United Rentals (North America), Inc. v. Conti Enterprises, Inc.

Filing 43

RULING terminating as moot 17 Motion to Dismiss; granting 26 Motion to Transfer to Another District; granting 33 Motion to Amend/Correct. Signed by Judge Janet C. Hall on 11/17/2015. (Anastasio, F.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED RENTALS (NORTH
AMERICA) INC.,
Plaintiff,

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v.
CONTI ENTERPRISES, INC.,
Defendant.

CIVIL ACTION NO.
3:15-CV-298 (JCH)

NOVEMBER 17, 2015

RULING RE: MOTION TO DISMISS (DOC. NO. 17), MOTION TO TRANSFER (DOC.
NO. 26), MOTION TO AMEND (DOC. NO. 33)
I.

INTRODUCTION
The procedural history of this case is convoluted. On February 27, 2015, the

plaintiff, United Rentals (North America), Inc. (“United Rentals”), filed a three-count
Complaint (Doc. No. 1) (“Compl.”) against the defendant, Conti Enterprises, Inc.
(“Conti”). See Compl. The first two counts alleged that Conti was liable for breach of
contract. Specifically, the first count alleged that Conti breached the contract it had with
United Rentals that required Conti to defend and indemnify United Rentals in any
actions brought by a third party against United Rentals, which actions related to the use
of a piece of machinery that Conti had rented from United Rentals. See id. at 3. The
second count alleged that Conti breached the same contract by failing to procure liability
insurance. Id. at 4. The third count sought a declaratory judgment declaring that Conti
is obligated to: (1) defend and indemnify United Rentals in certain third-party suits; (2)
fund United Rentals’ future defense costs associated with these suits; and, (3) pay any
damages that United Rentals incurs in these suits. Id. at 4-5. United Rentals attached
four exhibits to the Complaint. Exhibit A purported to establish the contractual
relationship between the parties. See Compl. Ex. A. Exhibits B, C, and D purported to
1

show that United Rentals had been sued, either directly or as third-party defendants, in
suits brought by third-party users of the machine that Conti rented from United Rentals.
See Compl. Exs. B-D.
Conti filed a Motion to Dismiss (Doc. No. 17) (“Mot. to Dismiss”), seeking to
dismiss the Complaint in its entirety on two grounds: (1) for failure to state a claim,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and (2) for improper
venue, pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure. See Mot. to
Dismiss.
Rather than respond to the Motion to Dismiss on the merits, United Rentals
instead filed a Motion to Transfer to Another District (Doc. No. 26) (“Mot. to Transfer”).
The Motion to Transfer requested that the court, pursuant to section 1404(a) of the title
28 of the United States Code, transfer the case to the Southern District of New York.
See Mot. to Transfer 1. The same Motion also requested, in the event that the court
declined to transfer the case, that the court allow United Rentals an additional seven
days to respond substantively to the Motion to Dismiss. Id.
Before the court addressed either the Motion to Dismiss or the Motion to
Transfer, United Rentals then filed a Motion to Amend / Correct Complaint (Doc. No. 33)
(“Mot. to Amend”). United Rentals again attached numerous documents to the Motion
to Amend. Document 2 was the proposed Amended Complaint (Doc. No. 33-2)
(“Proposed Am. Compl.”). Documents 3 and 4 were styled as Exhibits A and B to the
Proposed Amended Complaint. Though they also purported to establish the contractual
relationship between United Rentals and Conti, these exhibits were different than those
that were attached to the original Complaint. See Proposed Am. Compl. Ex. A, B.

2

Documents 5-7 were styled as Exhibits C-E of the Amended Complaint and were the
same exhibits attached to the Complaint, which purported to show that United Rentals
had been sued. See id. Exs. C-E. In the Motion to Amend, United Rentals also asked
the court, in the event that the court granted the Motion to Amend, to moot Conti’s
Motion to Dismiss. See Mot. to Amend at 4-5.
Conti then filed a Memorandum in Opposition (Doc. No. 37) (“Mem. in Opp.”),
opposing United Rentals’ Motion to Transfer / Motion for Extension of Time and its
Motion to Amend / Motion to Moot the Motion to Dismiss. On October 1, United Rentals
filed a Reply to Conti’s Memorandum in Opposition (Doc. No. 39) (“Pl.’s Reply”), asking
the court to grant both the Motion to Transfer and the Motion to Amend.
II.

