1

NOT FOR PUBLICATION 

 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

__________________________________________ 

SANTOMENNO, et al. :

 :

: CIVIL ACTION NO. 11-736 (ES) 

Plaintiffs, :

v. :

 : 

TRANSAMERICA LIFE INSURANCE CO., et al. : OPINION

:

: 

Defendants. : 

__________________________________________: 

SALAS, District Judge 

I. Introduction 

 Pending before this Court is Transamerica Life Insurance Company, Transamerica 

Investment Management, LLC, and Transamerica Asset Management’s (collectively, “TLIC” or 

“Defendants”) Motion for Transfer of Venue. (D.E. 33). The Court has considered the papers 

submitted in support of and in opposition to the instant motion, and decides the matter without 

oral argument pursuant to Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons 

set forth below, Defendant’s Motion for Transfer of Venue is GRANTED. 

II. Background 

A. Parties & Claims 

Plaintiffs Jaclyn Santomenno, Karen Poley, and Barbara Poley are New Jersey residents. 

(Complaint (“Compl.”), D.E. 1 at 2-3).1

 The Defendants in this action are Transamerica Life 

Insurance Company (“TLIC”), Transamerica Investment Management (“TIM”), and 

 

1

 Plaintiffs employ a confusing page and paragraph numbering system in their Complaint. Plaintiffs do not begin 

numbering their paragraphs until page four of the Complaint. Further, they restart numbering the paragraphs of each 

Count at the end of the Complaint. To avoid any confusion, the Court cites to the page and paragraph number it 

references. 

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Transamerica Asset Management (“TAM”). (Id. at 3). 

TLIC (collectively) manages ERISA-covered employee benefit plans and offers 

investment options to those plans. (Id. at 4 ¶ 6). Employers, who enter into TLIC service 

agreements, are referred to as “plan sponsors.” The employees who enroll in the plans are 

referred to as “plan participants.” (Id. at 12 ¶ 55). The Defendants’ products and services are 

sold nationally. (Id. at 13 ¶ 62). As part of their products and services, the Defendants offer, 

among other things, a 401(k) plan that enables participants to select from a broad array of 

investment options, transfer amounts in their plan between investment options, and receive 

information regarding their investments. (Id. at 35 ¶ 187). TLIC also makes available a range of 

investment options from which plan sponsors can select the investment line up to be offered to 

participants in their particular plan through a group annuity contract, which TLIC issues to the 

plan. (Id. at 4-5 ¶¶ 6-13). Under the terms of the group annuity contract, each investment option 

selected by the plan sponsor is structured as a “separate account.” (Id. at 23-24 ¶¶ 124-134). 

The separate accounts contain different types of underlying investments, including mutual funds, 

collective trusts, and directly-advised accounts. (Id.). 

Plaintiffs bring claims against the Defendants under the Employment Retirement Income 

Security Act of 1974 (ERISA) and the Investment Advisers Act of 1940 (IAA). (Id. at 81-107 ¶¶ 

1-9) (Counts I-IX). Plaintiffs generally allege that the Defendants violated ERISA by imposing 

impermissible fees from group annuity contracts in connection with employee-sponsored 401(k) 

retirement plans. (See id. at 81-101 ¶¶ 1-8) (ERISA claims). Plaintiffs allege that TLIC gave 

investment advice while unregistered with the Securities and Exchange Commission. (See id. at 

102-107 ¶¶ 1-9) (IAA claims). 

Plaintiffs appear here individually and on behalf of a proposed class of ERISA-covered 

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employee benefit plans that held or hold group annuity contracts issued or sold by TLIC, as well 

as the participants and beneficiaries of all such ERISA covered employee benefit plans. (Id. at 

2). Karen Poley and Barbara Poley appear individually and on behalf of any person who is a 

party to any contract with TLIC, where TLIC, pursuant to such contracts, acted as an investment 

adviser in violation of the IAA. (Id. at 2-3). The Plaintiffs act individually and on behalf of 

members of other proposed classes in this suit as well. (Id. at 3). The Poleys are participants of 

the Qualcare Alliance Network Retirement Plan (id. at 4 ¶ 4), and Santomenno was a member of 

Gain Capital Group 401(k) Plan until December 2010. (Id. 4 ¶ 5). 

