BELLA AND ROSIE ROCK, LLC v. WE ROCK THE SPECTRUM, LLC et al

Filing 11

OPINION. Signed by Magistrate Judge Michael A. Hammer on 2/13/18. (cm, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
BELLA AND ROSIE ROCK, LLC, A
:
NEW JERSEY LIMITED LIABILITY :
COMPANY,
:
:
Plaintiff,
:
:
v.
:
:
WE ROCK THE SPECTRUM, LLC, A :
CALIFORNIA LIMITED LIABILITY :
COMPANY; WRTS, LLC, A
:
CALIFORNIA LIMITED LIABILITY :
COMPANY; MY BROTHER ROCKS :
THE SPECTRUM FOUNDATION, A
:
CALIFORNIA CORPORATION; DINA :
KIMMEL, AN INDIVIDUAL; GAIL
:
FIELD, AN INDIVIDUAL; JOHN
:
DOES 1-10 AND ABC CORPS 1-10,
:
:
Defendants.
:
____________________________________:

Civil Action No. 17-3628 (MCA) (MAH)

OPINION

I. INTRODUCTION
This matter comes before the Court on Defendants’ motion to dismiss or transfer, D.E. 5.
The Court has considered the motion, opposition, reply, and applicable law. Pursuant to Federal
Rule of Civil Procedure 78, the Undersigned did not hear oral argument and has considered this
matter on the papers. For the reasons below, the Court will grant Defendants’ motion and transfer
this case to the United States District Court for the Central District of California.
II. BACKGROUND
This matter arises from a franchise agreement between Defendant We Rock the Spectrum
LLC (the franchisor) and Plaintiff Bella and Rosie Rock LLC (“BRR”) (the franchisee), to open
and operate a specialty gym for special needs children at 10 Franklin Turnpike, in Waldwick, New

Jersey. We Rock The Spectrum is a California limited liability company and its sole member is
Defendant Dina Kimmel (“Kimmel”). Defendant WRTS, LLC is a California limited liability
company whose sole member is also Kimmel. Plaintiff alleges that WRTS, LLC and We Rock
The Spectrum have common ownership, and that We Rock The Spectrum is the successor-ininterest to WRTS, LLC. Complaint, D.E. 1, at ¶ 5. 1 Plaintiff alleges that Gail Fields is a WRTS
representative who at one point owned a WRTS facility in Boca Raton, Florida. Id. at ¶¶ 30, 31.
Plaintiff further alleges that Defendant My Brother Rocks the Spectrum is a California non-profit
corporation. Id. at ¶ 3.
Defendant Kimmel opened up the first gym, called We Rock The Spectrum, in California
in September 2010. Plaintiff alleges that WRTS began to sell franchises to operate children’s
gyms under the same name in October 2013. Id. at ¶¶ 11-14.
On January 6, 2016, BRR and WRTS entered into a Franchise Agreement to operate a We
Rock The Spectrum gym in Bergen County, New Jersey. Id. at ¶ 19; see also Franchise
Agreement, Declaration of Dina Kimmel (“Kimmel Decl.”) Ex. A, D.E. 5-8 (“Franchise
Agreement”). Dina Kimmel executed the Franchise Agreement on behalf of We Rock The
Spectrum LLC. Kim Casey and Arnaud Casey executed the Franchise Agreement on behalf of
BRR. Franchise Agreement, D.E. 5-8, at 49. The Franchise Agreement had a mediation clause
which provided in pertinent part as follows:
Mediation. Franchisor and Franchisee pledge to attempt first to resolve any dispute
pursuant to mediation conducted in accordance with the Commercial Mediation Rules of
the AAA unless Franchisor ad Franchisee agree on alternative rules and a mediator within
fifteen (15) days after either party first gives notice of mediation. Mediation shall be
conducted in Los Angeles County, California, and shall be conducted and completed within
forty-five (45) days following the date either party first gives notice of mediation . . . .

