Bushansky v. Sell — Venue Transfer Granted to W.D. Tex.

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Jan. 14, 2026 Get Citation Alerts Download PDF Add Note

Stephen Bushansky v. Steven J. Sell, et al.

District Court, W.D. Texas

• Citations: None known
• Docket Number: 1:26-cv-00092

• Precedential Status: Unknown Status

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.8K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

STEPHEN BUSHANSKY,

Plaintiff,

v. Civil Action 2:25-cv-1068
Judge Algenon L. Marbley
Magistrate Judge Kimberly A. Jolson

STEVEN J. SELL, et al.,

Defendants.

OPINION & ORDER
Defendants’ Motion to Transfer Venue (Doc. 8) is before the Court. For the following
reasons, the Motion is GRANTED. This case is TRANSFERRED to the United States District
Court for the Western District of Texas, Austin Division.
I. BACKGROUND
Plaintiff Stephen Bushansky filed this stockholder derivative action on behalf of nominal
Defendant agilon health, inc. (“Agilon”) against former and current members of Agilon’s board of
directors (the “Board”) and Agilon’s current and former executives (collectively the “Individual
Defendants”). (Doc. 1; see also id. at ¶¶ 18–37 (naming the following as Individual Defendants:
Steven J. Sell, Timothy S. Bensley, Jeffery A. Schwaneke, Silvana Battaglia, Sharad Mansukani,
Diana L. McKenzie, Karen McLoughlin, Ronald A. Williams, Ravi Sachdev, William Wulf,
Michelle A. Gourdine, Muchael L. Smith, Clay Richards, Richard J. Schnall, Derek L. Strum,
Glenn Sobotka, Priscilla Kasenchak, and private equity firm CD&R Vector Holdings, L.P.
(“CD&R”))).
As told by Plaintiff, Agilon is a healthcare technology company that “integrates data
analytics, care coordination, and administrative support for independent physician groups” and
“serves as the intermediary between its associated physician groups delivering medical service and
Medicare insurers reimbursing those services.” (Id. at ¶ 2). Agilon derives its revenue from “the

spread between payments received from insurers and amounts paid to physician groups.” (Id.).
Plaintiff has been an Agilon stockholder since its initial public offering in 2021. (Id. at ¶ 16).
Though an in-depth description of Plaintiff’s allegations is not necessary, he generally
alleges that the Individual Defendants made, disseminated, or approved false, misleading, or
incomplete statements that were designed to artificially inflate the price of Agilon’s stock in
violation of Section 10(b), 15 U.S.C. § 78j(b), and Rule 10b-5, 17 C.F.R. § 240.10b-5, of the
Exchange Act. (See id. at §§ 156–58, 229–38). Plaintiff alleges further violations of Sections
14(a), 21D, and 20(a) of the Exchange Act. (Id. at §§ 239–247). And he asserts that the Individual
Defendants and CD&R breached the fiduciary duty owed to Agilon and its stockholders, aided and
abetted such breaches, and were unjustly enriched. (Id. at §§ 256–86 (also alleging a derivative

Brophy claim against certain Defendants)).
Shortly after Plaintiff initiated this action, Defendants filed a Motion to Change Venue
(Doc. 8). The Motion seeks to transfer the case to the Western District of Texas, where a related
consolidated putative securities class action and a consolidated derivative action are pending. (See
generally id.). Plaintiff opposes the transfer, and the matter is ready for review. (Docs. 8, 28, 31).
II. STANDARD
Defendants pursue transfer of the case under first-to-file doctrine or 28 U.S.C. § 1404 (a).
To begin, “[t]he first-to-file rule is a well-established doctrine that encourages comity
among federal courts of equal rank.” Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Assocs., Inc., 16 F. App’x 433, 437 (6th Cir. 2001). “The rule provides that when actions involving nearly
identical parties and issues have been filed in two different district courts, ‘the court in which the
first suit was filed should generally proceed to judgment.’” Id. (citation omitted). When
considering whether the first-to file rule applies, courts consider: “(1) the chronology of the events,

