DISTRICT COURT OF THE VIRGIN ISLANDS 
DIVISION OF ST. CROIX 
 
MING YANG, Individually and on Behalf of  
) 
All Others Similarly Situated, 
 
 
) 
Civil Action No. 2012-054 
 
 
 
 
 
 
 
) 
 
 
 
 
Plaintiffs, 
 
) 
 
 
 
 
 
 
 
) 
v.  
 
 
 
 
)  
 
) 
TIBET PHARMACEUTICALS, INC., HONG 
) 
YU, TAYLOR Z. GUO, SABRINA Y. REN,  
) 
WENBO CHEN, YOUHANG PEN,  
 
) 
SOLOMON CHEN, ANDERSON &  
 
) 
STRUDWICK, INC., STERNE AGEE 
 
) 
GROUP, INC., HAYDEN ZOU, and  
 
) 
L. MCCARTHY DOWNS III, 
 
 
)  
 
 
 
 
 
 
 
)  
 
 
 
 
Defendants.  
) 
__________________________________________) 
) 
ROBIN JOACHIM DARTELL, Individually 
) 
And on Behalf of All Others Similarly Situated, ) 
Civil Action No. 2012-089 
) 
 
 
 
 
Plaintiffs, 
 
) 
) 
 
 
v. 
 
 
 
 
) 
) 
TIBET PHARMACEUTICALS, INC., HONG 
) 
YU, TAYLOR Z. GUO, SABRINA Y. REN,  
) 
WENBO CHEN, YOUHANG PEN,  
 
) 
SOLOMON CHEN, ANDERSON &  
 
) 
STRUDWICK, INC., STERNE AGEE 
 
) 
GROUP, INC., HAYDEN ZOU,  
 
 
) 
L. MCCARTHY DOWNS III, and  
 
) 
ACQUAVELLA, CHIARELLI, SHUSTER, 
) 
BERKOWER & CO. LLP,  
 
 
) 
 
 
 
) 
 
 
 
 
Defendants.  
) 
__________________________________________) 
 
 
 
 
 
 
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Attorneys: 
Joel H. Holt, Esq., 
St. Croix, U.S.V.I. 
Laurence M. Rosen, Esq., 
Phillip Kim, Esq., 
New York, NY 
 
For the Plaintiffs 
 
Lisa Michelle Komives, Esq., 
St. Thomas, U.S.V.I. 
Carl S. Burkhalter, Esq., 
Birmingham, AL 
For Defendant Sterne Agee Group, Inc.  
 
Gregory H. Hodges, Esq., 
St. Thomas, U.S.V.I. 
Israel Dahan, Esq., 
New York, NY 
 
For Defendant Hayden Zou 
 
A. Neil Hartzell, Esq., 
Boston, MA 
Christopher Allen Kroblin, Esq., 
St. Thomas, U.S.V.I. 
 
For Defendant L. McCarthy Downs III 
 
Michael J. Sanford, Esq., 
St. Croix, U.S.V.I. 
Peter Larkin, Esq., 
William J. Kelly, Esq., 
White Plains, NY 
 
For Defendant Acquavella, Chiarelli, Shuster, Berkower & Co., LLP 
  
MEMORANDUM OPINION 
THIS MATTER comes before the Court on the respective Motions requesting dismissal 
for improper venue or, in the alternative, transfer, filed by Defendants Sterne Agee Group, Inc.; 
L. McCarthy Downs III; Acquavella, Chiarelli, Shuster, Berkower & Co. LLP; and Hayden Zou 
(1:12-cv-00054, Dkt. Nos. 40, 42, 43; 1:12-cv-00089, Dkt. No. 55); Plaintiffs’ Opposition to all 
four Motions (1:12-cv-00054, Dkt. No. 47; 1:12-cv-00089, Dkt. No. 58); Defendants’ respective 
Replies (1:12-cv-00054, Dkt. Nos. 54–57; 1:12-cv-00089, Dkt. Nos. 61–64); and Plaintiffs’ 
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“Notice of Withdrawal of Opposition to Motions to Change Venue and Request to Transfer the 
Action to the United States District Court for the District of New Jersey” (1:12-cv-00054, Dkt. 
No. 64; 1:12-cv-00089, Dkt. No. 68). 
I.  BACKGROUND 
 
