SELECTIVE WAY INSURANCE COMPANY v. GLASSTECH, INC. et al
Filing
8
OPINION. Signed by Chief Judge Jerome B. Simandle on 11/21/2014. (dmr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SELECTIVE WAY INSURANCE
COMPANY, A/S/O J.E. BERKOWITZ,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 14-3457 (JBS/KMW)
v.
GLASSTECH, INC., et al.,
OPINION
Defendants.
APPEARANCES:
Steven A. Kluxen
ZIRULNIK, SHERLOCK & DEMILLE
1395 Yardville-Hamilton Square Road
Suite 202
Hamilton, N.J. 08691
Attorney for Plaintiff
William C. Mead, Jr.
LITCHFIELD CAVO LLP
1800 Chapel Avenue West
Suite 360
Cherry Hill, N.J. 08002
Attorney for Defendant
SIMANDLE, Chief Judge:
INTRODUCTION
The matter comes before the Court on Defendant Glasstech,
Inc.’s (hereinafter, “Defendant”) motion to transfer this action
to the Northern District of Ohio or, alternatively, to dismiss
Plaintiff’s Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).
[Docket Item 4.]
Plaintiff Selective Way Insurance Company (hereinafter,
“Plaintiff”) asserts, as subrogee of J.E. Berkowitz
(hereinafter, “Berkowitz”), that Defendant’s negligent
“troubleshooting” of Berkowitz’s glass annealing oven caused an
explosion, resulting in the substantial destruction of
Berkowitz’s property in New Jersey.
Defendant, relying upon the
provisions of its General Terms and Conditions of Sale
(hereinafter, the “General Terms” or the “Terms”), moves to
transfer this action to the Northern District of Ohio or,
alternatively, to dismiss this action as barred by the eighteen
(18) month limitations period prescribed by its General Terms.
Plaintiff does not dispute that Defendant performed certain
repair services in accordance with a service Quote provided to
Berkowitz by Defendant.
Nor does Plaintiff challenge that the
service Quote expressly stated that Defendant provided such
services pursuant to the General Terms.
Rather, Plaintiff
disputes whether Berkowitz ever received the General Terms
appended to Defendant’s motion, particularly because Plaintiff’s
Complaint—which sounds in tort and contract—makes no reference
to any contractual agreement executed by the parties.
Moreover,
because conduct in New Jersey forms the predicate of this
action, Plaintiff contends that the circumstances fail to
support the transfer or dismissal of this action.
The principal issues now before the Court are the effect,
if any, of Defendant’s General Terms on the viability of this
litigation, and whether, even if inapplicable, the circumstances
of this action dictate transfer to the Northern District of
Ohio.
For the reasons explained below, the Court will deny
Defendant’s motion to transfer this action and alternatively to
dismiss without prejudice to refiling upon completion of
pretrial factual discovery.
BACKGROUND
A. Factual Background
The facts set forth below are those alleged in Plaintiff’s
Complaint, which the Court accepts as true for the purposes of
the pending motion.
On September 11, 2012, Berkowitz engaged
Defendant in order to “troubleshoot[]” Berkowitz’s glass
annealing oven.
(Compl. [Docket Item 1], ¶ 4.)
During the
course of Defendant’s repair work, the glass annealing oven
exploded, causing Berkowitz’s facility to be “substantially
damaged or destroyed by fire.”
(Id. at ¶ 3.)
Plaintiff alleges
that the explosion resulted from the “unknown” and reckless
actions of Defendant’s employee.
Plaintiff therefore seeks
monetary damages for Defendant’s alleged negligence and for
Defendant’s purported breach of express and implied warranties.
(See generally id.)
Plaintiff, Berkowitz’s insurance carrier, reimbursed
Berkowitz for the total loss allegedly derived from Defendant’s
negligence, and, accordingly, brings this action as Berkowitz’s
subrogee in order to recover such sums. 1
B. Parties’ Arguments
Defendant generally argues that, in filing this action,
Plaintiff ignores the Agreement “[c]entral” to the services
Defendant’s employee provided at the time of the incident.
