FERRATEX, INC v. U.S. SEWER & DRAIN, INC. et al

Filing 28

OPINION AND ORDER - Based on the foregoing, Defendants' motion to transfer to the Eastern District of Pennsylvania 22 is DENIED. Because venue is proper in the District of New Jersey, Defendants may only seek discretionary transfer under 28 U. S.C. 1404(a). A discretionary transfer to the Eastern District of Pennsylvania would be inappropriate because Defendants have failed to demonstrate that the relevant private and public interest factors, which the United States Court of Appeals articu lated in Jumara, weigh in favor of a transfer. In addition, for the reasons discussed above, Defendants' application to reassign this action the Trenton Vicinage is DENIED WITHOUT PREJUDICE to Defendants' right to make an appropriate application to the Chief Judge pursuant to Local Rule 40.1. Signed by Magistrate Judge Joseph A. Dickson on 8/3/2015. (anr)

THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Plaintiff,

Civil Action No.: 2:14-cv-07527-ES-JAD

v.
OPINION AND ORDER
U.S. SEWER & DRAIN, INC., JEREMY
BOWMAN, JOHN DOE(S) 1-10
(FICTITIOUS NAMES REPRESENTING
UNKNOWN INDIVIDUALS), and XYZ
CORP(S)l-10 (FICTITIOUS NAMES
REPRESENTING UNKNOWN
CORPORATIO NS),
,

~1_1<!~___

1

JOSEPH A. DICKSON, U.S.M.J.
This matter comes before the Court upon Defendants', U.S. Sewer & Drain Inc. and Jeremy
Bowman's (collectively "Defendants"), Motion to Transfer Venue to the Eastern District of
Pennsylvania1, or alternatively for reassignment to the Trenton Vicinage of the District of New
Jersey. 2 (Mot. to Transfer, ECF No. 22).

This Court has carefully considered the written

submissions of the parties and has decided the matter without oral argument, pursuant to Federal
Rule of Civil Procedure 78(b). For the reasons stated below, the Court concludes that venue is
proper in the District of New Jersey and that transfer to the Eastern District of Pennsylvania would
not serve the interests of justice. Moreover, Defendants have neither satisfied the procedural

1

Defendants seek transfer under 28 U.S.C. § 1406(a), as they believe venue in this District is
improper. Because, for the reasons below, the Court concludes that venue in this district is proper,
it will instead consider transfer under 28 U.S.C. § 1404(a), which assumes that venue in the current
forum is appropriate. Lafferty v. St. Riel, 495 F.3d 72, 76 (3d Cir. 2007).
2
Defendants do not dispute that they are subject to personal jurisdiction in the District of New
Jersey.
1

prerequisite nor provided a substantive basis for their reassignment request. As such, the Court

DENIES Defendants' Motion to Transfer in its entirety.
I.

BACKGROUND AND PROCEDURAL HISTORY
The underlying lawsuit arises out of agreements between Plaintiff FerraTex, Inc.

("FerraTex"), and Defendants regarding several construction projects. The projects at issue are
the following: (1) the "Garden State Parkway Project" ("GSP Project") in New Jersey, (2) the
"Exxon Project," in New York, and (3) the "Cayman Project" in the Cayman Islands. (Am.
Compl., ECF No. 17, at 2, if 6).
FerraTex contends that Defendants failed to pay in full for goods and services rendered in
connection with the Projects. (Am. Compl., ECF No. 17, at 5, iii! 23-26). FerraTex contends that
in failing to make such payments, Defendants breached the following: (1) the "Letter Agreement"
(memorializing the price of the GSP Project), (2) the GSP Subcontract, (3) the Cayman
Subcontract, (4) the implied covenant of good faith and fair dealing inherent in those agreements,
and (5) the "Personal Guarantee" (memorializing Defendant Bowman's individual guarantee of
all sums due to FerraTex in connection with the Projects). (Am. Compl., ECF No. 17). FerraTex
additionally seeks recovery under the doctrine of quantum meruit in connection with the GSP
Project and the Cayman Project, and raises causes of action of unjust enrichment with regard to
the GSP Project and the Cayman Project, and for promissory estoppel regarding the GSP Project
and the Cayman Project. (Id.).
The parties negotiated and signed the Personal Guarantee in Monmouth County, New
Jersey on or about July 11, 2015. (Am. Compl., ECF No. 17, at 3-4,

iii!

