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Response in Opposition, Motion to Transfer — Miccosukee Tribe v. U.S. Department of the Treasury (Document 19)

Summary

Plaintiff's response in opposition to Defendants' Motion to Transfer (Dkt. # 17) in Miccosukee Tribe of Indians of Florida v. United States Department of the Treasury, Case No. 1:20-cv-23182-KMW, U.S. District Court for the Southern District of Florida, Document 19, entered on the docket 09/28/2020. The Tribe argues that the first-to-file rule does not support transfer because the first-filed case is no longer pending in the D.C. District Court, and that the request constitutes forum shopping by Treasury. It also argues that the factors for evaluating a transfer request do not outweigh the considerable deference given to the Tribe's choice to litigate in its home forum. The brief asks the Court to deny the motion to transfer and is dated September 28, 2020.

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“Response in Opposition, Motion to Transfer — Miccosukee Tribe v. U.S. Department of the Treasury (Document 19).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/document-miccosukee-tribe-of-indians-of-florida-v-u-s-department-of-th-96cd345e0b/, SHA-256 5c6c97a75979b2f5d516b7baf19e6282484d6a4d12154557868c39c9ee882650.

Full text

Case 1:20-cv-23182-KMW Document 19 Entered on FLSD Docket 09/28/2020 Page 1 of 9



                              UNITED STATES DISTRICT COURT
                          FOR THE SOUTHERN DISTRICT OF FLORIDA

   THE MICCOSUKEE TRIBE
   OF INDIANS OF FLORIDA,

            Plaintiff,

   v.                                                     Case No. 1:20-cv-23182-KMW

   UNITED STATES DEPARTMENT OF THE
   TREASURY and UNITED STATES OF
   AMERICA,

            Defendants.


                           PLAINTIFF’S RESPONSE IN OPPOSITION
                          TO DEFENDANTS’ MOTION TO TRANSVER

          Plaintiff, the Miccosukee Tribe of Indians of Florida (“Miccosukee Tribe” or “Tribe”),

  hereby responds to Defendants’ recently filed Motion to Transfer (Dkt. # 17).

                                              SUMMARY

           Primarily for the following reasons, Defendants’ Motion to Transfer is without merit and

  should be rejected:

        A. The first-to-file rule does not support transfer because the first-filed case is no longer

           pending in the requested transferee court, the D.C. District Court. Furthermore, the

           requested transfer should be rejected because it does not promote judicial economy and

           instead constitutes forum shopping by Treasury.

        B. Section 1404(e) also does not support transfer because the factors the court must consider

           when evaluating a transfer request do not outweigh the considerable deference given to the

           Miccosukee Tribe’s choice to litigate in its home forum.
Case 1:20-cv-23182-KMW Document 19 Entered on FLSD Docket 09/28/2020 Page 2 of 9



                                              ARGUMENT

          A.      The first-to-file rule does not support transfer as no case is pending in the D.C.
                  District Court, and Defendants’ request constitutes forum shopping.

          The discretionary first-to-file rule provides that, absent compelling circumstances, when

  parties have instituted competing or parallel litigation in separate courts, the court where the first

  action was filed should decide the case. See Collegiate Licensing Co. v. Am. Cas. Co. of Reading,

  Pa., 713 F.3d 71, 78 (11th Cir. 2013); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Haydu, 675

  F.2d 1169, 1174 (11th Cir. 1982). Transfer under the first-to-file rule typically analyzes three

  factors: (1) the chronology of the two actions; (2) the similarity of the parties; and, (3) the similarity

  of the issues. See Pena v. Heath, 2019 U.S. Dist. LEXIS 153764, at *6 (S.D. Fla. Sep. 10, 2019)

  (adopted by Pena v. Heath, 2019 U.S. Dist. LEXIS 206006 (S.D. Fla. Nov. 27, 2019)).

          Importantly, the first-to-file rule is not a “hard-and-fast rule.” Cardenas v. Toyota Motor

  Corp., 2019 U.S. Dist. LEXIS 165664, at *5 (S.D. Fla. Sep. 25, 2019). It “is not an absolute,

  mandatory, inflexible requirement. Rather, courts have routinely cautioned against rote,

  mechanical application of the first-filed rule, and instead weigh the issue in the broader context of

  the ends of justice.’” Pena, 2019 U.S. Dist. LEXIS 153764, at *6. Accordingly, even when all

  three factors are present, courts retain substantial discretion in applying the rule. For example,

  transfer can be avoided by demonstrating “compelling circumstances necessary to justify an

  exception.” Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005). Those

  circumstances include forum shopping, bad faith negotiations, and the filing of anticipatory

  lawsuits. See Belacon Pallet Servs., LLC v. Amerifreight, Inc., 2016 U.S. Dist. LEXIS 195606, at

  *9 (N.D. Fla. Mar. 26, 2016).




