Aviation, b) High-Performance Aircraft, c) Gibbs Flying Services, Inc., and d) 

Enertron, Inc. (ECF # 2-1 (Mem. in Supp.) at 3-4.) This list does not support transfer of venue. 

Kurgan has not explained how any of his (unidentified) witnesses are necessary for his 

defense of the Trust’s claims or why their testimony weighs in favor of transfer. He does not 

describe proposed testimony from representatives from Gibbs at all. Enertron, the parties agree, 

is based in Arizona, not California. The unidentified representatives from High-Performance and 

Neal Aviation, whom plaintiff believes have relevant testimony, may well live outside of 

California now. In addition, Kurgan has not suggested that any proposed witnesses will be 

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unwilling, such that the court’s subpoena power is a material consideration supporting transfer. 

Kurgan elaborates on the proposed testimony of “the mechanic who was to perform the auto 

pilot upgrade quote,” without specifying: a) who such a person is; b) where he or she lives; or c) 

how the performance of the auto pilot upgrade quote relates to the Trust’s claims that Kurgan 

breached the Lease and interfered with Enertron’s purchase of the Aircraft. The link between 

this mechanic’s task and the “leaving [of] the option to exercise the purchase the remaining 

issue” is indecipherable. Likewise, the unidentified witness from Neal Aviation who will 

supposedly testify that “they had to rewire the radios” of the Aircraft does not appear to have 

relevant information about Kurgan’s failure to timely return the Aircraft at the termination of the 

Lease to Aurora, Oregon, to pay for the annual inspection performed in Oregon, and the other 

acts and omissions identified in the Trust’s complaint. 

From the Trust’s perspective, the key witnesses in this matter are Michael Kurgan, a 

Florida resident; the Trust’s trustee Lance Neibauer, an Oregon resident; (as the parties agree) 

the president of Enertron, an Arizona resident; and Scott Goodfellow, Service Manager of 

Keystone Aviation. (Fox Decl. ¶ 12.) Goodfellow, who is not a California resident, will testify 

about, among other topics relevant to the Trust’s two claims: Kurgan’s failure to pay for the 

Aircraft’s annual inspection at the termination of the Lease; the airworthiness squawks found 

during that inspection; and Kurgan’s assertion of a purchase option on the Aircraft. (Fox Decl. ¶ 

14.) Since none of these four key witnesses resides in California, the ease of access to sources of 

proof does not warrant transfer. 

E. Kurgan’s arguments regarding “the interest of justice” are unavailing. 

Kurgan argues that “the interest of justice would further be served” by transfer because 

he has California counsel, and “the action there is further along than this matter.” (ECF # 2-1 

(Mem. in Supp.) at 7.) The action in California has been dismissed, however. Moreover, 

Kurgan cites no precedent for the proposition that having counsel in the prospective transferee 

state justifies transfer. Having obtained California counsel, Kurgan is presumably able to obtain 

Oregon counsel. Kurgan also asserts that the Lease was intended to be performed in California. 

But as discussed above, the California Court definitively concluded that it was not. 

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F. Transferring this action to the Southern District of California is 

fundamentally unfair. 

Fairness and judicial economy inform a court’s assessment of a §1404(a) motion. Jones, 

211 F.3d at 498. Here, transferring this matter to the Southern District of California would be 

fundamentally unfair. Kurgan and the Trust instigated essentially the same dispute in the venues 

of their choosing. The Trust moved to dismiss Kurgan’s California Lawsuit. It succeeded. 

Granting Kurgan’s motion to transfer would functionally gut the California Court’s decision. 

The Trust would end up litigating this dispute in the venue where it just obtained dismissal, after 

comprehensive briefing, on the ground that it does not have sufficient minimum contacts to 

warrant personal jurisdiction. Compelling the Trust to litigate in the Southern District of 

California would offend principles of judicial economy and fair play. If the California Court’s 

decision is to be more than an academic exercise, this Court must deny Kurgan’s transfer motion. 

CONCLUSION 

For the reasons stated above, the Court should deny Kurgan’s motion to transfer and deny 

as moot Kurgan’s motion to consolidate. 

DATED this 18th day of August, 2014. 

MARKOWITZ, HERBOLD, GLADE 

 & MEHLHAF, P.C. 

By: /s/ Emily Teplin Fox

Lisa A. Kaner, OSB #881373

Emily Teplin Fox, OSB #121720 

(503) 295-3085 

Attorneys for Plaintiff

NEIBKU\399403

Case 6:14-cv-01192-MC Document 10 Filed 08/18/14 Page 11 of 12
CERTIFICATE OF SERVICE 

ATTORNEY CERTIFICATE OF SERVICE 

 I hereby certify that on August 18, 2014, I have made service of the foregoing 

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO TRANSFER VENUE 

AND CONSOLIDATE ACTIONS on the party/ies listed below in the manner indicated: 

Michael J. Kurgan 

6538 Collins Avenue, Unit 288 

Miami Beach, FL 33141 

 U.S. Mail 

 Facsimile 

 Hand Delivery 

 Overnight Courier 

 Email: n461bb@gmail.com 

 Electronically via USDC CM/ECF system 

 DATED this 18th day of August, 2014. 

 /s/ Emily Teplin Fox 

 ____________________________________ 

 Emily Teplin Fox 

 OSB #121720 

 Attorney for Plaintiff 

Case 6:14-cv-01192-MC Document 10 Filed 08/18/14 Page 12 of 12