On February 8, 2011, Plaintiffs filed a complaint in the District Court against TLIC, TIM, 

and TAM alleging violations of the Employee Retirement Income Security Act of 1974, as 

amended, 29 U.S.C. § 1001, et seq. (“ERISA”). On July 29, 2011 Defendants filed this motion, 

asking the Court to transfer this putative class action to the Central District of California. (TLIC 

Moving Br. at 2). The parties have submitted their respective briefs, and the Defendants’ motion 

is now ripe for this Court’s adjudication. 

III. Legal Standard 

A court “may transfer any civil action to any other district where it might have been 

brought” if transfer serves the “the convenience of the parties and witnesses” and “the interest of 

justice.” 28 U.S.C. § 1404(a). “The moving party bears the burden of establishing that the 

transfer is appropriate and must establish that the alternative forum is more convenient than the 

present forum.” Santi v. Nat’l Bus. Records Mgmt., LLC, 722 F. Supp. 2d 602, 606 (D.N.J. 

2010). Accordingly, in a § 1404(a) motion to transfer, a court must determine: “(1) whether the 

proposed forum is one in which Plaintiff could have originally brought suit, and (2) whether 

transfer would be in the interest of justice and for the convenience of parties and witnesses.” Id.

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(citing Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995)). Making this 

determination requires analysis of all relevant private and public factors, respectively. Id. at 606 

(citing Jumara, 55 F.3d at 879). The private interests may include: (1) plaintiff’s forum 

preference; (2) the defendant’s preference; (3) whether the claim arose elsewhere; (4) the 

convenience of the parties; (5) the convenience of the witnesses; and (6) the location of books 

and records. Jumara, 55 F.3d at 879 (citations omitted). The public interests may include: (1) 

the enforceability of the judgment; (2) practical considerations that could make the trial easy, 

expeditious or inexpensive; (3) the relative administrative difficulty in the two fora from court 

congestion; (4) the local interest in deciding controversies at home; (5) the public policies of the 

fora; and (6) the familiarity of the trial judge with the applicable state law in diversity cases. See 

id. at 879–80 (citations omitted). Courts have broad discretion in determining a § 1404(a) 

motion to transfer, and are directed to consider “convenience and fairness on a case-by-case 

basis.” Santi, 722 F. Supp. 2d at 606. 

IV. Analysis 

A. Whether Transfer Would Be in the Interest of Justice and for the Convenience 

of the Parties and Witnesses:2

i. Private Factors 

a. Convenience of the Witnesses 

Defendants argue that convenience of the witnesses favors transfer because the witnesses 

in this case, TLIC’s current and former employees, reside in Los Angeles. (TLIC Moving Br., 

D.E. 33-1, at 15). Specifically, Defendants contend that because the heart of Plaintiffs’ 

Complaint concerns allegedly excessive fees for investment options and alleged violations of the 

 

2

 Based on its review of Plaintiffs’ Opposition Brief, Plaintiffs do not appear to dispute that the Central District of 

California is a forum in which Plaintiff could have originally brought suit. (See Pl. Opp. Br. at 6). Thus, it appears 

that Plaintiffs concede this argument. Therefore, the Court will not address the first prong in this Opinion. 

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Investment Advisers Act, members, managers, and employees in TLIC’s Investment Committee, 

TLIC’s Product Development Group, Retirement Product Pricing Department, and Marketing 

Department, will serve as central witnesses because they had direct knowledge of the 

construction and pricing of TLIC’s products and services, “selected the investment options to be 

included in TLIC’s product platforms, and/or priced, marketed, and managed TLIC’s retirement 

plan services.” (Id. at 16). 

 By contrast, Plaintiffs contend that TLIC’s employees could be compelled to appear by 

TLIC and thus it would not require judicial compulsion to bring these individuals to this forum. 

(Pl. Opp. Br., D.E. 40, at 22-23). As for individuals who are no longer employees, Plaintiffs ask 

the court not to presume that they will be unable to come to the forum. (Id. at 23). Further, 

Plaintiffs contend that Defendants offer no insight as to specific knowledge possessed by these 

individuals and its relevance to the claims, and therefore the court should not presume that their 

presence will be necessary. (Id. at 24-25). More importantly, Plaintiff’s argue that many key 

witnesses are in the New Jersey area and are subject to this Court’s, but not California’s, 

compulsory process. (Id. at 25). Witnesses include employees of GAIN Capital Group, LLC 

and QualCare Alliance Networks, Inc. “who dealt with TLIC or TLIC’s representatives” in the 

“establishment of the 401(k) plan, or concerning the terms and conditions of the group annuity 

contract.” (Id. at 25-26). It is unclear whether these witnesses would be able to go to California, 

as they would have some incentive not to appear. (Id. at 26). Another group of crucial witnesses 

are those representatives from various investment management companies and investment 

advisors that managed and advised the mutual funds underlying the investment option offered by 

TLIC. (Id. at 26). For example, one of the allegations in the Complaint is that TLIC required 

mutual funds to make contributions to TLIC in order to be included in their options list. (Id.). 