10, 16). The parties

negotiated.the Letter Agreement during the same New Jersey meeting. (Id. at 3, ~ 10-11). The

2

GSP Project price, as memorialized in the Letter Agreement, included sums due to FerraTex
regarding the Exxon Project. (Id. if 13; Ex. A, ECF No. 26-1, at 1).
FerraTex's original pleading mentioned only sums due in connection with the New Yorkbased Exxon Project and Cayman Islands-based Cayman Project when describing FerraTex's
causes of action. (Compl., ECF No. 1). As a result, Defendants moved to transfer venue to the
Eastern District of Pennsylvania on February 5, 2015, claiming that "New Jersey has utterly no
material involvement with the dispute." (Def.'s Br. in Supp., ECF No. 11-1, at 5). On February
23, 2015, however, FerraTex filed an Amended Complaint that expressly included the New Jersey
GSP Project in the First through Fifth Counts. (Am. Compl., ECF No. 17, at 6-10, iii! 28-58). 3 In
light of the contents of the Amended Complaint, which included clear New Jersey connections,
this Court administratively terminated Defendants' Motion to Transfer Venue on March 30, 2015.
(ECF No. 21 ).
On April 29, 2015, Defendants filed the instant Motion to Transfer. Defendants, apparently
questioning the veracity of the factual allegations contained in FerraTex's amended pleading,
highlight that FerraTex "now alleges that there is, in fact, and [sic] outstanding balance of
$12,717.98 from the work it performed as a subcontractor in New Jersey, despite the glaring
omission of the same in the initial Complaint filed." (Def.'s Br. in Supp., ECF No. 22, at 5-6).
Moreover, Defendants argue that even if truthful, the amended pleading does not support a finding
that New Jersey is a proper venue. Specifically, Defendants contend that venue in New Jersey is
improper because the act of signing the Personal Guarantee in New Jersey is not "substantial"

3

As mentioned above, the price of the GSP Project includes money due in connection with the
Exxon Project. (Am. Compl., ECF No. 17, at 3, if 13). The counts mentioning the GSP Project
in the Amended Complaint echo those mentioning the Exxon Project in the original Complaint.
(Am. Compl., ECF No. 17; Compl., ECF No. 1). It is therefore possible that the amounts listed
are in connection with construction work performed in New York.
3

under the meaning of§ 1391(b), and that the sum alleged to be due for construction on the GSP
Project comprises only 8.9% of the total at issue under the Letter Agreement, which Defendants
argue is insufficient for venue purposes. (Id. at 6).
Conversely, FerraTex relies on Shore Slurry Seal, Inc. v. CMI Corp., 964 F. Supp. 152,
154 (D.N.J. 1997), to ascribe ample significance to the location in which the parties negotiated and
entered into the agreements, emphasizing that the entirety of the amount at issue can be traced to
a New Jersey meeting and is therefore linked to New Jersey. (See Pl.'s Br. in Opp'n, ECF No. 25,
at 16, 18). In addition, FerraTex highlights that the sums owed regarding work performed for the
Exxon Project and Cayman Project are recoverable under the Letter Agreement and Personal
Guarantee, and are therefore connected to New Jersey. (Id. at 20).
In the alternative to transferring the matter to the Eastern District of Pennsylvania,
Defendants argue that even if New Jersey is a proper venue, Plaintiffs filed this action in the
incorrect vicinage. Defendants stress that the meeting during which the parties entered into the
agreements at issue took place in Wall Township, located in Monmouth County, New Jersey. (Am.
Compl., ECF No. 17, at 3,

~

10). Furthermore, Defendants contend that the construction of the

GSP Project occurred solely in Ocean County, New Jersey. (Certification of Steven D. Janel in
Supp., ECF No. 22-1, at 1). Because both Monmouth County and Ocean County fall within the
Trenton Vicinage of this District, Defendants argue that the Court should reassign this action to
the Trenton Vicinage. Defendants further contend that FerraTex filed suit in the Newark Vicinage
for an improper reason, namely for the convenience of FerraTex's New Jersey-based parent
company, Spinello Construction Co. (Def.'s Br. in Supp., ECF No. 22, at 6-7).

4

II.

