Jones Real Estate, Inc. v. American Bankers Insurance Company of Florida et al
Filing
70
ORDER granting 37 Motion to Change Venue. Signed by Magistrate Judge John J. O'Sullivan on 3/1/2018. (mkr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-23933-CIV-O’SULLIVAN
[CONSENT]
JONES REAL ESTATE, INC.,
Plaintiff,
v.
AVATEL TECHNOLOGIES, INC.,
THE CIT GROUP INC. and
CIT BANK, N.A.,
Defendants.
________________________________/
ORDER
THIS MATTER is before the Court on the Defendant CIT Group Inc.’s Motion to
Transfer Venue and Incorporated Memorandum of Law (DE# 37, 12/4/17). Pursuant to
the parties’ Consent to Proceed before a United States Magistrate Judge, the
Honorable Ursula Ungaro, United States District Judge, referred the matter to the
undersigned for adjudication of all pretrial motions as well as jury or non-jury trial on the
merits. See Order of Reference (DE# 43, 12/21/17). Having reviewed the motion,
response and reply as well as the Plaintiff’s First Amended Class Action Complaint
(DE# 47, 12/29/17) (“Amended Complaint”), which was filed after the motion to transfer
venue was filed, it is
ORDERED AND ADJUDGED that the Defendant CIT Group Inc.’s Motion to
Transfer Venue and Incorporated Memorandum of Law (DE# 37, 12/4/17) is GRANTED
for the reasons set forth below.
ANALYSIS
None of the parties are located in the Southern District of Florida. The plaintiff is
a Missouri corporation with its principal place of business in Missouri. The defendant,
CIT Group Inc., is a Delaware corporation with its principal place of business in
Livingston, New York. CIT Bank, N.A., is the principal bank subsidiary of CIT Group,
Inc.’s. with an address in Jacksonville, Florida but purportedly has headquarters in
California. Avatel Technologies, Inc. (“Avatel”) is a Florida corporation with a principal
place of business in Brandon, Florida. The plaintiff’s attorneys are also in Brandon,
Florida.
After CIT Group, Inc. (“CIT Group”) filed its motion to transfer venue, the plaintiff
filed its Amended Complaint and added Avatel as a defendant. In its Amended
Complaint the plaintiff alleges a class action and seeks to represent the following
classes: a Nationwide Force Placed Insurance Class; a Missouri Forced Place
Insurance Class; a Nationwide Service Protection Plan Class, and a Missouri Service
Protection Plan Class. The putative national classes would include Floridians.
CIT Group seeks to transfer venue to the Southern District of New York on the
following grounds: the plaintiff does not reside in the Southern District of Florida; the
plaintiff seeks to represent a putative nationwide class; there is little to no connection
with South Florida because the plaintiff does not reside here; CIT Group does not lease
office equipment in Florida or to Florida residents; CIT Group is not a party to any
insuring or reinsuring agreement with the former defendants, Assurant, Inc. or American
Bankers Insurance Company of Florida, both of whom were dropped as defendants in
the plaintiff’s Amended Complaint; CIT Group does not have any employees located
2
within Florida; and CIT Group does not engage in any substantial and non-isolated
activities in Florida. Additionally, CIT Group contends that it is significant that the
plaintiff consented to jurisdiction in New York and unequivocally agreed to waive any
objection to venue in any court in New York in its Lease Agreement with CIT Bank,
N.A.1 See Lease Agreement, Exhibit 2, Amended Complaint (DE# 47-2, 12/29/17).
After CIT Group filed its motion to transfer venue, the plaintiff filed an Amended
Complaint that added CIT Bank, N.A. and Avatel as defendants in addition to CIT. The
plaintiff argues that venue is proper in the Southern District of Florida because two
letters that it received were sent from Miami, Florida, the plaintiff’s attorneys and the
defendant Avatel are located in Brandon, Florida, and CIT Bank, N.A. has an address in
Jacksonville, Florida. The plaintiff argues that CIT Group is not a signatory to the
Lease Agreement and the defendant CIT Group has not cited any case law that a
choice-of-law provision, standing alone, requires transfer. Additionally, the plaintiff
contends that CIT Group’s reliance on its witness, Steven Salisbury of New Jersey,
does not support transfer because Mr. Salisbury was not directly involved in the lease,
insurance or Service Protection Plan at issue. The plaintiff argues further that
the normal rule of law that Plaintiff’s choice of forum should not be
disturbed should apply here because Plaintiff filed the case in the state
1
The Lease Agreement between the Lessor, CIT Bank, N.A., and the plaintiff,
Jones Real Estate Inc., provides in pertinent part that “[Jones Real Estate Inc.] agree[s]
that this lease and any claims, controversies, disputes or causes of action (whether in
contract, tort or otherwise) shall be governed, construed, and enforced in accordance
with Federal law and the laws of the State of New York (without regard to the conflict of
laws principles of such state). [Jones Real Estate Inc.] consent[s] to jurisdiction of any
court located within that state and waive[s] any objection relating to improper venue or
forum non conveniens....” See Lease Agreement at 1, Amended Complaint (DE# 47-2,
12/29/17).
