FERNANDES v. DEUTSCHE BANK NATIONAL TRUST COMPANY et al

Filing 22

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 12/18/2015. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BEATRICE FERNANDES,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 15-6928 (JBS/KMW)

v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, HUBZU USA, INC., and
REALHOME SERVICES AND
SOLUTIONS, INC.,

MEMORANDUM OPINION

Defendants.
SIMANDLE, Chief Judge:
This action concerns a dispute over the online auction (and
ultimate purchase) of real property in North Wildwood, New
Jersey, and arises out of Plaintiff Beatrice Fernandes’
(hereinafter, “Plaintiff”) contention that Defendant Deutsche
Bank National Trust Company (hereinafter, “Deutsche Bank”)
awarded the winning bid to a third-party, despite Plaintiff’s
significantly higher offer.

(See generally Compl. at ¶¶ 5-16.)

Based upon her belief that this action touches and affects title
to the beach property, Plaintiff filed and recorded a notice of
lis pendens in the Superior Court of New Jersey, together with a
three-Count Complaint for consumer fraud, common law fraud, and
promissory estoppel.

(See generally id.)

Following removal to this federal Court, Defendants now
move to strike the lis pendens and to transfer this New Jersey-

centric litigation to the Northern District of Georgia.
Docket Items 9 & 10.]

[See

Defendants claim, in particular, that the

lis pendens must be striken, because Plaintiff cannot
demonstrate the necessary underlying property interest (see
Defs.’ lis pendens Br. at 6-10), and that this action must be
transferred on account of the forum selection clause contained
within the Terms and Conditions of the online auction site.
(See Defs.’ Transfer Br. at 4-11.)

Plaintiff, by contrast,

takes the position that she claims an interest in the disputed
property that requires continuation of the lis pendens (see
Pl.’s lis pendens Opp’n at 4-6), and that the forum selection
clause has no application to this litigation.

(See Pl.’s

Transfer Opp’n at 3-5.)
The relatively straightforward issues presented by the
pending motions are whether Plaintiff’s Complaint contains
causes of action that affect title to the disputed property;
whether a valid and enforceable forum selection clause governs
the parties’ relationship; and whether, in light of a forum
selection clause or not, the applicable considerations under 28
U.S.C. § 1404(a) favor the transfer of this action to the
Northern District of Georgia.
For the reasons that follow, Defendants’ motion to strike
the lis pendens will be granted, and their motion to transfer
will be denied.

The Court finds as follows:
2

1.

Factual and Procedural Background. 1

On June 13, 2015,

Deutsche Bank listed a property in North Wildwood, New Jersey
(hereinafter, the “property”) for auction on an online real
estate marketplace, HUBZU, through REALHome Services and
Solutions, Inc. (hereinafter, “REALHome”).
7.)

(See Compl. at ¶¶ 5-

Following the listing, Plaintiff’s New Jersey real estate

agent, David Shapiro, contacted HUBZU to express interest in the
property, and “began talks” with REALHome agent David Sweeney.
(Id. at ¶¶ 8-9.)

During these “talks,” Mr. Shapiro relayed to

Mr. Sweeney that Plaintiff had “deposited” funds “into an escrow
account” in connection with her $300,000 offer for the property.
(Id. at ¶¶ 12.)

Mr. Sweeney allegedly responded that “a bid

[of] around 93% of [the] asking price of $347,000 would be
acceptable,” and Plaintiff, in turn, “made another offer of
$322,000” prior to the end of the bidding period on August 13,
2015.

(Id. at ¶¶ 12-14.)

Nevertheless, on August 13, 2015, Mr.

Shapiro received an email from HUBZU stating that, at the end of
bidding, the property had sold to a third-party for “the Highest
Bid” of $281,000.
2.

(Id. at ¶ 16.)

