MEDPRO, INC et al v. SYNERON, INC. et al
Filing
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OPINION FILED. Signed by Judge Jerome B. Simandle on 12/14/11. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MEDPRO, INC., et al.,
Plaintiffs,
HON. JEROME B. SIMANDLE
Civil No. 08-3426 (JBS/KMW)
v.
OPINION
SYNERON, INC., et al.,
Defendants.
APPEARANCES:
Warren S. Wolf, Esq.
GOLDBERG & WOLF, LLC
1949 Berlin Road, Ste 201
Cherry Hill, NJ 08003
and
Jerald R. Cureton, Esq.
Gina M. Zippilli, Esq.
CURETON CLARK, PC
3000 Midlantic Drive, Suite 200
Mt. Laurel, NJ 08054
Attorneys for Plaintiffs Medrpo, Inc., Physicians
Information Services, Inc., Michael Moreno, and Justin Williams
Scott Lee Vernick, Esq.
FOX ROTHSCHILD LLP
2000 Market Street, Tenth Floor
Philadelphia, PA 19103
Attorney for Defendant Syneron, Inc.
Lawrence A. Leven, Esq.
175 Fairfield Avenue, Unit 1C
West Caldwell, NJ 07006
Attorney for Defendant Rory Tringali
Alan L. Zegas, Esq.
LAW OFFICES OF ALAN ZEGAS
552 Main Street
Chatham, NJ 07928
and
Ken Harrison Robbins, Esq.
LAW OFFICES OF KENT HARRISSON ROBBINS
1224 Washington Avenue
Miami Beach, FL 33139
Admitted pro hac vice
Attorneys for Defendant Matthew Justin Willner
SIMANDLE, District Judge:
I.
INTRODUCTION
This matter is before the Court on Defendant Matthew Justin
Willner's motion to transfer case to Southern District of
Florida.
[Docket Item 73.]
Defendant Willner argues that venue
should be transferred pursuant to 28 U.S.C. § 1404(a) because the
Southern District of Florida is the more convenient forum and the
interests of justice favor transfer.
The Plaintiffs jointly
oppose this motion and argue that venue should remain in New
Jersey.
Defendant Syneron and Defendant Tringali also oppose
this motion and maintain that New Jersey is the proper venue for
this action.
For the reasons discussed herein, the Court will deny
Defendant Willner's motion to transfer and venue will remain in
the District of New Jersey.
II.
BACKGROUND
The instant action arises out of alleged unlawful
competition between Medpro, Inc. and Syneron, Inc., companies
which are both involved in the selling of medical equipment.
This alleged unlawful conduct by Syneron and co-defendants Rory
Tringali and Matthew Justin Willner includes disruption and
impairment of Medpro's computer services and sending large bulk
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quantities of unsolicited emails.
Plaintiffs Medpro, Inc., Physicians Information Services,
Inc., Michael Moreno, and Justin Williams (collectively "the
Plaintiffs") filed the instant complaint in the District of New
Jersey on July 9, 2008.
[Docket Item 1.]
The complaint alleges
Defendants Syneron, Inc., Rory Tringali and Matthew Justin
Willner: (1) violated the Computer Fraud and Abuse Act of 1986;
(2) violated the Lanham Act; (3) engaged in common law
infringement and unfair competition; (4) violated the New Jersey
Unfair Competition Statute; (5) converted plaintiffs' property;
(6) engaged in tortious interference with prospective business
relationships; (7) engaged in a trespass to chattels; (8)
violated the New Jersey Computer Fraud Act; and (9) violated the
Can Spam Act.
The parties in this case are diverse.
Medpro is a New
Jersey corporation with its principal place of business in New
Jersey.
Michael Moreno is the sole owner of Medpro and is a
resident of New Jersey.
Physicians Inc. is a Utah corporation
with its principal place of business in Utah.
Justin Williams is
a Utah resident and is the sole owner of Physicians Inc.
Defendant Syneron is a foreign corporation organized under the
law of Israel and has a United States sales office in California.
Defendant Tringali is a resident of the State of New York
currently residing in Hicksville, New York.
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[Docket Item 35.]
Defendant Willner is an individual and resident of Miami Beach,
Florida.
On October 22, 2008, Defendant Syneron filed an answer with
affirmative defenses, and a cross-claim against Defendant
Tringali and Defendant Willner respectively. [Docket Item 12.]
On October 27, 2008, Defendant Willner filed a motion to
stay the instant action pending the outcome of pending criminal
proceedings brought by the State of New Jersey against Defendant
Willner and Defendant Tringali. [Docket Item 15.]
New Jersey
indicted both Willner and Tringali for several offenses,
including computer theft.