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Plaintiffs claim that they intend to elicit testimony from these witnesses about the consideration 

paid for inclusion on the list. (Id. at 27). According to Plaintiffs, four of these mutual funds are 

located in New Jersey, fourteen are in New York, five are in Boston and one is in Pennsylvania. 

(Id.). 

The Court finds that Defendants have the better of this argument for the following 

reasons.3 First, Plaintiffs claim that they will elicit testimony from employees of the underlying 

mutual funds for their pay-to-play claim. However, this suit does not concern the actions of the 

mutual funds as much as it concerns the alleged actions of the TLIC Defendants. While 

employees of the mutual funds may be knowledgeable about what was required of the funds in 

order to be listed as options, the designers of the scheme and creators of the agreements were 

undoubtedly employees of TLIC. Indeed, the pay-to-play claims have to do with what TLIC 

demanded from the funds in return for being listed on the investment options list. Thus, 

Plaintiffs will likely solicit relevant testimony from TLIC’s employees, including one of the 

nineteen TLIC employees identified as potential witnesses who are located in Los Angeles. 

(TLIC Moving Br. at 16) (citation omitted). Notably, this pay-to-play or kickback scheme is 

only one of the several claims listed in the Complaint. (See generally Compl. at 81-107 ¶¶ 1-9). 

Second, Plaintiffs’ contention that Defendants “offer no insight as to specific knowledge 

possessed by these individuals and its relevance to the claims,” is misplaced. (Pl. Opp. Br. at 24-

25). The Third Circuit has provided examples of appropriate documents to support this factor 

“would be a list of the names and addresses of witnesses whom the moving party plans to call 

 

3

 The Court notes that convenience of the witnesses matters to the extent that the witnesses may actually be 

unavailable for trial in one of the fora. Jumara, 55 F.3d at 879. Here, neither party has alleged that witnesses would 

be unavailable for trial in either fora. The parties also have not identified any witnesses who would be unwilling to 

come voluntarily to either District. See Yocham v. Novartis Pharms. Corp., 565 F. Supp. 2d 554, 558 (D.N.J. 2008). 

Further, both parties point to witnesses who may not geographically be within the court’s subpoena power. (Pl. 

Opp. Br at 25; TLIC Moving Br. at 17). 

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and affidavits showing the materiality of the matter to which these witnesses will testify . . . .” 

Plum Tree, Inc. v. Stockment, 488 F.2d 754, 757 n.2 (3d Cir. 1973). Here, Defendants have 

offered, through declarations by Darcy Hatton and Mark Fisher, and through their Moving and 

Reply Briefs, the names of specific individuals who likely possess knowledge about the design 

and marketing of retirement or investment products, where they are located, for whom they 

work, and a brief statement of their relevance to the claims at issue. (See TLIC Reply Br., D.E. 

44, at 8-9) (citing to the declarations and the moving brief to support this contention). It appears 

that this evidence is of the type that the Third Circuit expects Defendants to proffer. Plum Tree, 

Inc., 488 F.2d at 757 n.2. 

The Court notes that Plaintiffs do not argue that these potential witnesses would be 

unhelpful in the analysis of the claims. By contrast, Plaintiffs speak generally (for the most part) 

when referring to “key” or “crucial non-party witnesses” and what knowledge they might 

possess. (See Pl. Opp. Br. at 25-26) (“Specifically, crucial non-party witnesses include any 

individuals employed by GAIN Capital Group, LLC and QualCare Alliance Network, Inc. who 

dealt with TLIC or TLIC’s representatives, for instance, in the establishment of the 401(k) plan, 

or concerning the terms and condition of the group annuity contract. . . . [and] representatives 

from the various investment management companies and investment advisors that managed and 

advised the mutual funds underlying the separate account investment options offered on TLIC’s 

menus of investment options available to participants in TLIC group annuity contracts sold 

through employer-sponsored 401(k) plans.”) (emphasis added). 

