section 437e(f)(1) was inappropriate. KMS argues that if this Court denies its motion to dismiss or for a stay, such a decision would be tantamount to permitting Quality King to maintain a declaratory judgment claim where it would otherwise not be permitted to under California law because the claims alleged in the New York complaint would be subsumed in the causes of action alleged in the California complaint. See Hood, 33 Cal.App.4th at 323-24, 39 Cal.Rptr.2d at 298-99. In the Court’s view, assuming that there is merit to the defendants’ position, a finding that the Court is unwilling to make at this time, this argument seems better suited to motion to transfer venue pursuant to 28 U.S.C. § 1404(a), rather than one to dismiss or to stay. See J. Lyons & Co., 892 F.Supp. at 492 (<HOLDING>). Further, at this early stage in the
recognizing transfer as the better option recognizing that a partys lack of response to a motion or argument therein is grounds for the district court to assume opposition to the motion is waived and grant the motion holding that statuteoflimitations defense was absolute despite possibility that court might grant plaintiffs pending motion to transfer recognizing that even evidence of a defendants and a witnesss prior bad acts was admissible to show inter alia the defendants familiarity with the witness recognizing familiarity with governing law as reason to grant motion to transfer