Willner argued that a stay was
appropriate because the pending New Jersey criminal case
"involves many of the same facts - if not the exact same facts as those sought by Plaintiff MedPro, Inc. in connection with its
Complaint. . ." [Docket Item 15, Def. Willner's Br. at 2.]
The
Court granted this stay on December 3, 2008.
Defendant Willner pled guilty to these criminal charges;
however, Willner's plea agreement reserved the issue of
territorial jurisdiction.
Defendant Tringali's indictment was
withdrawn in 2008 and the State then re-indicted Tringali in
April, 2011, on the same charges brought in the original
indictment.
Tringali has not pled guilty to the charged offenses
and the criminal case remains pending.
Therefore, Willner can
withdraw his plea if Tringali succeeds in his challenge to the
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territorial jurisdiction of the indictment.
In the course of New
Jersey's criminal investigation, several documents and computers
belonging to Syneron, Willner and Tringali were seized and are
currently in New Jersey state custody.
[Docket Item 72]
In response to Willner's guilty plea, Syneron filed a motion
to lift the stay.
The stay was subsequently lifted on September
22, 2011. [Docket Item 72.]
Defendant Willner then filed the instant motion to transfer
the case to the Southern District of Florida pursuant to 28
U.S.C. § 1404(a).
[Docket Item 73.]
Defendant Willner argues
that the case could have originally been brought in the Southern
District of Florida and the private and public interest factors
weigh strongly in favor of transfer.
Specifically, Willner
argues that the cause of action arose in Florida, the convenience
of the parties and the witnesses favor a Florida venue, and
Florida law will likely apply.
Plaintiffs, Defendant Syneron and Defendant Tringali oppose
this motion to transfer.
They maintain that New Jersey is the
preferred forum, New Jersey and Florida both have ties to the
facts and issues in the case so therefore where the claims arose
is not persuasive, and the convenience of the parties and
witnesses weighs against transferring the case to Florida.
Further, due to the pending criminal action, New Jersey has taken
custody of many of the important computers and documents at issue
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in the case.
Finally, the Plaintiffs and Defendant Syneron argue
that Plaintiffs' complaint alleges violation of New Jersey
statutory law which weighs in favor of maintaining venue in New
Jersey.
Defendant Tringali opposes this motion primarily because
he is a resident of the State of New York and joins in Defendant
Syneron's legal arguments.
III.
DISCUSSION
A.
Standard of Review
28 U.S.C. § 1404(a) provides that "[f]or the convenience of
parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or
division where it might have been brought." § 1404(a).
The
moving party bears the burden of establishing the need for a
transfer.
Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d
Cir. 1995)
The Court must consider all relevant public and private
interests, and not just the three enumerated factors in §
1404(a).
Jumara, 55 F.3d at 879.
Ultimately, "the plaintiff's
choice of forum will not be disturbed unless the balance of
interest tilts strongly in favor of a transfer."
Reed, 166 F.
Supp. 2d at 1057 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508-09 (1947)).
None of the parties dispute that this case could have been
brought in Defendant's desired forum, so the question is limited
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to an examination of the relevant public and private interest
factors.
B. Private Interest Factors
The private interests a court must analyze in determining a
motion to transfer venue pursuant to 28 U.S.C. § 1404(a) include
(1) plaintiff's choice of forum; (2) the defendant's preference
(3) where the claim arose; (4) the convenience of the parties as
indicated by their relative physical and financial condition; (5)
the extent to which any witnesses might not be available for
trial in the chosen forum; (6) the extent to which books and
records could not be produced in the chosen forum.
Jumara, 55
F.3d at 879.
In this case, the private interest considerations weigh
against transfer.
First, the Plaintiffs filed the instant action in New
Jersey.
The Plaintiffs have also filed opposition to this motion
which affirms their desire to litigate this matter in New Jersey.
"While the plaintiff's choice of forum is clearly not entitled to
dispositive weight in the § 1404(a) calculus, it is black letter
law that 'the plaintiff's choice of venue should not be lightly
disturbed.'" Yocham v. Novartis Pharms. Corp., 565 F. Supp. 2d
554, 558 (D.N.J. 2008)(citations omitted).
While Defendant Willner prefers to litigate this action in
Florida, Defendant Syneron, Inc. and Defendant Tringali oppose
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this motion and desire to defend this matter in New Jersey.
The
court particularly recognizes that Tringali's place of residence
is Hicksville, New York which is in closer proximity to New
Jersey than Florida and Tringali is currently facing criminal
charges in New Jersey for the same conduct alleged in this civil
complaint.
Therefore, the second factor of the private interests
analysis weighs against transfer.
It is disputed where the claim arose.
Defendant Willner
contends that the principal allegations of the complaint arose
from alleged unlawful conduct by the Defendants from November
2006 through February 2007 in Florida.