1

Plaintiff refers to both We Rock the Spectrum, LLC and WRTS LLC as “WRTS.” For
ease of reference, the Court will do the same.

Franchise Agreement § 23.1, at 45. The Franchise Agreement also designated California as the
forum for any litigation, and provided that California law would govern any such dispute. That
clause provided in pertinent part as follows:
Judicial Relief. Franchisor and Franchisee agree that (i) all disputes arising out of or
relating to this Agreement shall be brought in the Superior Court of California, County of
Los Angeles, or the United States District Court of the Central District of California
(“Courts”). To the fullest extent that the parties may do so under applicable law, the parties
waive the defense of inconvenient forum to the maintenance of an action in these Courts
and agree not to commence any action of any kind except in these Courts. California law
shall govern the construction, interpretation, validity and enforcement of this Agreement,
except to the extent the subject matter of the dispute arises exclusively under federal law,
in which event federal law shall govern. . . .
Id. § 23.2, at 45-46.
The Bergen County, New Jersey We Rock The Spectrum location was set to open on
August 13, 2016. Complaint, D.E. 1, at ¶ 35. But it appears that almost immediately, the
relationship between the parties soured. Plaintiff alleges that Kimmel and Field came to New
Jersey to assist BRR with the opening of the gym, but that Kimmel was “unhelpful, demeaning
and abusive” to the Caseys. Id. at ¶¶ 35-36.
On September 2, 2016, WRTS served BRR with a default notice claiming BRR committed
numerous breaches of the Franchise Agreement. Id. at ¶ 40; see also Default Notice, Exhibit A to
Certification of Kim Casey, (“Casey Cert.”), D.E. 6-2. These breaches include claims that BRR
did not have a licensed contractor, that BRR was not in compliance with the Americans with
Disabilities Act, and that BRR did not pay $1,500 to WRTS for Kimmel’s travel expenses. Id. at
¶ 40. On September 28, 2016, WRTS served a Notice of Breach and Opportunity to Cure on BRR.
See Notice of Breach, Exhibit A to Declaration of Kasey Diba (“Diba Decl.”), D.E. 5-3. Plaintiff
disputes those breaches, and claims that WRTS breached the Franchise Agreement by “failing to
provide meaningful email and internet marketing support for the grand opening” and generally

failing to seek local media coverage or provide support and training. Id. at ¶¶ 41, 132.
On October 13, 2016, BRR’s counsel sent a notice of rescission to WRTS’s counsel.
Certification of Kim Casey, July 24, 2017, Ex. B, D.E. 6-3 (notice of rescission). The notice stated
that rescission was effective at 11:59 p.m. on October 13, 2016. It also demanded damages,
including but not limited to any money that BRR had paid Defendants. According to BRR,
Defendants failed to contest the rescission letter, and instead pursued mediation. In fact, WRTS
petitioned the American Arbitration Association (“AAA”) to pursue mediation, consistent with §
23.1 of the Franchise Agreement. See Diba Decl., D.E. 5-2, at ¶¶ 4-7. Although it appears that
Plaintiff initially agreed to mediate, it reconsidered and filed the instant action in lieu of engaging
in the AAA proceeding. See Casey Cert., D.E. 6-1, ¶ 15. BRR filed this action on May 19, 2017.
See Complaint, D.E. 1.
The Complaint alleges that Defendants made myriad false representations designed to
induce Plaintiffs to enter into the Franchise Agreement, made other false representations after the
parties had entered into the agreement, and otherwise breached their obligations under the
Franchise Agreement. Plaintiffs allege violations of the California Franchise Investment Law,
Cal. Corp. Code §§ 31200-312002, the California Business and Professions Code, Cal. Bus. and
Prof. Code § 17200 et seq., the New Jersey Franchise Practices Act, N.J.S.A. 56:101 et seq.
(“NJFPA”), and common law.
Defendants now move to either dismiss or transfer this matter based on forum non
conveniens and 28 U.S.C. §1404(a). See generally Movant’s Brief (“Movant Br.”), D.E. 5-1.
Specifically, Defendants argue that (i) the forum selection clause is enforceable; and (ii) even if
the forum selection clause is not enforceable, a traditional balancing of the factors under § 1404(a)
favors transfer. BRR opposes the motion, and contends that because it rescinded the Franchise