By Complaint filed on May 25, 2012, Plaintiff Ming Yang initiated a federal securities 
class action lawsuit in the District Court of the Virgin Islands against Tibet Pharmaceuticals, Inc. 
(“Tibet”), several of Tibet’s directors and officers, and various other entities and individuals, 
alleging improprieties related to Tibet’s Initial Public Offering (“IPO”). (1:12-cv-00054, Dkt. 
No. 1). Plaintiff Robin Joachim Dartell filed a nearly identical class action against Tibet on 
August 31, 2012. (1:12-cv-00089, Dkt. No. 1). The two cases were consolidated on January 9, 
2013 (1:12-cv-00054, Dkt. No. 28; 1:12-cv-00089, Dkt. No. 36) and a “Consolidated Amended 
Class Action Complaint” was filed on May 1, 2013 (1:12-cv-00054, Dkt. No. 37; 1:12-cv-00089, 
Dkt. No. 50). 
The other named Defendants are Anderson & Strudwick, Inc. (A&S), a corporation that 
allegedly underwrote Tibet’s IPO (1:12-cv-00054, Dkt. No. 37 at ¶¶ 2, 32); Sterne Agee Group, 
Inc. (“SAG”), a financial holding company that allegedly acquired A&S and assumed all of its 
assets and liabilities (id. at ¶ 33); L. McCarthy Downs (“Downs”) and Hayden Zou (“Zou”), both 
of whom allegedly served A&S as designated observers to Tibet’s Board of Directors in 
connection with the IPO (id. at ¶¶ 35–36); and Acquavella, Chiarelli, Shuster, Berkower & Co. 
LLP (“Acquavella”), an accounting firm that allegedly produced an audit opinion that was used 
in Tibet’s registration statement and prospectus for the IPO (id. at ¶¶ 38–39).  
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Tibet is allegedly a British Virgin Islands corporation with its principal place of business 
in China. (1:12-cv-00054, Dkt. No. 47 at 2). Tibet, its named directors and officers, and A&S 
have never appeared in this action.  
SAG is a Delaware Corporation with its principal place of business in Alabama. (1:12-cv-
00054, Dkt. No. 12-2; Dkt. No. 37 at ¶ 33). Zou is a resident of China. (1:12-cv-00089, Dkt. No. 
50 at ¶ 36; Dkt. No. 54 at 4). Acquavella is a limited liability partnership formed under the laws 
of New Jersey with offices in both New Jersey and New York. (1:12-cv-00089, Dkt. No. 50 at ¶ 
38; Dkt. No. 56-2 at 124). Downs’ citizenship has not been alleged. 
On June 17, 2013, the four Defendants that have appeared in this action—SAG, Zou, 
Acquavella, and Downs (collectively “Movants”), filed their respective Motions requesting 
dismissal for improper venue or, in the alternative, transfer. (1:12-cv-00054, Dkt. Nos. 40, 42 & 
43; 1:12-cv-00089, Dkt. No. 55). Plaintiffs opposed the Motions, arguing that venue in the 
District of the Virgin Islands is proper, but that if the Court finds otherwise, the action should be 
transferred to the District of New Jersey rather than dismissed. (1:12-cv-00054, Dkt. No. 47; 
1:12-cv-00089, Dkt. No. 58).  
All of the Movants noted in their Reply briefs that they would not object to transferring 
the action to the District of New Jersey if the Court does not dismiss the action. (1:12-cv-00054, 
Dkt. No. 54 at 8; Dkt. No. 55 at 4; Dkt. No. 56 at 4 n.4; Dkt. No. 57 at 4). On February 18, 2014, 
Plaintiffs filed a “Notice of Withdrawal of Opposition to Motions to Change Venue and Request 
to Transfer the Action to the United States District Court for the District of New Jersey” (“Notice 
of Withdrawal”), in which they maintained their position that venue in the District of the Virgin 
Islands is proper, but withdrew their opposition to transfer, and requested that the Court transfer 
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the action to the District of New Jersey. (1:12-cv-00054, Dkt. No. 64; 1:12-cv-00089, Dkt. No. 
68).  
  
II.  DISCUSSION 
In their respective papers, the Movants argue that the Court should dismiss the action for 
improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3), but in the alternative, they 
do not object to a transfer to the District of New Jersey if the Court does not dismiss the action. 
In their Notice of Withdrawal, Plaintiffs request that the Court transfer the action to the District 
of New Jersey pursuant to 28 U.S.C. § 1404(a).  
As explained below, even assuming, arguendo, that the District of the Virgin Islands is 
an improper forum for this action, dismissal would be inappropriate and the Court would order 
the action transferred. For the reasons that follow, the Court will grant in part and deny in part 
Defendants’ Motions and transfer this action to the District of New Jersey pursuant to 28 U.S.C. 
§ 1404(a). 
A. 
28 U.S.C. § 1406(a) 
Pursuant to 28 U.S.C. § 1406(a), if a case is filed “laying venue in the wrong division or 
district,” then the district court shall either dismiss the case, “or if it be in the interest of justice, 
transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 
1406(a). Here, dismissal would likely preclude Plaintiffs from litigating their claim in any forum, 
given that the statute of limitations is one year from “discovery of the untrue statement or 
omission.” 15 U.S.C. § 77m.  
The Supreme Court has acknowledged that the preservation of a claim errantly filed in an 
improper forum—that would be precluded under the applicable statute of limitations if 
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dismissed—is one of section 1406(a)’s “interest of justice” rationales supporting transfer over 
dismissal: 
When a lawsuit is filed, that filing shows a desire on the part of the plaintiff to 
begin his case and thereby toll whatever statutes of limitation would otherwise 
apply. The filing itself shows the proper diligence on the part of the plaintiff 
which such statutes of limitation were intended to insure. If by reason of the 
uncertainties of proper venue a mistake is made, Congress, by the enactment of § 
1406(a) recognized that “the interest of justice” may require that the complaint 
not be dismissed but rather that it be transferred in order that the plaintiff not be 
penalized by what the late Judge Parker aptly characterized as “time-consuming 
and justice-defeating technicalities.” 
 
Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466–67 (1962). The Goldlawr Court further noted that 
“[t]he problem which gave rise to the enactment of [§ 1406(a)] was that of avoiding the injustice 
which had often resulted to Plaintiffs from dismissal of their actions merely because they had 
made an erroneous guess with regard to the existence of some elusive fact of the kind upon 
which venue provisions often turn.” Id. at 466.  
Plaintiffs argue that venue is proper in the District of the Virgin Islands with regard to all 
Defendants under the co-conspirator theory of venue because it is proper with regard to Tibet, as 
a non-resident. See 28 U.S.C. § 1391(c)(3) (“[A] defendant not resident in the United States may 
be sued in any judicial district . . . .”). Plaintiffs brought the suit in the District of the Virgin 
Islands because it is “the district that is closest to Tibet’s domicile”—the British Virgin Islands. 
(See 1:12-cv-00054, Dkt. No. 47 at 2).  
Even assuming, arguendo, that Movants are correct and that venue in the District of the 
Virgin Islands is improper, Plaintiffs’ rationale for filing in this district is the kind of 
“uncertaint[y] of proper venue” or “erroneous guess with regard to . . . elusive [venue] facts” that 
should not preclude Plaintiffs from having their claims heard in a proper venue. Goldlawr, 369 
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U.S. at 466. To hold otherwise would be to discard the “interest of justice” rationale underlying 
section 1406(a) transfers.  
Thus, if the Court were to find that venue in the District of the Virgin Islands is improper, 
the Court would transfer the action, in the interest of justice, rather than dismiss it. Accordingly, 
the Court will deny Defendants’ Motions to the extent that they request dismissal for improper 
venue.  
B. 
28 U.S.C. § 1404(a)  
Title 28 U.S.C. § 1404(a) provides that “[f]or 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.” 28 U.S.C. § 1404(a). With regard to the convenience of the parties, the convenience 
of the witnesses, and the interest of justice, the Third Circuit has noted several factors which 
“may be relevant to transfer of venue” under section 1404(a): 
(1) the plaintiff’s choice of forum; (2) the defendant’s choice of forum; (3) where 
the claim arose; (4) “convenience of the parties as indicated by their relative 
physical and financial conditions”; (5) “the convenience of the witnesses—but 
only to the extent that the witnesses may actually be unavailable for trial in one of 
the fora”; (6) the location of books and records; (7) the enforceability of the 
judgment; (8) practical considerations that could expedite or simplify trial; (9) the 
level of court congestion in the two fora; (10) “the local interest in deciding local 
controversies at home”; (11) the public policies of the fora; and (12) in a diversity 
case, the familiarity of the two courts with state law. 
 
In re Amendt, 169 F. App’x 93, 96 (3d Cir. 2006) (citing Jumara v. State Farm Ins. Co., 55 F.3d 
873, 879–80 (3d Cir. 1995)).  
Plaintiffs argue in their Notice of Withdrawal that: 
The District of New Jersey is a suitable venue because it is the location of the 
headquarters of Acquavella, the defendant audit firm who audited Tibet’s 
financial statements included in its offering material. The District of New Jersey 
is also in close proximity to Lead Counsel for Plaintiffs and the Class, who 
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maintains an office in the District of New Jersey, and is within the Third Circuit, 
where the action is currently pending.  
 
In their respective replies in further support of their Venue Motions, all of the 
Movants stated that they would not object to transferring the Action to the District of 
New Jersey.  
 
(1:12-cv-00054, Dkt. No. 68 at 3).  
 
Upon consideration of the relevant factors listed above—particularly the plaintiffs’ and 
defendants’ forum choices, and the inconvenience to the parties and witnesses of litigating in the 
District of the Virgin Islands, given its remote location—the Court finds that transferring the 
action to the District of New Jersey would be “[f]or for the convenience of the parties and 
witnesses” and “in the interest of justice” under section 1404(a). Further, as noted, all of the 
parties that have appeared in this action consent to transfer to the District of New Jersey. 
Accordingly, the Court will grant Defendants’ Motions, to the extent that they request transfer, 
and will transfer this action to the District of New Jersey. 
III.  CONCLUSION 
For the foregoing reasons, the Court will not dismiss this action for improper venue, but 
will transfer the action to the District of New Jersey, pursuant to 28 U.S.C. § 1404(a). An 
appropriate Order accompanies this Memorandum Opinion. 
SO ORDERED. 
Date: May 1, 2014 
 
 
 
 
________/s/________ 
 
 
 
 
 
 
 
 
 
WILMA A. LEWIS 
 
 
 
 
 
 
 
Chief Judge 
 
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