FACTS 1
United Rentals is a Delaware corporation, with its principal place of business in

Connecticut. Proposed Am. Compl. ¶ 1. Conti is a New Jersey corporation, with its
principal place of business in New Jersey. Id. ¶ 2. On or about August 1, 2009, United
Rentals and Conti entered into a contract called a National Account Agreement

1

The court accepts as true all well-pled facts alleged in the Proposed Amended Complaint.
When a proposed amended complaint is filed in response to a motion to dismiss, as is the case here, the
facts alleged in the proposed amended complaint are assumed to be true for purposes of the motion to
dismiss. See Claes v. Boyce Thompson Inst. for Plant Research, 88 F.Supp.3d 121, 123 (N.D.N.Y.
2015). Similarly, just as the court can consider documents attached to or incorporated by reference in a
complaint, see Yak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001), the court can consider
documents attached to or incorporated by reference in the Proposed Amended Complaint. See Avon
Pension Fund v. GlaxoSmithKline PLC, 343 Fed.Appx. 671, 674 n. 2 (2d Cir. 2009) (“Although the
transcript of Dr. Buse’s statement and testimony are not attached to the proposed amended complaint,
they may nevertheless be considered in ruling on a 12(b)(6) motion as they are incorporated by
reference”); Kamdem-Ouaffo v. Pepsico, Inc., No. 14-CV-227 (KMK), slip op. at *7 n. 13 (S.D.N.Y. Mar. 9,
2015) (“The Court considers Attachments B and C of the Agreement, as well as the Purchase Order,
when evaluating Defendants’ Motion because they are attached to, and referenced in, the proposed
Second Amended Complaint”).

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(“NAA”). 2 Id. ¶ 6. The NAA is attached to the Proposed Amended Complaint as Exhibit
A. On or about August 4, 2009, United Rentals and Conti entered into another contract
called a Rental Agreement. Id. ¶ 7. The Rental Agreement is attached to the Proposed
Amended Complaint as Exhibit B. Pursuant to the Rental Agreement, Conti rented a
piece of machinery from United Rentals, in order to use the piece of machinery at its
work site in Bronx, New York. Id.
Pursuant to both the NAA and the Rental Agreement, “Conti agreed to defend
and indemnify [United Rentals] for liability, claim, loss, damage or costs sustained by
[United Rentals] caused by or in any way arising out of or related to the operation, use,
maintenance, instruction, possession, transportation, ownership, or rental of [the piece
of machinery].” Id. ¶ 8. Also pursuant to both the NAA and the Rental Agreement,
“Conti agreed to secure liability insurance providing Additional Insured covered to
[United Rentals] for any liability arising from the handling, transportation, maintenance,
operation, possession or use of [the piece of machinery].” Id. ¶ 9.
In November 2010, a Conti employee named Karl Fritz filed suit against United
Rentals, and others, “to recover for personal injuries he allegedly sustained at the [work
site] while using [the piece of machinery].” Id. ¶ 10. A copy of Fritz’s complaint is
attached to the Proposed Amended Complaint as Exhibit C. In April 2011, another
Conti employee, Richard O’Keefe Jr., filed suit against a number of entities for injuries
he allegedly suffered using the piece of machinery. Id. ¶ 11. In October 2011, one of
those defendants filed a third-party action against United Rentals, and others, “for

2

The court notes that the NAA was originally entered into by Conti and United Rentals, Inc.,
which is the parent company of the plaintiff, United Rentals (North America), Inc. See Proposed Am.
Compl. Ex. A at 3. However, United Rentals, Inc. assigned the NAA to the plaintiff, United Rentals (North
America), Inc. See Pl.’s Ex. E at 1 (Doc. No. 39-5).

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counts including, but not limited to, contribution, common law indemnity, and
negligence.” Id. ¶ 12. Copies of O’Keefe’s original suit and the third-party suit against
United Rentals are attached to the Proposed Amended Complaint as Exhibits D and E,
respectively.
Conti failed to defend or indemnify United Rentals in either of the suits. Id. ¶ 16.
Conti also failed to secure liability insurance providing Additional Insured covered to
United Rentals. Id. ¶ 21.
United Rentals and Conti contractually agreed that the District of Connecticut
“shall be the exclusive venue for all matters relating to the rental of the equipment.” Id.
¶ 4. Specifically, the Rental Agreement states that, “[t]he federal and state courts in the
county in which the Store Location is located shall have exclusive jurisdiction over all
matters relating to this Rental Agreement.” Proposed Am. Compl. Ex. B ¶ 22.D. The
Store Location was Bridgeport, Connecticut. See id.
III.