Accordingly, the Court finds that the convenience of the witnesses weighs in favor of 

transfer. 

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b. Convenience of the Parties 

Defendants in this action are TLIC, TIM, and TAM. (TLIC Moving Brief at 19). TLIC’s 

retirement business is housed in Los Angeles, and TIM was based in Los Angeles.4 TAM is 

located in Florida. (Id.). Defendants argue that their respective locations warrant transfer to the 

Central District of California. (Id.). 

Conversely, Plaintiffs argue that the Third Circuit has held that a plaintiff’s choice of 

venue is a paramount consideration that “should not be lightly disturbed” on a motion for 

transfer, particular where a plaintiff has chosen to bring the case in his home forum. (Pl. Opp. Br 

at 8). Plaintiffs further argue that ERISA’s special venue provision counsels high deference for 

Plaintiff’s choice of forum. (Id. at 8-12, 13 n.3) (quoting 29 U.S.C. § 1132(e)(2)). Finally, 

Plaintiffs argue that New Jersey would be the more appropriate forum because they reside here. 

(Id. at 12). 

Again, Defendants have the better of this argument. While the Third Circuit has stated 

that the plaintiff’s choice of forum is a “paramount consideration,” and its choice should not be 

lightly disturbed, Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970), it has also warned 

that the plaintiff’s choice of forum is not dispositive. Delta Air Lines, Inc. v. Chimet, S.p.A., 619 

F.3d 288, 295-96 (3d Cir. 2010) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 n.23 

(1981)). Indeed, “dismissal should not be automatically barred when a plaintiff has filed suit in 

his home forum,” id, and “[t]he preference for honoring a plaintiff’s choice of forum is simply 

that, a preference; it is not a right.” Ricoh Co., Ltd. v. Honeywell, Inc., 817 F. Supp. 473 (D.N.J. 

1993). “Nevertheless, the 1404(a) factors are still balanced by the court in making a transfer 

determination, and the balance must tip strongly in favor of transfer before disturbing the 

 

4

 According to Defendants, “[o]n June 30, 2011, Defendant TIM closed its operations and no longer conducts 

business.” (TLIC Moving Br. at 4 n.5). 

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plaintiff's choice.” Job Haines Home for the Aged v. Young, 936 F. Supp. 223, 228 (D.N.J. 

1996). The Court finds, however, that there are reasons here to afford Plaintiffs less deference. 

As a preliminary matter, Plaintiffs are suing on behalf of a putative class. To that end, 

courts have afforded less deference to a Plaintiff’s choice of forum for two reasons. First, in 

such actions “the participation of the class representative is generally minimal.” Job Haines, 936 

F. Supp. at 228, 231. Second, a plaintiff’s choice of forum is accorded less deference because 

the potential members of the class will likely be scattered across the United States. See Koster v. 

Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947) (determining in a derivative class action 

that “where there are hundreds of potential plaintiffs . . . all of whom could with equal show of 

right go into their many home courts, the claim of any one plaintiff that a forum is appropriate 

merely because it is his home forum is considerably weakened”); Job Haines, 936 F. Supp. at 

228, 231 (citing cases for the proposition announced in Koster); Johnson v. Nextel Commc’ns, 

Inc., No. 06-5547, 2007 WL 2814649, at *4 (D.N.J. Sept. 21, 2007) (“Lastly, this is a putative 

class action and ‘where there are many potential plaintiffs scattered across the country, the 

choice of this plaintiff deserves less weight.’”) (citation omitted). Potential members of this 

putative class action will likely be scattered throughout the United States and its territories. (See

Compl. at 12-13 ¶¶ 54-61) (describing the individual and proposed Plaintiffs, including plans and 

plan participants to whom TLIC provided investment advice). By contrast, TIM’s employees 

and TLIC are located in California and TAM is located in Florida. While TAM will be 

inconvenienced regardless of the forum, TLIC and TIM will be more inconvenienced than the 

potential Plaintiffs who will be scattered across the nation. For example, according to a 

declaration by Darcy Hatton, Senior Vice President of TLIC, approximately 1,364 plan sponsors 

are based in California, 537 are based in Illinois, and 469 are based in New Jersey. (Darcy 