Agreement, the forum selection clause is unenforceable. See generally Opposition Brief (“Opp’n
Br.”), D.E. 6.
III. DISCUSSION
Title 28 Section 1404(a) of the United States Code provides that for the “convenience of
the 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.” Section 1404(a) exists to “prevent
the waste of time, energy and money and to protect litigants, witnesses and the public against
unnecessary inconvenience and expense.” Ricoh Co. v. Honeywell, Inc., 817 F. Supp. 473, 479
(D.N.J. 1993) (internal citations and quotations omitted). The Third Circuit has recognized that
the moving party bears the burden of establishing the propriety of transferring the case “with any
affidavits, depositions, stipulations, or other documents containing facts that would tend to
establish the necessary elements for a transfer under 28 U.S.C. § 1404(a).” Plum Tree, Inc. v.
Stockment, 488 F.2d 754, 756-57 (3d Cir. 1973).
The United States Supreme Court has instructed that if a contract contains a valid forum
selection clause, then courts must “transfer the case unless extraordinary circumstances unrelated
to the convenience of parties clearly disfavor a transfer.” See Atlantic Marine Constr. Co. v. U.S.
Dist. Ct. for the W. Dist. of Texas, 134 S. Ct. 568, 575 (2013). “Although a forum-selection clause
does not render venue in a court ‘wrong’ or ‘improper’ under § 1406(a) or Rule 12(b)(3), the clause
may be enforced through a motion to transfer under § 1404(a).” Id. For this reason, the Supreme
Court held that an enforceable forum selection clause can provide the basis for proper venue. Id.
at 581. “[Because] the overarching consideration under § 1404(a) is whether a transfer would
promote ‘the interest of justice,’ a valid forum selection clause [should be] given controlling
weight in all but the most exceptional cases.” Id. (citations omitted). The proper inquiry in cases

with forum selection clauses is, therefore, to first examine the enforceability of the forum selection
clause, and if so, next determine whether transfer is warranted based on a § 1404(a) analysis.
A. RESCISSION
Plaintiff’s primary argument is that the forum selection clause is unenforceable because
Plaintiff rescinded the Franchise Agreement. Plaintiff argues that after it tendered the rescission
letter, Defendants did not contest rescission and instead sought to mediate.
Defendants, however, argue that the forum selection clause is mandatory and clearly
indicates the proper venue is California. Defendants contend that they did not agree to any contract
rescission but instead sought to engage in mediation, as required by the Franchise Agreement’s
dispute resolution provision, and thereby manifested Defendant’ understanding that the agreement
was still in place. See Reply Brief, D.E. 9, 5-6.
Plaintiff’s argument is unpersuasive. First, Plaintiff cites no legal authority to support its
argument that rescission of an agreement necessarily renders the forum selection clause within that
agreement void. In fact, most courts that have considered the issue have rejected Plaintiff’s
argument. For example, the court in Wholesale Merch. Processing, Inc. v. Orion Commc’ns, Inc.,
No. 03:12-CV-02003, 2013 U.S. Dist. LEXIS 48962, at *4 (D. Or. Mar. 4, 2013), rejected this
argument, reasoning:
[Plaintiff] further argues [defendant’s] alleged breach of the Agreement allows [plaintiff]
to rescind the Agreement in its entirety, including the forum selection clause. The court
agrees with [defendant] that this argument puts the proverbial cart before the horse.
Whether [plaintiff] can rightfully rescind the Agreement is one of the questions that must
be decided in this case. Interpretation of the forum selection clause is necessary to
determine where the rescission claim will be tried.
See also Starlight Co. v. Arlington Plastics Mach., Inc., No. C011121SI, 2001 U.S. Dist. LEXIS
7997, at *4 (N.D. Cal. June 8, 2001) (rejecting plaintiff’s argument that allegations of rescission
rendered forum selection clause unenforceable, stating “plaintiff presents no cases where a court

