WEICHERT REAL ESTATE AFFILIATES, INC. v. CKM16, INC. et al
Filing
16
OPINION re 9 MOTION to Dismiss or Transfer Pursuant to 28 U.S.C. § 1406(a) or, in the alternative, Transfer Pursuant to 28 U.S.C. § 1404(a) filed by CLIFFORD C. MURPHY, KIMBERLY F. MURPHY, CKM16, INC. Signed by Magistrate Judge Mark Falk on 1/31/18. (LM, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No.: 17-4824 (WJM)
WEICHERT REAL ESTATE
AFFILIATES, INC.,
Plaintiff,
v.
CKM16, INC., CLIFFORD C. MURPHY,
AND KIMBERLY F. MURPHY,
OPINION
Defendants.
FALK, U.S.M.J.
This is a breach of a franchise agreement case. The parties disagree where the
case should proceed. Plaintiff claims that the case should be venued in New Jersey, both
independently and as the result of a forum selection clause. Defendants counter that the
forum selection clause is invalid and that the case should proceed in California. Before
the Court is Defendants’ motion to dismiss or transfer pursuant to 28 U.S.C. § 1406(a), or
in the alternative, to transfer to the United States District Court for the Southern District
of California pursuant to 28 U.S.C. § 1404(a). [ECF No. 9] For the reasons set forth
below, the motion is DENIED.
FACTUAL AND PROCEDURAL BACKGROUND1
Plaintiff, Weichert Real Estate Affiliates, Inc. (“WREA”), is a Delaware
corporation with its principal place of business in Morris Plains, New Jersey. WREA is
engaged in franchising real estate brokerage offices throughout the United States.
Defendant CKM16, Inc. is a California corporation with its principal place of business in
California. Defendants Clifford C. Murphy and Kimberly F. Murphy are individuals who
reside in Fallbrook, California.
On about January 5, 2015, WREA entered into a Franchise Agreement with
CKM16 to license and operate a Weichert® real estate brokerage office in Fallbrook,
California. Effective on the date of Franchise Agreement, the Murphys also provided
WREA with a personal guarantee of CKM16’s obligations under the Franchise
Agreement. The Franchise Agreement, which obligates CKM16 to operate a franchise
for 10 years, contains numerous contractual terms, including but not limited to, an initial
franchise fee, minimum and maximum monthly marketing fees, and a minimum royalty
fee. Also, the Franchise Agreement contains forum selection and choice of law
provisions, while the Guaranty has a consent to jurisdiction clause.
The forum selection provisions state:
28.04
Venue
1
The following is drawn from the Complaint and the parties’ briefs and
declarations. Citations are largely omitted.
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A.
You agree to institute any litigation that you may commence
out of or related to this agreement; any breach of this
Agreement; the relations between the parties; and, any and all
disputes between the parties, whether sounding in contract,
tort, or otherwise, exclusively in a court of competent
jurisdiction which is either a New Jersey state court in
Morristown, New Jersey or the United States District Court
for the District of New Jersey in Newark, New Jersey. You
agree that any dispute as to the venue for any litigation you
institute will be submitted to and resolved exclusively by
either a New Jersey state court in Morristown, New Jersey or
the United States District Court for the District of New Jersey
in Newark, New Jersey. You hereby waive and covenant
never to assert or claim that this venue is for any reason
improper, inconvenient, prejudicial or otherwise inappropriate
....
B.
You further agree that we may institute any litigation that we
commence arising out of or related to this Agreement; any
breach of the Agreement; the relations between the parties;
and, any and all disputes between the parties, whether
sounding in contract, tort, or otherwise, in any court of
competent jurisdiction, wherever situated, that we select. You
agree that any dispute as to the venue for the litigation we
institute will be submitted to and resolved exclusively by the
court of competent jurisdiction in which we commenced the
litigation. You hereby waive and covenant never to assert or
claim that this venue is for any reason improper, inconvenient,
prejudicial, or otherwise inappropriate . . . .
(Declaration of Evan Goldman, Esq., Ex. G, at pp. 53-54, § 28.04.)
The Guarantee states:
Franchisor may institute any litigation that it commences
arising out of, or, related to this Guarantee or the Franchise
Agreement; any breach of this Guarantee or the Franchise
Agreement; the relations between the parties, and, any and all
disputes between the parties whether sounding in contract,
tort, or otherwise, in any court of competent jurisdiction
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wherever situated that Franchisor selects.
(Certification of Les Shoaf, ¶ 13, Ex. B.)