(Def.’s Br. at 2.)
Indeed, Defendant correctly notes that
Plaintiff’s Complaint contains no express reference to any
contractual arrangement, nor provides any additional information
concerning the circumstances giving rise to this litigation.
(See generally Compl.)
Despite these omissions, however,
Defendant asserts that the General Terms mandate the transfer of
this action to the Northern District of Ohio in accordance with
the forum selection provision or, alternatively, require this
action be dismissed as untimely under the contractual eighteen
(18) month limitations period.
(Id. at 3.)
Indeed, Defendant
asserts that “no exceptional circumstances” permit Plaintiff “to
flout the parties’ bargained for” forum, and further contend
that the mere filing of this action contravenes the parties’
1
Defendant removed this action from the Superior Court of New
Jersey on May 30, 2013. (See Notice of Removal [Docket Item
1].) The pending motion followed shortly thereafter. [Docket
Item 4.] The Court has subject matter jurisdiction due to
diversity of citizenship, 28 U.S.C. § 1332.
contractual expression.
(Id. at 7; Def.’s Reply at 5.)
In
seeking to transfer this action, Defendant argues that the
“agreed to” forum selection provisions obviates the need to
credit Plaintiff’s choice of forum (which Plaintiff purportedly
waived freely), and to evaluate the private interest factors
typically associated with 28 U.S.C. § 1404(a).
4-5.)
(Def.’s Br. at
Rather, Defendant asserts that the relevant public
interest factors overwhelmingly support transfer of this action
to Ohio, particularly in light of the clear “dictates” of the
parties’ non-adhesive and bargained-for Agreement, the alleged
disparity in congestion between this Court and the Northern
District of Ohio, and because Ohio law purportedly governs any
dispute arising out of the parties’ Agreement.
8; Def.’s Reply at 8.)
(Def.’s Br. at
In the alternative, Defendant urges the
Court to dismiss this action as untimely under the eighteen (18)
month limitations period of the General Terms.
In support of
its position, Defendant similarly asserts that the Terms reflect
an express agreement to shorten the applicable limitations
period, and further argues that no policy considerations support
overriding this allegedly “clear and reasonable” contractual
expression.
(Def.’s Br. at 7-10; Def.’s Reply at 12-14.)
Plaintiff counters in opposition that Defendant’s argument
in support of the transfer or dismissal of this action hinges
upon a document (here, the General Terms) that Berkowitz neither
received nor executed.
Rather, Plaintiff acknowledges only
receipt of the service “quotation[,]” but characterizes the
record as “devoid of any proofs” that Berkowitz “ever received
and/or agreed to” Defendant’s General Terms.
2, 6.)
(Pl.’s Opp’n at 1-
Plaintiff therefore contends that the General Terms do
not circumscribe the timeliness of, or required venue for, this
litigation, particularly given the Terms’ purportedly adhesive
nature.
(Id. at 3-5.)
Rather, Plaintiff asserts that venue
properly lies in New Jersey: the location of the damaged
Berkowitz property and the events that give rise to this
litigation, and the state in which the majority of the witnesses
reside. 2
(Id. at 6.)
STANDARD OF REVIEW
Dismissal under Federal Rule of Civil Procedure 12(b)(6)
constitutes a permissible means of disposing of an improperly
venued action, or “of enforcing a forum selection clause that
allows suit to be filed in another federal forum.”
Salovaara v.
Jackson Nat. Life Ins. Co., 246 F.3d 289, 298–99 (3d Cir. 2001).