3
that has the most “locus of operative facts” with the lease, insurance, and
Service Protection Plan at issue in Plaintiff’s consumer claims; to wit, CIT
and CIT Bank, N.A. dealt with Plaintiff through Miami, Florida and
Jacksonville, Florida, and Avatel Technologies, Inc. is out of Brandon,
Florida.
Response at 2 (DE# 48; 12/29/17).
Factors
CIT Group seeks to transfer this action pursuant to 28 U.S.C. § 1404(a). Section
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). “A court must first determine whether the action
could have been brought in the venue to which transfer is sought.” Soler v. Indymac
Mortg. Services, Case No. 14-ICV-22541, 2015 L 3952620, at *2 (S.D. Fla. June 29,
2015) (citing Windmere Corp. v. Remington Productions, Inc., 617 F. Supp. 8, 10 (S.D.
Fla. 1985)). Because the plaintiff does not dispute that this action could have been
brought in the Southern District of New York, the Court only needs to address the
second prong, which involves weighing various factors. See Response at 2 (DE# 48;
12/29/17).
To determine whether transfer is appropriate, the Eleventh Circuit requires the
Court to weigh the following Section 1404(a) factors: “(1) the convenience of the
witnesses; (2) the location of relevant documents and the relative ease of access to
sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5)
the availability of process to compel the attendance of unwilling witnesses; (6) the
relative means of the parties; (7) a forum’s familiarity with the governing law; (8) the
4
weight accorded a plaintiff’s choice of forum; and (9) trial efficiency and the interests of
justice, based on the totality of the circumstances.” Manuel v. Convergys Corp. 430
F.3d 1132, 1135 n.1 (11th Cir. 2005) (citation omitted).
CIT Group argues that the plaintiff’s choice of forum should be given little to no
weight because the plaintiff agreed to a forum selection clause and waived any
objections related to improper venue in New York. See Atlantic Marine Construction
Co. v. United States District Court, 134 S. Ct. 568, 581 (2013).
1)
Convenience of Witnesses
CIT Group identified as a witness, Steven Salisbury, a manager of the Avaya
collateral protection insurance program at issue, who is located in Livingston, New
Jersey, which is near the Southern District of New York. CIT Group contends that it is
likely that additional employees located in New York and New Jersey may have
information regarding the allegations in the Amended Complaint. CIT Group maintains
that although Assurant is no longer a party to this action, it is likely that witnesses with
knowledge from Assurant regarding the issues in this case will be located in New York.
The Amended Complaint added CIT Bank, N.A. as a party. CIT Group argues that CIT
Bank, N.A. is headquartered in Pasadena, California and its witnesses may be located
there. CIT Group argues that CIT Bank, N.A.’s witnesses with knowledge of the claims
asserted in the Amended Complaint will not be located in the Southern District of
Florida.
The plaintiff is a foreign corporation located in Missouri. The plaintiff has not
identified any witnesses in the Southern District of Florida but instead speculates that
discovery may reveal facts that substantiate a connection to the Southern District of
5
Florida. The only connection to the Southern District that the plaintiff has asserted is
receipt of a letter that was mailed from a non-party in Miami to the plaintiff in Missouri.
The telephone equipment that is the subject of the Lease Agreement is located in
Missouri.
Because none of the parties are located in the Southern District and the plaintiff
has not identified any witnesses that reside in the Southern District of Florida, the
undersigned finds that this factor favors transfer. See Grasso v. Electrolux Home
Products, Inc., Case No. 15-20774-CIV-Scola, 2016 WL 9526495, *2 (S.D. Fla. April 8,
2016) (granting motion to transfer venue to Middle District of Florida where “none of the
parties actually resides or is based in the Southern District and [plaintiffs] have not
shown any reason why the Southern District would be more convenient for them over
the Middle District”).