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Hatton Decl., D.E. 33-2, ¶¶ 1, 8). The remainder of plan sponsors, according to Hatton, are 

scattered across the United States and its territories. (Id.); Job Haines, 936 F. Supp. at 231 

(“Therefore, the balance is between one nominal class representative located in New Jersey, and 

twelve defendants located in California. On the record before this Court, it is clearly more 

inconvenient for the defendants to travel to New Jersey than it is for the named plaintiff to go to 

California.”); Johnson, 2007 WL 2814649, at *4 (“Lastly, this is a putative class action and 

‘where there are many potential plaintiffs scattered across the country, the choice of this plaintiff 

deserves less weight.’ Here, Plaintiffs constitute only six of the 587 persons represented by LM 

& B. For these reasons, Plaintiffs’ choice of forum deserves less deference.”) (citation omitted); 

1 McLaughlin on Class Actions § 2:45 (8th ed.) (“In the class action context, if the members of 

the proposed class reside in numerous states, the deference accorded plaintiff's forum selection 

ordinarily is greatly diminished. A minority view holds that the general rule of deference 

continues to apply where no class has yet been certified.”) (citing to District Court decisions 

within the Third Circuit and the Southern District of New York affording less deference to 

Plaintiff’s choice of forum) (citations omitted and emphasis added). 

 Next, as to Plaintiffs’ argument that ERISA’s “special venue provision” creates 

heightened deference, the Court does not read the plain language of that provision to be creating 

such heightened or special deference. See 29 U.S.C. § 1452(d). But see 1 McLaughlin on Class 

Actions § 2:45 (8th ed.) (“Because ERISA’s venue provision expressly allows plaintiffs to lay 

venue ‘where the plan is administered, where the breach took place, or where a defendant resides 

or may be found,’ ERISA class actions have been carved out of the exception, so that plaintiffs’ 

choice of forum in ERISA class actions generally is accorded substantial deference.”) (citations 

omitted) (citing to District Court decisions in the Southern District of Ohio and Southern District 

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of Illinois). That provision appears to only expand the number of forums in which plaintiff’s 

may file their action and serve process on defendants. See 29 U.S.C. § 1132(e)(2). Indeed, this 

Court’s review of the District of New Jersey cases citing to ERISA’s venue provision revealed 

no discussion about the amount of deference afforded to Plaintiff’s choice of forum under 

ERISA. But assuming, arguendo, that the provision does create a heightened deference, neither 

the statute nor the Congressional history on which Plaintiffs rely do away with the need for a 

balanced analysis, or prohibit the Court from transferring the matter when convenience and 

justice strongly favor transfer. Indeed, even the cases on which Plaintiffs’ rely did not afford as 

much deference to Plaintiffs’ choice of forum as they would so suggest. See, e.g., Bd. of 

Trustees, Sheet Metal Workers Nat. Fund v. Baylor Heating & Air Conditioning, Inc., 702 F. 

Supp. 1253, 1257 n.13 (E.D. Va. 1988) (“But contrary to plaintiffs’ suggestion here, ERISA’s 

special venue provisions do not operate to preclude transfer. This suggestion . . . is without 

support in ERISA’s language or legislative history. . . . Absent an express statement of 

Congressional purpose to achieve this result, this Court will not imply preclusion of Section 

1404(a) from the mere existence of a special venue provision.); accord Job Haines, 936 F. Supp. 

at 231 (applying the same reasoning to plaintiff’s argument that the 1934 Securities Exchange 

Act’s special venue provision heightened the deference given to plaintiff's choice of forum). 

Finally, Plaintiffs argue that their relative financial and physical condition tips the scale 

in favor of remaining in this Court. (Pl. Opp. Br. at 18). They argue that Defendants will not be 

inconvenienced because they can afford to travel to New Jersey, have agreements with a travel 

service, and have access to a corporate plane. (Id. at 19). Further, they argue that Defendants’ 

contention that if multiple managers were required to travel to New Jersey, it would be disruptive 

to TLIC’s Retirement Service business is speculative as it is too early to tell who might be called 

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to appear at trial. (Id. at 20). Indeed, TLIC’s employees could work from New Jersey via laptop 

and phone if called to appear here. (Id.). On the other hand, if this matter were transferred to 

California, “Plaintiffs will need to attend the entire trial, and would be out of work, and away 

from their homes for this entire time.” (Id. at 21). In essence, Plaintiffs’ argument is that 

Defendants would not be inconvenienced were this matter to remain in New Jersey because 

Defendants have substantial resources. It is true that TLIC is a large corporation with 

significantly more resources than the three individual Plaintiffs. However, as Plaintiffs 

acknowledge, “[t]he fact that Defendant has substantially more resources than Plaintiffs should 

not be the sole reason for refusing a transfer[.]” Clark v. Burger King Corp., 255 F. Supp. 2d 

334, 338 (D.N.J. 2003). 