However, it is axiomatic that the Court may not, in resolving a
2
Plaintiff additionally argues that Defendant primarily
predicates its motion upon documents extraneous to, and not
relied upon in, Plaintiff’s Complaint. (Id. at 2-6.) Plaintiff
therefore disputes whether the General Terms may be considered
in connection with the pending motion, and asserts that
Defendant’s position in support of its request to transfer or
dismiss this action constitutes an improper “attempt to
transform this motion [into] one of summary judgment[.]” (Id. at
4-5.) The Court rejects this argument for the reasons stated
below.
motion to dismiss under Rule 12(b), consider “matters extraneous
to the pleadings.”
In re Burlington Coat Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997).
Rather, the Court may only
consider a “‘document integral to or explicitly relied upon in
the complaint,’” or an “‘undisputedly authentic document’” if
such document forms the predicate for the complaint. In re
Rockefeller Ctr. Props., Inc., Sec. Litig., 184 F.3d 280, 287
(3d Cir. 1999) (citations and emphases omitted).
Whether
Plaintiff’s Complaint sufficiently “relies upon” the service
Quote and General Terms must therefore be addressed first.
DISCUSSION
A. Plaintiff’s Complaint Implicitly Relies Upon the service
Quote and General Terms
Plaintiff’s challenge to the Court’s consideration of the
service Quote and General Terms manifests in two (2) forms:
first, Plaintiff argues that Berkowitz never received nor agreed
to the General Terms in connection with Berkowitz’s retention of
Defendant; and second, Plaintiff asserts that the absence of any
reference to such Terms in the Complaint precludes the Court
from considering the purportedly “extraneous document” in
connection with the pending Rule 12 motion.
3, 5-6, 8.)
(Pl.’s Opp’n at 2-
Defendant, however, challenges these assertions on
three (3) bases: first, Defendant asserts that limitations of a
Rule 12(b)(6) inquiry do not restrict the Court’s analysis of
this request to transfer under 28 U.S.C. § 1404(a); second, and
alternatively, Defendant asserts that the General Terms may
properly be considered in the context of a Rule 12(b)(6)
inquiry, because Plaintiff does not dispute the authenticity of
Defendant’s service Quote; and lastly, Defendant asserts that
the service Quote and General Terms constitute the critical
predicate for Plaintiff’s Complaint, particularly to the extent
Plaintiff “asserts a claim for express warranties.”
(Def.’s
Reply at 2-4, 10 (emphasis in original).)
At the outset, the Court notes that failing to attach or
explicitly cite to an extrinsic document does not, as argued by
Plaintiff, preclude the Court from looking at the texts of the
documents on which Plaintiff bases its claims.
See In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d
Cir. 1997).
Indeed, binding Third Circuit precedent clearly
states an exception to the general preclusion against
consideration of matters extraneous to the pleadings for
indisputably authentic documents and/or “‘documents integral to
or explicitly relied upon in the complaint.’”
Mele v. Fed.
Reserve Bank of N.Y., 359 F.3d 251, 256 n.5 (3d Cir. 2004)
(citing In re Burlington, 114 F.3d at 1426).
Moreover, the rule
specifically endeavors to avoid the result of a “legally
deficient claim” surviving a motion to dismiss solely as a
result of the plaintiff’s failure to attach a dispositive
document on which the plaintiff bases its request for relief.
Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998
F.2d 1192, 1196 (3d Cir. 1993)).
Here, given the allegations of Plaintiff’s Complaint, the
Court finds reliance on the service Quote and General Terms,
which Defendant appended to its motion, appropriate.
Plaintiff,
in essence, concedes the existence of “some” agreement between
the parties, but refutes any claim that such agreement
manifested in any particular form and/or incorporated any
conditions relevant to this litigation.
(See, e.g., Pl.’s Opp’n
at 1 (“While it is agreed that some type of agreement was
entered into between Berkowitz and Glasstech, Inc., the
particulars of that agreement have yet to be established.”).)
However, the applicable agreement in this instance—the service
Quote provided by Defendant to Berkowitz and its incorporated
terms—forms in part the heart of Plaintiff’s Complaint,
particularly to the extent that Plaintiff asserts that
Defendant’s conduct breached express warranties.