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          Treasury’s transfer request should be denied because, (1) no similar case is pending in the

  D.C. District Court, and (2) Treasury’s request constitutes forum shopping as it seeks to transfer

  this case from the Tribe’s home district to an out-of-district judge who recently ruled in its favor.

                  1. No similar case is pending in the U.S. District Court for the District of
                     Columbia.

          For the first-to-file rule to apply, it is not enough for the defendant to prove that a different

  case was filed first. The defendant generally also must prove that the first-filed case is still pending

  in a “federal court[ ] of equal rank.” See Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Assocs., 16

  Fed. Appx. 433, 437 (6th Cir. 2001) (emphasis added). The case Treasury identifies as “first

  filed”—Shawnee Tribe—is no longer pending in the requested transferee court, the D.C. District

  Court. Rather, it is now pending in the U.S. Court of Appeals for the D.C. Circuit. See Exhibit 1

  (Notice of Appeal, Shawnee Tribe v. Mnuchin, et al., USCA Case #20-5286, Document # 1862585

  (09/21/2020). Accordingly, the D.C. District Court no longer has jurisdiction over the Shawnee

  case. See United States v. Rogers, 788 F.2d 1472, 1475 (11th Cir.1986) (“The filing of a notice of

  appeal normally divests the district court of jurisdiction over matters concerned in the appeal and

  transfers jurisdiction over those matters to the court of appeals.”).

          The general requirement that the first-filed case must be pending in a court of equal rank

  is not just a technicality. It assures that transfer decisions will be based upon concern for judicial

  economy issues instead of an effort to bind one federal court to another federal court’s final

  judgment. The first-to-file rule “is not meant to bind a party to a prior judgment; rather, the rule

  merely determines which court is the most appropriate venue.”                  See Jackson v. Rhino

  Entertainment Company, 2017 WL 8232807 (C.D. Cal. Feb. 22, 2019), at *5 (internal quotations

  omitted); see also Cadle Co. v. Whataburger of Alice, 174 F.3d 599, 603–04 (5th Cir. 1999)




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  (comparing collateral estoppel and the first-to-file rule and noting that under the first-to-file rule,

  the second-filed court “is not binding the litigants before it to a ruling of the first[-filed court]”).

          Jackson v. Rhino involved a transfer request practically identical to Treasury’s request

  here. In Jackson the District Court for the Central District of California rejected a request to

  transfer to the Southern District of New York under the first-to-file rule because the first-filed case

  had been appealed to the U.S. Court of Appeals for the Second Circuit and, thus, was no longer

  pending in the Southern District. See Jackson, 2017 WL 8232807. The court held that where “the

  first-filed case is no longer pending before another district court, it appears that the first-to-file rule

  has no application.” Id. at *5. The first-to-file rule similarly has no application in the present case,

  because there is no pending case in a court of equal rank.1

          In a footnote, Treasury cites Clinton v. Sec. Ben. Life Ins. Co., 2020 U.S. Dist. LEXIS

  42910 (S.D. Fla. Mar. 12, 2020), for its assertion that “the first-to-file [rule] still applies when the

  first-filed case is on appeal.” Defs’ Br. at 7 n. 7. But Treasury mischaracterizes the holding of the

  Clinton case. In Clinton, the magistrate judge refused to grant a stay under the first-to-file rule

  because the first-filed case was pending in the Tenth Circuit Court of Appeals, not in another

  District Court of equal rank. Id. at *10.2 The Clinton court confirmed that the first-to-file rule

  generally applies only when there are two pending federal District Court actions. Id. at *7. Clinton

  did state that a District Court has authority to make an exception to this general approach and apply

  the rule, in the interests of comity, even if a first-filed case is pending in an appellate court. Id.