(2) the similarity of the parties involved, and (3) the similarity of the issues or claims at stake.”
Baatz v. Columbia Gas Transmission, LLC, 814 F.3d 785, 789 (6tj Cir. 2016). Plus, “courts must
also evaluate whether any equitable concerns weigh against applying it.” Reese on Behalf of Fifth
Third Bancorp v. Carmichael, No. 1:20-CV-886, 2021 WL 1121036, at *2 (S.D. Ohio Mar. 24,
2021); see also Aero Advanced Paint Tech., Inc. v. Int’l Aero Prods., LLC, 351 F. Supp. 3d 1067,
1072 (S.D. Ohio 2018) (noting factors weighing against application of the rule include
extraordinary circumstances, inequitable conduct, bad faith, anticipatory lawsuits, and forum
shopping). “If a court finds the first-to-file rule applies, then the court presiding over the second-
filed case has four options: (1) dismiss the case without prejudice; (2) transfer the second-filed
case to the district in which the first-filed case is pending; (3) stay proceedings in the second-filed

case while the first filed court decides whether to retain or relinquish jurisdiction; or (4) proceed
without interruption.” Bowe v. Cross River Bank, No. 1:22-CV-00721, 2024 WL 1049820, at *6
(S.D. Ohio Mar. 11, 2024) (citation omitted).
The other rule at play here, 28 U.S.C. § 1404 (a), is similar. It states: “For the convenience
of parties . . . 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.” Defendants bear the burden of showing a change of venue is warranted.
Slate Rock Const. Co. Ltd. V. Admiral Ins. Co., No. 2:10-cv-1031, 2011 WL 3841691, at *5 (S.D.
Ohio Aug. 30, 2011) (citing Jamhour v. Scottsdale, Ins. Co., 211 F. Supp. 2d 941, 945 (S.D. Ohio
2002)).
Up front, a court must determine “whether the action ‘might have been brought’ in the
transferee court.” Kay v. Nat’l City Mortg. Co., 494 F. Supp. 2d 845, 849 (S.D. Ohio 2007). This
probes whether the potential transferee court has subject matter jurisdiction, whether venue is

proper, and whether the defendant is amendable to process issuing out of the transferee court.
Schoenfeld v. Mercedes-Benz USA, LLC, No. 3:20-CV-159, 2021 WL 3579016, at *1 (S.D. Ohio
Aug. 13, 2021) (citation omitted). Next, a court evaluates convenience to parties, as well as other
public and private interest factors. See Kay, 494 F. Supp. 2d at 849. Private interests include:
the relative ease of access to sources of proof; availability of compulsory process
for attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of view of premises, if view would be appropriate to the
action; and all other practical problems that make trial of a case easy, expeditious
and inexpensive. Id. at 850 ((quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981)); see also W. Am. Ins.
Co. v. Potts, 908 F.2d 974 (Table) (6th Cir. 1990). As for the public-interest inquiry, it “may
include the administrative difficulties flowing from court congestion; the local interest in having
localized controversies decided at home; and the interest in having the trial of a diversity case in a
forum that is at home with the law.” Atl. Marine Const. Co., Inc. v. U.S. Dist. Ct. for W. Dist. Of
Tex., 571 U.S. 49, 62 n.6 (2013) (internal quotation omitted). Finally, the court considers whether
the transfer is “in the interest of justice[.]” 28 U.S.C. § 1404 (a). This includes consideration of
judicial economy and the desire to avoid inconsistent judgments. North v. McNamara, 47 F. Supp.
3d 635, 648 (S.D. Ohio 2014).
Ultimately, the Court has broad discretion to transfer a case under either the first-to-file
rule or Section 1404. See, e.g., NCR Corp. v. First Fin. Computer Servs., Inc., 492 F. Supp. 2d
864, 866 (S.D. Ohio 2007); Power Distributors, LLC v. Snowdog LLC, No. 2:25-CV-643, 2025
WL 3187130, at *3 (S.D. Ohio Nov. 14, 2025).
III. DISCUSSION
Before evaluating the merits of Defendants’ Motion, the Court briefly discusses the
procedural history of the related cases in the United States District Court for the Western District