¶ 2.)
(See Compl. at
In that regard, Plaintiff’s Complaint is clearly founded
upon an actual agreement for services.
(See id.)
See also
Michael v. Shiley, Inc., 46 F.3d 1316, 1325 (3d Cir. 1995)
(noting that a contract generally defines the substantive
obligations of any express warranties); Dzielak v. Whirlpool
Corp., ____ F. Supp. 2d ____, No. 12-089, 2014 WL 2758746, at *9
(D.N.J. June 16, 2014) (noting that “‘an express warranty is a
term of [a] contract itself’”).
Moreover, as asserted by
Defendant, Plaintiff does not dispute the authenticity of the
service Quote appended to Defendant’s submission, and counsel
indeed concedes that Berkowitz “received” and “agreed” to such
Quote.
(Pl.’s Opp’n at 2.)
In taking such a position,
Plaintiff necessarily recognizes the service Quote’s explicit
incorporation of “THE TERMS AND CONDITIONS STATED IN
[DEFENDANT’S] GENERAL TERMS AND CONDITIONS OF SALE.” (Mead
Certif., Ex. A.)
Further, having implicitly relied upon the
service Quote in its Complaint, Plaintiff cannot now claim any
inequity in the Court’s consideration of same.
See Lum 361 F.3d
at 222 (noting that, “by relying on [a] document, the plaintiff
is on notice that the document will be considered” in connection
with a motion under Rule 12(b)(6)) (citation omitted).
Consequently, though, as stated below, the status of the
record in this action presently precludes enforcement of the
General Terms, the Court finds that the service Quote and the
General Terms, as appended to Defendant’s submissions, may
properly be considered in deciding Defendant’s motion to
dismiss.
B. Enforcement of the Forum Selection Clause Would At This
Time be Premature
Though forum selection clauses have not been historically
favored by American courts, the Supreme Court in M/S Bremen v.
Zapata OffShore Co., 407 U.S. 1, 10 (1972) held such clauses to
be presumptively valid and enforceable absent a showing by the
resisting party that enforcement of the clause would be
unreasonable under the circumstances.
See also Wall St. Aubrey
Golf, LLC v. Aubrey, 189 F. App’x 82, 85 (3d Cir. 2006)
(citations omitted) (“Forum selection clauses are entitled to
great weight and are presumptively valid.”).
Consequently, in
order to avoid the application of a valid forum selection
clause, the resisting party must establish “(1) that it is the
result of fraud or overreaching, (2) that enforcement would
violate strong public policy of the forum, or (3) that
enforcement would in the particular circumstances of the case
result in a jurisdiction so seriously inconvenient as to be
unreasonable.”
Coastal Steel Corp. v. Tilghman Wheelabrator
Ltd., 709 F.2d 190, 202 (3d Cir. 1983); see also Moneygram
Payment Sys. v. Consorcio Oriental, S.A., 65 F. App’x 844, 846
(3d Cir. 2003) (same).
Given the early procedural posture of this litigation, the
Court lacks the requisite predicate (whether through
uncontroverted averments or indisputably authentic documents)
upon which to engage in an informed inquiry concerning the
existence of a valid forum selection clause and/or the effect of
such clause.
Defendant insists that the General Terms appended
to their pending motion constitutes a critical component of the
service agreement entered into by the parties.
Def.’s Br; Def.’s Reply.)
(See generally
Plaintiff, by contrast, takes the
position that no such agreement governs the parties’
relationship.
(See generally Pl.’s Opp’n.)
The relevant record
before the Court at this stage, however, does not unequivocally
support either position.
Notably, it is undisputed that the service Quote
incorporated some set of “General Terms and Conditions of
Sale[.]”
(Mead Certif., Ex. A.)
Even if Berkowitz never
received a copy of the General Terms, such express incorporation
communicates the existence of additional provisions, and should
have placed Berkowitz on notice of the need to engage in further
investigation concerning the nature of the parties’ agreement.