          1
           In reaching its conclusion, the court noted that the “inapplicability of the first-to-file rule is made
  apparent by the fact that the court lacks the ability to transfer the action to the Second Circuit” because 28
  U.S.C. § 1404(a) only allows transfer to another “district or division where it may have been brought.” See
  Jackson, n. 4.
          2
           The cases Clinton “collects” fare no better—not a single case affirmatively supports Treasury’s
  statement or allows a transfer from a district court because of a similar case on appeal.

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Case 1:20-cv-23182-KMW Document 19 Entered on FLSD Docket 09/28/2020 Page 5 of 9



  But Clinton refused to apply the exception due to uncertainty over how long the first-filed case

  would be pending in the appellate court and uncertainty regarding how the appellate court would

  rule. Id. at *9. The court found that the request for a stay under the first-to-file rule was not

  compelling because, “unlike most cases where there are two pending district court cases, there is

  uncertainty as to how the [first filed] action (if it survives at all) will proceed if the Tenth Circuit

  reversed the district court’s dismissal order.” Id. at. *9-10. And the court held that rather than

  waiting on a decision from the Tenth Circuit, the matter should be “litigated in the interim.” See

  id. at *10.

          The same reasoning applies here. The Shawnee case is no longer pending in the D.C.

  District Court as the plaintiff in that matter filed its notice of appeal on September 15, 2020. See

  Exh. 1). This Court cannot predict how or when the Shawnee appeal will be resolved. As the

  Court noted in Clinton, under such circumstances, the “most prudent course” is for this case to

  proceed where the plaintiff filed. See id.

                  2. Defendant’s request to transfer constitutes forum shopping.

          In the alternative, even if this case satisfied the elements of the first-to-file rule, the Court

  should exercise its discretion to deny transfer. “[The] party objecting to jurisdiction in the first-

  filed forum has the burden of demonstrating that compelling circumstances support an exception

  to the first-to-file rule.” Pena v. Heath, 2019 U.S. Dist. LEXIS 153764, at *8 (S.D. Fla. September

  10, 2019). Compelling circumstances traditionally include forum shopping, bad faith negotiations,

  and the filing of an anticipatory lawsuit. See id. However, “these are not the only instances where

  a court could find compelling circumstances.” Id. Indeed, “[t]he first to file rule is not meant to

  be rigid or inflexible and should be applied in a manner that best serves the interests of justice. Id.

  (citing Zampa v. JUUL Labs, Inc., 2019 U.S. Dist. LEXIS 68556 (S.D. Fla. Apr. 23, 2019)).



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Case 1:20-cv-23182-KMW Document 19 Entered on FLSD Docket 09/28/2020 Page 6 of 9



          Treasury’s effort to transfer constitutes forum shopping, thus justifying an exception to the

  first-to-file rule. Prior to filing its complaint, the Miccosukee Tribe spent months lobbying U.S.

  officials to correct errors in the Tribe’s CARES Act distribution. Only after those efforts proved

  unsuccessful did the Tribe file its lawsuit. And when it filed its lawsuit on July 31, 2020, it did so

  in the Federal judicial district in which it resides, the Southern District of Florida. The Justice

  Department was served with the Tribe’s complaint by August 10, 2020. See Dkt. # 6. Although

  it could have sought a transfer to the D.C. District Court at any time after being served, Treasury

  did not do so until September 25, 2020 – six weeks after being served. Tellingly, Treasury did not

  seek a transfer until after the D.C. District Court ruled in its favor and dismissed the Shawnee Tribe

  matter on September 10, 2020. See Shawnee Tribe v. Mnuchin, et al., Case No. 1:20-cv-01999-

  APM, Dkt. # 48 (Sept. 10, 2020). Shawnee Tribe is the first-filed case that, according to Treasury,

  justifies transfer to the D.C. District Court. Thus, Treasury waited six weeks to seek a transfer and

  only did so after the transferee court ruled in its favor.

          The foregoing chronology undermines Treasury’s assertion that the Tribe engaged in forum

  shopping—by filing its complaint in its home district—and supports the contention that Treasury

  is now engaged in forum shopping. In Shawnee, there is nothing left for the D.C. District Court

  to consider. Thus, there is no opportunity for consolidation and the requested transfer will not

  conserve judicial resources. Thus, the only plausible reason for the requested transfer is Treasury’s

  desire to gain the benefit of the D.C. District Court’s prior ruling in Shawnee.