LEGAL STANDARD
A. Motion to Amend
Under Rule 15(a)(2), “a party may amend its pleading only with the opposing

party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court should
freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). “In the absence of
any apparent or declared reason – such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc. – the leave sought should, as the rules require,

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be ‘freely given.’ ” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Williams v.
Citigroup Inc., 659 F.3d 208, 213-14 (2d Cir. 2011).
B. Motion to Transfer
Section 1404(a) of title 28 of the United States Code states 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).
Accordingly, “[i]n determining whether a transfer of venue pursuant to 28 U.S.C. §
1404(a) is appropriate, district courts engage in a two-part inquiry, asking: (1) whether
an action “might have been brought” in the proposed transferee forum, and, if so, (2)
whether the transfer promotes convenience and justice.” Wilson v. DirectBuy, Inc., 821
F.Supp.2d 510, 515 (D. Conn. 2011).
IV.

DISCUSSION
A. Motion to Amend
United Rentals has moved to amend the Complaint pursuant to Rule 15(a)(2) of

the Federal Rules of Civil Procedure. See Mot. to Amend at 1. United Rentals has not
received written consent from Conti. Id.
Conti argues only that the court should deny United Rentals leave to amend
because the Proposed Amended Complaint would be futile. See Mem. in Opp. at 7-12.
Before the court addresses that assertion, the court notes that the other Foman factors
militate in favor of granting United Rentals leave to amend. United Rentals filed the
Motion to Amend on August 27, 2015, which was the deadline for filing motions to
amend, as set by the court in its Scheduling Order (Doc. No. 21). Therefore, there was

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no undue delay in filing the Motion to Amend. The instant Motion to Amend was United
Rentals’ first such motion, which means that United Rentals has not repeatedly failed to
cure the deficiencies that may exist in the Complaint. Further, there is no assertion that
Conti will be prejudiced if the court allows United Rentals to amend the Complaint, 3 nor
is there any evidence that United Rentals is seeking permission to amend in bad faith or
with a dilatory motive.
“An amendment to a pleading is futile if the proposed claim could not withstand a
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente v. Int’l Bus. Machs.
Corp., 310 F.3d 243, 258 (2d Cir. 2002). “In order to survive a motion to dismiss, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’ ” Balintulo v. Ford Motor Co., 796 F.3d 160, 164-65
(2d. Cir. 2015) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The requirement
to allege “facts” means that “bald assertions” and “merely conclusory allegations” do not
suffice. Jackson v. Cnty. of Rockland, 450 F. App’x 15, 19 (2d Cir. 2011); see also
Iqbal, 556 U.S. at 678. A complaint is “plausible on its face” if the facts that the plaintiff
pleads “allow[ ] the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678.
On a motion to dismiss under Rule 12(b)(6), the court takes all of “the factual
allegations of the complaint to be true and draw[s] all reasonable inferences in the
plaintiff’s favor.” Warren v. Colvin, 744 F.3d 841, 843 (2d Cir. 2014). Accordingly, when

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It should be noted that Conti does argue that it will be prejudiced if the court grants United
Rentals additional time to reply to Conti’s Motion to Dismiss, as United Rentals requested in the event
that the court denied the Motion to Transfer. See Mem. in Opp. at 15. However, the court is not deciding
whether to grant United Rentals additional time to reply to the Motion to Dismiss at this moment. Rather,
it is deciding whether to grant United Rentals leave to amend. Further, the court does not view this
claimed “prejudice” to be such as to warrant denial of the Motion to Amend.

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an amended pleading is attacked as being futile, “the Court should accept the
allegations in the proposed amended complaint as true.” Inside Radio, Inc. v. Clear
Channel Commc’ns, Inc., 209 F.Supp.2d 302, 307 (S.D.N.Y. 2002). In addition to the
facts alleged in the Proposed Amended Complaint, “on a motion to dismiss, the court
may consider any written instrument attached to the complaint as an exhibit or any
statements or documents incorporated in it by reference.” Yak, 252 F.3d at 130
(internal quotation marks and alterations omitted). As already mentioned, United
Rentals attached five documents as exhibits to the Proposed Amended Complaint.
Generally, the court’s first inquiry when determining whether a complaint
sufficiently alleges a breach of contract claim is to determine what state’s law applies to
the determination. Here, there is a question, in the court’s if not the parties’ minds, as to
whether Connecticut or New York law applies. However, because, as will be discussed
below, the court concludes that the same result would obtain under both Connecticut
and New York law, the court need not definitively determine which law applies.
The elements of a breach of contract claim are the same in New York and
Connecticut. To state a claim for breach of contract in either state, the plaintiff must
allege: (1) that a contract existed; (2) performance by one party; (3) breach by the other
party; and, (4) damages. See Dee v. Rakower, 976 N.Y.S.2d 470, 474 (N.Y. App. Div.
2013) (New York); Myers v. Livingston, Adler, Pulda, Meiklejohn and Kelly, P.C., 87
A.3d 534, 540 (Conn. 2014) (Connecticut).
Conti essentially presents three arguments as to why the Proposed Amended
Complaint fails to state a claim upon which relief can be granted, all of which are aimed
at the first element – existence of a contract. It argues: (1) it is not bound by the Rental