of Texas.
A. Western District of Texas Litigation
Two cases pending before the Honorable Judge David A. Ezra in the Western District of
Texas matter here. The first is In re agilon health, inc. Securities Litigation, No. 1:24-cv-0297
(W.D. Tex.), a consolidated putative federal securities class action on behalf of all persons who
purchased Agilon common stock during the alleged class period (“Texas Securities Action”). See id. at Docs. 14, 36. In November 2024, the defendants to that action—which includes almost all
Defendants named here—filed three motions to dismiss the consolidated class action complaint.
See id. at Docs. 51, 53, 54; (see also Doc. 8-1 at 5–111 (consolidated complaint)).
Separately, in November 2024, the Western District of Texas consolidated two shareholder

derivative actions, which both assert Securities Exchange Act claims against the Defendants to
this action (the “Consolidated Derivative Action”). See In re agilon health, inc. Shareholder
Derivative Litigation, No. 1:24-cv-00531 (W.D. Tex.); (see also Doc. 8-1 at 113–293 (original
complaints of the consolidated cases)). The consolidation order applies to “each related
shareholder derivative action involving the same, or substantially the same, allegations and claims,
and arising out of the same, or substantially the same, transactions or occurrences as the
Consolidated Derivative Action, that is subsequently filed in, removed to, reassigned to, or
transferred” to the Western District of Texas. In re agilon health, inc. Shareholder Derivative
Litigation, No. 1:24-cv-00531, at Doc. 25. Also important, the Consolidated Derivative Action
was stayed while the court considered the motions to dismiss in the Texas Securities Action. Id. at Docs. 12, 25. So, little has happened in that case since November 2024.
In August 2025, the Western District of Texas granted in part and denied in part the motions
to dismiss the Texas Securities Action. In re agilon health, inc. Securities Litigation, No. 1:24-

cv-0297, at Doc. 63; see also id. at Docs. 66, 67 (motions for reconsideration and clarification).
Then, in December 2025, defendants in the Consolidated Derivative Action filed a motion to lift
the case stay. In re agilon health, inc. Shareholder Derivative Litigation, No. 1:24-cv-00531, at
Doc. 26. That motion remains pending, though it appears that the request to lift the stay is
unopposed. Id. at Doc. 27 (“Plaintiffs do not oppose Defendants’ underlying request for the stay
to be lifted.”).
Against this backdrop, Defendants ask that this case be transferred to the Western District
of Texas, presumably to be consolidated with the Consolidated Derivative Action. (Doc. 8). They
argue transfer is justified both under the first-to-file rule and 28 U.S.C. § 1404. Ultimately, the
Court finds that Defendants meet their burden under either doctrine.

B. Transfer Under the First-to-File Rule
As stated, when applying the first-to-file rule, the Court examines the chronology of events
in the pertinent cases, the similarity of the parties involves, and the similarity of the issues or
claims. Reese, 2021 WL 1121036, at *2. After that, the Court evaluates equitable concerns
weighing against applying the rule. Id. The chronology factor is simple. It asks which of the “overlapping cases” was filed first.
Baatz, 814 F.3d at 790. Here, the two cases eventually merged into the Consolidated Derivative
Action were filed in May 2024 and October 2024. (See Doc. 8-1 at 113–293). Those cases were
consolidated in November 2024. In re agilon health, inc. Shareholder Derivative Litigation, No.
1:24-cv-00531, at Doc. 25. This case was filed after all that, in September 2025. (Doc. 1). So,
the chronology of events favors transfer.
The second factor—similarity of parties—asks whether the parties in the relevant actions
“‘substantially overlap,’ even if they are not identical.” Baatz, 814 F.3d at 790 (citation omitted).