The Court notes that Plaintiffs, as representatives of a putative class, will likely play a 

minimal role in the litigation. Job Haines, 936 F. Supp. at 228, 231. Even if the class were not 

certified, it is unclear whether Plaintiffs would be required to be present for most of the trial. At 

most, this factor favors neither party because neither Plaintiffs nor Defendants have advanced a 

particularly persuasive argument for having the matter remain in this venue or transferred to 

another. 

Accordingly, the Court finds this factor to be neutral. 

c. Whether the Claims Arise in the Central District of California 

“The third private factor . . . may be best understood as a consideration of which forum 

constitutes the ‘center of gravity’ of the dispute, its events, and transactions.” Travelodge 

Hotels, Inc. v. Perry Developers, Inc., No. 11-1464, 2011 WL 5869602, at *5 (D.N.J. Nov. 22, 

2011) (citing Park Int’l, LLC v. Mody Enters., 105 F. Supp. 2d 370, 377–78 (D.N.J. 2000). 

Some courts in this District have considered this factor to be the “most critical to the Court’s 

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analysis.” Id.; Days Inns Worldwide, Inc. v. Ram Lodging, LLC, No. 09-2275, 2010 WL 

1540926, at *6 (D.N.J. April 14, 2010). “The center of gravity analysis is a fact sensitive inquiry 

that seeks to identify the forum in which the operative facts giving rise to the litigation 

occurred.” Id. “When the central facts of the lawsuit occur outside the forum state, a plaintiff’s 

selection of that forum is entitled to less deference.” LG Elecs., Inc. v. First Intern. Computer, 

Inc., 138 F. Supp. 2d 574, 590 (D.N.J. 2001) (citation omitted). 

Defendants argue that because “Plaintiffs assert ERISA and IAA violations based on the 

construction and delivery of TLIC’s retirement plan products and services,” the Central District 

of California is the more appropriate venue because “all of the work involved in developing, 

pricing, marketing and managing these products and services, including the investment 

platforms, which lie at the center of this case, occurred in Los Angeles.” (TLIC Moving Br. at 

21) (citation omitted). 

Conversely, Plaintiffs argue that this factor should be afforded less weight because there 

is no need to inspect a physical location in California or anywhere else. (Pl. Opp. Br. at 15). 

They contend that the location of a contract breach or a harmful decision is only relevant as an 

indication of where witnesses or documents will be found.5

 (Id.). Plaintiffs concede, however, 

that important facts arose in California. (Id. at 17). But they point out that Transamerica 

Retirement Services is operated in Los Angeles, New York, and Iowa, and they sell their 

retirement products in every state. (Id.). Moreover, they contend that the Court will have access 

to the factual knowledge of witnesses in documents and knowledge about the facts giving rise to 

the claims will not be geographically inaccessible in this District. (Id. at 18). Further, Plaintiffs 

argue that New Jersey has specific connections to this lawsuit because the Plaintiffs’ employersponsored retirement plans are based in New Jersey; the Plans contracted with TLIC in New 

 

5

 Plaintiffs do not cite to any case law to support this contention. 

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Jersey; plan contributions were made in New Jersey; Plaintiffs received Plan communications 

and advice from Defendants in New Jersey; Plaintiffs received reports on their investments in 

New Jersey; and Plaintiffs, New Jersey residents, made investments and were injured in New 

Jersey. (Id. at 16). 

 The Court finds that this factor weighs in favor of transfer for the following three reasons. 

First, the location of the alleged injury is not considered when determining the “center of 

gravity” or where the claim arose in matters where no physical injury has occurred. See, e.g.,

NPR, Inc. v. Am. Intern. Ins. Co. of Puerto Rico, No. 00-0242, 2001 WL 294077, at *4 (D.N.J. 