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Agreement, which undoubtedly includes the indemnification provision, because it never
received the reverse side of the Agreement, where the indemnification provision was
written; (2) the National Account Agreement, which purports to incorporate by reference
the Rental Agreement, does not actually do so; and (3) it is not bound by either the
National Account Agreement or the Rental Agreement due to technical deficiencies in
the documents. See Mem. in Opp. at 7-12.
As to the first argument, the court concludes that United Rentals has sufficiently
alleged that Conti was bound by the Rental Agreement, including the provisions on the
reverse side of the agreement, under both New York and Connecticut law. The Rental
Agreement attached to the Proposed Amended Complaint was signed by a Conti
representative. Importantly, the front side of the Rental Agreement – in the signature
box, immediately above the signature line – states:
READ BEFORE SIGNING: BY SIGNING THIS AGREEMENT,
CUSTOMER (1) AGREES TO ALL TERMS AND CONDITIONS ON
THE FRONT AND BACK OF THIS AGREEMENT . . .
Under New York law, “[a] party who signs a document without any valid excuse for not
having read it is ‘conclusively bound’ by its terms.” Ferrarella v. Godt, 15 N.Y.S.3d 180,
184-85 (N.Y. App. Div. 2015) (quoting Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1,
11 (N.Y. 1988). This rule applies to contract terms that are printed on the reverse side
of a contract. See Gillman, 73 N.Y.2d at 11 (party bound by security agreement printed
on the reverse side of letter of credit application, which party signed); Roger’s Fence,
Inc. v. Abele Tractor and Equip. Co., Inc., 809 N.Y.S.2d 712, 713-14 (N.Y. App. Div.
2006). Further, so long as the signer was on notice that there were contract terms on
the reverse side, this rule applies even if the signer never received the reverse side.

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See Roger’s Fence, 809 N.Y.S.2d at 713-14; see also Vulcan Power Co. v. Munson,
932 N.Y.S.2d 68, 69 (N.Y. App. Div. 2011) (“A signer’s duty to read and understand that
which it signed is not diminished merely because the signer was provided with only a
signature page” (internal quotation marks and alterations omitted)); cf. Pimpinello v.
Swift & Co., 170 N.E. 530, 531 (N.Y. 1930) (“If the signer could read the instrument, not
to have read it was gross negligence; if he could not read it, not to procure it to be read
was equally negligent; in either case the writing binds him”). Further, the fact that Conti
is a “sophisticated party” is noteworthy in this context and militates against Conti’s
argument. See Daniel Gale Assocs., Inc. v. Hillcrest Estates, Ltd., 724 N.Y.S.2d 201,
202 (N.Y. App. Div. 2001).
Similarly, under Connecticut law “[t]he general rule is that where a person of
mature years, and who can read and write, signs or accepts a formal written contract
affecting his pecuniary interests, it is his duty to read it, and notice of its contents will be
imputed to him if he negligently fails to do so.” Ursini v. Goldman, 173 A. 789, 792
(Conn. 1934); see also Abele Tractor and Equip. Co., Inc. v. Sono Stone and Gravel,
LLC, 95 A.3d 1184, 1196 (Conn. App. Ct. 2014) (same). This rule applies to terms
printed on the reverse side of a document. See Abele Tractor, 95 A.3d at 1197; see
also Gator Wash, LLC v. Lighthouse Carwash Sys., Inc., No. HHBCV075003323S,
2007 WL 2200373, at *6 (Conn. Super. Ct. June 12, 2007) (“the plaintiff may not be
excused from the contract’s terms because those who acted on its behalf did not read it
or ‘pick up’ on its terms before signing it. As noted above, the provision referring to the
conditions of sale on the reverse side is clearly printed immediately above the space for
the buyer’s signature”). As in New York, this rule applies even if the party has not