Based upon her belief that she had an agreement to

purchase the property at the “highest price,” Plaintiff brought

1

For purposes of the pending motions, the Court accepts as true
the version of events reflected in Plaintiff’s Complaint. See
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).
3

this action against Defendants, asserting claims for consumer
fraud, common law fraud, and promissory estoppel. 2
17-33.)

(Id. at ¶¶

Although dressed in different terms, each claim seeks

identical relief, “[s]pecific [p]erformance and damages against
Defendants in the form of” an order requiring Deutsche Bank to
sell the property to Plaintiff.

(Id.)

Plaintiff then filed and

recorded a notice of lis pendens, and after removal, 3 the pending
motions followed. 4
3.

Standard Governing Defendants’ Motions to Strike

Plaintiff’s notice of lis pendens.

At common law, the filing of

a lawsuit alone provided constructive notice to any subsequent
purchaser or lienholder of a pending contest concerning title to
the property.

See Manzo v. Shawmut Bank, N.A., 677 A.2d 224,

227 (N.J. Super. Ct. App. Div. 1996).

New Jersey’s lis pendens

statute, N.J.S.A. §§ 2A:15-6 to 15-17, “altered this rule by
requiring that a notice of lis pendens be filed and recorded for
subsequent interest takers to have constructive notice of the
pendency of a lawsuit and to take subordinate to the rights the

2

Plaintiff’s consumer fraud claim arises under New Jersey’s
Consumer Fraud Act, N.J.S.A. §§ 56:8-1 to -197 (hereinafter, the
“NJCFA”), while her remaining claims rely upon common law. (See
generally Compl.)
3 Defendants removed this action on September 17, 2015.
[See
Docket Item 1.]
4 On November 2, 2015, the Court denied Defendants’ request for
expedited disposition of the pending motion, but resolved to
decide the motions promptly. [See Docket Item 14.]
4

plaintiff derives in the outcome of the litigation.”
(citations omitted).

Id.

In other words, the lis pendens itself now

provides “constructive notice” that interested parties take the
property subject to the outcome of the litigation.

Id.

(citations omitted); see also N.J.S.A. §§ 2A:15-7.

The

statutory basis for the grant of a notice of lis pendens, in
turn, states that,
In every action, instituted in any court of this State
having civil jurisdiction or in the United States
District Court for the District of New Jersey, the
object of which is to enforce a lien upon real estate
or to affect the title to real estate or a lien or
encumbrance thereon, plaintiff or his attorney shall,
after the filing of the complaint, file in the office
of the county clerk or register of deeds and
mortgages, as the case may be, of the county in which
the affected real estate is situate, a written notice
of the pendency of the action, which shall set forth
the title and the general object thereof, with a
description of the affected real estate. No notice of
lis pendens shall be filed under this article in an
action to recover a judgment for money or damages
only.
N.J.S.A. 2A:15-6 (emphases added).

In considering whether the

object of an action “‘affects title to real property,’” courts
“look only to the underlying complaint.”

Pharmacia Corp. v.

Motor Carrier Servs. Corp., No. 04-3724, 2006 WL 2792793, at *3
(D.N.J. Sept. 26, 2006) (citations omitted and emphasis in
original).

Courts then determine whether the allegations of the

complaint demonstrate “a probability that [a] final judgment
will be entered in favor of the plaintiff sufficient to justify

5

the continuation of the lis pendens.” 5

Gage v. Wells Fargo Bank,

N.A. AS, No. 12-777, 2013 WL 3443295, at *6 (D.N.J. July 9,
2013) (citation and internal quotation marks omitted), aff’d,
555 F. App’x 148 (3d Cir. 2014).

Stated differently, courts

“‘weigh the strengths of [the] plaintiff[’s] case against the
detriment imposed on [the] defendant by reason of the filing of
the notice of lis pendens.’”

Stephen N. Frankel Real Estate,

Inc. v. Merrett, No. A-1547-09T2, 2011 WL 1085531, at *4 (N.J.
Super. Ct. App. Div. Mar. 25, 2011) (citation omitted).
4.