The Franchise Agreement also contains a choice of law provision:
28.03 Governing Law
This Agreement; all relations between the parties; and, any
and all disputes between the parties, whether sounding in
contract, tort, or otherwise, is to be exclusively construed in
accordance with and/or governed by . . . the law of the State
of New Jersey without recourse to New Jersey (or any other)
choice of law or conflicts principles . . . .
(Goldman Cert., Ex. G.)
On March 17, 2017, Plaintiff alleges that Defendants improperly and unilaterally
terminated the Franchise Agreement. According to Plaintiff, the premature termination
requires Defendants to pay any outstanding franchise fees, as well as liquidated damages
in the amount of at least $193,547.86.
On June 29, 2017, Plaintiff filed the present six count Complaint, alleging (1)
breach of the franchise agreement; (2) breach of guarantee; (3) unjust enrichment; (4)
book account; (5) account stated; and (6) accounting.
Present Motion
On August 10, 2017, Defendants filed the present motion to dismiss or transfer
pursuant to 28 U.S.C. § 1406. In the alternative, Defendants request a transfer to the
United States District Court for the Southern District of California, pursuant to 28 U.S.C.
§ 1404.
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Defendants contend that the forum provisions cited above are invalid because they
violate California state law—specifically, the California Franchise Relations Act
(“CFRA”) § 20040.52 and California Franchise Investment Law (“CFIL”), Cal. Corp.
Code § 31512 (providing that, “any condition, stipulation or provision purporting to bind
any person acquiring a franchise to waive any compliance with any provision of this law
or any rule or order hereunder is void.”). According to Defendants, Plaintiff executed
certain “California Addendum” documents during the Franchise Agreement negotiation
that acknowledge that Agreement language conflicting with California law might be
rendered void. See Goldman Cert., Ex. F (“The Franchise Agreement requires venue to
be limited to New Jersey. This provision may not be enforceable under California
Law.”). Finally, Defendants contend that, even if the forum selection provisions were
valid, this case should nevertheless be transferred to California pursuant to 28 U.S.C. §
1404.
Plaintiff counters that the forum selection provisions are valid and enforceable and
that California law does not apply. Plaintiff further contends that, regardless of California
2
This section provides:
A provision in a franchise agreement restricting venue to a
forum outside this state is void with respect to any claim arising
under or relating to a franchise agreement involving a franchise
business operating within this state.
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law and the forum selection provisions, venue is independently proper in New Jersey
pursuant to 28 U.S.C. § 1391, and that Defendants have not met their burden to show that
this case should be transferred pursuant to 28 U.S.C. § 1404.
DISCUSSION
A.
Section 1406 vs. Section 1404
In federal court, two statutes relate to transfer of a case: 28 U.S.C. § 1404(a) and
28 U.S.C. § 1406. Section 1404(a) provides for the transfer of a case where both the
original and requested venue are proper. See Jumara v. State Farm Ins. Co., 55 F.3d 873,
878 (3d Cir. 1995). Section 1406, on the other hand, applies where the original venue is
improper and provides for either transfer or dismissal of the case. See id.; see also 15
Charles A. Wright et al., Federal Practice and Procedure § 3827 (2d ed. 1986) (“A
prerequisite to invoking § 1406(a) is that the venue must be improper. The statue speaks
of a case laying venue in the wrong division or district. If the original forum was a proper
venue, § 1406(a) cannot apply and 28 U.S.C. § 1404(a) is the relevant statute.”).
Here, the parties argue in great detail whether venue is proper in the District of
New Jersey pursuant to the forum selection provisions. Indeed, the primary focus of
much of Defendants’ argument is that the forum selection provisions are unenforceable
because they conflict with California law, rendering New Jersey an improper forum.
However, before determining which transfer section applies, the first step is to determine
whether venue is proper in the original forum—that is, New Jersey—without reference to
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the forum selection clause. If venue is proper in New Jersey, then Section 1404 applies.
If venue is improper in New Jersey, then Section 1406 applies.
The United States Supreme Court has held that a determination of whether venue
is “improper” is determined solely by reference to the federal venue statute—28 U.S.C. §
1391—and “whether the parties entered into a contract containing a forum-selection
provision has no bearing on whether a case falls into one of the categories of cases listed
in § 1391(b).” Atlantic Marine Constr. Co. v. U.S. District Court for the Western District of
Texas, 134 S. Ct. 568 (2013) (emphasis added).