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received the page with the contract terms in question. See Gator Wash, 2007 WL
2200373, at *6.
Conti’s remaining arguments that it is not bound by the Rental Agreement are
insufficient to render the Proposed Amended Complaint futile, given that the court must
accept all well-pled facts as true and make all reasonable inferences in United Rentals’
favor. First, it argues that, because the Rental Agreement refers only to “United
Rentals” or “United . . . the corporate subsidiary of United Rentals, Inc.” and the
Proposed Amended Complaint identifies United Rentals (North America), Inc. as the
plaintiff, to the degree Conti did assent to the Rental Agreement, it contracted with a
party other than the plaintiff. See Mem. in Opp. at 10. However, United Rentals (North
America), Inc., the plaintiff in this case, filed a Corporate Disclosure Statement, in which
it identified United Rentals, Inc. as its parent company. See Corporate Disclosure
Statement (Doc. No. 7). The fact that the plaintiff in this case has identified itself as the
corporate subsidiary of United Rentals, Inc., and the fact that the Rental Agreement was
made between Conti and “United . . . the corporate subsidiary of United Rentals, Inc.” is
sufficient to render the Proposed Amended Complaint not futile.
Along these same lines, Conti also argues that because the reverse side of the
Rental Agreement states that, “ ‘United’ means the corporate subsidiary of United
Rentals, Inc. identified on the first page of this Rental Agreement . . . ” and because the
first page only includes a corporate logo for United Rentals and no other identification,
the Rental Agreement is not binding. However, whether the fact that United Rentals,
Inc. was not identified on the first page beyond the existence of its corporate logo was
meaningful in terms of impacting what the parties believed they were agreeing to, and

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with whom, is not a question that is appropriately decided on a motion to dismiss.
Given that the plaintiff claims that its understanding was that the Rental Agreement was
a binding contract between United Rentals (North America), Inc. and Conti, that is
sufficient, especially given the other indicia of assent just discussed, to survive a motion
to dismiss.
Additionally, Conti argues that because United Rentals attached a different
Rental Agreement to the original Complaint than the one it attached to the Proposed
Amended Complaint, the one attached to the Proposed Amended Complaint is
somehow invalid. See id. at 10-12. The Proposed Amended Complaint states that
United Rentals and Conti entered into a Rental Agreement on or about August 4, 2009,
pursuant to which Conti rented a lift to be used at its Bronx-Whitestone Bridge job site.
Proposed Am. Compl. ¶ 7. The signature on the Rental Agreement attached as Exhibit
B to the Proposed Amended Complaint is dated August 4, 2009, and the job site is
identified as the Whitestone Bridge. See Proposed Am. Compl. Ex. B. Clearly, the
Rental Agreement attached to the Proposed Amended Complaint as Exhibit B is the
one that United Rentals is referring to in the Proposed Amended Complaint. It is
irrelevant that this is a different document than the Rental Agreement that was attached
as Exhibit B to the original Complaint.
Based on the foregoing, the court concludes that the Proposed Amended
Complaint sufficiently alleges that a contract existed between United Rentals and Conti.
The Proposed Amended Complaint also alleges that Conti rented the lift from United
Rentals (plaintiff’s performance), Conti failed to indemnify United Rentals in various
lawsuits and failed to procure liability insurance (defendant’s breach), and that United

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Rentals has been damaged as a result. See Proposed Am. Compl. ¶¶ 7, 16, 17, 18, 21,
22, 23. Accordingly, the Proposed Amended Complaint sufficiently states a claim for
breach of contract, such that the Proposed Amended Complaint could survive a Rule
12(b)(6) motion to dismiss. Thus, the Proposed Amended Complaint is not futile.
Because the Proposed Amended Complaint is not futile, and because the other Foman
factors militate in favor of granting United Rentals leave to amend the Complaint, the
court grants United Rentals leave to amend. 4
B. Motion to Dismiss
In its Motion to Amend, United Rentals also asked the court, in the event that the
court granted the Motion, to moot Conti’s pending Motion to Dismiss. See Mot. to
Amend at 1. Conti does not address this argument except to say that the court should
consider the Motion to Dismiss. See Mem. in Opp. at 14.
“When ‘a plaintiff amends its complaint while a motion to dismiss is pending,’
which happens ‘frequently,’ the ‘court then has a variety of ways in which it may deal
with the pending motion [to dismiss], from denying the motion as moot to considering
the merits of the motion in light of the amended complaint.’ ” Roller Bearing Co. of Am.,
Inc. v. Am. Software, Inc., 570 F.Supp.2d 376, 384 (D. Conn. 2008) (quoting In re
Colonial Ltd. P’ship Litig., 854 F.Supp. 64, 79-80 (D. Conn. 1994)). “Where the
proposed amendment requires leave of court, the preferred course is to grant leave to
amend even if doing so renders moot the motion to dismiss, rather than granting the

4

The court need not address Conti’s other arguments as to why it is not bound by the National
Account Agreement and why, even if it is bound by that Agreement, the Agreement does not contractually
obligate Conti to indemnify United Rentals. This is because, as just discussed, the Rental Agreement
alone can constitute a binding contract between United Rentals and Conti, which contract contains the
indemnification provision on the reverse side of the Agreement. See Proposed Am. Compl. Ex. B at 2.