          Contrary to Treasury’s assertions, and as explained in the Tribe’s reply to Treasury’s

  opposition to its motion for preliminary injunction, the timing of the Tribe’s complaint and motion

  are not suspect. Rather, the Tribe’s timing was dictated by its responsible approach to resolving

  this dispute and the progress of the expedited appeal in the Confederated Tribes matter which



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Case 1:20-cv-23182-KMW Document 19 Entered on FLSD Docket 09/28/2020 Page 7 of 9



  created the possibility that funds available to satisfy a judgment would be disbursed suddenly. See

  Plaintiff’s Reply, Dkt # 18, pp. 9-10. Contrary to Treasury’s assertion, the Tribe is not seeking a

  “third bite at the apple.” Rather, the Tribe is seeking relief for the first time. Thus, compelling

  circumstances justify an exception to the first-to-file rule, and the Tribe’s choice of forum should

  not be disturbed. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (“[U]nless the balance

  is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”);

  In re Ricoh, 870 F.2d 570, 573 (11th Cir. 1989) (“The federal courts traditionally have accorded a

  plaintiff's choice of forum considerable deference.”).

         B.      Transfer under 28 U.S.C. § 1404(a) is Unwarranted Because Each Factor
                 Counsels in Favor of Keeping the Case in this Court.

         Transfer also is not warranted under the federal venue statute, 28 U.S.C. § 1404. Courts

  may transfer a case “for the convenience of parties and witnesses” and “in the interest of justice”

  to “any other district or division where [the case] might have been brought.” 28 U.S.C. § 1404(a).

  In determining whether “the balance of justice and convenience” favors transfer, the Eleventh

  Circuit weighs “(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 a totality of the circumstances.” Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1

  (11th Cir. 2005).

         These factors weigh against transfer to the D.C. District Court. First, this case—like other

  APA cases—will not require a trial, witnesses, discovery, or documents that cannot be exchanged

  electronically. That means factors 1-5 and 9 cannot weigh against Plaintiff’s choice of forum.


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Case 1:20-cv-23182-KMW Document 19 Entered on FLSD Docket 09/28/2020 Page 8 of 9



  Second, The Miccosukee Tribe elected to file this case in the Southern District of Florida because

  that is where the Tribe is based. A Plaintiff’s choice of forum is afforded a great deal of deference.

  See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (“[U]nless the balance is strongly in favor

  of the defendant, the plaintiff's choice of forum should rarely be disturbed.”). Third, the relative

  means of each party also tips in favor of the Tribe. While Treasury has virtually unlimited

  resources, COVID-19 has had a significant financial impact on the Tribe.

         Treasury hangs its hat on the assertion that familiarity with governing law and “efficiency”

  weigh in favor of transferring this case to the District of Columbia. The D.C. District Court’s prior

  exposure to the law in different cases involving similar claims does not outweigh all of other

  factors discussed above. In addition, Treasury misconstrues the governing law prong, which

  typically prevents federal courts from interpreting state law in jurisdictions where the federal court

  does not sit. See e.g. MC Asset Recovery v. S. Co., 2008 U.S. Dist. LEXIS 123609, at *26 (N.D.

  Ga. Apr. 1, 2008); Fruitstone v. Spartan Race Inc., 2020 U.S. Dist. LEXIS 93682, at *26 (S.D.

  Fla. May 28, 2020); Harris v. Lawson, 2008 U.S. Dist. LEXIS 78808, at *11–12 (M.D. Ga. Aug.

  27, 2008). There is no requirement that a single federal judge must resolve every claim under a

  single federal statute. This Court should deny the motion to transfer.

              Respectfully submitted, this 28th day of September, 2020.


                                           /s/ George B. Abney
                                           George B. Abney
                                           Daniel F. Diffley (admitted pro hac vice)
                                           ALSTON & BIRD LLP
                                           One Atlantic Center
                                           1201 West Peachtree Street
                                           Atlanta, Georgia 30309-3424
                                           (404) 881-7000 (telephone)
                                           (404) 881-4777 (facsimile)
                                           E-mail: George.Abney@alston.com



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Case 1:20-cv-23182-KMW Document 19 Entered on FLSD Docket 09/28/2020 Page 9 of 9



                                Daniel G. Jarcho (admitted pro hac vice)
                                ALSTON & BIRD LLP
                                950 F Street, N.W.
                                Washington, DC 20004-1404
                                (202) 239-3300 (telephone)
                                (202) 239-3333 (facsimile)
                                E-mail: Daniel.Jarcho@alston.com




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