LEGAL STANDARD - Venue
28 U.S.C. § 1404(a) and 28 U.S.C. § 1406(a) govern venue transfers in civil cases. A

district court may only dismiss or transfer a case under § 1406(a) if it finds the original venue
improper. Alternatively, § 1404(a) gives a district court discretion to transfer venue for the
convenience of the parties even ifthe court finds that the original venue is proper under 28 U.S.C.
§ 139l(b). Section 139l(b) provides the following standard for determining whether venue is
proper:
Venue in General - A judicial decision may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the court's
personal jurisdiction with respect to such action.
28

u.s.c. § 139l(b).
Plaintiff alleges that venue is proper in this District pursuantto § 13 91 (b)(2). (Am. CompI.,

ECF No. 17, at 1).

III.

DISCUSSION AND ANALYSIS
As the legal analysis differs based on whether § 1404(a) or § 1406(a) applies, the Court

must first determine whether the District of New Jersey is a proper venue for this matter. If
Defendants can sustain their burden of demonstrating that a "substantial part of the events or
omissions giving rise to the claim" did not take place in New Jersey (i.e., Plaintiffs only stated
basis for venue in this District), then the Court will apply§ 1406(a) because venue here would be
improper. Section 1406(a) states: "The district court of a district in which is filed a case laying
venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer

5

such case to any district or division in which it could have been brought." Accordingly, the Court
"must determine: '(1) whether the proposed forum is one in which Plaintiff could have originally
brought suit, (2) and if so, whether transfer would be in the interest of justice."' Santomenno v.
Transamerica Life Ins. Co., No. CIV. A. 11-736, 2012 WL 1113615, at *2 (D.N.J. Mar. 30, 2012)
(quoting Santi v. Nat'l Bus. Records Mgmt., LLC, 722 F. Supp. 2d 602, 606 (D.N.J. 2010)).
Conversely, if Defendants cannot sustain their burden of showing that venue is improper
under§ 1391(b)(2), then the Court will apply§ 1404(a). See Ziemkiewicz v. R+L Carriers, Inc.,
No. CIV.A. 12-1923, 2013 WL 505798, at *1 (D.N.J. Feb. 8, 2013) (noting that if "jurisdiction
and venue is proper, this Court has the authority to sua sponte transfer this case pursuant to 28
U.S.C. § 1404(a)"); accord Lester v. Gene Exp., Inc., No. CIV. 09-0403, 2009 WL 3757155, at *8
n. 5 (D.N.J. Nov. 10, 2009). Section 1404(a) states: "For the convenience of parties and witnesses,
in the interest ofjustice, a district court may transfer any civil action to any other district or division
where it might have been brought or to any district or division to which all parties have
consented."
Once the Court determines the applicable transfer statute, the Court will then determine
whether transfer to the Eastern District of Pennsylvania would be appropriate under that standard.

a.

Venue in the District of New Jersey
i.

Venue Pursuant to§ 1391(b)(2)

The Court first examines the propriety of venue under§ 1391(b)(2), Plaintiffs only stated
basis for venue in this District. Under that subsection, venue is appropriate in a judicial district in
which "a substantial part of the events or omissions giving rise to the claim occurred."

§

1391 (b )(2). One Court in this District has detailed the proper method for determining whether the
substantiality requirement has been met:

6

The Court of Appeals for the Third Circuit has emphasized that events or omissions
supporting a claim must be 'substantial,' and that events or omissions with only
'some tangential connection with the dispute in litigation are not enough.' Cottman
Transmission Sys., Inc., [sic] v. Martino, 36 F. 3d 291, 294 (3d Cir. 1994). The
purpose of the substantiality requirement is to 'preserve the element of fairness so
that a defendant is not haled into a remote district having no real relationship to the
dispute.' Id. at 294. To assess 'whether events or omissions giving rise to the
claims are substantial, it is necessary to look at the nature of the dispute.' Id. at
295. In this regard, the Undersigned notes that the test for personal jurisdiction is
different than venue since '[t]he test for determining venue is not the defendant's
"contacts" with a particular district, but rather the location of those "events or
omissions giving rise to the claim."' Id. at 294.
Stalwart Capital, LLC v. Warren St. Partners, LLC, No. CIV. 11-5249, 2012 WL 1533637, at *4
(D.N.J. Apr. 30, 2012).
Furthermore, "[i]n an action sounding in contract, the factors determining where the claim
arose include where the contract was negotiated or executed, where the contract was to be
performed, and where the alleged breach occurred." Prato v. Swing Staging, Inc., Civ. A. No. 105198, 2011 WL 3625064, at *4 (D.N.J. Aug. 17, 2011) (citing Allianz Life Ins. Co. ofN. Am. v.
Bleich, Civ. A. No. 08-668, 2008 WL 4852683, at *5 (D.N.J. Nov. 7, 2008)). 4
Here, in a sworn document, Gerhardt Rodenberger, General Manager of FerraTex,
contends that the parties negotiated and entered into the Letter Agreement, as well as negotiated
and signed the Personal Guarantee, during a meeting in New Jersey.