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motion to dismiss and rendering moot the motion for leave.” Id. Further, because
Conti’s argument that the Proposed Amended Complaint was futile required the court to
conduct a 12(b)(6) analysis of the Proposed Amended Complaint, the likelihood of
prejudicing Conti by terminating the Motion to Dismiss as moot is particularly slim. 5
Accordingly, the Motion to Dismiss is terminated as moot.
C. Motion to Transfer Venue
United Rentals has also moved to transfer venue to the Southern District of New
York, pursuant to section 1404(a) of title 28 of the United States Code.
i.

Whether the action might have been brought in S.D.N.Y.

“To decide whether an action might have been brought in the proposed
transferee forum, the court must first determine whether the defendants are subject to
personal jurisdiction in that forum, and whether venue would properly lie there.” Wilson,
821 F.Supp.2d at 515 (internal quotation marks omitted). Conti concedes that it is
subject to personal jurisdiction in New York, see Mem. in Opp. at 13, which is sufficient
to allow New York to exercise personal jurisdiction over Conti, see D.H. Blair & Co., Inc.
v. Gottdiener, 462 F.3d 95, 103 (2d Cir. 2006).
It is equally clear that venue would properly lie in the Southern District of New
York. Pursuant to section 1391 of title 28 of the United States Code, venue lies, inter
alia, in “a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). The events giving rise to this
breach of contract claim are: (1) the alleged accidents that occurred at the Bronx, New
York job site; (2) and the subsequent lawsuits filed in the Bronx County Supreme Court;
5

The court is aware that, as a result of mooting Conti’s Motion to Dismiss, the court will not
assess Conti’s argument that venue does not lie in the District of Connecticut. However, because the
court also grants the Motion to Transfer, see infra § IV.C, this ground for dismissal is moot.

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and, (3) Conti’s alleged failure to indemnify United Rentals in these lawsuits, which
failure also occurred in New York, where the lawsuits are being litigated. “The Bronx is
within the Southern District of New York.” U.S. v. Mancebo-Santiago, 886 F.Supp. 372,
376 (S.D.N.Y. 1995). Accordingly, venue would properly lie in the Southern District of
New York. 6 Thus, because Conti would be subject to personal jurisdiction in and
because venue would properly lie in the Southern District of New York, the action “might
have been brought” there.
ii.

Whether transfer promotes convenience and justice

Courts consider numerous factors when determining whether transfer is
warranted for the parties’ convenience and in the interest of justice. These include: “(1)
the plaintiff’s choice of forum, (2) the convenience of witnesses, (3) the location of
relevant documents and relative ease of access to sources of proof, (4) the
convenience of parties, (5) the locus of operative facts, (6) the availability of process to
compel the attendance of unwilling witnesses, and (7) the relative means of the parties.”
D.H. Blair, 462 F.3d at 106-07. “In addition to these considerations, other courts have
identified two additional factors: (1) the forum’s familiarity with the governing law; and

6

The existence of a forum-selection clause requiring that actions be brought in a certain forum is
not relevant to the analysis of whether venue would properly lie in another forum. See Atl. Marine Const.
Co., Inc. v. U.S. Dist. Court for W. Dist. of Tex., 134 S.Ct. 568, 577 (“Whether venue is ‘wrong’ or
‘improper’ depends exclusively on whether the court in which the case was brought satisfies the
requirements of federal venue laws, and those provisions say nothing about a forum-selection clause”).
Rather, the existence of a forum-selection clause is considered in relation to the second part of the
transfer of venue analysis, which asks whether transfer is in the interest of justice. See id. at 581
(“because the overarching consideration under § 1404(a) is whether a transfer would promote the interest
of justice, a valid forum-selection clause should be given controlling weight in all but the most exceptional
cases”) (internal quotation marks and alterations omitted); see also Indian Harbor Ins. Co. v. NL Envtl.
Mgmt. Servs., Inc., No. 12 Civ.2045(PGG), 2013 WL 1144800, at *4 (S.D.N.Y. Mar. 19, 2013) (“On a
motion to transfer, courts consider a forum selection clause not in connection with the “might have been
brought” inquiry, but rather in connection with the convenience/interest of justice prong of the Section
1404(a) test”).