In other words, the first question in this case is whether venue is proper in this
District pursuant to Section 1391(b). If the answer is yes, then Defendants’ motion under
Section 1406 must be denied. The Court can then consider whether transfer is
appropriate, and whether the forum selection provisions are enforceable, in the context of
the alternative request to transfer pursuant to Section 1404(a). If the answer is that venue
is not proper in New Jersey pursuant to Section 1391, then the case may be dismissed or
transferred pursuant to Section 1406. See, e.g., Howmedica Osteonics Corp. v. DJO
Global, Inc., 2017 WL 1136671, at *3 (D.N.J. Mar. 27, 2017). At this initial
stage—whether venue is proper in New Jersey—the forum selection provisions are
irrelevant. See id. at *3 (“In Atlantic Marine, the Supreme Court made clear that forum
selection clauses have no impact on whether a venue is improper; venue is determined
exclusively by federal venue laws. As a result, the . . . the forum selection clauses have
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no bearing on the Court’s venue analysis.”).
B.
Venue is Proper in New Jersey
Plaintiff alleges that venue is proper in New Jersey pursuant to 28 U.S.C. §
1391(b)(2). This section provides that: a civil action may be brought in . . . “(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 the property that is the subject of the action is situated.”
Id.
According to the Third Circuit, “the test for determining venue under [Section
1391(b)(2)] is not the defendant’s contacts with a particular district, but rather the
location of those events or omissions giving rise to the claim.” Cottmann Transmission
Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994). “In assessing whether events or
omissions giving rise to a claim are substantial, it is necessary to look at the nature of the
dispute.” Id. The “events or omissions” must be substantial, and only a “tangential
connection” with the dispute is not sufficient to support venue under Section 1391(b)(2).
Id.
With respect to breach of contract of claims, like those here, “courts considering
substantial events or omissions may take into account where the contract was negotiated,
executed, performed, and breached.” Stalwart Capital, LLC v. Warren St. Partners, LLC,
2012 WL 1534467, at *4 (D.N.J. 2012); see also Cottmann, 36 F.3d at 295 (considering
where contract on which Plaintiff based its claims was executed and performed and where
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defendant failed to return various materials and remit payment). More than one forum
may be appropriate, and a plaintiff is not required to chose the most convenient forum for
the defendant. See Cottmann, 36 F.3d at 295. The burden of proving that venue is
improper rests with the movant. See Myers v. American Dental Ass’n, 695 F.2d 716, 724
(3d Cir. 1982); see also Great Western Min. & Mineral Co. v. ADR Options, Inc., 434
Fed. Appx. 83, 86 (3d Cir. 2011) (“Because improper venue is an affirmative defense, the
burden of proving lack of proper venue remains—at all times—with the defendant”).
Defendants have not met their burden to show that venue is improper in New
Jersey. Defendants do not explicitly argue the propriety of venue in New Jersey under
Section 1391(b)(2). Defendants instead argue that venue is improper because the forum
selection provision setting venue in New Jersey is invalidated by California law. (See,
e.g., Defs.’ Br. 5-12; Defs.’ Reply Br. 1-6.)3 However, as has been explained, the
presence of forum selection clauses is not relevant to the question of Section 1391 venue.
See, e.g., Howmedica Osteonics Corp., 2011 WL 1136671, at *3.
In contrast, Plaintiff has detailed how a substantial part of the events or omissions
giving rise to the claims in this case occurred in New Jersey for purposes of Section
1391(b)(2):
•
In November 2014, Defendants came to Plaintiff’s corporate
headquarters in Morris Plains, New Jersey to attend WREA’s
3
Defendants identify certain alleged California connections, but do so in the context
of Section 1404(a), not Section 1391(b)(2). (See Pl.’s Br. 15-16.)
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franchise sales presentation. (See Shoaf Cert., ¶ 3);
•
Defendants received a comprehensive presentation related to
WREA’s business, toured WREA’s New Jersey headquarters,
and met with various members of WREA’s corporate
departments (id. ¶ 4), and had dinner in New Jersey with
WREA’s then President, Martin J. Reuter, to discuss the terms
of their franchise agreement (id. ¶ 5);
•
Plaintiff executed the franchise agreement, and its ancillary
documents, at WREA’s New Jersey headquarters (id. ¶¶ 1, 9);
•
During the life of the franchise agreement, Defendants
traveled to the New Jersey headquarters and participated in
WREA’s management academy in New Jersey (¶ 15);
•
Virtually all of the services rendered under the franchise
agreement were rendered from New Jersey headquarters,
including, contract administration, billing, marketing,
advertising, training, and support (id.);
•
New Jersey is where the franchise agreement was negotiated
and drafted, where services were rendered during the life of
the agreement, where at least part of the agreement was
executed, where the pecuniary injury to WREA took place,
and where the injured party resides. (Pl.’s Br. 16.)