However, no such investigation occurred.
Rather, it would
appear that Berkowitz accepted Defendant’s service Quote shortly
after its initial receipt. (Walbolt Certif., Ex. A.)
In so
accepting, and while maintaining that Berkowitz never received
nor assented to the General Terms, Plaintiff argues that the
“unsigned,” non-negotiated, “and generic boilerplate” conditions
constitute an unenforceable contract of adhesion.
at 4-5.)
(Pl.’s Opp’n
However, presentment on a “take-it-or-leave-it” or
adhesive basis does not, without more, render the General Terms
(or specifically, the forum selection provision) unenforceable.
Bonanno v. Quiznos Master LLC, No. 06-1415, 2006 WL 3359673, at
*5 (D.N.J. Nov. 16, 2006) (citing Alexander v. Anthony Int’l,
L.P., 341 F.3d 256, 265 (3d Cir. 2003)); see Union Steel Am. Co.
v. M/V Sanko Spruce, 14 F. Supp. 2d 682, 686 (D.N.J. 1998)
(“[Plaintiff] argues that there is no presumption of validity
because the forum selection clause at issue is part of an
adhesion contract. This argument has been rejected by courts
which have considered it.”).
Nor does a party’s failure to
review a received forum selection clause necessarily preclude
enforcement.
Rather, the “critical inquiry” concerns whether
the agreement “reasonably communicated” the provision, not
whether the party actually read or negotiated the terms of such
provision.
Jordan Acquisition Grp., LLC v. Adam Techs., Inc.,
No. 09-542, 2009 WL 2473987, at *6 (W.D. Pa. Aug. 12, 2009)
(citing Marek v. Marpan II, Inc., 817 F.2d 242 (3d Cir. 1987).
Here, however, the dearth of the present record leaves
unanswered several critical questions.
The record, for example, fails to squarely reflect whether
and to what extent Berkowitz agreed to be bound by the General
Terms, thereby casting doubt upon the Terms’ validity.
See
Jumara, 55 F.3d at 880 (noting that a valid forum selection
clause generally endeavors to reflect the “manifestation of the
parties’ preferences as to a convenient forum”).
Moreover, it
is undisputed that Berkowitz never executed or otherwise
expressly acknowledged receipt of the General Terms.
Indeed,
the factual circumstances surrounding the parties’ service
agreement—facts necessary to properly inform the Court’s
analysis—are entirely undeveloped in the present record.
The
bare record presently before the Court therefore fails to
suffice.
Proceeding with pretrial factual discovery, however,
will enable the parties to develop the answers to these and
related inquiries, and to provide a more ample predicate from
which to conduct the required inquiry.
Because the existence of the General Terms is in
legitimate dispute, the Court finds the present record
insufficient to perform the robust review required to determine
whether, if at all, the General Terms circumscribe the
procedural context of this litigation.
The Court will therefore
deny Defendant’s motion to transfer or dismiss this action
pursuant to the provisions of the General Terms, without
prejudice to Defendant’s right to renew its position upon
conclusion of pretrial factual discovery. 3
Roman v. Unigroup
Worldwide, No. 13-1748, 2014 WL 2504586, *9-*10 (W.D. Pa. May
28, 2014) (finding that the court could not, at an “early stage
of litigation,” resolve the issue of the existence and effect of
3
Because enforcement of the forum selection clause hinges upon
the enforceability of the General Terms as a whole, the Court
need not engage in any protracted inquiry concerning Defendant’s
request to dismiss this action as untimely under the limitations
provision of the General Terms. Rather, the Court similarly
denies Defendant’s request without prejudice for the reasons
stated above.
a forum selection clause, and denying defendant’s motion to
dismiss on that basis without prejudice).
Having declined to
dismiss or transfer this action on the basis of the General
Terms, the Court turns to whether the general transfer inquiry
set forth in 28 U.S.C. § 1404 supports Defendant’s request to
transfer this action.