As explained above, the crux of this action concerns

Plaintiff’s contention that Deutsche Bank improperly named a
third-party the highest bidder for the property, despite her
higher-dollar-value offer.

(See generally Compl. at ¶¶ 5-16.)

As a result, Plaintiff argues that her fraud and promissory
estoppel claims “‘affect the title’” of the property, because
she seeks relief in the form of specific performance.
lis pendens Opp’n at 4.)

(Pl.’s

More specifically, she seeks to

5

For that reason, the Court disregards, as it must, much of the
series of documents appended to Plaintiff’s opposition. See
Pharmacia Corp., 2006 WL 2792793, at *3 (emphasis in original
and citations omitted) (explaining that, in assessing the
propriety of a lis pendens, “courts may look only to the
underlying complaint”); Polk v. Schwartz, 399 A.2d 1001, 1004
(N.J. Super. Ct. App. Div. 1979) (“upon a motion to cancel or
discharge a Lis pendens, the court may not consider anything
other than whether the complaint sufficiently states a cause of
action to impress a trust”).
6

require Deutsche Bank to sell her the property as the highest
bidder (see Compl. at ¶¶ 17-33), and argues that the nature of
this desired relief requires continuation of the lis pendens.
(See Pl.’s lis pendens Opp’n at 4.)
5.

Nevertheless, specific performance constitutes

exclusively a contractual remedy, and can only be invoked to
address a breach of a valid and enforceable agreement.

See,

e.g., Estate of Cohen, ex rel. Perelman v. Booth Computers, 22
A.3d 991, 1001 (N.J. Super. Ct. App. Div. 2011) (citation
omitted); Houseman v. Dare, 966 A.2d 24, 27 (N.J. Super. Ct.
App. Div. 2009) (citations omitted); Marioni v. 94 Broadway,
Inc., 866 A.2d 208, 214 (N.J. Super. Ct. App. Div. 2005)
(citation omitted).

For that reason, Plaintiff’s promissory

estoppel claim, a quasi-contractual theory of liability,
provides the only basis for an award of specific performance.
See Del Sontro v. Cendant Corp., Inc., 223 F. Supp. 2d 563, 574
(D.N.J. 2002).

This claim, in turn, constitutes the only claim

that arguably affects title to the property (as opposed to
simply entitling Plaintiff, if successful, to monetary damages). 6

6

Plaintiff’s claims for common law fraud and statutory consumer
fraud, by contrast, rely solely upon allegedly unconscionable
conduct and business practices, but not any agreement. (See
Compl. at ¶¶ 17-26.) Even more critically, these claims enable
an aggrieved party to recover only monetary damages, see, e.g.,
Francis E. Parker Mem’l Home, Inc. v. Georgia-Pac. LLC, 945 F.
Supp. 2d 543, 552 (D.N.J. 2013) (citation omitted) (“Damages
under the [CFA] are limited to ‘ascertainable loss’ and
7

6.

A claim for promissory estoppel, in turn, requires

clear and convincing proof of “‘1) a clear and definite promise;
(2) made with the expectation that the promisee will rely on it;
(3) reasonable reliance [upon the clear and definite promise];
and (4) definite and substantial detriment.’” 7

Nye v. Ingersoll

Rand Co., 783 F. Supp. 2d 751, 766 (D.N.J. 2011) (emphasis
added) (quoting Toll Bros., Inc. v. Bd. of Chosen Freeholders of
Cnty. of Burlington, 944 A.2d 1, 19 (N.J. 2008)).
7.

Here, however, the Court need not belabor these

elements, because Plaintiff’s Complaint demonstrates no
sufficiently “‘clear and definite’” promise to sell the
property, nor any qualifying detriment.