15

(2) trial efficiency and the interest of justice, based on the totality of the circumstances.”
Jones v. Walgreen Co., 463 F.Supp.2d 267, 271 (D. Conn. 2006).
Before addressing these factors, the court notes that this case presents an
unusual situation in which it is the plaintiff, not the defendant, that is seeking a transfer
of venue. A plaintiff is not categorically barred from seeking to transfer venues. Rather,
in this situation, a transfer of venue is appropriate if the plaintiff can show that there has
been a change in circumstances, or, even absent changed circumstances, if transfer is
warranted in the interest of justice. See Posven, C.A. v. Liberty Mut. Ins. Co., 303
F.Supp.2d 391, 407 (S.D.N.Y. 2004) (“While courts in this District have, at times, looked
for changed circumstances to justify transferring venue when transfer is requested by
the plaintiff who originally chose the forum, a showing of changed circumstances is not
required if transfer is in the interests of justice”) (internal citations omitted); see also
U.S. ex rel. Smith v. Yale University, No 3:02CV1205(PCD), 2006 WL 1168446, at *2
(D. Conn. Apr. 28, 2006) (“Although courts have held that the threshold question when
deciding a plaintiff’s § 1404(a) motion to transfer is whether plaintiff has shown a
change in circumstance since the complaint was filed sufficient to warrant transfer, an
action may also be transferred if it is in the interest of justice to do so, even if Plaintiff
can show no change in circumstances justifying transfer”) (internal citations and
quotation marks omitted).
United Rentals argues that the change of circumstance present here is that,
subsequent to filing suit in the District of Connecticut, United Rentals learned that Conti
would be amenable to suit in New York. See Memorandum of Law in Support of
Plaintiff’s Motion to Transfer Venue 3-4 (Doc. No. 26-1) (“Venue Transfer Mem. in

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Supp.”). United Rentals asserts that, prior to filing suit, it attempted to ascertain from
Conti in which forums this suit could potentially be brought, but to no avail. Id.
Consequently, United Rentals brought suit in the District of Connecticut based on the
forum selection clause in the Rental Agreement. Id. Conti, on the other hand, argues
that United Rentals knew, prior to filing this suit, that “Conti would be amenable to suit in
New York since the underlying action was already being litigated in New York, and has
been in suit for years.” Mem. in Opp. at 13.
However, Conti’s argument is flawed. Even if United Rentals knew that Conti
would have been amenable to suit in New York – in the legal sense that a federal court
in New York could exercise personal jurisdiction over Conti and subject matter
jurisdiction over the matter based on diversity jurisdiction – United Rentals believed it
was bound by the Rental Agreement’s forum selection clause. United Rentals
attempted to contact Conti in order to determine whether both parties would agree to
waive the forum selection clause in the Rental Agreement, but these attempts,
according to United Rentals, were futile. United Rentals asserts that it subsequently
divined from representations made by Conti in its filings that Conti would be willing to
waive the forum selection clause. This constitutes a changed circumstance.
United Rentals also asserts that transfer is warranted because transferring the
case is in the interest of justice. Accordingly, the court will address the factors
associated with the convenience of the parties / interest of justice prong of the section
1404(a) analysis.
a. Plaintiff’s choice of forum

