Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MP VISTA, INC., HABIB PETROLEUM, WARREN'S SHELL, INC., INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED VERSUS MOTIVA ENTERPRISES, LLC AND SHELL OIL COMPANY ANSWERING BRIEF IN OPPOSITION TO MOTION TO TRANSFER Mr. Morton Kimmel, Esq. DE Bar Roll No. 132 Mr. Michael Bednash DE Bar Roll No. 2948 Kimmel Carter 200 Biddle Avenue Springside Plaza, Suite 101 Newark, DE 19702 Phone: 302-392-2000 André P. LaPlace 2762 Continental Drive, Ste 103 Baton Rouge, Louisiana 70808 Telephone No.: (225) 924-6898 LA Bar Roll Number: 8039 NO. 1:07-CV-00099-***

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TABLE OF CONTENTS Table of Citation and Authorities Statement of the Nature and Stage of Proceeding Summary of Argument Statement of Facts Argument 1. The defendants have failed to persuade that the public and private interests underlying the Motion to Transfer Venue to the Eastern District of Louisiana strongly weigh in favor of disturbing the plaintiffs' choice of forum. Conclusion Certificate of Service 11 11 3 4 5 6 7

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TABLE OF CITATIONS AND AUTHORITIES Cases Affymetrix, Inc. v. Synteni, Inc., 28 Supp.2d 192, 197-201 (D.Del. 1998) Bering Diagnostics GMBH, Inc. v. Biosite Diagnostics, Inc., 1998 WL 24354 (D.Del. 1998) Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) Motorola v. P-C TPL, Inc. and Altocom, Inc., 58 F. Supp. 2d 349 (D. Del. 1999) Shutte v. Armco Steel Corp.,, 431 F.2d 22, 25 (3rd Cir. 1970) cert denied 401 US 901, 91 S.Ct. 871, 271 L.Ed. 2d 808 (1971) Waste Distillation Technology, Inc. v. Pan American Resources, Inc., 775 F.Supp. 759 (D. Del. 1991) Statutes 28 USC § 1332 28 USC § 1404(a) TREATISE 15 WRIGHT MILLER COOPER 3854 7, 8 4 4, 7 9 8 7,8 8,9 7 7

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STATEMENT OF THE NATURE AND STAGE OF PROCEEDINGS The plaintiffs filed a class action complaint on February 21, 2007 naming Motiva Enterprises LLC ("Motiva") and Shell Oil Company ("Shell") as defendants (Docket Item ["D.I."]1). The basis of subject matter jurisdiction is the diversity of the parties as required by 28 USC 1332. (i.d. at para. III). The defendants, after answering, filed a Motion to Transfer Venue to the Eastern District of Louisiana pursuant to 28 USC 1404(a). (D.I.8.)

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SUMMARY OF ARGUMENT 1. The defendants have failed to persuade that the public and private interests underlying the Motion to Transfer Venue to the Eastern District of Louisiana strongly weigh in favor of disturbing the plaintiffs' choice of forum.

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STATEMENT OF THE FACTS The facts giving rise to the litigation between the parties in this case, are not in dispute. (App.1) The plaintiffs, MP Vista, Inc., Habib Petroleum and Warren's Shell, Inc. are South Florida corporations who operate convenience stores with fuel pumps that sell gasoline provided by Motiva under predominantly the Shell or Texaco brands. (App. 25). On June 17, 2004 in a communiqué from Houston, Texas, the defendants conceded to its retail channel partners [a term of art for its downstream fuel customers] that they would "be receiving compensation to help with the hardship resulting from this temporary interruption of your business. (App. 6) In discovery response to the prior litigation in the Eastern District of Louisiana, Motiva and Shell Responded: "Motiva admits that some quantities of gasoline processed during May 2004 and delivered to the service stations, . . . may damage the fuel sending units of certain makes and models." (App. 7-8)." On June 1, 2004, a New Orleans "retail channel partner" filed a Class Action Petition for Damages with the 24th Judicial District Court in Jefferson Parish Louisiana. (App. 9-12). The evolution of the claims against Motiva and Shell are understood by comparing the initial state court petition with the complaint filed in this Honorable Court. (D.I. 1). The plaintiffs note that the Liberty Shell, Inc. Motion for Class Certification was denied without prejudice. (App. 13). The defendants herein admitted in their answer that jurisdiction and venue are proper in this district. (D.I. 7 at paras. 3 and 4). The class representatives' businesses and records are located in South Florida. The contaminated fuel was refined in Louisiana, Shell and Motiva are incorporated and domiciled in Wilmington, Delaware with their principal places of business in Houston, Texas. The putative class consists of 875 retail branded outlets, with the overwhelming number of businesses being located in South Florida.