Id. (citation omitted).

encompass only economic losses.”); Gennari v. Weichert Co.
Relators, 691 A.2d 359, 369 (N.J. 1997) (finding “non-economic
losses” not recoverable under the NJCFA), and New Jersey law
plainly prohibits the filing of a lis pendens for that sort of
recovery. See N.J.S.A. § 2A:15-6; see also Pharmacia Corp.,
2006 WL 2792793, at *2 (citations and internal quotation marks
omitted) (“the courts of the state of New Jersey have
unequivocally held that a lis pendens may not be filed in an
action to recover a judgment for money or damages only”). For
these reasons, the Court finds no support for the notion that
the lis pendens could rest upon Plaintiff’s fraud-based claims.
Nor, for that matter, has Plaintiff identified any, and instead
appears to concede quite the opposite. (See Pl.’s lis pendens
Opp’n at 4-6 (referencing only Plaintiff’s promissory estoppel
claim).)
7 Because this action concerns the transfer/sale of real estate,
the traditional promissory estoppel elements must be viewed
through the lens of New Jersey’s Statue of Frauds, which
requires “clear and convincing evidence” of an oral agreement to
sell real property. N.J.S.A. § 25:1-13; see also On the Hill
Realty, LLC v. Kelly, No. SOM-C-12016-05, 2005 WL 1252340, at *3
(N.J. Super. Ct. Ch. Div. Apr. 29, 2005) (same).
8

8.

Indeed, as to the existence of a promise, Plaintiff

alleges only that the REALHome agent, Mr. Sweeney, “indicated to
Plaintiff’s agent[, Mr. Shapiro,] that a bid around 93% of
asking price of $347,000 would be acceptable,” and that
Plaintiff, in turn, “made another offer of $322,000 prior to the
bidding period end on August 13, 2015.”
(emphasis added).)

(Compl. at ¶¶ 13-14

The actual communications that underlie

these allegations, however, reflect that Mr. Sweeney stated only
that a 93% bid would “likely do it,” impliedly acknowledging the
uncertainty.
9.

(Ex. A to Shapiro Aff.)

These circumstances reflect little more than an

ongoing exchange of indefinite promises, and therefore fall far
short of a probable showing of a “‘clear and definite’” promise
by Defendants to sell the property to Plaintiff at a specific
price.

Nye, 783 F. Supp. 2d at 766 (citation omitted); see also

Del Sontro, 223 F. Supp. 2d at 574 (citations omitted) (finding
that “indefinite promises ... cannot give rise to a claim for
promissory estoppel”); Malaker Corp. Stockholders Protective
Comm. v. First Jersey Nat’l Bank, 395 A.2d 222, 230 (N.J. Super.
Ct. App. Div. 1978) (defining a clear and definite promise as
the “sine qua non” for the applicability of promissory
estoppel).

Nor do these allegations render it probable that

Plaintiff will overcome the “clear and convincing” hurdle

9

imposed by New Jersey’s Statute of Frauds.

See N.J.S.A. § 25:1-

13.
10.

Aside from these deficiencies, Plaintiff’s allegations

do not suggest that she suffered a definite and substantial
detriment.

(See generally Compl.)

Rather, the Complaint only

states, in conclusory fashion, that Defendants’ alleged conduct
proved “detrimental” (Compl. at ¶ 32), presumably because she
missed out on the opportunity to purchase “the unique piece of
[foreclosed] property.” 8

(Pl.’s lis pendens Opp’n at 6.)

As

presently alleged, this detriment appears to lack the
substantiality required for purposes of a meritorious promissory
estoppel claim.
11.

In view of these issues, the Court cannot conclude

that Plaintiff’s Complaint demonstrates a probability of success
sufficient to allow her to unilaterally cloud title to the
property, particularly given Defendants’ representation that an
innocent bidder/purchaser remains waiting in the wings.

As a

result, Defendants’ motion to strike the lis pendens will be
granted, and the lis pendens will be discharged without
prejudice. 9

See Pharmacia Corp., 2006 WL 2792793, at *3

8

The Court culls this presumed detriment from Plaintiff’s
briefing, because her Complaint itself provides no detail on the
issue of detriment.
9 Even upon review of the documents attached to Plaintiff’s
opposition (which consist mostly of emails between Mr. Shapiro
and Mr. Sweeney), the Court has serious doubts concerning
10

(discharging an “improper” lis pendens without prejudice); Gage,
2013 WL 3443295, at *6 (same); Jackson v. Manasquan Sav. Bank,
638 A.2d 165, 170 (N.J. Super. Ct. Ch. Div. 1993) (discharging a
lis pendens, where the court found little merit to the
plaintiffs’ claim for specific performance).

The Court next

addresses Defendants’ motion to transfer.
12.

Standard Governing Defendants’ Motion to Transfer.

28

U.S.C. § 1404(a) permits the Court to transfer an action to
another District where it could originally have been brought.
Here, however, the existence of an allegedly applicable and
binding forum selection clause motivates Defendants’ motion to
transfer.

See Atl. Marine Const. Co., Inc. v. U.S. Dist. Court

for W. Dist. of Tx., ___ U.S. ____, 134 S.Ct. 568, 580 (2013)
(noting that a motion to transfer constitutes the appropriate
mechanism to enforce a forum selection clause).

For that

reason, the Court must first examine the applicability and
enforceability of the forum selection clause, prior to
addressing its impact, if any, upon the traditional transfer
analysis.

whether any amount of pleading supplementation and/or discovery
will add life to Plaintiff’s promissory estoppel claim. (See
Ex. A to Shapiro Aff.) Indeed, certain of these documents
appear to run contrary to Plaintiff’s theories. (See generally
id.) Nevertheless, the Court leaves open the possibility that
additional evidence may bring into focus the basis, if any, for
Plaintiff’s promissory estoppel claim.
11

13.

Applicability and Enforceability of the Forum

Selection Clause.

Robust authority has endorsed the enforcement

of forum selection clauses, unless the clause resulted from
fraud, violates public policy, or requires resolution in a
seriously inconvenient forum.

See, e.g., M/S Bremen v. Zapata

Off-Shore Co., 407 U.S. 1, 15 (1972); Coastal Steel Corp. v.
Tilghman Wheelabrator Ltd., 709 F.2d 190, 202 (3d Cir. 1983),
overruled on other grounds by, Lauro Lines v. Chasser, 490 U.S.
495 (1989); MoneyGram Payment Sys. v. Consorcio Oriental, S.A.,
65 F. App’x 844, 846 (3d Cir. 2003).

Application of this

endorsement, however, necessarily requires that the underlying
agreement govern the parties’ dispute.

As a result, courts

routinely decline to apply forum selection clauses, where the
subject of the dispute did not arise from the contract
containing the clause.

See, e.g., Cottman Transmission Sys.,

Inc. v. Martino, 36 F.3d 291, 293 (3d Cir. 1994) (refusing to
apply a forum selection clause from one contract between the
parties to a dispute arising out of a second contract); Jayson
Co. v. Vertical Mkt. Software, No. 05-3883, 2006 WL 1374039, at
*4 (D.N.J. May 18, 2006) (same); Toner v. Miller, No. 03-3498,
2003 WL 22358446, at *1 (E.D. Pa. Sept. 8, 2003) (same).
14.

Here, Defendants argue that the forum selection clause

of HUBZU’s “Terms and Conditions” govern this action, because
Mr. Shapiro, Plaintiff’s real estate agent, registered to use
12

HUBZU and therefore “accepted the Terms and Conditions” on
Plaintiff’s behalf.

(Defs.’ Transfer Br. at 7-9.)

Plaintiff,

by contrast, takes the position that HUBZU’s “Terms and
Conditions” have no application here, because her claims do not
arise from any agreement with HUBZU and because she received no
notice of the provision.
15.

(Pl.’s Transfer Opp’n. at 3-5.)

The “Terms and Conditions” imbedded within HUBZU’s

website include, on the twelfth page, a provision that “[a]ll
parties agree that any and all disputes, brought in the United
States, [and] arising from [the] use of Hubzu or its Affiliated
Websites will be resolved solely through the Federal Courts in
Georgia.”

(Ex. B to Britsch Dec. at § 17.9 (emphasis added).)

The sole predicate for this litigation, however, concerns
Plaintiff’s position that Defendants agreed to sell her the
disputed property in an email exchange between two real estate
agents, and in a manner separate and apart from the HUBZU
website.

(See Compl. at ¶¶ 6-16.)

Indeed, Plaintiff’s theory

of liability is premised upon her belief that Defendants should
have placed her “email bid” on equal footing to bids placed
through the HUZBU website, and her position that the allegedly
differential treatment resulted from unlawful conduct.
generally id.)

(See

In that way, resolution of this action requires

inquiry into individual conduct without any connection to
Plaintiff’s “use” of the HUBZU website.
13

(See generally id.)

As

a result, the Court cannot conclude that this dispute falls
within the ambit of the forum selection clause. 10

The Court

therefore turns to whether the general transfer inquiry favors
the transfer of this action.
16.

Section 1404(a) Factors. 11

In evaluating the propriety

of transfer under 28 U.S.C. § 1404(a), courts consider “a wide
range of public and private interests.” Yocham v. Novartis
Pharm. Corp., 565 F. Supp. 2d 554, 557 (D.N.J. 2008).

As to the

private interests, courts specifically consider:
[1] plaintiff’s forum preference; [2] whether the
claim arose elsewhere; [3] the convenience of the
parties; [4] the convenience of the witnesses; and [5]
the location of books and records.
10

Moreover, even if it did, the present record creates
significant doubt concerning whether Plaintiff received
sufficient notice of the forum selection provision. Indeed,
although Defendants argue that HUBZU’s website “prominently”
displayed HUBZU’s “Terms and Conditions” (Defs.’ Transfer Br. at
7), the website itself contains only a hyperlink to the “Terms
and Conditions.” (Ex. A to Britsch Dec. (“By clicking on
Register, you accept the Terms & Conditions and PRIVACY Rights
of Hubzu.”).) The forum selection clause then hides deep within
the single-spaced provisions, under the heading “Disputes” and
on the second to last page (of 13). (Ex. B to Britsch Dec. at §
17.9.) Even at this preliminary stage, these circumstances do
not favor enforcement. See, e.g., Selective Way Ins. Co. v.
Glasstech, Inc., No. 14-3457, 2014 WL 6629629, at *5-*6 (D.N.J.
Nov. 21, 2014) (declining to enforce a forum selection clause,
based upon “critical questions” concerning its enforceability);
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)) (finding that a
forum selection clause must be “reasonably communicated” in
order to be enforceable).
11 In diversity cases, federal law governs the effect to be given
contractual forum selection clauses. See Jumara v. State Farm
Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995).
14

See Jumara, 55 F.3d at 879 (citations omitted).

The public

interest factors, in turn, include:
[1] the enforceability of the judgment; [2] practical
considerations that could make the trial easy,
expeditious, or inexpensive; [3] relative court
congestion; [4] the local interest, if any, in
deciding local controversies at home; [5] the public
policies of the fora; and [6] the relative familiarity
of the trial judge with the applicable law.
See id. at 879–80 (citations omitted).

Nevertheless, given the

paramount importance of the plaintiff’s chosen forum, its choice
will rarely be disturbed “unless the balance of interest[s]”
strongly favor 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)); see also Yang v. Odom,
409 F. Supp. 2d 599, 604 (D.N.J. 2006).
17.

The parties give little to no attention to the section

1404(a) factors. (See, e.g., Defs.’ Transfer Br. at 10-11; Pl.’s
Transfer Opp’n (no discussion); Defs.’ Transfer Reply (no
discussion).)

Nevertheless, the transfer analysis in this

instance requires no complex inquiry, because the relevant
considerations hardly tip strongly in favor of transfer.
18.

Private Interest Considerations.

As to the private

interest factors, the Court notes that the principal fabric of
this litigation—the Wildwood, New Jersey property—sits within
this forum.

(See generally Compl.)

In that way, the critical

predicate for this action centers upon this forum, and the
15

conduct of Plaintiff’s New Jersey real estate agent.

As a

result, this action appears to present a controversy with roots
concentrated mostly within this forum.

See Jumara, 55 F.3d at

879 (finding that “local controversies” should be decided “at
home”).

The State of Georgia, by contrast, has a more tenuous

connection to this action, as only the home of HUBZU and Mr.
Sweeney, the REALHome real estate agent.

(See generally id.)

Even so, however, all of the foreign defendants (and their
agents) plainly conduct business within this forum, and
requiring them to defend their forum-based activities here
certainly works no serious inconvenience.

Under these

circumstances, the Court finds that the private interest factors
weigh against transfer.

See Ferratex, Inc. v. U.S. Sewer &

Drain, Inc., ___ F. Supp. 3d ____, No. 14-7527, 2015 WL 4642157,
at *8 (D.N.J. Aug. 4, 2015) (finding, under similar facts, that
the private interest factors weighed, on balance, against
transfer); Yocham v. Novartis Pharm. Corp., 565 F. Supp. 2d 554,
558-59 (D.N.J. 2008) (finding, under similar facts, that the
private interest factors “weigh[ed] strongly against
transferring the case”);

Selective Way Ins. Co., 2014 WL

6629629, at *7 (same).
19.

Public Interest Considerations.

Nor can the Court

conclude that the public interest considerations support
transfer.

Yocham, 565 F. Supp. 2d at 559.
16

Indeed, the parties

do not dispute that New Jersey law governs Plaintiff’s claims,
and that this New Jersey federal Court possesses greater
familiarity with that applicable law.

Even more, because this

action concerns tortious conduct that allegedly occurred in this
State, New Jersey possesses a significant public policy interest
in resolving this dispute.

See Selective Way Ins. Co., 2014 WL

6629629, at *7 (citations omitted) (noting New Jersey’s
“significant public policy” in resolving such disputes);
Demodulation, Inc. v. Applied DNA Sciences, Inc., No. 11-0296,
2011 WL 6756069, at *4 (D.N.J. Dec. 22, 2011) (same);
Springfield v. Honeywell Int’l, Inc., No. 11-1829, 2011 WL
2600739, at *3 (D.N.J. June 29, 2011) (same).

Finally, although

a consideration, “‘relative congestion of the respective courts’
dockets’” has minimal importance in the overall transfer
inquiry, and cannot be considered conclusive here. 12

12

Yocham, 565

The Court recognizes the disparity between the median time to
disposition of a civil case by trial in the Northern District of
Georgia (26.6 months) and the median time to disposition by
trial in this District (36.3 months). See Table C-5,
Administrative Office of the United States Courts, Statistical
Tables for the Federal Judiciary, available at
http://www.uscourts.gov/statistics/table/c-5/statistical-tablesfederal-judiciary/2015/06/30. Nevertheless, because both
Districts resolve relatively few cases by trial, the median time
to disposition for all cases, not just trials, provides the more
relevant measure of court congestion and speed to resolution of
the average case. The median time to disposition for all cases
differs only slightly between this District (7.8 months) and the
Northern District of Georgia (6.7 months) for the period ending
June 30, 2015. See id. Even with this slight disparity,
however, it cannot said that the Northern District of Georgia
17

F. Supp. 2d at 560 (citation omitted).

Given these

circumstances, the Court cannot conclude that a transfer to the
Northern District of Georgia advances the public interest.
20.

An accompanying Order will be entered.

December 18, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

would dispose of this litigation faster than this District,
particularly with the parties marching dutifully towards a
December 21, 2015 Initial Scheduling Conference.
18