Again, this factor supports transfer. As Defendants say, every defendant named in this action was
named in one of the cases joined in the Consolidated Derivative Action. (Compare Doc. 1 with
Doc. 8-1 at 113–293). It is true that the pleadings are not yet set in the Consolidated Derivative
Action, see In re agilon health, inc. Shareholder Derivative Litigation, No. 1:24-cv-00531, at
Docs. 26 (requesting that plaintiffs be ordered to designate an operative complaint), 27
(alternatively requesting that plaintiffs be permitted to file an amended complaint). But current
party overlap easily satisfies similarity. Cf. Reese, 2021 WL 1121036, at *3 (finding similarity of
parties where more than half of the defendants were named in all the relevant cases); Aero
Advanced Paint Tech., Inc., 351 F. Supp. 3d at 1071 (finding similarity where the only difference
between the cases was some additional parties). And there is little reason to believe the parties to

either action will substantially change.
Finally, the issues in the cases are clearly similar too. Both this action and the Consolidated
Derivative Action assert substantially similar Exchange Act and related claims against Agilon’s
Board and officers for nearly identical conduct. (Compare Doc. 1 with Doc. 8-1 at 113–293). And
though this case alleges additional breach of fiduciary duty and unjust enrichment claims against
CD&R, those claims are based on the same underlying events and theories. Cf. Reese, 2021 WL
1121036, at *3 (finding similarity where “the underlying issues are identical”); Aero Advanced
Paint Tech., Inc., 351 F. Supp. 3d at 1071–72 (finding cases sufficiently similar even when one
case asserted additional claims where “the factual allegations and central theories of liability are
the same in both actions”). Consequently, this factor, too, points towards transfer.
Plaintiff does not dispute the above analysis. (See Doc. 28 at 10–13). Rather, Plaintiff
submits that equitable considerations justify not applying the first-to-file rule. (Id.). Plaintiff

initially contends that the rule is inapposite because the Consolidated Derivative Action is stayed
and dormant. (Doc. 28 at 11–12). For this reason, he says the concerns underlying the first-to-file
rule—preventing duplicative litigation and conflicting results and promoting comity—are not
relevant. (Id. (citing Colby v. VisionWorks of Am., Inc., No. 1:25-CV-00387-JLT-SAB, 2025 WL
2937437 (E.D. Cal. Oct. 16, 2025), report and recommendation adopted, No. 1:25-CV-00387 JLT
SAB, 2025 WL 3208818 (E.D. Cal. Nov. 17, 2025))). Yet even to the extent Plaintiff’s argument
has merit, it will likely be moot very soon. As noted, an unopposed motion to lift the stay on the
Consolidated Derivative Action is fully briefed. In re agilon health, inc. Shareholder Derivative
Litigation, No. 1:24-cv-00531, at Docs. 26, 27, 28. Consequently, it cannot be said that the
Consolidated Derivative Action is dormant or not actively being developed.

Further, Plaintiff argues that the location of Agilon’s headquarters guides against the
application of the first-to-file rule. (Doc. 28 at 12–13). Specifically, the cases that make up the
Consolidated Derivative Action were filed in the Western District of Texas, in part, because
Agilon’s headquarters was there. (See Doc. 8-1 at 122, 238). But in December 2024, Agilon
moved its corporate headquarters to Westerville, Ohio in this District. (Doc. 28 at 9). Because
the Complaint’s allegations “implicate the location of” Defendants’ headquarters, says Plaintiff,
efficiency weighs in favor of litigating this case in the same place. (Id. at 12–13). However,
efficiency concerns tilt the scale in the other direction. Given the semblance of events and issues
underlying this case and the Consolidated Derivative Action, “it is highly likely that there will be
a substantial overlap in discovery and briefing in the two cases.” Huellemeier on behalf of Teva
Pharm. Indus. Ltd. Emp. Stock Purchase Plan v. Teva Pharm. Indus. Ltd., No. 1:17-CV-485, 2017
WL 5523149, at *6 (S.D. Ohio Nov. 17, 2017). As discussed in more detail below, it would be
less efficient for the parties and the courts involved if these cases were in separate forums. Given