2)
Location of Relevant Documents and the Relative Ease of Access to
Sources of Proof
CIT Group’s documents are located in New York. Based in Missouri, one would
expect the plaintiff’s relevant documents to be located in Missouri. No party is located
in the Southern District of Florida. The plaintiff has not identified any documents that
would be located in the Southern District of Florida. A letter was sent from a Miami
address to the plaintiff in Missouri. The plaintiff is seeking to assert actions on behalf of
a nationwide class as well as a Missouri class of similarly situated persons. This factor
favors transfer.
3)
Convenience of Parties
None of the parties resides in the Southern District of Florida. The only party in
6
the Amended Complaint that is a Florida corporation with a principal place of business
in Jacksonville, Florida is Avatel Technologies, Inc. (“Avatel”). The plaintiff is a Missouri
corporation with its principal place of business in Missouri. CIT Group, Inc. is a
Delaware corporation with its principal place of business in New York. CIT Bank, N.A.
is the principal bank subsidiary of CIT Group that CIT Group maintains is
headquartered in Pasadena, California notwithstanding that the Lease Agreement lists
a Jacksonville, Florida address. Neither Brandon, Florida nor Jacksonville, Florida are
located within the Southern District of Florida.
The plaintiff signed a Lease Agreement with CIT Bank, N.A. that provided for
New York to be the governing law and consented to jurisdiction in New York. The
plaintiff also waived any objection relating to improper venue or forum non conveniens
when it signed the Lease Agreement. The plaintiff relies on the fact that its counsel is
located in Brandon, Florida. “Convenience to counsel ‘is generally not an appropriate
consideration’ in a 1404(a) transfer motion.” Cellularvision Tech & Telecomms., L.P. v.
Alltell Corp., 508 F. Supp. 2d 1186, 1190 (S.D. Fla. 2007)(quoting Solomon v.
Continental Am. Life Ins. Co., 472 F.2d 1043, 1047 (3rd Cir. 1973)).
Because neither the plaintiff nor the defendants reside in the Southern District of
Florida, this factor favors transfer.
4)
Locus of Operative Facts
The Lease Agreement was not made in the Southern District of Florida and was
not to be performed here. None of the parties in the Amended Complaint are located in
the Southern District of Florida. The leased equipment was not located in the Southern
District of Florida. The insurance charges were neither billed from nor paid to or from
7
the Southern District of Florida. The letter that was sent by a non-party from an
address in Miami was directed to the plaintiff in Missouri. Courts give minimal deference
to a plaintiff’s choice of forum when “the claims raised in [the plaintiff’s] complaint only
appear to have a limited connection with this District.” Motorola Mobility, Inc. v.
Microsoft Corp., 804 F. Supp. 2d 1271, 1276 (S.D. Fla. 2011); see Soler v. Indymac
Mortg. Servs., Case No. 14-CIV-22541, 2015 WL 3952620, *4 (S.D. Fla. June 29,
2015) (granting motion to transfer where property was located in New York and letters
were mailed to New York address and noting that while the locus of operative facts was
somewhat unclear given the various locations of the defendants “[i]t is clear, however,
that the locus of operative facts is not in the Southern District of Florida”). The locus of
operative facts are not in the Southern District of Florida and this factor favors transfer.
5)
Availability of Process to Compel Attendance of Unwilling Witnesses
Neither party discusses the availability of process to compel attendance of
unwilling witnesses. This factor is neutral.
6)
Relative Means of Parties
The plaintiff argues that “courts have routinely not accepted that a defendant
corporation like CIT [Group] will be inconvenienced by the cost of production of
witnesses in another forum if that corporation has ‘ample financial resources.’”
Response at 3-4 (quoting Houk v. Kimberly-Clark Corp., 613 F. Supp. 923, 932 (W.D.
Mo. 1985)). Neither party submitted evidence as to their respective means. Presently,
the plaintiff is maintaining this action in a foreign forum. Both the Southern District of
Florida and the Southern District of New York are foreign to the plaintiff and require the
8
plaintiff to incur travel expenses. This factor is neutral.