However, the Plaintiffs
also bring claims alleging violations of the New Jersey Computer
Fraud Act and the New Jersey Unfair Competition Statute which
arguably arose in New Jersey and ultimately harmed a New Jersey
corporation.
It is clear that both Florida and New Jersey have
ties to the facts and issues involved in this case.
this factor does not favor either venue.
Therefore,
See Yocham, 565 F.
Supp. 2d at 559 (where plaintiff's claim had ties to both Texas
and New Jersey, considerations of where plaintiff's claim arose
did not favor either venue).
The only party claiming inconvenience in this case is
Defendant Willner.
Defendant Syneron and Defendant Tringali
argue in opposition that New Jersey is the more convenient forum.
Therefore, this factor does not weigh in favor of transfer.
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The convenience of witnesses is determined by unavailability
at trial.
Jumara, 55 F.3d at 879.
Defendant Willner has not
provided any evidence to the court that witnesses have refused to
testify or witnesses would consequently be unavailable in New
Jersey.
Therefore, this factor does not weigh in favor of a
Florida venue.
Finally, the location of computers and documents does not
strongly support a transfer of venue.
In this case, it is
undisputed that important documents and computers are located in
both Florida and New Jersey.
However, Defendant Willner's
computers are currently being held in custody by the State of New
Jersey as a result of his guilty plea in his New Jersey criminal
proceeding.
Furthermore, criminal proceedings are still pending
against Defendant Tringali and the State of New Jersey also has
custody of documents belonging to Tringali and MedPro as part of
the ongoing criminal prosecution.
Therefore, as New Jersey
currently has custody of numerous important documents and
computers in this case, transferring this matter to Florida would
cause unnecessary burden and complication.
Accordingly, the private interest factors weigh against
transferring this case to Florida.
C. Public Factors
The public interests include: (1) the enforceability of the
judgment; (2) practical considerations of the trial; (3) court
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congestion; (4) local interest in deciding local controversies;
(5) public policies of the fora; (6) and familiarity of the trial
judge with the applicable state law in diversity cases.
879-80 (citations omitted).
Id. at
Jumara, 55 F.3d at 879.
Similar to the private interest factors, the public interest
factors also favor retaining venue in New Jersey.
First, a judgment in this case would be equally enforceable
in New Jersey and Florida.
The parties do not argue that court
congestion or public policy are impacted in this case and
therefore these factors are neutral in the court's analysis.
In
addressing the interest of deciding local controversies at home,
the alleged wrongful conduct occurred in Florida and two of the
plaintiffs are New Jersey residents.
As both New Jersey and
Florida have an interest in this litigation, this factor is also
neutral.
While Defendant Willner maintains that the substantive law
of Florida likely applies to Plaintiffs' claims and to the
counterclaims presented against Plaintiffs, a court would need to
eventually engage in a choice of law analysis and analyze both
New Jersey and Florida law in determining this case.
In
addition, the Plaintiffs bring two claims under New Jersey
statutes which inevitably involve the law of New Jersey.
Therefore, this factor does not weigh in favor of transfer and at
best is neutral.
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Importantly, the practical considerations involved in this
litigation strongly favor retaining venue in New Jersey.
New
Jersey is currently prosecuting Defendant Willner and Defendant
Tringali for criminal charges arising out of the same facts and
circumstances alleged in this civil complaint.
Defendant Willner
has already pled guilty1 and Defendant Tringali's criminal
proceedings are currently pending.
As mentioned above, New
Jersey has already seized many of the relevant computers and
documents in this case.
"It would be incongruous, indeed, if
the criminal action . . . proceeded in this District while the
private civil action was dismissed on forum non conveniens
grounds." In re Livent, Inc. Sec. Litig., 78 F. Supp. 2d 194, 212
(S.D.N.Y. 1999).
IV.
CONCLUSION
For the reasons discussed above, Defendant Willner's motion
to transfer is denied.
Ultimately, "the plaintiff's choice of
forum will not be disturbed unless the balance of interest tilts
strongly in favor of a transfer."
Reed, 166 F. Supp. 2d at 1057
(citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)).
In this case, the balance of private and public interests do not
1
The Court recognizes that Defendant Willner incorporated
his reservation that New Jersey is the wrong territorial venue
into his guilty plea agreement. However, this does not change
the circumstances surrounding the instant motion as Defendant
Tringali is indicted for and currently defending criminal charges
in New Jersey and New Jersey currently has custody of several
important computers and documents relevant to this case.
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strongly outweigh the Plaintiffs' choice of forum.
Therefore,
transfer is inappropriate and Defendant Willner's motion is
denied.
The accompanying Order will be entered.
December 14, 2011
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
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