Mar. 28, 2001) (“While Plaintiff undoubtedly felt the impact of lowered profitability as a result 

of [Defendant] in New Jersey, this is merely the underlying factual basis which led to Plaintiff’s 

insurance claim. It is the breach of the Policy, not the underlying damages allegedly suffered, 

which must be considered in determining where the center of gravity of this litigation is. The 

wrong allegedly committed by Defendant, namely the breach of contract, occurred at 

Defendant’s San Juan office, when Defendant allegedly refused to live up to its contractual 

obligations.”). Moreover, because Plaintiffs are acting on behalf of a putative class, it is 

important to recognize that members of the proposed class will have suffered injury throughout 

the United States and its territories. (Darcy Hatton Decl., D.E. 33-2, ¶¶ 1, 8). Second, Plaintiffs’ 

contention that this factor should not be considered or should be given less weight when there is 

no physical scene to inspect is unsupported in law. NPR, 2001 WL 294077, at *4; Days Inns, 

2010 WL 1540926, at *6; Thorlabs, Inc. v. Townsend Commc’ns, L.L.C., No. 03-4550, 2004 WL 

1630488, at *4 (D.N.J. June 30, 2004). Third, this case will likely revolve around verbal 

testimony and documents. The location of those documents and its importance to the Court’s 

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analysis is discussed as a separate factor below.6

 

 Plaintiffs concede that important facts to this case arose in California. Importantly, 

according to Defendants, it appears that 342 employees of the retirement business are located in 

Los Angeles, including the vast majority of that business’s managers and executives. (TLIC 

Moving Br. at 6) (citations to declarations and depositions omitted). Because Plaintiffs’ claims 

concern alleged schemes orchestrated by TLIC in connection with the retirement investment 

services, logically it appears that these schemes were designed and decided upon by individuals 

specifically working in the Retirement Services group in Los Angeles, even though the schemes 

may have been implemented nationwide. See NPR, 2001 WL 294077, at *4. 

Further, while Plaintiffs contend that the Court will have access to the factual knowledge 

of witnesses and that knowledge about the facts giving rise to the claims will not be 

geographically inaccessible in this District, that is only true to the extent that those witnesses are 

subject to this Court’s subpoena power. As stated earlier in this Opinion, the crucial witnesses, 

who are knowledgeable about the products, agreements with mutual funds, and those in charge 

of advice strategy, will mostly be found in California, not in New Jersey or the surrounding 

States. See supra IV.i.a.. 

Finally, Plaintiffs’ argument that their retirement plans are based in New Jersey; the Plans 

contracted with TLIC in New Jersey; plan contributions were made in New Jersey; Plaintiffs 

received Plan communications and advices from Defendants in New Jersey; and Plaintiffs 

received reports on their investments in New Jersey, is persuasive but fails to tip the scale in 

favor of keeping the case in this District because, as articulated above, Plaintiffs are acting as 

representatives of a putative nationwide class made up of potential Plaintiffs who will have 

 

6

 The Court refers to factor six—“the location of books and records.” Jumara, 55 F.3d at 879 (citations omitted). 

The Court discusses this factor under the heading “location of relevant documentary evidence.” 

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similar connections to their home District. 

For these reasons, the Court finds that, on the whole, this factor weighs in favor of 

transfer. 

d. The Location of Relevant Documentary Evidence 

Defendants argue that “the ease of access to documentary evidence” favors transfer to the 

Central District of California. (TLIC Moving Br. at 22). They explain that “[d]ocuments 

relating to the design and pricing of TLIC’s investment product platforms and retirement plan 

services, and the plan sponsors’ purchase of such products” are created and stored in Los 

Angeles. (Id.). Additionally, “plan pricing records, documents pertaining separate account 

charges and fees, plan documents, summary plan descriptions, group annuity contracts, and 

Investment Committee meeting minutes and agendas, are created and stored at TLIC’s Los 

Angeles office.” (Id.) (citing Hatton Decl., D.E. 33-2). According to Defendants, documents 

pertaining to TIM’s operations are located in Los Angeles but may soon be moved to Iowa. 

(Id.). Plaintiffs, in opposition, argue that that the parties will not be inconvenienced by having to 

produce documents in New Jersey because those documents are electronically available. (Pl. 

Opp. Br. at 28). 