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ARGUMENT 28 USC 1404(a) provides: "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The burden of proof falls on the movant to show the convenience of the parties and the witnesses, as well as the interests of justice weigh in favor of transfer. See Waste Distillation Technology, Inc. v. PanAmerican Resources, Inc., 775 F.Supp. 759, 762 (D. Del. 1991) ("transfer is not to be liberally granted.") and Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3rd Cir. 1970) cert denied 401 US 901, 91 S.Ct. 871, 271 L.Ed. 2d 808 (1971) (the balance of convenience must be strongly in favor of the movant). In Jumara v. State Farm Ins. Co., 55 F.3d 873 (3rd Cir. 1995), this circuit, in concluding the plaintiff's choice of forum should not be "lightly disturbed", set forth expanded criteria for determining a motion to transfer. The court wrote: In ruling on § 1404(a) motions, courts have not limited their consideration to the three enumerated factors in § 1404(a) (convenience of parties, convenience of witnesses, or interests of justice), and, indeed, commentators have called on the courts to "consider all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." 15. WRIGHT, MILLER & COOPER § 3847. While there is no definitive formula or list of the factors to consider, see 1A Pt. 2 MOORE's para. 0.345[5], at 4363, courts have considered many variants of the private and public interests protected by the language of § 1404(a). The private interests have included: plaintiff's forum preference as manifested in the original choice, 1A PT. 2 MOORE'S, para. 0.345[5], at 4363; the defendant's preference, 15 WRIGHT, MILLER & COOPER § 3848, at 385; whether the claim arose elsewhere, id. § 3848; the convenience of the parties as indicated by their relative physical and financial condition, id. § 3849, at 408; the convenience of the witnesses ­ but only to the extent that the witnesses may actually be unavailable for trial in one of the fora, id. § 3851, at 420-22; and the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum), id. § 3853. The public interests have included: the enforceability of the judgment, 1A, PT. 2 MOORE'S para. 0.345[5], at 4367; practical considerations that could make the trial easy, expeditious, or inexpensive, id.; at 4373; 15. WRIGHT, MILLER & COOPER § 3854; the local interest in deciding 7

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local controversies at home, 1A PT. 2 MOORE'S para. 0.345[5], at 4374; the public policies of the for a, see 15 WRIGHT, MILLER & COOPER § 3854; and the familiarity of the trial judge with the applicable state law in diversity cases, id. The opening brief of Motiva and Shell [D.I. 9 at p. 6] in support of their Motion to Transfer addressed eight of the eleven Jumara criteria. Turning to the public and private interests considered by Shell and Motiva, the plaintiffs answer as follows: 1. 2. 3. 4. The plaintiffs' initial choice of forum is Delaware. The defendants' choice of forum is the District of Eastern Louisiana. The claims arose where the damages occurred, i.e., Miami, Florida, in the case of the three putative class representatives. Shell and Motiva chose to be incorporated in Delaware and maintain their principal places of business in Houston, Texas. It seems counter-intuitive to suggest that it is inconvenient for them to litigate in Delaware. [NOTE: ". . .the relative economic burden [of] litigating in Delaware is minimal." Bering Diagnostics GMBH, Inc. v. Biosite Diagnosticsw, Inc., 1998 WL 24354 (D.Del. 1998)] 5. 6. The locations of witnesses and evidence in this case range from Miami, Florida to Houston, Texas. When analyzing practical considerations the plaintiffs respectfully suggest the Eastern District of Louisiana, situated in New Orleans, LA, offers poor infrastructure, post-Katrina violence and other issues which make it ill-suited as a convenient forum. 7. The jurors in the forum State of Delaware should have a local interest in the multi-national corporations, Shell and Motiva, that have availed themselves of this State's corporate laws/regulations. 8. In that the choice of law issues in this case entail merely warranty and negligence claims, and Motiva admits it made contaminated fuel, any application of Louisiana and/or Florida law will be straight forward and noncomplex. This District in Motorola v. P-C TPL, Inc. and Altocom, Inc. 58 F. Supp. 2d 349 (D. Del. 1999) addressed private interest issues similar to those underlying the instant inquiry 8

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and denied a Motion to Transfer to the Northern District of California. The plaintiff had originally filed suit against the defendants in Massachusetts but dismissed and refiled in Delaware although both defendants had their corporate headquarters in Northern California. The court, citing Affymetrix, Inc. v. Synteni, Inc., 28 F.Supp.2d 192, 197-201 (D. Del. 1998), reiterated that: . . . regardless of whether or not a plaintiff is suing on its "home turf" its choice of forum receives "paramount" consideration. Id. at 200. As a result, the court can only disturb this choice if the defendant shows that "the balance of convenience tips strongly in favor of transfer." See id. at 200. In Motorola court acknowledged the geographical inconvenience of Delaware for the Northern California defendant, but suggested because of its resources, interests, activities and markets which extended beyond Northern California, it could "shoulder the burden of litigation in Delaware." The court in language applicable to Motiva and Shell, because they also stumble when attempting to explain the supposed burden of litigating in this forum, said about the defendant, that: As a result, AltoCom cannot reasonably complain about the particular and unique problems that a smaller, local business might have in defending itself in this forum. See Affymetrix, 28 F.Supp.2d at 202 (citing WesleyJessen Corp v. Pilikington Corporation with fairly substantial interests that operates in the national and international marketplace. See Id. (citing same). Moreover, it has developed its business in anticipation of doing business around the country and the globe. See Id. (citing same). Consequently, AltoCom must be able to identify some unique or unexpected burden associated with defending this action that militates in favor of transfer. The District Court also observed that technological advances in communications reduce the costs of litigating in a "distant forum." Like Motiva, the defendant in the Motorola case only made a general non-specific complaint about witness availability which provoked this district to write: As a result, AltoCom cannot reasonably complain about the particular and unique problems that a smaller, local business might have in defending itself in this forum. See Affymetrix, 28 F.Supp.2d at 202 (citing WesleyJessen Corp v. Pilkington Visioncare, Inc., 157 F.R.D. 215, 218 (D.Del. 1993) Instead, while, small, AltoCom is a corporation with fairly substantial interests that operates in the national and international marketplace. See Id. (citing same). Moreover, it has developed its 9