7)
Forum’s Familiarity with the Governing Law
The plaintiff does not cite any case law regarding the forum’s familiarity with
governing law. The Lease Agreement between the plaintiff and CIT Bank, N.A.
provides that federal laws and New York law applies. See Food Mktg. Consultants, Inc.
v. Sesame Workshop, Case No. 09-6177-CIV, 2010 WL 1571206, *10 (S.D. Fla. March
26, 2010) (“While this Court is capable of construing New York law, federal courts in
New York engage in that exercise with far greater frequency and, thus, can fairly be
expected to have developed some expertise in that area.”); see also Soler, 2015 WL
3952620, *4 (noting that “OneWest contends that New York law will govern Plaintiff’s
state law claims, and therefore, the Southern District of New York is an appropriate
forum” and noting that the plaintiff did not contest the issue). This factor favors transfer.
8)
Weight Accorded a Plaintiff’s Choice of Forum
“Generally, a ‘plaintiff’s choice of forum should not be disturbed unless it is
clearly outweighed by other considerations.’” Cellularvision Tech & Telecomms., L.P. v.
Alltell Corp., 508 F. Supp. 2d 1186, 1189 (S.D. Fla. 2007)(quoting Robinson v.
Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996)). “[W]here a plaintiff has
chosen a forum that is not its home forum, only minimal deference is required, and it is
considerably easier to satisfy the burden of showing that other considerations made
transfer proper.” Id. (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981)
(other citations omitted)). Additionally, the “[p]laintiff’s choice of forum is entitled to less
deference when the action is one brought on behalf of a class of persons similarly
9
situated, as it is here.” Gould v. National Life Ins. Co., 990 F. Supp. 1354, 1358 (M.D.
Ala. 1998) (citing Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 524
(1947)); see Soler, 2015 WL 3952620, *4 (finding the presumption in favor of the
plaintiff’s choice of forum was diminished by a number of factors including the facts that
the plaintiff sought to represent a putative nationwide class and the plaintiff did not
reside in the forum) .
Also, the plaintiff’s choice of forum receives little deference when “the operative
facts underlying the cause of action did not occur within the forum chosen by the
[p]laintiff.” Gould v. National Life Ins. Co., 990 F. Supp. 1354, 1358 (M.D. Ala.
1998)(quotation omitted); see Windmere Corp. v. Remington Productions, Inc., 617 F.
Supp. 8, 10 (S.D. Fla. 1985) (citations omitted).
Finally, CIT Group reiterates that the plaintiff’s choice of forum should be given
little to no weight because the plaintiff agreed to a forum selection clause and waived
any objections related to improper venue in New York.
CIT Group relies on Atlantic
Marine Construction Co. v. United States District Court, 134 S. Ct. 568, 581 (2013). In
Atlantic Marine, the Supreme Court held that “[t]he presence of a valid forum-selection
clause requires district courts to adjust their usual §1404(a) analysis in three ways.” Id.
“First, the plaintiff’s choice of forum merits no weight.” Id. “Second, a court evaluating
a defendant’s §1404(a) motion to transfer based on a forum-selection clause should not
consider arguments about the parties’ private interests.” Id. at 582. “Third, when a
party bound by a forum-selection clause flouts its contractual obligation and files suit in
a different forum, a §1404(a) transfer of venue will not carry with it the original venue’s
choice-of-law rules–a factor that in some circumstances may affect public-interest
10
considerations.” Id. Although CIT Group is not a signatory to the Lease Agreement
that contains a forum selection clause, its principal bank subsidiary and co-defendant,
CIT Bank, N.A., is. In the Lease Agreement, the plaintiff expressly consented to the
jurisdiction of any court located in New York regarding “this lease and any claims,
controversies, disputes or causes of action (whether in contract, tort or otherwise)....”
See Lease Agreement.
In its Response, the plaintiff argues that: 1) CIT Group is not a signatory to the
Lease Agreement and does not meet the close relationship test to enforce it as a nonsignatory; and 2) the provision is a choice of law provision rather than a choice of forum
provisions. Response at 11 (DE# 48, 12/29/17). Pursuant to New York law, “‘a
nonparty that is ‘closely related’ to one of the signatories can enforce a forum selection
clause.’” Tate & Lyle Ingredients Americas, Inc. v. Whitefox Technologies USA, Inc., 98
A.D.3d 401, 402-403, 949 N.Y.S.2d 375 (N.Y. App. 1st Div. 2012) (quoting Freeford
Ltd. v. Pendleton, 53 A.D.3d 32, 38 (2008)); see Stone v. Barclays Bank, PLC, Case
No. 9:16-CV-81875-RLR, 2017 WL 766355, *5 (S.D. Fla. Feb. 28, 2017) (applying New
York law and finding a “non-signatory to a contract can be bound by a forum selection
clause if that party has a ‘sufficiently close relationship with the signatory and the
dispute to which the forum selection clause applies’”) (quoting Tate, N.Y.S.2d at 377).