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When it is the plaintiff, rather than the defendant, who moves to transfer a case
to another forum, “the usual presumptions as to plaintiff's choice of forum are not
appropriate.” Trehern v. OMI Corp., No. 98 Civ. 0242 RWS, 1999 WL 47303, at *2
(S.D.N.Y. Feb. 1, 1999) (citing Harry Rich Corp. v. Curtiss-Wright Corp., 308 F.Supp.
1114, 1119 (S.D.N.Y. 1969)). Accordingly, this factor can be disregarded as neutral.
See, e.g. Universal Marine Med. Supply, Inc. v. Lovecchio, No. 09-CV-3495 (ILG), 1999
WL 441680, at *3 (E.D.N.Y. May 7, 1999).
b. Convenience of witnesses
“The ‘convenience of witnesses’ factor is principally aimed at weighing the
relative convenience of non-party witnesses.” MAK Mktg, Inc. v. Kalapos, 620
F.Supp.2d 295, 309 (D. Conn. 2009). In both their briefing and at oral argument, both
United Rentals and Conti assert that the majority of the relevant witnesses are located
in New York. Accordingly, this factor militates in favor of transfer.
c. Location of relevant documents / ease of access to sources of
proof
“Modern photocopying technology and electronic storage deprive this issue of
practice or legal weight.” MAK Mktg., 620 F.Supp.2d at 310. Accordingly, this factor is
neutral. Id.
d. Convenience of parties
Conti has argued many times that it is amenable to suit in New York, although its
desire is to be in state court in New York, not federal court. See Mot. to Dismiss Mem.
in Supp. at 12-14; Mem. in Opp. at 13. Although Conti does argue that it would be
inconvenienced by being required to litigate matters simultaneously in federal court and
state court, that is irrelevant. Currently, it is forced to litigate in New York state court
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and Connecticut federal court. Given that the court has already determined that it is not
dismissing the case, the only remaining options before the court are to keep the case in
the District of Connecticut or transfer the case to the Southern District of New York.
The inconvenience of having to defend cases in state and federal court
simultaneously is not the type of inconvenience countenanced by this factor.
Accordingly, this factor weighs in favor of transfer.
e. Locus of operative facts
The operative facts in this case center around the formation of the Rental
Agreement and the NAA, and on the alleged personal injuries suffered at the worksite,
liability from which United Rentals seeks indemnification from Conti. This is because
whether the lawsuits implicate the indemnification provision of the Rental Agreement
turns on whether the injuries allegedly suffered are of the type that are covered by the
indemnification provision. Clearly, those operative events occurred in New York. As for
the operative events regarding the contract formation, United Rentals asserts that the
people with knowledge of any communications regarding the terms and conditions of
the Rental Agreement are also in New York. See Mot. to Transfer Mem. in Supp. at 7.
For its part, Conti believes that “New York is the locus of just about every relevant event
that would touch on this litigation.” Mot. to Dismiss Mem. in Supp. at 14. Accordingly,
this factor weighs in favor of transfer.
f. Availability of process to compel the attendance of unwilling
witnesses
“This factor is generally relevant only with respect to third-party witnesses, since
employees of the parties will as a practical matter be available in any venue by virtue of
the employment relationship.” MAK Mktg., 620 F.Supp.2d at 310 (internal quotation
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marks omitted). Conti has not identified any such witnesses. At oral argument, United
Rentals stated that one potential witness who formerly worked for United Rentals
currently lives in California. If that is the case, that witness could not be compelled to
attend a proceeding in either Connecticut or New York. Accordingly, this factor is
neutral.
g. Relative means of the parties
Conti argues that, even though it is a well-established corporation, it would still
be financially burdensome to have to defend two actions simultaneously. However, the
court is not presently deciding whether to consolidate two actions into one, but only in
which forum this case should proceed. The court cannot see how Conti would be more
financially burdened by defending this action in New York, rather than in Connecticut.
Accordingly, this factor militates in favor of transfer.
h. Forum’s familiarity with governing law
As discussed earlier, the court has not made a determination as to whether
Connecticut or New York contract law applies to this case. Further, “the ‘governing law’
factor is to be accorded little weight on a motion to transfer venue because federal
courts are deemed capable of applying the substantive law of other states.” Id. at 311.
This factor is neutral.
i.

Trial efficiency and the interest of justice

As of July 30, United Rentals asserts that no discovery has yet taken place in this
case. The deadline for the completion of discovery is February 2, 2016. Given that
discovery has, presumably, still not yet been started, United Rentals asserts that no
inefficiencies in terms of the progression of the trial will result from transfer.

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The only remaining issue to be discussed is what role the forum selection clause
plays in this analysis. The clause, which states that, “[t]he federal and state courts in
the county in which the Store Location is located shall have exclusive jurisdiction over
all matters relating to this Rental Agreement” reads as a mandatory forum selection
clause. Proposed Am. Compl. Ex. C. However, in this case, both parties confirmed at
oral argument that they are waiving the forum selection clause. The court cannot
conceive of any reason to prohibit allowing two parties to waive, by mutual agreement, a
mandatory forum selection clause. Indeed, as the Supreme Court recently stated, “[t]he
enforcement of valid forum-selection clauses, bargained for by the parties, protects their
legitimate expectations and furthers vital interests of the justice system.” Atl. Marine,
134 S.Ct. at 581 (internal quotation marks omitted). Given that enforcement of forum
selection clauses is preferred because it protects the parties’ expectations, where both
parties agree to disregard a forum selection clause, the parties’ expectations are hardly
being undermined. Indeed, it appears to the court unduly doctrinaire to require parties
to be bound by a forum selection clause that neither party wants to enforce.
Accordingly, this factor weighs in favor of transfer.
Because the majority of the factors weigh in favor of transfer, and none of the
factors strongly weighs against transfer, the Motion to Transfer is granted.
V.

CONCLUSION
For the above-stated reasons, the Motion to Amend (Doc. No. 33) is GRANTED.

Accordingly, the court directs United Rentals to docket the Proposed Amended
Complaint and its attached exhibits. When docketed, this will be the operative
complaint and will be referred to as the “Amended Complaint.”

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The Motion to Dismiss (Doc. No. 17) is TERMINATED AS MOOT. The Motion to
Transfer Venue (Doc. No. 26) is GRANTED. The case is transferred to the Southern
District of New York.
SO ORDERED.
Dated at New Haven, Connecticut this 17th day of November 2015.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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