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business in anticipation of doing business around the country and the globe. See Id. (citing same). Consequently, AltoCom must be able to identify some unique or unexpected burden associated with defending this action that militates in favor of transfer. The District Court also observed that technological advances in communications reduce the costs of litigating in a "distant forum." Like Motiva, the defendant in the Motorola case only muster a general non-specific complaint about witness availability which caused this court to previously write: However, "[g]iven the lack of specificity with which these individuals are identified and the [total] absence of adequate information with respect to the content and materiality of their testimony, the court affords them no weight in its balancing tests. See Affymetrix, 28 F.Supp.2d at 205 (citing, inter alia, United Airlines v. United States, 192 F.Supp. 795, 796 (D.Del. 1959). The defendants public interest argument also fails to persuade because Judge Lemelle's prior ruling on class certification was without prejudice so that Motiva and Shell's expressed concern over inconsistent results in different forums appear dramatically over emphasized. Likewise, the choice of law questions presented by this cause are non-complex applications of generic warranty and negligence claims. Finally, in the context of this forum's local interest, the plaintiffs note that the citizens of Delaware have a serious public interest in controlling the conduct of multi-national mega corporations which seek to avail themselves of Delaware's benefits but avoid the operation of its court system.

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CONCLUSION The plaintiffs, MP Vista, Inc., Habib Petroleum, Warren's Shell, Inc., Individually And On Behalf Of Those Similarly Situated respectfully conclude that the defendants Motiva and Shell have not met their collective burden to establish that the public and private interest underlying the § 1404 transfer balance strongly in their favor. Therefore, the defendants' Motion to Transfer Venue should be denied. Respectfully submitted: /s/Michael Bednash ______________________________ Mr. Morton Kimmel, Esq. DE Bar Roll No. 132 Mr. Michael Bednash DE Bar Roll No. 2498 Kimmel Carter 200 Biddle Avenue Springside Plaza, Suite 101 Newark, DE 19702 Phone: 302-392-2000 André P. LaPlace 2762 Continental Drive, Ste 103 Baton Rouge, Louisiana 70808 Telephone No.: (225) 924-6898 LA Bar Roll Number: 8039

CERTIFICATE I hereby certify that on March 29, 2007, a copy of the foregoing Memorandum was electronically filed with the Clerk of Court using CM/ECF system. Notice of this filing will be sent to all counsel of record by operation of the court's electronic filing system.

_/s/Michael Bednash_________ Michael Bednash

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MP VISTA, INC., HABIB PETROLEUM, WARREN'S SHELL, INC., INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED VERSUS MOTIVA ENTERPRISES, LLC AND SHELL OIL COMPANY NO. 1:07-CV-00099-***

APPENDIX TO PLAINTIFFS' ANSWERING BRIEF IN OPPOSITION TO MOTION TO TRANSFER Mr. Morton Kimmel, Esq. DE Bar Roll No. 132 Mr. Michael Bednash DE Bar Roll No. 2948 Kimmel Carter 200 Biddle Avenue Springside Plaza, Suite 101 Newark, DE 19702 Phone: 302-392-2000 DE Bar Roll No. 2948 André P. LaPlace 2762 Continental Drive, Ste 103 Baton Rouge, Louisiana 70808 Telephone No.: (225) 924-6898 LA Bar Roll Number: 8039

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MP VISTA, INC., HABIB PETROLEUM, WARREN'S SHELL, INC., INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED VERSUS MOTIVA ENTERPRISES, LLC AND SHELL OIL COMPANY NO. 1:07-CV-00099-***

TABLE OF CONTENTS TO APPENDIX B-1 B-2 B-4 B-6 B-7 B-9 B-13 Photograph ­ Miami Herald Consumer Advisory 5/2/7/04 Media Update 5/28/04 Motiva/Shell Directive 6/17/04 Defendants' Response to Request for Admissions 10/8/04 Class Acton Petition for Damages 6/1/04 Minute Entry 7/26/04

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