Unlike the forum selection clauses at issue in Tate & Lyle and Stone, the forum
selection clause in the present case is permissive. In Travelcross, S.A. v. Learjet, Inc.,
Case No. 10-61842-CIV-Jordan, 2011 WL 13214118, *3 (S.D. Fla. March 28, 2011),
the court explained that a “valid forum-selection clause is a significant factor in deciding
whether to transfer a case” and that when the forum-selection clause is permissive, “it
11
merits less weight than a mandatory clause.” Id. In Travelcross, the court held that
even in the context of a permissive forum selection clause “the party opposing
enforcement of the forum selection clause carries the burden of showing that the
contract forum’s inconvenience merits retention of the dispute.” Id. (citing P&S Bus.
Mac v. Canon USA, Inc., 331 F.3d 804, 807 (11th Cir. 2003). Like the plaintiff in
Travelcross, the plaintiff in the present case, has not met this burden. In granting a
motion to transfer in Travelcross, the court concluded that “because both parties are
business entities who entered a contract favoring the application of Kansan [sic] law in
Kansas, nothing suggests that justice favors venue in Florida.” Id. at 4.
In the present action, the forum selection provision is broad and applies to “any
claims, controversies, disputes or causes of action (whether in contract, tort or
otherwise) ....” See Lease Agreement. In Stewart Org., Inc. v. Ricoh Corp., 810 F.2d
1066, 1067 (11th Cir. 1987) (en bank), aff’d, 487 U.S. 22 (1988), the Eleventh Circuit
considered a forum-selection clause that provided for certain courts in New York to
have jurisdiction over any “case or controversy arising under or in connection with this
Agreement.” In Stewart Org., the Eleventh Circuit determined that the forum-selection
clause included all causes of action arising “directly or indirectly” from the business
relationship evidenced by the contract, which “permitted the court to order transfer of
the entire case.” Id. at 1070 (citation omitted).
The claims asserted against the defendants are intertwined. The Lessor, CIT
Bank, N.A., is CIT Group’s principal bank subsidiary. Because the Southern District of
Florida is a foreign forum for the plaintiff; the plaintiff seeks to represent a putative
nationwide class as well as a Missouri class; and the plaintiff consented to the
12
jurisdiction of courts located in New York and “waive[d] any objection relating to
improper venue or forum non conveniens” when it signed the Lease Agreement, the
Court awards the plaintiff’s choice of forum little to no weight. This factor weighs in
favor of transfer.
9)
Trial Efficiency and the Interest of Justice
CIT Group argues that the existence of the forum selection clause in the Lease
Agreement weighs in favor of transfer because the allegations in the Amended
Complaint are intertwined against all of the defendants. CIT Group cites Meterlogic,
Inc. v. Copier Sols, Inc., 185 F. Supp. 2d 1292, 1303 (S.D. Fla. 2002) for the
proposition that transfer would serve “the policy of statutory transfer, which is to avoid
duplicative litigation, inconvenience, and unnecessary expenses.” Id. CIT Group’s
reliance on Meterlogic is misplaced because Meterlogic involved two actions - one in
Florida and the other in Missouri - because the court in Florida did not have jurisdiction
over certain defendants.
In its opposition, the plaintiff acknowledges that “[i]n making the transfer analysis,
courts should consider both private and public interests in order to determine the
appropriate forum; while private factors focus on the burden each party will face if
transfer is or is not granted, public interest factors included, inter alia, ‘the connection
with the chosen forum (in order to avoid juries having to hear cases which are wholly
unrelated to local interests), and a host of other factors relating to judicial efficiency.’”