has rescinded an entire contract for the purposes of invalidating a forum-selection clause” and
“[g]ranting a rescission of the Contract to invalidate the forum-selection clause would essentially
give plaintiff the relief it seeks without requiring it to prove its case.”).
Second, the language of the forum selection clause plainly encompasses these claims. The
forum selection clause applies to “all disputes arising out of or relating to this Agreement[.]”
Franchise Agreement § 23.2, D.E. 5-8, at 45-46. Here, Plaintiff seeks rescission as a remedy
because, it claims, Defendants fraudulently induced it to enter into the Franchise Agreement.
Complaint, D.E. 1, ¶¶ 87-91. As the court in Starlight Co. held, “[g]ranting a rescission of the
Contract to invalidate the forum-selection clause would essentially give plaintiff the relief it seeks
without requiring it to prove its case.” 2001 WL 677908, at *4. Indeed, Plaintiff’s entire case is
based on the Franchise Agreement, including its claim for breach of contract and request for
damages resulting from that alleged breach. Plaintiff cannot credibly argue that the Franchise
Agreement is no longer operative, yet predicate at least some of its claims on that very agreement.
Finally, to the extent Plaintiff argues that Defendants somehow acquiesced to rescission by
not adequately contesting it, that argument is also unpersuasive. Plaintiff is less than clear about
what Defendants should have, or could have, done to contest the rescission letter. They also cite
no legal authority for the proposition that Defendants waived enforcement of the forum selection
clause by not taking other action. Moreover, it appears that Defendant acted consistently with §
23.1 of the Franchise Agreement by seeking to mediate the dispute.
This Court takes no position on whether Plaintiff ultimately will prevail on its claim for
rescission. But Plaintiff has failed to provide any legal authority to establish that a unilateral claim
of recession is sufficient to invalidate a forum selection clause. Thus, the Court must reject as
premature Plaintiff’s argument that the entire Franchise Agreement, and thus the forum selection

clause within it, is void by virtue of rescission.
B. VALIDITY OF THE FORUM SELECTION CLAUSE
The Court must next determine whether the clause itself is valid. Federal law governs the
enforceability of a forum selection clause in a diversity case like this one. See Cadapult Graphic
Systems, Inc. v. Tektronix Inc., 98 F. Supp. 2d 560, 563 (D.N.J. 2000) (“‘In federal court, the effect
to be given a contractual forum selection clause in diversity cases is determined by federal not
state law.’”) (quoting Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995)). “It is well
established that a forum selection clause is prima facie valid and should be enforced unless
enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances.” Gen.
Eng’g Corp. v. Martin Marietta Alumina, Inc., 783 F.2d 352, 356 (3d Cir. 1986) (quoting The
Bremen v. Zapatha Off-Shore Co., 407 U.S. 1, 10 (1972)).

A forum selection clause is

unenforceable only if a party establishes: “(1) that it is the result of fraud or overreaching, (2) that
enforcement would violate a strong public policy of the forum, or (3) that enforcement would in
the particular circumstances of the case result in litigation in a jurisdiction so seriously
inconvenient as to be unreasonable.” Ramada Worldwide Inc. v. SB Hotel Mgmt. Inc., No. 142186, 2015 WL 758536, at *3 (D.N.J. Fed. 23, 2015) (citations omitted). Accordingly, courts
enforce forum selection clauses “unless the resisting party makes a strong showing that the clause
is unenforceable.” Cadapult, 98 F. Supp. 2d at 564 (citations and quotations omitted).
Plaintiff’s primary argument as to why the forum selection clause is invalid is that it
rescinded the Franchise Agreement. The Court has already rejected this argument above. Also,
to the extent Plaintiff contends the forum selection clause is unenforceable because the Franchise
Agreement was fraudulent, that argument also fails. The Supreme Court addressed this exact issue
in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972), when it upheld the enforcement of a