(Aff. of Gerhardt

Rodenberger, ECF No. 26, at 2-4, ~~ 6, 9 & 15). In its papers, FerraTex highlights the weight this
factor carries in a§ 139l(b)(2) substantiality determination. (Pl.'s Br. in Opp'n, ECF No. 25, at
16, 18).

4

Defendants' emphasis on Spiniello Co.'s v. Movnier, Civ. No. 2:13-5145, 2014 WL 7205349
(D.N.J. Dec. 17, 2014), is misplaced. Unlike the plaintiff in Spiniello, FerraTex is not arguing
that venue is proper because defendant visited plaintiff's New Jersey company and because
plaintiff felt the effects of the breach in New Jersey. Rather, FerraTex's argument centers on the
location of contractual negotiations, performance, and breach.
7

Defendants argue that, as only 8.9% of the total amount at issue is potentially connected
with the construction of the New Jersey-based GSP Project5, that connection is not "substantial"
enough to trigger venue under§ 139l(b)(2). (Def.'s Br. in Supp., ECF No. 22, at 6). Defendants
highlight that by contrast, the New York-based Exxon Project and the Cayman Islands-based
Cayman Project amount to 82.4% and 8.7% of the total amount due, respectively. (Id.). The
Court, however, does not agree with Defendants that the percentage is too small to be "substantial"
under § 1391(b)(2). "[T]he Third Circuit instructed that when 'assessing whether events or
omissions giving rise to the claims are substantial, it is necessary to look at the nature of the
dispute.'" Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 295 (3d Cir. 1994) (emphasis
added). Accordingly, there is no threshold for when a percentage of the total at issue becomes
substantial under § 1391(b). See Larmett Co. v. Asherrnan, No. CIV.A. 13-2006, 2014 WL
716699, at *3 (E.D. Pa. Feb. 24, 2014) ("When material acts or omissions within the forum bear a
close nexus to the claims, they are properly deemed 'significant' and thus, substantial. ... At
bottom, the substantiality inquiry is more qualitative than quantitative.") (internal quotations and
citations omitted)).
Moreover, this Court agrees with FerraTex that there can be more than one place in which
a "substantial part" of the acts or omissions occurred. The Third Circuit has said that a court is
not required to determine the "best" forum. Cottman Transmission Sys., 36 F.3d at 294. Rather,
multiple fora can serve as appropriate venues under§ 1391(b)(2). Leone v. Cataldo, 574 F. Supp.
2d 471, 484 (E.D. Pa. 2008). Thus, while it is possible that a larger portion of the performance of

5

The Letter Agreement says that $116,695.40 for the Exxon Project is included in the price of
the GSP Project. (Ex. A, ECF No. 26-1, at 1). Even if the full Exxon Project amount is included
in the $129,413.38 allegedly due in connection with the Letter Agreement, $7,717.98 for the
GSP Project is still needed to reach the total.
8

the contracts at issue may have occurred in New York or in the Cayman Islands, as Defendants
contend it did, this Court finds that New Jersey would not be disqualified even if Defendants'
contention is correct. 6
While Defendants appear to doubt the veracity of the information contained within the
Amended Complaint, as FerraTex did not include allegations regarding amounts due in connection
with the GSP Project in the original Complaint, (Compl., ECF No. 1, at 5-16, ilil 20, 23-92), this
Court must take Plaintiff's factual allegations as true at this point in the litigation. See, e.g., RAIT
P'ship, L.P. v. Fieldstone Lester Shear & Denberg, LLP, No. 09-28-GMS/MPT, 2009 WL
3297310, at *2 (D. Del. Oct. 14, 2009) report and recommendation adopted, No. CIV.A. 09-28,
2010 WL 786551 (D. Del. Mar. 3, 2010) ("In Rule 12(b)(3) [improper venue] motions, the court
must generally accept the allegations in the complaint as true.").
In any event, as the price of the New Jersey GSP Project as memorialized in the Letter