such overlap, the threat of inconsistent rulings looms.
Finally, Plaintiff accuses Defendants of engaging in forum shopping because they seek to
litigate this case away from the District containing Agilon’s headquarters. (Id. at 13). The Court
does not share that assessment. This appears to be a case where Defendants have simply “taken
steps to ensure that all the issues are litigated in a single case” given the obvious overlap between
this action and the Consolidated Derivative Action. Baatz, 814 F.3d at 798 (citation omitted).
Nothing in the record suggests that an improper motive, especially since the events giving rise to
Plaintiff’s Complaint occurred before Agilon’s move. Cf. id. (noting that a transfer’s tactical
advantage does not necessarily suggest an improper motive).
Taken together, all three first-to-file factors are satisfied. And the equities considered do

not weigh in favor of ignoring the rule. See also Baatz, 814 F.3d at 798 (“[D]eclining to apply the
first-to-file rule should be done rarely[.]”). Rather, the prudential and comity concerns rooted in
the doctrine win out. As a result, Defendants have met their burden to show transfer is justified
under the first-to-file rule. But even if this were not true, 28 U.S.C. § 1404 would dictate the same
outcome.
C. Transfer Under 28 U.S.C. § 1404 Preliminarily, the parties do not dispute that venue would be proper in the Western District
of Texas under 28 U.S.C. § 1391 (b), nor do they say that court lacks subject matter jurisdiction or
personal jurisdiction over Defendants. (See generally Docs. 8, 28, 31); see L.M.H. v. Red Roof
Inns, No. 2:24-CV-1823, 2025 WL 961720, at *4 n.3 (S.D. Ohio Mar. 31, 2025) (assuming the
transfer venue is proper where no party says otherwise). As such, the Court turns to the relevant
considerations under Section 1404(a).
A. Private Factors

The parties’ arguments about the private factors considered for transfer center on the
convenience of witnesses and parties and the location of and access to evidence.
To start, the parties have diametrically opposed views of how the Court should evaluate
convenience. Defendants assert that it is more convenient and resource-efficient for everyone if
this case is litigated in Texas. (Doc. 8 at 15–16). Because of the high potential for overlapping
evidence between this case and the Consolidate Derivative Action, transfer would minimize the
burden of litigating essentially the same case in two different places. (Id.). And Defendants argue
that Plaintiff’s choice of forum is entitled to diminished deference because Plaintiff Bushansky
lives in New York, not Ohio. (Id. at 16–17). Plaintiff counters that it will be more convenient if
this case is litigated in Ohio where Agilon’s headquarters is because that is where much of the

documentary evidence and many witnesses will be. (Doc. 28 at 14–15). Plaintiff asserts that all
involved would be burdened by transferring this case “1,250 miles away to a District with no
ongoing connection with” Agilon. (Id. at 15).
While Plaintiff’s arguments about the impact of Agilon’s location on witnesses and
evidence may have more merit elsewhere, this case does not exist in a vacuum. It is clear that this
action and the Consolidated Derivative Action have overlapping issues. It is also apparent that the
Consolidated Derivative Action is not imminently going away. “Having one district court preside
over several actions all related to the same set of events is clearly preferable to the witnesses.” Bui
v. Armes, No. 3:14CV428, 2014 WL 4983670, at *5 (N.D. Ohio Oct. 6, 2014); see also Ltd. Serv.
Corp. v. M/V APL PERU, No. 2:09-CV-1025, 2010 WL 2105362, at *6 (S.D. Ohio May 25, 2010)
(“The parties and witnesses can more easily coordinate their schedules to minimize duplicative
meetings, interviews, depositions, etc[.]”). For example, rather than requiring witnesses to testify
in two forums, they can testify in one. Id. Even more, the convenience differential for Plaintiff personally is minimal. He lives in
New York. (See Doc. 1-2). No matter if this case were in Ohio or Texas, it would not be where
he resides. Indeed, this Court has found in such cases, Plaintiff’s choice of forum is given less
consideration. Pac. Life Ins. Co. v. U.S. Bank Nat’l Ass’n, No. 1:15-CV-416, 2016 WL 223683,
at *5 (S.D. Ohio Jan. 19, 2016) (quoting Kay, 494 F. Supp. 2d at 850); Bush v. Honda Dev. & Mfg.
of Am., No. 2:24-CV-4114, 2025 WL 1635294, at *7 (S.D. Ohio June 9, 2025) (“Plaintiff’s choice
of forum is not entitled to deference in this instance given that he does not reside in the Southern
District of Ohio.”). While the Court does not completely overlook Plaintiff’s forum choice, it
weighs less in favor of denying transfer than if Plaintiff were a resident of this District.
As for the location of evidence, though Plaintiff bemoans the burden of producing