forum selection clause despite allegations of fraud. The Supreme Court clarified that enforcing
such clauses in light of allegations of fraud
does not mean that any time a dispute arising out of a transaction is based upon an
allegation of fraud . . . the clause is unenforceable. Rather, it means that an
arbitration or forum-selection clause in a contract is not enforceable if the inclusion
of that clause in the contract was the product of fraud or coercion.
Id. at 519 n.14. Put another way, “the proper inquiry is whether the forum selection clause is the
result of ‘fraud in the inducement of the [forum-selection] clause itself.’” Money Gram Payment
Systems, Inc. v. Consorico Oriental, S.A., 65 Fed. Appx. 844, 847 (3d Cir. 2003) (citing Prima
Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04 (1967)). Here, however, Plaintiff
has made no showing that its agreement to the forum selection clause itself was procured by fraud.
Plaintiff also argues that the forum selection clause is invalid because it has a claim under
the NJFPA, which disfavors forum selection clauses.

In Kubis & Perszyk Assocs. v. Sun

Microsystems, Inc., 146 N.J. 176, 195 (1996), the New Jersey Supreme Court held that when the
NJFPA applies, “forum selection clauses in franchise agreements are presumptively invalid, and
should not be enforced unless the franchisor can satisfy the burden of proving that such a clause
was not imposed on the franchisee unfairly on the basis of its superior bargaining position.” But
the NJFPA applies only to
a franchise . . . (1) the performance of which contemplates or requires the franchisee to
establish or maintain a place of business within the State of New Jersey, (2) where gross
sales of products or services between the franchisor and franchisee covered by such
franchise shall have exceeded $35,000.00 for the 12 months next preceding the institution
of suit pursuant to this act, and (3) where more than 20% of the franchisee’s gross sales are
intended to be or are derived from such franchise.
N.J.S.A. § 56:10-4(a). The NJFPA requires all three elements to be met for a franchise to fall
within its purview. See B-Jays USA, Inc. v. Red Wing Shoe Company, Inc., No. 15-2182, 2015
WL 5896151, at *4 (D.N.J. Oct. 6, 2015); see also Windsor Card Shops, Inc. v. Hallmark Cards,
Inc., 957 F. Supp. 562, 569 n.11 (D.N.J. 1997) (finding that the plaintiff could not state a claim

under the NJFPA because it failed to satisfy all of the §56:10-4(a) requirements); Finalay &
Associates, Inc. v. Borg-Warner Corp., 146 N.J. Super. 210, 215-16 (Law Div. 1976) (requiring
all three statutory conditions be established to obtain NJFPA protection).
Defendants argue that Plaintiff fails to meet the second prong because Plaintiff generated
only $7,116.61 in total sales, which is well below the $35,000 threshold under N.J.S.A. § 56:104(a). See Sales Report, Kimmel Cert., Ex. C, D.E. 5-10. Plaintiff operated fewer than sixty days
from its grand opening on August 13, 2016 until it issued the notice of rescission on October 13,
2016. See Complaint, D.E. 1, ¶¶ 35, 49.
Plaintiff does not dispute that it did not reach the required minimum, or contest the accuracy
of the Sales Report reflecting these total sales. Instead, Plaintiff argues that had it not rescinded,
its sales would have met or exceeded $35,000 after the first year. See Opp’n Br., D.E. 6, at 22.
However, Plaintiff provides no authority that projected gross sales are sufficient to meet the
$35,000 threshold under the NJFPA. 2 Plaintiff is thus limited to the gross sales calculated for the