Agreement includes sums owed in connection with the Exxon Project, (Am. Compl., ECF No. 17,
at 3, if 13), the Court agrees with FerraTex that New Jersey, the location the parties entered into
the contract and where partial performance occurred, is also the location of an alleged breach.
As contractual negotiations, contract execution, partial performance, and alleged breach
appear to have occurred in New Jersey, this Court is persuaded that a substantial portion of the
events or omissions giving rise to the instant action occurred in this District. The Court therefore
finds that venue in New Jersey is proper pursuant to§ 1391(b)(2). See Shore Slurry Seal, Inc. v.
CMI Corp., 964 F. Supp. 152, 154 (D.N.J. 1997)(finding venue in New Jersey proper when "[t]he

6

The Court notes that while performance of the construction contract at issue occurred in each of
New Jersey, New York, and the Cayman Islands, no one has alleged that any of the performance
occurred in Pennsylvania, Defendants' proposed alternative forum. In fact, the only tie this Court
sees to Pennsylvania, is that it is where the Defendants are located.
9

parties signed the sales agreement in New Jersey" and "defendant shipped the equipment to New
Jersey").
b.

Transfer to the Eastern District of Pennsylvania

Having found that venue in New Jersey is proper in this matter, the Court must apply§
1404(a) rather than § 1406(a) to determine whether transfer is appropriate under the
circumstances. See, e.g., Lafferty v. St. Riel, 495 F.3d 72, 76 (3d Cir. 2007). A prerequisite for
the Court to transfer pursuant to § 1404(a) is that venue would be proper in the proposed district.
See, e.g., Frato, 2011 WL 3625064, at *2 (citing Santi, 722 F. Supp. 2d at 606). The Court finds
venue would be proper in the Eastern District of Pennsylvania, pursuant to§ 1391(b)(l), as both
named defendants are based in Langhorne, Pennsylvania (Bucks County), which falls within the
geographic boundaries of the Eastern District of Pennsylvania. (Am. Compl., ECF No. 17, at 2,

iMl 4-5).
That venue is proper in the Eastern District of Pennsylvania, however, does not necessarily
direct the Court to grant Defendants' motion, as venue may be proper in more than one forum.
See, e.g., Giant Peach Records, LLC v. Mitchell, No. 2:13-CV-01702 SDW, 2014 WL 1234429,
at *2 (D.N.J. Mar. 25, 2014) (quoting Database Am., Inc. v. Bellsouth Adver. & Pub. Corp., 825
F.Supp. 1216, 1224 (D.N.J.1993)) ("Venue maybe appropriate in more than one district 'provided
that 'substantial' activities occurred in multiple judicial districts.'"). To succeed on their motion,
Defendants must not only demonstrate that venue would be proper in their proposed forum, but
they must also establish that litigating in that forum would be more convenient than proceeding in
New Jersey. See Santomenno, 2012 WL 1113615, at *2 (quoting Santi, 722 F. Supp. 2d at 606)
("The moving party bears the burden of establishing that the transfer is appropriate and must

10

establish that the alternative forum is more convenient than the present forum.") (internal
quotations omitted)).

i.

Factors to Consider When Determining Whether a Convenience
Transfer is Appropriate under 28 U.S.C. § 1404(a)

As noted above, Section 1404(a) reads in relevant part: "For 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 the Third Circuit, however, courts must not to
limit their consideration to the factors expressly stated in § 1404(a), "but rather are instructed to
employ an analysis of all 'relevant public and private interests."' Frato, 2011 WL 3625064, at *2
(quoting Santi, 722 F. Supp. at 606). The relevant private interests include: "(1) plaintiffs forum
preference; (2) the defendant's preference; (3) whether the claim arose elsewhere; (4) the
convenience of the parties; (5) the convenience of the witnesses; and (6) the location of books and
records." Id. (citing Jumara v. State Farm Ins. Co., 55 F. 3d 873, 879 (3d Cir. 1995)). The relevant
public interests include: "(1) the enforceability of the judgment; (2) practical considerations that
could make the trial easy, expeditious or inexpensive; (3) the relative administrative difficulty in
the two fora from court congestion; (4) the local interest in deciding controversies at home; (5) the
public policies of the fora; and (6) the familiarity of the trial judge with the applicable state law in
diversity cases." Id. (citing Jumara, 55 F. 3d at 879-80). The Court will address these factors in
turn.

ii.