•
New Jersey is also where the franchise agreement was at least
in part breached (e.g., where the payments were due and
allegedly not made) (Pl.’s Br. 16; Compl., ¶¶ 13, 15, 19, 2829.)
Section 1391(b)(2) requires a “substantial” portion of the events underlying the
claims occur in this judicial district. Based on the above, Plaintiff has shown a deep
connection between the claims in the Complaint and New Jersey, which is not effectively
rebutted. Therefore, venue is proper in the District of New Jersey. As a result,
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Defendants’ motion to dismiss or transfer for improper venue under Section 1406 is
DENIED.
C.
Transfer Pursuant to Section 1404(a)
Having determined that venue is proper in New Jersey, the question turns to
Defendants’ alternative request for a discretionary transfer to the United States District
Court for the Southern District of California pursuant to 28 U.S.C. § 1404(a).
Section 1404(a) confers federal courts with authority to transfer a case to another
district “where it may have been brought,” when doing so is “in the interest of justice”
and serves “the convenience of parties and witnesses.” 28 U.S.C. § 1404(a). The decision
to transfer a case under § 1404(a) is a discretionary one committed to the sound discretion
of a district court. See Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756 (3d Cir. 1973);
Cadapult Graphic Sys., Inc. v. Tektronix, Inc., 98 F. Supp. 2d 560, 564 (D.N.J. 2000).
The purpose of section 1404(a) “is to prevent the waste of ‘time, energy and money’ and
to ‘protect litigants, witnesses and the public against unnecessary inconvenience and
expenses . . . .’” Ricoh Co., Ltd. v. Honeywell, Inc., 817 F. Supp. 473, 479 (D.N.J. 1993)
(quoting Van Dusen v. Barrack, 376 U.S. 612, 616 (1964)).
There is no definitive formula or list of the factors to consider when deciding a
motion to transfer. Landmark Fin. Corp. v. Fresenus Med. Care Holdings, Inc., 2010 WL
715454, at *2 (D.N.J. Mar. 1, 2010). However, the Third Circuit has articulated certain
“public” and “private” interests implicated by § 1404(a). The private interests include:
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(1) the plaintiff's preferred forum as expressed by the original forum choice; (2) the
defendant's preference (3) where the claim arose; (4) the convenience of the parties; (5)
the convenience and availability of witnesses; and 6) the location of books and records.
See Jumara, 55 F.3d at 879. The public interests include: (1) enforceability of the Court's
judgment; (2) practical considerations that could make the trial easy, expeditious, or
inexpensive; (3) the level of congestion in the respective forums, (4) the local interest in
deciding local controversies at home; (5) the public policies of the forum; and (6) the
familiarity of the trial judge with the applicable state law in diversity cases. Id. The
burden of establishing the “need to transfer rests with the movant to show that the balance
of the parties and witnesses strongly favors the defendants.” Medtronic, Inc. v. Boston
Scientific Corp., 587 F. Supp. 2d 648, 654 (D. Del. 2008); CIBC World Mkts., Inc. v.
Deutsche Bank Sec., Inc., 309 F. Supp. 2d 637, 643 (D.N.J. 2004).
D.
Presence of Forum Selection Provisions
When “a forum selection provision enters the picture,” “the weighing of the
private and public interests under Section 1404 change,” and the forum selection
provision becomes a powerful consideration. In re Howmedica Osteonics Corp., 867
F.3d 390, 402 (3d Cir. 2017) (emphasis added). As the Supreme Court explained in
Atlantic Marine, the presence of a valid forum selection provision should almost always,
absent “exceptional circumstances,” result in the case proceeding in the designated forum.
See Altantic Marine, 134 S. Ct. at 581. Moreover, Atlantic Marine directs that a valid
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forum selection provision precludes the Court from considering the parties’ private
interests—traditional transfer considerations—and instead requires that all private
interests be deemed to weigh entirely in favor of the selected forum. See id. at 581-82;
see also In re Howmedica, 867 F.3d at 402.
Applying these principles here, if the forum selection provisions are valid, the
parties’ private interests are not considered and, absent “exceptional circumstances,” the
case would proceed in New Jersey. If the forum selection provisions at issue are,
however, invalid, then the question becomes whether a complete Section 1404(a)
analysis, weighing both the public and private factors, should result in a transfer to the
Southern District of California.