C. An Evaluation of the § 1404 Considerations Does Not Warrant
the Transfer of this Action
Under 28 U.S.C. § 1404(a), “[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.”
In so considering,
the Court of Appeals has directed courts to consider, in
addition to the three enumerated factors in § 1404(a), “all
relevant factors to determine whether on balance the litigation
would more conveniently proceed and the interests of justice be
better served by transfer to a different forum.” Jumara v. State
Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (internal
quotations and citations omitted). In evaluating the propriety
of transfer, courts have therefore relied upon “a wide range of
public and private interests[.]” Yocham v. Novartis Pharm.
Corp., 565 F. Supp. 2d 554, 557 (D.N.J. 2008).
Specifically, the private interests that courts should
consider are:
plaintiff's forum preference as manifested in the
original choice; the defendant's preference; whether
the claim arose elsewhere; the convenience of the
parties as indicated by their relative physical and
financial condition; the convenience of the witnessesbut only to the extent that the witnesses may actually
be unavailable for trial in one of the fora; and the
location of books and records (similarly limited to
the extent that the files could not be produced in the
alternative forum).
Jumara, 55 F.3d at 879 (citations omitted). Among the public
interests that courts should consider are:
the enforceability of the judgment; practical
considerations that could make the trial easy,
expeditious, or inexpensive; the relative
administrative difficulty in the two fora resulting
from court congestion; the local interest in deciding
local controversies at home; the public policies of
the fora; and the familiarity of the trial judge with
the applicable state law in diversity cases.
Id. at 879–80 (citations omitted).
“It is well-settled that the
[heavy] burden on a § 1404(a) motion must be borne by the party
seeking to transfer the case[.]’”
Yocham, 565 F. Supp. 2d at
557 (citation omitted); see also Shutte v. Armco Steel Corp.,
431 F.2d 22, 25 (3d Cir. 1970), cert. denied, 401 U.S. 910
(1971). Consequently, the plaintiff’s “choice of forum will not
be disturbed unless the balance of interest tilts strongly in
favor of a transfer.” Reed v. Weeks Marine, Inc., 166 F. Supp.
2d 1052, 1057 (E.D. Pa. 2001) (citing Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508–09 (1947)).
Here, the Court need not belabor the § 1404 analysis
because the private and public interest considerations plainly
militate against transfer. 4
While not afforded dispositive
weight in connection with the § 1404 inquiry, it is black-letter
law that “the plaintiff's choice of venue should not be lightly
disturbed.” Jumara, 55 F.3d at 879 (citation omitted); see also
Knierim v. Siemens Corp., No. 06–4935, 2008 WL 906244, *20
(D.N.J. Mar. 31, 2008); Yang v. Odom, 409 F. Supp. 2d 599, 604
(D.N.J. 2006); Sandvik, Inc. v. Continental Ins. Co., 724 F.
Supp. 303, 307 (D.N.J. 1989).
Indeed, in light of the
“paramount consideration” accorded to a plaintiff’s choice of
venue, Shutte, 431 F.2d at 25, courts in this district have
recognized that the plaintiff’s choice of forum should prevail,
“[u]nless the balance of inconvenience of the parties” strongly
favors the defendant. Clark v. Burger King Corp., 255 F. Supp.
2d 334, 338 (D.N.J. 2003) (citing Shutte, 431 F.2d at 25); see
also Sandvik, 724 F. Supp. at 307 (noting that “[t]his requires
something more than a mere preponderance of the evidence in
favor of transfer”) (internal quotations and citation omitted).
Defendant has not met this burden in this instance.
Nor has Defendant demonstrated that the remaining private
interest considerations tip “strongly” in favor of transfer.
Clark, 255 F. Supp. 2d at 338.