2

Although Plaintiff acknowledges there is no case directly on point with this argument, it
cites to the dissent Tynan v. General Motors Corp. 248 N.J. Super. 654 (App. Div. 1991) as
“instructive.”
In Tynan, a former franchisee sought reimbursement under the NJFPA for warranty parts.
The New Jersey Appellate Division held that former franchisees were “entitled to a statutory
remedy if forced out of business based on the franchisor’s violations of his rights under the Act.”
However, the court rejected the plaintiffs’ claim for reimbursement under the NJFPA because it
“was not asserted within a 12 month period during which [plaintiffs’] gross sales exceeded
$35,000.” The New Jersey Appellate Division further stated that the “complaint has to be filed
within the time period permitted by [the NJFPA] . . .” Id. at 673.
The dissent disagreed, reasoning that the majority turned this provision into “a statute of
limitation of capricious application.” Id. at 674. The dissent stated that “[i]t is apparent that the
$35,000 minimum was intended not to limit the time for suit but to measure the size of the
businesses protected by the Act.” Id. at 676. The dissent continued
[the provision] requires only that the measurement of gross franchise
businesses for the 12 months before suit be limited to ongoing franchises

last 12 months it existed, which in this case was $7,116.61 during its sixty days of operation.
Therefore it appears to the Court that Plaintiff cannot show that it has reached the $35,000
threshold amount to receive protection under the NJFPA. The presumption of validity for forum
selection clauses, therefore, remains in effect.
Plaintiff does not otherwise argue that the forum selection clause resulted in overreaching
or fraud, or that enforcement of the clause would be contrary to public policy or result in litigation
in a location so inconvenient as to be unreasonable. Plaintiff in fact advances no other reason the
clause is unenforceable. Accordingly, the Court finds that Plaintiff has not met its burden of
establishing that transfer to the forum indicated in the forum selection clause is unwarranted.
Given the presumption of validity and the lack of any persuasive argument by Plaintiff to the
contrary, the Court finds the forum selection clause is valid, mandatory 3, and enforceable.

that are in business when suit started. Businesses that have terminated
before suit starts must have their gross sales calculated for the last 12
months they existed.
Id. The New Jersey Supreme Court adopted this dissent without elaboration, and reversed the
Appellate Division. Tynan v. General Motors Corp., 127 N.J. 269, 270 (1992).
Plaintiff here argues that “[t]here is little doubt that the New Jersey courts would find that
the recession of the Franchise Agreement prior to the end of one year of operation does not
lessen or undermine the rights and remedies due to plaintiff herein.” Opp’n Br., D.E. 6, at 23.
Plaintiff’s reliance on Tynan is unavailing. The dissent and New Jersey Supreme Court’s
adoption of it simply stand for the proposition that the required minimum of $35,000 in gross
sales in the twelve months preceding suit is not intended as a statute of limitations for filing suit.
The dissent did not consider, much less conclude, that projected gross sales could count toward
the $35,000 threshold. Therefore Plaintiff’s reliance on the dissent in Tynan is without merit.
3

Although Plaintiff does not contest that the forum selection clause’s language is
mandatory, the Court nevertheless finds that it is. When construing a forum selection clause, the
court looks “to the text of the contract to determine whether it unambiguously states the parties’
intentions.” John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1074 (3d Cir. 1997)
(“To be ‘unambiguous,’ a contract clause must be reasonably capable of only one construction.”)
(citations omitted). A mandatory forum selection clause “identifies a particular state or court as