Response at 13 (DE# 48; 12/29/17) (citing Geltech Solutions, Inc. v. Marteal Ltd., 2010
WL 1791423 (S.D. Fla. May 5, 2010) (citing Liquidation Com’n of Banco
Intercontinental, S.A. v. Renta, 530 F.3d 1339, 1356-57 (11th Cir. 2008)). The plaintiff
13
argues further that public interest factors should only be considered when the balance
of private interest factors is even. Id. (citing Aldana v. Del Monte Fresh Produce, N.A.,
Inc., 578 F.3d 1283, 1298 (11th Cir. 2009) (“[I]t is only when the private interest factors
are ‘at or near equipoise’ that a district court is obliged to consider the public interests at
stake in a suit.”)).2
The plaintiff opposes transfer on three grounds regarding trial efficiency and the
interest of justice. First, the plaintiff argues that CIT Group did not “quickly move to
transfer” because of the approximate six (6) week period of time between when the
complaint was filed and the motion to transfer venue was filed. None of the cases cited
by the plaintiff indicate that filing a motion to transfer within six (6) weeks of the filing of
the complaint is unreasonable. The plaintiff’s reliance on In re Wyeth, 406 Fed. App’x
475 (Fed. Cir. 2010), which is from another Circuit and is not binding on this Court, is
misplaced. Additionally, In re Wyeth is factually distinguishable because the Federal
Circuit affirmed the district court’s determination that the movant failed to act with
reasonable promptness when it waited more than one and one-half (1 ½) years to seek
a transfer. Although “Section 1404(a) sets no time-limit on when a motion to transfer
must be filed, ... the prevailing rule is that the movant must act with ‘reasonable
promptness’ in seeking transfer.” Willis v. Okeechobee Cty., No. 11-23765-CIV, 2012
WL 12845648, * 2 (S.D. Fla. Aug. 16, 2012) (denying a motion to transfer venue as
untimely because the motion was filed eight (8) months after the action commenced).
Second, the plaintiff argues that CIT Group as well as the other parties to the
2
. Aldana is distinguishable because it involved dismissal of an action based on
forum non conveniens, which was affirmed by the Eleventh Circuit.
14
case consented to magistrate judge jurisdiction and did not consent to the
reassignment to any other or successor magistrate judge. The plaintiff fails to cite any
case law to support its position that a consent to magistrate judge jurisdiction precludes
a party from filing a motion to transfer venue. CIT Group argues that the plaintiff’s
waiver argument lacks merit and relies on Jaramillo v. Dineequity, Inc., 664 F. Supp. 2d
908, 917 (N.D. Ill. 2009). In Jaramillo, the court explained that “a defendant does not
waive the right to request a transfer of venue under 28 U.S.C. § 1404(a) by consenting
to the jurisdiction of a magistrate judge to decide the case.” Id. Like the plaintiffs in
Jaramillo, in the present case the plaintiff “misunderstand[s] the effect of consenting to
this Court’s jurisdiction under 28 U.S.C. § 636(c)(1).” Id. The Jaramillo court explained
further that “[t]he parties have only consented that a magistrate judge, not a district
judge, will decide all motions brought before the court-including this motion to transfer
venue.” Id. Like the defendants in Jaramillo, “[t]he consent to a magistrate judge does
not prevent [the] defendant[] from seeking to transfer this case....” Id.
Third, the plaintiff argues that the relative congestion of the dockets between the
Southern District of Florida and the Southern District of New York militate against
transfer. The plaintiff relies on the U.S. District Court–Combined Civil and Criminal
Federal Court Management Statistics (September 30, 2017), which are available at:
http://www.uscourts.gov/site/default/files/data_tables/fcms_na_distprofile0930.2017.pdf.
In its reply, the defendant argues that docket congestion is not dispositive and cites a
case that involved a forum selection clause. Reply at 8 (DE# 64; 1/17/18); see P&S
Bus. Mac., 331 F.3d at 808 (holding that “[n]o case has been cited indicating that
congestion of the selected forum’s court docket should be grounds to avoid
15
enforcement of a forum selection clause”). CIT Group relies on the most recent
available statistics of weighted filings of both courts (2016) to support its position that
trial efficiency favors transfer. These statistics show that in 2016 the Southern District
of New York had 142 fewer weighted civil filings per judge than the Southern District of
Florida. See Administrative Office of U.S. District Courts – Weighted and Unweighted
Filings per Authorized Judgeship, Using Case Weights Approved in March 2016, During
the 12 Month Period Ending September 30, 2016, at
http:www.uscourts.gov/sites/default/files/data_tables/jb_xla_0930.2016.pdf.
The Court finds that the plaintiff’s untimeliness and waiver arguments lack merit.
Given the totality of circumstances, including: 1) that the Southern District of Florida is
neither the plaintiff’s home forum nor the locus of the operative facts; 2) that the Lease
Agreement provides that New York law applies and that the plaintiff waives any
objections to venue in New York; and 3) that courts should avoid having a jury sit on a
case with little to no connection to the Southern District of Florida, the Court finds that
trial efficiency and the interest of justice favors transfer.
DONE AND ORDERED in Chambers at Miami, Florida this 1st day of March,
2018.
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies to:
All counsel of record
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?