4
Rather, Plaintiff’s Complaint
Because, as stated above, the Court cannot at this time
determine the enforceable nature of the forum selection clause
relied upon by Defendants, the Court will not ignore the private
interest considerations in disposing of Defendant’s request to
transfer this action.
plainly reflects that the State of New Jersey forms the heart of
this litigation.
(See generally Compl.)
Indeed, New Jersey
constitutes at this time the most privately convenient forum for
this litigation, particularly because it is the forum state of
all of the acts and physical property implicated in this action.
In addition, most, if not all, of the witnesses relevant to the
subject matter of this action—namely, Berkowitz employees—
presumably reside at or near Berkowitz’s Pedricktown, New Jersey
facility and offices.
The State of Ohio, by contrast, has no
appreciable connection to the facts at issue in this case.
Moreover, although certain public interest considerations
could conceivably tip in Defendant’s favor, such considerations
do not sufficiently tilt the scales to meet the heavy burden
necessary to disturb Plaintiff’s choice of forum.
First, even
assuming arguendo that Ohio law governs Plaintiff’s claims,
Defendant’s position that this factor proves determinative is
spurious.
Notably, while the “familiarity of the trial judge
with the applicable state law,” see Jumara, 55 F.3d at 880, the
inevitable choice-of-law analysis in this action will require
either this Court or the Ohio court to determine whether the two
states’ laws actually conflict.
See Lebegern v. Forman, 471
F.3d 424, 428 (3d Cir. 2006) (court undertaking choice-of-law
analysis must examine both jurisdictions’ laws to determine
whether an “actual conflict” exists).
Consequently, even
assuming that Ohio law will ultimately govern the viability of
Plaintiff’s claims, in so determining, a court will be called
upon to examine the laws of both states.
See id.
Indeed,
federal district courts routinely interpret, without issue, the
laws of foreign jurisdictions, and Defendant has proffered
insufficient cause at this time to transfer this inquiry to
Ohio.
Nor does the Court find that any relative court
congestion conclusively favors transfer.
Rather, although a
consideration in a § 1404(a) motion, the Court finds the
“‘relative congestion of the respective courts’ dockets’” of
minimal importance in the overall transfer inquiry. 5
Yocham, 565
F. Supp. 2d at 560 (quoting Clark, 255 F. Supp. 2d at 338
(citing cases for the proposition that “calendar congestion”
does not constitute “a factor of great importance” in connection
with a transfer motion)).
Lastly, because this action concerns
tortious conduct that allegedly occurred in this State, New
5
There is a slight disparity between the median time to
disposition of a civil case by trial in the Northern District of
Ohio (25.9 months) and the median time to disposition by trial
in this District (36.8 months). See Table C-5, Administrative
Office of the United States Courts, Statistical Tables for the
Federal Judiciary, available at
http://www.uscourts.gov/uscourts/Statistics/JudicialBusiness/201
3/appendices/C05Sep13.pdf. Since relatively few cases are
resolved by trial in either district, however, the more relevant
measure of court congestion is the median time to disposition
for all cases, not just trials. The median time to disposition
for all cases in the District of New Jersey for the year ending
September 30, 2013 is only 6.2 months, and the same interval for
the Northern District of Ohio is 8.8 months. Table C-5, id.
Thus, it cannot be said that disposition is likely to be faster
if the case is docketed in the Northern District of Ohio.
Jersey possesses a significant public policy interest in
resolving this dispute.
See Demodulation, Inc., 2011 WL
6756069, at *4; Springfield, 2011 WL 2600739, at *3.
Consequently, the private and public interests weigh, on
balance, heavily against transferring this litigation to the
Northern District of Ohio, and the Court accordingly denies
Defendant’s request to transfer.
CONCLUSION
In sum, the Court will deny Defendant’s motion to transfer
and alternatively to dismiss in its entirety without prejudice
to Defendant’s right to renew upon conclusion of pretrial
factual discovery.
November 21, 2014
Date
The accompanying Order will be entered.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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