corporate documents in Texas, the reality of electronic discovery methods sufficiently minimizes
this burden. See CCFI Companies, LLC v. Spicher, No. 3:24-CV-220, 2024 WL 5077766, at *3
(S.D. Ohio Dec. 11, 2024) (finding the ability to share documents electronically across forums
“largely negates this factor” and commenting “modern litigation largely takes place through the
use of discovery platforms, file sharing systems, or simply emailing collections of PDFs” (citation
omitted)).
On balance, private factors support transfer.
B. Public Factors and the Interests of Justice
Finally, the public factors and interests of justice also weigh towards transfer. Simply put,
transfer to the Western District of Texas will result in the efficient use of judicial time and
resources and avoid inconsistent rulings. Judge Ezra has been presiding over the Consolidated

Derivative Action and the Texas Securities Action for over a year. In re agilon health, inc.
Securities Litigation, No. 1:24-cv-0297; In re agilon health, inc. Shareholder Derivative
Litigation, No. 1:24-cv-00531. The Court is not convinced by Plaintiff’s argument that this means
little. (Doc. 28 at 16). Instead, between consideration of the dockets and his 89-page order on
motions to dismiss in the latter, Judge Ezra has a comprehensive understanding of events
fundamental to Plaintiff’s Complaint. See In re agilon health, inc. Sec. Litig., No. 1:24-CV-297-
DAE, 2025 WL 2388183 (W.D. Tex. Aug. 15, 2025); cf. Hamilton Cnty. Ohio v. Hotels.com, L.P.,
No. 1:10-CV-668, 2011 WL 14369, at *3 (S.D. Ohio Jan. 3, 2011) (noting the “inherent value” in
a district judge’s acquisition of familiarity with factual predicates underpinning the case to be
transferred). “No public interest is served by having this Court duplicate the efforts” of Judge

Ezra. Commerzbank AG v. U.S. Bank Nat’l Ass’n, No. 1:15-CV-818, 2016 WL 3255071, at *5
(S.D. Ohio June 14, 2016); see also Ltd. Serv. Corp., 2010 WL 2105362, at *5 (finding transfer
justified where “a great amount of duplicative effort would be required for this Court to draw even
with [the judge presiding over the first case] in his knowledge of the issues”). All that would invite
is inconsistent rulings on everything from discovery issues to dispositive motions.
As a last note, Plaintiff’s suggestion that the public would be best served by transferring
the Texas cases to this District holds no water. That question is not before this Court.

All told, the private and public factors considered under 28 U.S.C. § 1404, and the interests
of justice, weigh in favor of transferring this case to the Western District of Texas. And even if
they didn’t, transfer is proper under the first-to-file rule. Accordingly, as an exercise of the Court’s

broad discretion, the Court GRANTS Defendants’ Motion.
IV. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Transfer Venue (Doc. 8) is GRANTED.
This case is TRANSFERRED to the United States District Court for the Western District of
Texas, Austin Division.
IT IS SO ORDERED.
Date: January 14, 2026 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE