TATUM et al v. CHRYSLER GROUP LLC.
Filing
60
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATIONS; granting Chrysler's motion to transfer venue to Bankruptcy Court for the Southern District of New York as to count 1 and denying as to counts ll-IV; administratively terminating this case pending resolution of count 1, etc. ***CIVIL CASE TERMINATED. Signed by Magistrate Judge Cathy L. Waldor on 12/15/2011. (nr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
____________________________________
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Plaintiffs,
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v.
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Chrysler Group, LLC,
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Defendant.
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____________________________________:
Gabriella Tatum, et al.,
Civil Action 10-4269 (ES) (CLW)
OPINION and ORDER
SALAS, DISTRICT JUDGE
On October 3, 2011, Magistrate Judge Cathy Waldor issued a Report and
Recommendation (D.E. 57) recommending that this Court grant Defendant Chrysler Group,
LLC’s (“Chrysler”) Motion to Transfer Venue to the Bankruptcy Court for the Southern District
of New York as to Count I, deny Chrysler’s Motion to Transfer Venue as to Counts II-IV, and
administratively terminate the case pending resolution of Count I.1 The parties were given notice
that they had fourteen days from their receipt of the Report and Recommendation to file and
serve any objections pursuant to Local Civil Rule 72.1(c)(2). Plaintiffs timely filed an objection,
(D.E. 58), and Defendant timely filed a response. (D.E. 59). Having carefully reviewed the
Report and Recommendation de novo and the submissions by the parties, the Court hereby
ADOPTS the thoughtful and thorough Report and Recommendation of Magistrate Judge Waldor,
1
Below, the Court adopts a clarified version of this recommendation by Magistrate Judge Waldor. Instead of
administratively terminating the case pending a decision on Count I in the bankruptcy court, the Court stays the case
in this Court pending the bankruptcy court’s determination, and this Court administratively terminates the existing
motions without prejudice, granting leave to re-file the motions once the case is reactivated.
1
attached below. In addition to adopting the facts, the procedural history, the summary of the
parties’ arguments on transfer, the discussion, and the conclusions of Magistrate Judge Waldor,
the Court addresses the Plaintiffs’ main objections and the Defendant’s main responses to the
Report and Recommendation.
First, in their objections to the below Report and Recommendation, Plaintiffs argue that
“[a]s a threshold matter, the Court cannot properly grant Chrysler’s motion pursuant to 28 U.S.C.
§ 1412—a statute that governs the transfer of cases already in bankruptcy court” because “this
case is not now, nor has it ever been, in bankruptcy.” (Pl. Objection at 6). Defendant responds
that this case “relates to” a bankruptcy proceeding, and therefore § 1412 provides a proper
vehicle for transfer.
Defendant further contends, “Plaintiffs refuse to acknowledge the
controlling law in this Circuit, and the wealth of opinions from this District, finding that § 1412
is the proper statutory framework for analyzing transfer in a ‘related to’ proceeding.” (Def.
Response Br. at 4-5). The Court agrees with Defendant, and adopts the reasoning of Magistrate
Judge Waldor, emphasizing the following:
The Third Circuit and this District, specifically, have consistently applied § 1412
to transfer of “related to” bankruptcy proceedings. See Johanna Foods, Inc. v.
Toobro Holdings TBF LLC, No. 11-2612, 2011 WL 1791352 (D.N.J. May 10,
2011); Perno v. Chrysler Grp., LLC, No. 10-5100, 2011 WL 868899, at * 4
(D.N.J. Mar. 10, 2011); Donahue v. Vertis, Inc., No. 10-2942, 2010 WL 5313312
(D.N.J. Dec. 20, 2010); Clark v. Chrysler Grp., LLC, No. 10-3030, 2010 WL
4486927, at *6 (E.D. Pa. Nov. 5, 2010); Abrams v. General Nutrition Cos., Inc.,
No. 06-1820, 2006 WL 2739642 (D.N.J. Sept. 25, 2006). Here, Count I of the
Complaint requires interpretation of the Bankruptcy Court’s Sale Order to
determine whether Chrysler has assumed certain liability in this case. As such,
the case is “related to” the bankruptcy proceeding and the Court deems it
unnecessary to address this argument further.
2
(Report and Recommendation, D.E. 57 at 6 n.2). Therefore, the Court finds that transfer is
proper under § 1412, because § 1412 is an appropriate vehicle for transfer where a case relates to
a bankruptcy proceeding, and because Count I is related to such a proceeding.
Second, Plaintiffs argue that “[t]ransfer under Section 1412 is entirely discretionary with
the Court,” “the moving party bears the heavy burden of establishing the need for transfer,” and
the factors “weigh strongly against transfer of Count I in this case.” (Pl. Objection at 7-8).
Defendant responds that the relevant factors favor transfer. (Def. Response Br. at 6-8). Courts
are to consider the following non-exhaustive list of factors when determining whether transfer is
appropriate under the interests of justice prong: (1) the economics of estate administration; (2) a
presumption in favor of the home court; (3) judicial efficiency; (4) the ability to receive a fair
trial; (5) the state’s interest in having local controversies decided within its borders; (6) the
enforceability of any judgment; and (7) plaintiff’s choice of forum. Perno, 2011 WL 868899,
at *3. The Court adopts Magistrate Judge Waldor’s careful consideration of the factors, and
highlights the following point. In their objections, Plaintiffs argue that “[t]he parties have
already invested substantial time and money in proceedings before this Court,” and therefore the
factor of judicial efficiency weighs in favor of denying transfer. (Pl. Objection Br. at 8).
Defendant counters that Magistrate Judge Waldor already “noted [that] Plaintiffs’ argument that
this Court is more familiar with these proceedings ‘is of marginal truth,’ due both to the recent
reassignment of the case to a new judge and because the Bankruptcy Court has a far superior
knowledge of the Sale Order which must be interpreted.” (Def. Response Br. at 7). Indeed, the
Court finds that transferring a claim related to a Sale Order to the court that retained jurisdiction
to interpret it promotes efficiency. This point—along with the Court’s independent review of the
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factors—satisfies the Court that Defendant has met its burden of establishing the need for a
transfer.
Third, Plaintiffs argue that “[t]here is no dispute that Counts II-IV are not affected by the
Sale Order, and thus they should not be delayed while the Sale Order is interpreted in the
Bankruptcy Court,” thus, [i]t is paramount that all discovery on this case . . . not be frozen
indefinitely pending the determination on Count I.”
(Pl. Objection at 11-12).
Defendant
responds, “[a]bsent a stay, this Court will be faced with the possibility of expending its limited
resources presiding over discovery disputes involving some claims, only to have to revisit those
disputes if Plaintiffs’ ‘other’ claim is deemed to be viable by the Bankruptcy Court.” (Def.
Response Br. at 9-10). The Court agrees with Defendant.
Under its inherent power to manage its docket, the Court finds that proceeding with
discovery over claims that could be affected by the determination of Count I in the bankruptcy
court undermines judicial efficiency and exposes the parties to potentially unnecessary costs.
See, e.g., Int’l Consumer Prods. N.J., Inc. v. Complete, No. 07-325, 2008 WL 2185340, at *1
(D.N.J. May 23, 2008) (staying action and directing the parties to proceed before the bankruptcy
court “even in the absence of the bankruptcy petition” based on the court’s “inherent power to
control the docket” because “the interests of judicial economy will be best served by staying this
action in its entirety”), reconsideration denied by No. 07-325, 2008 WL 4723025 (D.N.J. Oct.
24, 2008); All-Am. Chevrolet, Inc. v. De Santis, No. 05-5672, 2007 WL 4355477 (D.N.J. Dec. 7,
2007) (staying action pending determination in bankruptcy court pursuant to the court’s
“inherent power to control the docket and in the interests of judicial economy” and granting
leave to the parties to move to reopen the case “when appropriate”); Jackson Hewitt Inc. v.
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Childress, No. 06-909, 2008 WL 834386 (D.N.J. Mar. 20, 2006) (staying case “pending the
outcome of proceedings in the Bankruptcy Court”).
Finally, the Court addresses Plaintiffs concern that discovery will be stayed indefinitely
pursuant to this Order. The Court shares Plaintiffs’ concern, and therefore clarifies Magistrate
Judge Waldor’s recommendation to administratively terminate the case pending a determination
of Count I in bankruptcy court. Per the below Order—and pursuant to its inherent power to
manage its docket—the Court stays the action sua sponte for purposes of avoiding potentially
duplicative litigation and discovery. See, e.g., Rodgers v. U.S. Steel Corp., 508 F.2d 152, 162
(3d Cir. 1975) (“The district court had inherent discretionary authority to stay proceedings
pending litigation in another court.”); Landmark Am. Ins. Co. v. Rider Univ., No. 08-1250, 2010
U.S. Dist. LEXIS 110020, at *27-28 (D.N.J. Oct. 14, 2010) (“[The] Court exercises its discretion
to sua sponte stay this matter and administratively terminate the case pending the outcome of
factual discovery in the underlying . . . Action pending in Superior Court.”); MEI, Inc. v. JCM
Am. Corp., No. 09-351, 2009 U.S. Dist. LEXIS 96266, at *12 (D.N.J. Oct. 15, 2009) (“Federal
courts have inherent power to control their dockets by staying proceedings.” (citing Landis v. N.
Am. Co., 299 U.S. 248, 254 (1936)). In light of this stay, the Court shall exercise its discretion to
administratively terminate—without prejudice—Defendant’s Motion to Dismiss Second
Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b) (D.E. 37) and Defendant’s
Motion to Dismiss for Lack of Jurisdiction (D.E. 38), pending the bankruptcy court’s decision on
Count I. See, e.g., SEC v. Infinity Grp. Co., 212 F.3d 180, 197 (3d Cir. 2000) (“Matters of
docket control and scheduling are within the sound discretion of the district court.”); White v.
City of Trenton, Slip. Op. No. 06-5177 (D.N.J. Oct. 14, 2009) (exercising discretion “to
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administratively terminate Defendant’s Motion for Summary Judgment pending a decision on
Mr. White’s Motion for Reconsideration”). Once the bankruptcy Court has decided Count I, the
Court grants leave to re-file the motions.
Additionally, to ensure that the case does not stall indefinitely, below the Court orders
that the parties file a one-page joint status letter every ninety days from the date of the below
Order until the bankruptcy court reaches a conclusion, addressing the progress of Count I.
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ORDER
IT IS on this 15th day of December 2011 ORDERED as follows:
1. The thoughtful and thorough Report and Recommendation of Magistrate Judge Waldor is
hereby adopted—as clarified in the above Opinion—as the opinion of this Court;
2. Defendant’s Motion to Transfer Venue to the Bankruptcy Court for the Southern District of
New York as to Count I is GRANTED;
3. Defendant’s Motion to Transfer Venue to the Bankruptcy Court for the Southern District of
New York as to Counts II-IV is DENIED;
4. The Court administratively stays this action until the resolution of Count I in bankruptcy
court;
5. The Court administratively terminates the following motions, granting leave for them to be
re-filed after the resolution of Count I in the bankruptcy court: Defendant’s Motion to
Dismiss Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and 9(b) (D.E. 37)
and Defendant’s Motion to Dismiss for Lack of Jurisdiction (D.E. 38);
6. The Clerk of Court shall administratively terminate the following motion, decided in this
Opinion and Order: (D.E. 32);
7. The Clerk of Court shall administratively terminate the Report and Recommendation of
Magistrate Judge Waldor, adopted in this opinion: (D.E. 57);
8. The Court directs the parties to file a one-page joint status letter every ninety days from the
date of this Order until the bankruptcy court resolves Count I, addressing the progress of the
Count.
s/Esther Salas______
Esther Salas, U.S.D.J.
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
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Gabriella Tatum, et al.,
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Plaintiffs,
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v.
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Chrysler Group, LLC,
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Defendant.
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Civil Action 10-4269 (ES)(CLW)
REPORT & RECOMMENDATION
October 3, 2011
WALDOR, UNITED STATES MAGISTRATE JUDGE
Before the Court is Defendant Chrysler Group LLC’s (“Chrysler”) motion to transfer
venue (“Motion to Transfer Venue”) pursuant to 28 U.S.C. § 1412 to the Bankruptcy Court for
the Southern District of New York. (Docket Entry No. 32). Plaintiffs Gabriella Tatum and
Jamie Meyer (“Plaintiffs”) submitted opposition to the motion. (Docket Entry No. 36). Pursuant
to Local Civil Rule 72.1, the Honorable Esther Salas, United States District Judge, referred this
motion to the Undersigned for report and recommendation. For the reasons set forth below, this
Court respectfully recommends GRANTING in part and DENYING in part Chrysler’s Motion to
Transfer Venue to the Bankruptcy Court for the Southern District of New York.
I.
FACTS AND PROCEDURAL HISTORY
Plaintiffs filed their original complaint (“Complaint”) on August 19, 2010 alleging the
existence of a braking defect in model-year 2009 and 2010 Dodge Journey vehicles. Plaintiffs
seek relief, in part, for alleged violations of the New Jersey Consumer Fraud Act (“NJCFA”),
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N.J.S.A. 56:8-1, et seq. This claim is based on alleged acts and omissions occurring before
Defendant existed. More specifically, on April 30, 2009, Old Carco LLC (f/k/a Chrysler LLC)
and several of its subsidiaries (“Old Carco” and/or “Debtors”) filed for bankruptcy protection in
the United States Bankruptcy Court for the Southern District of New York. See In re Old Carco
LLC (f/k/a Chrysler LLC), Case No. 09-50002 (Bankr. S.D.N.Y.). Defendant Chrysler, an entity
that did not exist until April 28, 2009, purchased certain assets of Old Carco in the bankruptcy
proceeding pursuant to the terms of a 49-page Order entered by the Bankruptcy Court on June 1,
2009 “(I) Authorizing the Sale of Substantially All of the Debtor’s Assets Free and Clear of All
Liens, Claims, Interests, and Encumbrances, (II) Authorizing the Assumption and Assignment of
Certain Executory Contracts and Unexpired Leases in Connection Therewith and Related
Procedures, and (III) Granting Related Relief” (“the Sale Order”). The Sale Order addressed, in
pertinent part, whether Chrysler would be responsible for the liabilities of the Debtors:
Except for the assumed liabilities expressly set forth in the purchase agreement or
described therein . . . none of the Purchaser, its successors or assigns or any of
their respective affiliates shall have any liability for any claim that (a) arose prior
to the closing date, (b) relates to the production of vehicles prior to the Closing
date or (c) is otherwise assertable against the Debtors or is related to the
Purchased Assets prior to the Closing Date. The Purchaser shall not be
deemed . . . to: (a) be a legal successor, or otherwise be deemed a successor to the
Debtors . . . (b) have, de facto, or otherwise, merged with or into the Debtors; or
(c) be a mere continuation or substantial continuation of the Debtors or the
enterprise of the Debtors.
(Sale Order ¶ 35.)
The Sale Order also addressed whether Chrysler Group would be liable for state breach
of warranty claims under the Magnuson-Moss Warranty Act:
Notwithstanding anything else contained herein or in the Purchase Agreement, in
connection with the purchase of the Debtor’s brands and related Purchased
Assets, the Purchaser, from and after the Closing, will recognize, honor and pay
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liabilities under Lemon Laws for additional repairs, refunds, partial refunds
(monetary damages) or replacement of a defective vehicle (including reasonable
attorneys’ fees, if any, required to be paid under such Lemon Laws and
necessarily incurred in obtaining those remedies), and for any regulatory
obligations under such Lemon Laws arising now, including but not limited to
cases resolved pre-petition or in the future, on vehicles manufactured by the
Debtor in the five years prior to the Closing (without extending any statute of
limitations provided under such Lemon Laws), but in any event not including
punitive, exemplary, special, consequential, or multiple damages or penalties and
not including any claims for personal injury or other consequential damages that
may be asserted in relationship to such vehicles under the Lemon Laws. As used
herein, “Lemon Law” means a federal or state statute, including, but not limited
to, claims under the Magnuson-Moss Warranty Act based on or in conjunction
with a state breach of warranty claim, requiring a manufacturer to provide a
consumer remedy when the manufacturer is unable to conform he vehicle to the
warranty after a reasonable number of attempts as defined in the applicable
statute.
(Sale Order ¶ 19.)
The Bankruptcy Court retained jurisdiction to “interpret, enforce, and implement the
terms and provisions of [the] Sale Order and Purchase Agreement.” (Sale Order ¶ 43). The
Bankruptcy Court has also noted that it has “special expertise regarding the meaning of its own
order,” and that “its interpretation is entitled to deference.” Wolff v. Chrysler Group, slip op. at
13 (Adv. Proc. No. 10-5007, S.D.N.Y., July 30, 2010) (attached to Def’s Mot. at Ex. H, at 7;
CM/ECF No. 32).
On December 22, 2010, Chrysler filed a motion to dismiss (“Motion to Dismiss”)
pursuant to Fed. R. Civ. P. 12(b)(6), arguing that Chrysler is not liable for obligations that
existed prior to the bankruptcy reorganization that created Chrysler as it is presently constituted.
(Docket Entry No. 6). On March 28, 2011, Judge Cavanaugh issued an opinion granting in part
and denying in part Chrysler’s Motion to Dismiss. (Docket Entry No. 13). As it relates to the
instant motion, Judge Cavanaugh discussed and analyzed the relevant law relating to successor
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liability but ultimately reserved decision with respect to whether Chrysler impliedly assumed
liability under the Sale Order. Id.
On May 24, 2011, Plaintiffs filed a Second Amended Complaint (“SAC”). The SAC
contains four causes of action: Counts I and II allege violations of the NJCFA; Count III alleges
breach of warranty under the Magnuson-Moss Warranty Act; and Count IV alleges breach of
express warranty under state law. On May 27, 2011, Chrysler filed the present Motion to
Transfer Venue pursuant to 28 U.S.C. § 1412. (Docket Entry No. 32). On June 21, 2011,
Plaintiffs filed opposition to Chrysler’s Motion to Transfer Venue. (Docket Entry No. 36).
II.
PARTIES’ ARGUMENTS ON TRANSFER
Defendant contends that the issue of whether Chrysler assumed the liabilities for the
claims made in Count I of Plaintiffs’ SAC should be determined by the Bankruptcy Court that
issued the Sale Order. (Def’s Br. 7). In support, Chrysler argues that several district courts,
including courts in this District, have transferred cases brought against Chrysler to the
Bankruptcy Court, which has retained jurisdiction to interpret and enforce the Sale Order, when a
threshold issue in the case involved a dispute over an alleged assumed liability.1 Id. at 9. Here,
Chrysler contends that Plaintiffs’ claims raise a threshold issue as to whether Chrysler assumed
liabilities arising out of violations of state consumer protection statutes thus requiring an
interpretation and application of the Sale Order. As such, it is Chrysler’s belief that transfer is
appropriate. Id. at 10.
1
Chrysler specifically points the Court to the following cases: Perno v. Chrysler Group, LLC, 2011 WL 868899 at
*3, n.2 (D.N.J. Mar. 10, 2011) at *3, n.2; Shatzki v. Abrams, No. 09-2046, 2010 WL 148183 (E.D.Ca. Jan. 12,
2010); Clark v. Chrysler Group, LLC, No. 10-3030, 2010 WL 4486927, *7-8 (E.D. Pa. Nov. 5, 2010); Doss v.
Chrysler Group, LLC, No. 09-2130, 2009 WL 4730932, *3 (D. Ariz. Dec. 7, 2009); Cooper v. Daimler AG, No. 092507, 2009 WL 4730306, *4 (N.D. Ga. Dec. 3, 2009).
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Plaintiffs argue that transfer is inappropriate because the only claim that may arguably
implicate assumed liability is the Count I NJCFA claim, N.J.S.A. 56:8-1, et seq. (Pl’s Br. 2).
Plaintiffs further claim that because the original Complaint was filed on August 19, 2010, the
Court has already invested considerable time becoming familiar with the relevant facts and legal
issues thus making this Court the more efficient forum to handle the litigation. Id. Next,
Plaintiffs take issue with the means by which Defendant seeks to transfer the case; namely,
Plaintiffs argue that 28 U.S.C. § 1412 is inapplicable because the statute governs transfer of
cases already pending in bankruptcy court. Finally, Plaintiffs claim that Chrysler’s filing of the
present motion, more than nine months after the case was filed, is nothing more than a
prejudicial attempt to forum-shop. Id. at 6.
Neither party disputes that the remaining three counts of the Complaint may be properly
and effectively handled by this Court. In fact, Chrysler conceded and stipulated on the record
that it assumed liabilities associated with breach of warranty claims arising out of alleged defects
in the vehicles at issue. (Def’s Br. 1, n. 1). Moreover, Chrysler has explicitly represented and
agreed as follows: “If this case is transferred so that the Bankruptcy Court can interpret its own
Sale Order on the ‘successor liability’ issue implicated by the First Count of the SAC, Chrysler
Group will not oppose a motion filed by Plaintiffs to remand back to this Court whatever claims
may remain after that Court issues its ruling(s) on any legal issues implicated by the SAC.”
(Def.’s Reply Br. 5).
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III.
DISCUSSION
A.
Legal Standard
28 U.S.C. § 1412 provides that “[a] district court may transfer a case or proceeding under
title 11 to a district court for another district, in the interests of justice or for the convenience of
the parties.” Id. Section 1412 allows for the transfer of a case in either of two situations: in the
interests of justice or for the convenience of the parties. Clark v. Chrysler Group, LLC, No. 103030, 2010 WL 4486927, at *5 (E.D. Pa. Nov. 5, 2010) (emphasis added); In re Dunmore
Homes, Inc., 380 B.R. 663, 670 (S.D.N.Y. 2008) (“Section 1412 is worded in the disjunctive
allowing a case to be transferred under either the interest [of justice] rationale or the convenience
of parties rationale.”); Perno v. Chrysler Group, LLC, No. 10-5100, 2011 WL 868899 (D.N.J.
Mar. 10, 2011).2
Defendant moves to transfer under the interests of justice prong. This prong is “broad
and flexible” and must be “applied on a case-by-case basis.” Perno, 2011 WL 868899, at *3
(citing Gulf States Exploration Co. v. Manville Forest Prods. Corp., 896 F.2d 1384, 1391 (2d
Cir. 1990). Courts are to consider the following non-exhaustive list of factors when determining
whether transfer is appropriate under the interests of justice prong: (1) the economics of estate
administration; (2) a presumption in favor of the home court; (3) judicial efficiency; (4) the
2
The Court notes Plaintiffs’ argument that 28 U.S.C. § 1412 is inapplicable because “the current case was brought
against Chrysler Group LLC, a non-bankrupt entity, in federal district court and raises state and federal statutory and
common law claims having nothing to do with title 11.” (Pl. Opp., at 7). However, the Third Circuit and this
District, specifically, have consistently applied § 1412 to transfer of “related to” bankruptcy proceedings. See
Perno, No. 10-5100, 2011 WL 868899 at *4; Clark, No. 10-3030, 2010 WL 4486927, at *6; Johanna Foods, Inc. v.
Toobro Holdings TBF LLC, No. 11-2612, 2011 WL 1791352 (D.N.J. May 10, 2011); Donahue v. Vertis, Inc., No.
10-2942, 2010 WL 5313312 (D.N.J. Dec. 20, 2010); Abrams v. General Nutrition Companies, Inc., No. 06-1820,
2006 WL 2739642 (D.N.J. Sept. 25, 2006). Here, Count I of the Complaint requires interpretation of the
Bankruptcy Court’s Sale Order to determine whether Chrysler has assumed certain liability in this case. As such,
the case is “related to” the bankruptcy proceeding and the Court deems it unnecessary to address this argument
further.
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ability to receive a fair trial; (5) the state’s interest in having local controversies decided within
its borders; (6) the enforceability of any judgment; and (7) plaintiff’s choice of forum. Id.
A case need not be transferred in whole. Fed. R. Civ. P. 21 provides: “any claim against
any party may be severed and proceeded with separately.” See Chrysler Credit Corp. v. Country
Chrysler, Inc., 928 F.2d 1509, 1518-19 (10th Cir. 1991) (holding that claims may be properly
severed under Fed. R. Civ. P. 21); Dao v. Knightsbridge Intern. Reinsurance Group, 15
F.Supp.2d 567 (D.N.J. 1998); Murray, Wilson and Hunter v. Jersey Boats, Inc., No. 91-7733,
1992 WL 37516, at *2 (E.D. Pa., Feb. 21, 1992). A court may order severance of an action on its
own initiative. American Fidelity Fire Ins. Co. v. Construcciones Werl, Inc., 407 F. Supp. 164
(D.V.I. 1975). See In re LR Buffalo Creek, LLC, No. 09-196, 2009 WL 2382285 (W.D.N.C.
July 30, 2009) (severing and transferring claim deemed related and critical to the bankruptcy
proceeding).
B.
Application
1.
Count I: Violation of the New Jersey Consumer Fraud Act
The Court finds that transfer of Count I is appropriate because it is necessary to interpret
the Sale Order to determine whether Chrysler has assumed certain liabilities in this case. The
relevant § 1412 factors favor transfer. First, courts have concluded that when civil actions are
related to a pending bankruptcy, there is a presumption that the district where the bankruptcy
case is pending is the appropriate venue. Toth v. Bodyonics, Ltd., No. 06-1617, 2007 WL
792172, at *2 (E.D. Pa. Mar. 15, 2007). To that end, Chrysler asserts, and Plaintiff concedes,
that interpretation of the Sale Order is required to determine whether a claim requiring both a
breach of warranty and bad faith or unfair dealing equates with a claim for breach of warranty,
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alone, within the meaning of the Sale Order. Second, transfer will promote judicial efficiency.
As noted above, the Bankruptcy Court has expressly retained jurisdiction to interpret the terms of
its Sale Order. (Sale Order ¶ 43). By transferring the case to the Bankruptcy Court, the Court
reduces the risk of inconsistent interpretation of the Sale Order. As Judge Falk noted in Perno,
“allowing for different courts in different jurisdictions to interpret the terms of the Sale Order
creates the possibility for inconsistent determinations, inconsistent liability to [Chrysler], and
needless confusion.” 2011 WL 868899, at *4.
The Court has considered Plaintiffs’ choice of forum, convenience and expedience
arguments and the deference afforded to Plaintiffs in litigating in the forum they select.