Private Interest Factors
A.

Plaintiff's Preference

"A '[p ]laintiff's choice of forum is a paramount consideration that should not lightly be
disturbed."' Id. at *3 (quoting Clark v. Burger King Coro., 255 F. Supp. 2d 334, 338 (D.N.J.
2003)) (alteration in original). However, a plaintiffs preference, manifested through his or her

11

forum choice, is to be given less deference when the choice is not the plaintiffs home forum. See,
~'Microsoft

Corp. v. LBS Innovations LLC, No. 12-CV-0848, 2012 WL 6028857, at *3 (D.N.J.

Nov. 8, 2012). In the instant matter, FerraTex is a Virginia corporation. (ECF No. 17, at 2, if 3).
Therefore, FerraTex's preference can be more easily overcome than could a New Jersey
corporation's preference.

B.

Defendants' Preference

Defendants wish to litigate in their home fora of Pennsylvania. Defendant U.S. Sewer &
Drain is incorporated in Pennsylvania and has its principal place ofbusiness in Pennsylvania. (Am.
Compl., ECF No. 17, at 2,

if 4). Defendant Bowman is a Pennsylvania resident. (Id. if 5). This

factor accordingly weighs in favor of transfer.
C.

Where the Claim Arose

In contract actions, "the factors determining where the claim arose include where the
contract was negotiated or executed, where the contract was to be performed, and where the alleged
breach occurred." Frato, 2011WL3625064, at *4 (citing Allianz Life Ins. Co. ofN. Am., Civ. A.
No. 08-668, at *5 (D.N.J. Nov. 7, 2008)). As discussed in this Court's§ 1391(b)(2) analysis, the
Court finds that the instant claims against Defendants arose primarily in New Jersey. The parties
negotiated the Letter Agreement and Personal Guarantee, which collectively encompass all of the
funds alleged to be due to FerraTex, in New Jersey. (Am. Compl., ECF No. 17, at 3-4 iii! 11, 16).
Defendant Bowman also executed the Personal Guarantee in New Jersey. (Id. at 4,

if 17). The

Letter Agreement incorporates at least a portion of the amount due for construction for the Exxon
Project into the price of the GSP Project. (Id. at 3,

if 13). The Personal Guarantee covers the

amount at issue for the Cayman Project, as it covers all sums owed to FerraTex from U.S. Sewer

& Drain. (Id. at 4, iii! 17-18; Ex. B, ECF No. 26-2 at 1). As the New Jersey-based GSP Project is

12

one of the three construction projects at issue, performance occurred in part in New Jersey, as did
the alleged breach. (Id. at 2, iii! 6-7). Nothing in the record establishes that the claims at issue
arose in Pennsylvania. Accordingly, this factor weighs against transfer.
D

Convenience of the Parties

The next private interest factor under§ 1404(a) is convenience of the parties. FerraTex is
unlikely to be more inconvenienced by either a New Jersey or Pennsylvania forum because the
fora are approximately equidistant from Virginia, the place of FerraTex's incorporation and
principal place ofbusiness. (Am. Compl., ECF No. 17, at 2, if 3). Moreover, transfer to the Eastern
District of Pennsylvania would decrease Defendants' trip by only approximately forty miles, as
Langhorne, Pennsylvania (where Defendants are located) is approximately sixty-five miles from
Newark, New Jersey and approximately twenty-five miles from Philadelphia, Pennsylvania (the
likely destination for this case should the Court elect to transfer this matter to the Eastern District
of Pennsylvania). The Court notes that "[u]nless the defendant can show that the inconvenience
to the parties strongly favors its preference, plaintiffs choice of forum should prevail." Santi, 722
F. Supp. 2d at 607 (citing Shutte v. Armco Steel Corp., 431F.2d22, 25 (3d Cir.1970)).
Furthermore, in the Personal Guarantee, which encompasses all funds at issue in this
action, Defendant Bowman consented to the "jurisdiction of the courts of New Jersey in any action
or proceeding ... arising out of this personal guarantee." (Ex. B, ECF. No. 26-2, at 1-2). While
there is no similar consent paragraph in the Letter Agreement, it appears that traveling to New
Jersey would not be burdensome to Defendant U.S. Sewer & Drain, as U.S. Sewer & Drain is the
plaintiff in a breach of contract action it filed on February 26, 2015 in the District of New Jersey.
(Certification of Steven D. Janel in Supp., ECF No. 22-1, at 2); U.S. Sewer & Drain, Inc. v. Earle

13

Asphalt Co., Civ. No. 15-1461, 2015 WL 3461087 (D.N.J. filed Feb. 26, 2015). As such, the Court
concludes that this factor weighs against transfer.

E.

Convenience of Witnesses

As the two districts are spaced relatively close together, with a distance of approximately
eighty-six miles apart, convenience of any witnesses should not pose a problem. Moreover, the
Court only considers this factor "to 'the extent that the witnesses may actually be unavailable for
trial in one of the fora."' Ziemkiewicz v. R+L Carriers, Inc., No. CIV. A. 12-1923, 2013 WL
505798, at *4 (D.N.J. Feb. 8, 2013) (quoting Jumara, 55 F. 3d at 879). Here, neither party has
identified any witnesses who would be unavailable to testify at trial in either potential forum.
Accordingly, this factor is neutral.

F.

Location of Books and Records

"The location of books and records is only material 'to the extent that the files could not
be produced in the alternative forum."' Ziemkiewicz, 2013 WL 505798, at *4 (quoting Jumara,
55 F. 3d at 879). "[I]t is often irrelevant today because of 'recent technological advances' that
enable the documents at issue in the litigation to be readily produced in even a distant forum." Id.
(quoting Jumara, 55 F. 3d at 879). As neither party has identified any documents that would be
unavailable in either forum this factor is also neutral.
In summary, the Court finds on balance that the above private interest factors weigh against
transfer to the Eastern District of Pennsylvania.

iii.

Public Interest Factors

For similar reasons, the Court finds the public interest considerations involved with the
Court's § 1404(a) analysis also weigh against transfer. As mentioned above, the public interests
relevant to the Court's analysis are:

14

(1) the enforceability of the judgment; (2) practical considerations that could make
the trial easy, expeditious or inexpensive; (3) the relative administrative difficulty
in the two fora from court congestion; (4) the local interest in deciding controversies
at home; (5) the public policies of the fora; and (6) the familiarity of the trial judge
with the applicable state law in diversity cases.
Frato, 2011WL3625064, at *2 (citing Jumara, 55 F. 3d at 879-80).

A.

Enforceability of the Judgment

The "enforceability of the judgment" factor is neutral, as a judgment rendered in either this
District or the Eastern District of Pennsylvania could easily be registered in another District.
Nothing in the record for this matter suggests otherwise.

B.

Practical considerations

Neither party has identified any practical considerations that would increase efficient use
of court resources in a particular district. This factor is also neutral.

C.

Court Congestion

Neither party has notified the Court that one venue has a substantially more congested
docket than the other. The Court recognizes that both Districts are quite busy. Therefore, this
factor is neutral.

D.

Local Interest

In analyzing local interest in the transfer analysis context, this Court has considered the

"locus of the majority of the relevant conduct" and where the agreements "transpired," rather than
the residences of the parties. Chigurupati v. Daiichi Sankyo Co., No. CIV. 10-5495, 2011 WL
3443955, at *6 (D.N.J. Aug. 8, 2011) affd, 480 F. App'x 672 (3d Cir. 2012). As the agreements
here transpired primarily in New Jersey and not in Pennsylvania, the Eastern District of
Pennsylvania has little local interest in adjudicating this dispute despite the Pennsylvania
residencies of Defendants. Conversely, contractual negotiations and execution, an alleged breach,