C. §1404(A) CONSIDERATIONS
Having determined that the forum selection clause at issue is valid, the Court must next
engage in a transfer analysis. Under a typical § 1404(a) analysis, courts must evaluate whether
transfer is appropriate based on a series of private and public interest factors to determine whether
“on balance the litigation would more conveniently proceed and the interests of justice be better
served by transfer to a different forum.” Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.
1995). However, when parties have agreed to a forum selection clause, as in this case, the Supreme
Court has held that Courts must “adjust their usual Section 1404(a) analysis in three ways.” Alt.
Marine Constr. Co. at 581. First, the plaintiff’s choice of forum holds no weight and plaintiff
bears the burden of establishing that transfer to the agreed upon forum is unwarranted. Id. at 58182. Second, when a party ‘flouts’ its contractual obligation under a forum selection clause and
files suit in a different forum, “a 1404(a) transfer of venue will not carry with it the original venue’s
choice-of-law rules—a factor that in some circumstances may affect public-interest
considerations.” Id. at 582. Third, the court should not consider arguments about the parties’
private interest. As the Court stated in Alt. Marine Constr. Co., “[w]hen parties agree to a forumselection clause, they waive the right to challenge the preselected forum as inconvenient or less

having exclusive jurisdiction over disputes arising out of parties’ contract and their contractual
relationship.” Int’l Bus. Software Solutions, Inc. v. Sail Labs Tech., 440 F. Supp. 2d 357, 363 n.1
(D.N.J. 2006) (internal citations and quotations omitted).
Here, the forum selection clause states “all disputes arising out of or relating to this
Agreement shall be brought in the Superior Court of California, County of Los Angeles, of the
United States District Court of the Central District of California . . .” Other than Plaintiff’s
rescission argument, which the Court has rejected, neither party argues that any other document
supersedes, contradicts, or otherwise invalidates the Agreement or the clause itself. The Court
finds, therefore, that this language clearly indicates a clear and mandatory forum selection clause
indicating the required venue is exclusively either the Superior Court of California, County of
Los Angeles, or the District Court of the Central District of California.

convenient . . .” Id. at 582. Consequently, the court may consider only arguments pertaining to
the public interest factors. The Supreme Court has instructed, however, that “[b]ecause [the public
interest] factors will rarely defeat a transfer motion, the practical result is that the forum-selection
clauses should control except in unusual cases.” Atl. Marine Constr. Co. at 582.
The public interest factors in a § 1404(a) analysis include:
(1) enforceability of the judgment; (2) practical considerations that could make the trial
easy, expeditious, or inexpensive; (3) relative administrative difficulties in the two fora
resulting from court congestions; (4) local interests in deciding local controversies at
home; (5) public policies of the fora; and (6) familiarity of the trial judge with the
applicable state law in diversity cases.
Jumara, 55 F.3d at 879.
Plaintiff’s principal argument is that New Jersey has an interest in protecting franchises
operating in the state, and that the NJFPA disfavors forum selection clauses. However, the Court
has already considered Plaintiff’s argument that the forum selection clause is unenforceable under
the NJFPA. Plaintiff makes no other arguments regarding the remaining factors.
The Court’s own analysis of the remaining factors concludes that they are neutral.
Enforceability of the judgment, administrative difficulties and local interests all equally support
California and New Jersey. Similarly, the relative administrative difficulties are the same in either
forum and do not weigh heavily in either party’s favor. Nor does one forum’s local interest
outweigh the others; California has an interest in regulating and protecting its corporations as does
New Jersey. Moreover, the Complaint seeks relief under both California and New Jersey statutes.
Also, each party’s witnesses, books, and records are located primarily, if not exclusively, in that
party’s home state.
In sum, the applicable public interest factors in the Court’s § 1404(a) analysis are neutral.
In light of Plaintiff’s heavy burden, the Supreme Court’s instruction that the public interest factors

rarely merit keeping a case within a venue contrary to a valid forum selection clause, and the
neutrality of the applicable public interest factors, the Court finds that Plaintiff has not met its
burden to show that transfer to California is unwarranted.
IV. CONCLUSION
Based on the foregoing, the Defendants’ motion is granted insofar as it seeks transfer of
venue to the Central District of California pursuant to 28 U.S.C. § 1404(a). An appropriate order
will accompany this opinion.

s/ Michael A. Hammer
UNITED STATES MAGISTRATE JUDGE

Dated: February 13, 2018