However, these factors are outweighed by those stated above. Specifically, although Plaintiffs
argue that this Court is more familiar with these proceedings, that representation is of marginal
truth. This case was first referred to this particular Court on August 3, 2011. As such, the Court
has had little opportunity to engage in more than a cursory review of the Sale Order. The
Bankruptcy Court, however, as the enforcer of the Sale Order at issue, is significantly more
familiar with the voluminous Sale Order. Lastly, to the extent Count I requires the application of
New Jersey law, Plaintiffs are not precluded from filing a motion to remand the claim back to
this Court once the question of Chrysler’s liability under the Sale Order is resolved.
Finally, Plaintiffs contend that Chrysler has essentially waived its ability to move to
transfer venue because of the purported maturity of this litigation. This Court disagrees. A
motion to transfer venue is not deemed to have been waived if not raised in an initial response to
the complaint. McGuire v. Waste Mgmt., Inc., No. 09-2591, 2011 WL 692203 (D.S.C. Feb. 18,
2011). See Ins. Co. of N. America v. Ozean/Stinnes-Linien, 367 F.2d 224, 227 (5th Cir. 1966)
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(holding that a motion to transfer venue could have been made even after a motion to dismiss has
been denied); Campbell v. FMC Corporation, No. 91-7536, 1992 WL 176417, *6, n. 6 (E.D. Pa.
July 17, 1992) (according no weight to plaintiff’s allegation of “dilatoriness” where neither party
had progressed far in preparation for trial); Inter-City Prods. Corp. v. Ins. Co. of N. America, No.
90-717, 1993 WL 18948, at *9 (D.N.J. Jan. 26, 1993) (finding that timing did not weigh against
transfer). Accordingly, the fact that Defendant first filed its Motion to Transfer Venue nine
months after the filing of the original Complaint does not waive its ability to seek relief under §
1412.
2.
Counts II-IV
The Court does not believe it appropriate to transfer Counts II-IV to the Bankruptcy
Court because the remaining claims do not relate to the pending bankruptcy proceeding. The
remaining counts are as follows: (1) Count II: Violation of the NJCFA, N.J.S.A. 56:8-1, et seq.;
(2) Count III: Breach of Written Warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. §
2301, et seq.; and (3) Count IV: Breach of Express Warranty under State Law. These claims
implicate no assumed liability issues. Instead, these claims focus exclusively on breach of
warranty claims or rely entirely on allegations related to Chrysler’s post-bankruptcy conduct. To
that end, Chrysler conceded and stipulated on the record that it assumed the liabilities associated
with breach of warranty claims arising out of alleged defects in the vehicles at issue.
Additionally, Chrysler has already expressed its willingness to litigate the remaining claims in
this forum. Lastly, the Court agrees with Plaintiffs’ contention that the balance of factors fails to
support transfer. Plaintiffs selected this forum, Named Plaintiff Jamie Meyer’s claim arose out
of New Jersey, and it would be more convenient and less costly to Plaintiffs to litigate the
9
balance of claims in this District. Accordingly, to the extent Chrysler seeks entry of an Order
transferring Counts II-IV to the Bankruptcy Court for the Southern District of New York, this
Court recommends that the request be denied.
IV.
CONCLUSION
For the reasons set forth above, the Court recommends GRANTING Chrysler’s Motion
to Transfer Venue to the Bankruptcy Court for the Southern District of New York as to Count I
and DENYING Chrysler’s Motion to Transfer Venue as to Counts II-IV. In the interest of
administrative efficiency, the Court also recommends administratively terminating the case
pending resolution of Count I. Pursuant to Local Civil Rule 72.1, the parties have fourteen days
from receipt of this Report and Recommendation to file and serve any objections.
s/ Cathy L. Waldor
CATHY L. WALDOR
UNITED STATES MAGISTRATE JUDGE
10
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