15

and construction of one of the projects at issue occurred in New Jersey. As "[t]he burden of jury
duty should not be placed on citizens with a remote connection to the lawsuit," New Jersey
residents rather than Pennsylvania residents should act as jurors during any trial. See Coppola v.
Ferrellgas, Inc., 250 F.R.D. 195, 200-01 (E.D. Pa. 2008) (quoting Nat'l Prop. Investors VIII v.
Shell Oil Co., 917 F. Supp. 324, 330 (D.N.J. 1995)).
Additionally, Defendants concede that the GSP Project concerns the development of the
Garden State Parkway, a major New Jersey highway. (Certification of Steven D. Janel in Supp.,
ECF No. 22-1, at 1-2, if 5). The GSP Project consists of a multitude of changes to the highway
including a new lane, new bridges, new sign structures, and removal of existing bridges. (Id.).
When a forum has "historically and actively regulated the conduct or parties at issue," as New
Jersey regulates its state highways, the local interest is substantial. See Silvis v. Ambit Energy,
L.P., No. CIV. A. 14-5005, 2015 WL 1134780, at *4 (E.D. Pa. Mar. 13, 2015) (citing Barilotti v.
Island Hotel Co., No. 13-23672, 2014 WL 1803374, at *10 (S.D. Fla. May6, 2014)). Pennsylvania
has no corresponding interest in this case. Accordingly, the Court finds that the local interest is
significantly greater in New Jersey, and this factor weighs against transfer.
E.

Public Policies of the Fora

Neither party has alleged that the public policies of either forum are more or less favorable
to the claims and defenses at issue. The Court finds that this factor is therefore neutral to its
analysis.
F.

Familiarity of the Trial Judge with the Applicable State Law

The final public interest factor concerns the familiarity of the trial judge with applicable
state law. This factor is relevant because the instant matter is a diversity action, so state substantive
law applies. See, e.g., Santomenno, 2012 WL 1113615, at *10.

16

"New Jersey choice of law rules instruct that the governing law in contract cases is 'that of
the jurisdiction with the most significant relationship and closest contacts with the transaction and
the parties.'" Chigurupati, 2011 WL 3443955, at *6 (quoting Pepe v. Rival Co., 85 F. Supp. 2d
349, 380 (D.N.J. 1999)) affd, 480 F. App'x 672 (3d Cir. 2012). It appears that Plaintiffs claims
arose primarily in New Jersey, and that New Jersey law will therefore apply to those claims.
However, the Court notes that this factor does not weigh strongly in either direction as two
districts in close proximity to each other "inevitably" must adjudicate many diversity actions and
are likely capable of applying the other's law if the case does not present "novel or complex
issues." Frato, 2011 WL 3625064, at *6. Moreover, nothing in the record suggests that the
relevant legal principles (i.e., the law governing contract and quasi-contractual/equitable
principles) differs significantly between New Jersey and Pennsylvania. The Court finds that this
factor is essentially neutral to its analysis. The Court acknowledges, however, that to the extent
there is any benefit to be gained by the District of New Jersey's familiarity with the New Jersey
law at issue, this factor weighs against transfer.
iv.

Taken Together, the Jumara Factors Weigh Against Transfer

The Court finds that, on balance, the Jumara factors weigh against transferring this matter
to the United States District Court for the Eastern District of Pennsylvania. The Court therefore
finds that transfer would be inappropriate under 28 U.S.C. § 1404(a).
c.

Reassignment to the Trenton Vicinage

In the alternative to transferring this matter to the Eastern District of Pennsylvania,
Defendants have requested in passing that the Court reassign this case to the Trenton Vicinage of
the District of New Jersey. Local Rule of Civil Procedure 40.1 governs the initial assignment and
reassignment of cases to vicinages and judges within this District.

17

Defendants here have not provided any analysis under Rule 40.1, let alone directed their
application to the Chief Judge, who is entrusted with the sole authority to dispose of such matters
under the local civil rules. Local R. Civ. P. 40.l(d), (e).
This Court therefore denies without prejudice Defendants' application to transfer this
matter to the Trenton Vicinage of the District of New Jersey.

IV.

CONCLUSION
Based on the foregoing, Defendants' motion to transfer to the Eastern District of

Pennsylvania (ECF No. 22) is DENIED. Because venue is proper in the District of New Jersey,
Defendants may only seek a discretionary transfer under 28 U.S.C. § 1404(a). A discretionary
transfer to the Eastern District of Pennsylvania would inappropriate because Defendants have
failed to demonstrate that the relevant private and public interest factors, which the United States
Court of Appeals articulated in Jumara, weigh in favor of transfer. In addition, for the reasons
discussed above, Defendants' application to reassign this action to the Trenton Vicinage is
DENIED WITHOUT PREJUDICE to Defendants' right to make an appropriate application to
the Chief Judge pursuant to Local Civil Rule 40.1.
SO ORDERED

cc:

Hon. Esther Salas, U.S.D.J.

18