The Court finds that this factor weighs slightly in favor of Plaintiffs. Certainly, the 

analysis of Plaintiffs’ claims will require review of Defendants’ internal documents pertaining to 

pricing decisions, investment advice, and agreements with funds. Defendants are in possession 

of these records. Plaintiffs, on the other hand, presumably will not be presenting very much 

documentary evidence of their own except, perhaps, for Plan communications and advice they 

received from Defendants. However, as Plaintiffs point out, it appears that the group annuity 

contracts, service agreements, some marketing materials, and maybe the fiduciary warranties are 

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stored electronically. (See Hatton Dep., D.E. 40-1, Exhibit A, Tr. 134:23-136:1). Neither party 

has discussed whether additional documents will be needed and whether those documents are 

stored electronically. In any event, the Court affords this factor little weight because it is likely 

that most of the documents to which Defendants refer are stored electronically and therefore 

accessible from anywhere. Jumara, 55 F.3d at 879 (factor concerning the location of books and 

records is “limited to the extent that the files could not be produced in the alternative forum”). 

ii. Public Factors 

As stated earlier, the public interest factors that a court should consider in a transfer 

motion include: (1) the enforceability of the judgment; (2) practical considerations that could 

make the trial easy, expeditious or inexpensive; (3) the relative administrative difficulty in the 

two fora from court congestion; (4) the local interest in deciding controversies at home; (5) the 

public policies of the fora; and (6) the familiarity of the trial judge with the applicable state law 

in diversity cases. Jumara, 55 F.3d at 879-880 (citations omitted). 

The parties agree that the public interest factors do not heavily weigh in favor of granting 

or denying transfer. Therefore, the Court summarily addresses each of these factors. 

The first public factor— the enforceability of the judgment—should not be a concern as 

both courts are federal courts and Plaintiffs’ claims all arise under federal statutes, making 

judgment enforceable by either Court. As to the second public factor—practical 

considerations—neither the Court nor the parties can identify why the cost of litigation would be 

significantly higher in one fora over another. As to the third factor, “although courts may 

consider calendar congestion in ruling upon a § 1404(a) motion, relative congestion of the 

respective courts’ dockets is not a factor of great importance in this type of motion.” Clark, 255 

F. Supp. 2d at 339. Nevertheless, the Court notes that Defendants offer statistics from the federal 

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courts website indicating that, as of June 30, 2010, the two forums were equally congested but 

that the “median time to trial” was considerably faster in the Central District of California (18.4 

months) than in the District of New Jersey (33.6 months).7 (See TLIC Moving Br. at 23-24) 

(citation omitted). While this factor is “not a factor of great importance,” the Court finds that 

this factor slightly tips in favor of transfer. As to the fourth factor—the interest in deciding local 

controversies at home—the claims at issue are not entirely local. While the three Plaintiffs are 

residents of New Jersey, the putative class will likely be scattered throughout the nation and the 

Defendants are located in California, Florida, or the Midwest. Neither party addresses the fifth 

factor about the public policy of either fora, and so the Court declines to do so sua sponte.8 

Finally, the sixth factor—familiarity of the trial judge with the applicable state law—is of no 

concern because Plaintiffs’ do not bring state law claims. 

Accordingly, the Court finds that all but one of the public interest factors—time to trial— 

are neutral. 

V. CONCLUSION 

 For the foregoing reasons, Defendants’ motion for transfer of venue is GRANTED.9 An 

accompanying Order will follow. 

Dated: March 30, 2012 s/Esther Salas _____ 

 United States District Judge 

 

 

 

7

 It also appears that as of June 30, 2011, the medial time to trial was 35.7 in the District of New Jersey and 19.9 in 

the Central District of California. See U.S. District Courts—Median Time Intervals From Filing to Disposition of 

Civil Cases Terminated, by District and Method of Disposition, During the 12-Month Period Ending June 30, 2011, 

http://www.uscourts.gov/uscourts/Statistics/StatisticalTablesForTheFederalJudiciary/2011/C05Jun11.pdf 

8

 Plaintiffs do argue, however, that the public policy behind ERISA’s special venue provision counsels that this 

Court should give high deference to Plaintiff’s choice of venue. (Pl. Opp. Br. at 30). This Court has already 

addressed this particular argument earlier in this Opinion and declines to address it once again. 

9

 In light of the Court’s determination that transfer is proper, the Court will not address the motions to dismiss—

(D.E.s 34 and 35). 

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