As is explained below, the Court believes that the forum selection provisions are
valid and enforceable and that, pursuant to Atlantic Marine, the case should proceed in
Plaintiff’s chosen forum. However, even if the forum selection provisions were invalid
and all public and private factors were on the table for de novo consideration, the Court
would still deny the motion for Section 1404 transfer, as Defendants have not carried
their burden to show that the convenience of the parties and the interests of justice
support transfer of this case.
E.
Analysis under the Transfer Standard
i. Is there a Valid Forum Selection Provision?
“In federal court, the effect to be given to a contractual forum selection clause . . .
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is determined by federal not state law . . . because questions of venue and the enforcement
of forum selection clauses are essentially procedural, rather than substantive, in nature . . .
.” Jumara, 55 F.3d at 877. “Under federal law, forum selection clauses are
presumptively valid and enforceable, ‘unless enforcement is shown by the resisting party
to be unreasonable under the circumstances.’” Maaco Franchising, Inc. v. Tainter, 2013
WL 2475566, at *3-5 (E.D. Pa. June 10, 2013) (quoting M/S Bremen v. Zapata Off-Shore
Co., 407 U.S. 1, 10 (1972)). Therefore, “a forum selection clause will be invalidated only
if the resisting party can show (1) the clause was invalid for such reasons as fraud or
overreaching, . . . (2) enforcement of the clause would contravene a strong public policy
of the forum in which the suit is brought, or (3) that enforcement of the clause would be
so gravely difficult and inconvenient as to be unreasonable and unjust and deprive the
party of its day in court.” Id.
Defendants contend that the subject clauses are invalid and uneforceable because
the CFRA and CFIL (1) amend the Franchise Agreement to render it void as a matter of
contract law; (2) render it invalid because the clause violates California’s strong public
policy against requiring California franchisees to litigate outside of California; and (3)
there was no meeting of the minds on the forum selection provision because Plaintiff
acknowledged that the forum selection clause may not be enforceable, and that it was
subject to state (i.e., California) law. (Defs.’ Br. 5.)
Bremen supports invalidating a forum selection provision when there is (1) fraud
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or overeach, (2) when enforcement would contravene the public policy of the forum in
which the suit is brought, and (3) when enforcement would be so severely prejudicial as
to deny a party its day in court. None of these factors are met here.
With respect to the first Bremen factor, Defendants negotiated the terms of the
Franchise Agreement and Guarantee. They traveled to New Jersey to discuss the terms of
the Agreement and meet with members of Plaintiff’s corporate team and receive training.
The forum selection provisions are prominent in both the Agreement and the Guarantee,
and there is no allegation of fraud or overreach with respect to either provision.
Moreover, the presence of the forum selection provisions, and the prior dealings between
the parties, constitute ample notice that Plaintiff could seek to litigate this matter in New
Jersey should a dispute arise.
The second Bremen factor involves public policy. However, contrary to
Defendants’ lengthy arguments about California law, Bremen is concerned about the
public policy “of the forum in which the suit was brought.” 407 U.S. at 10. Here, this
means the focus is on the public policy of New Jersey, not California. When that
distinction is highlighted, it becomes clear why a number of district courts have continued
to enforce forum selection provisions against California franchisees, despite the same
California laws Defendants rely on in this case. See, e.g., Maaco Franchising, 2013 WL
2475566, at *3-5 (finding California law inapplicable and enforcing forum selection
provisions setting venue in Pennsylvania); TGI Friday’s, Inc. v. Great Nw. Rests., Inc.,
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652 F. Supp. 2d 750, 760 n.9 (N.D. Tex. 2009) (“The only argument defendants make
concerning the enforceability of the forum selection clause is that it is void under
California law . . . Defendants do not explain in any detail why this Court should apply
California law to void a franchise agreement that provides that Texas law applies to all
matters relating to the agreement, and that Texas is the forum for any disputes relating to
the agreement); Hoodz Int’l, LLC v. Toschiaddi, 2012 WL 883912, at *4 (E.D. Mich.
Mar. 14, 2012) (“As an initial matter, defendants fail to articulate why the venue question
implicates [Section 20040.5] or any other California law, in the context of this dispute.
The relevant contracts expressly state that they should be interpreted under Michigan
law.”).
Defendants contend that New Jersey and California public policy are the
same—that is, both states would invalid forum selection provisions require franchisees to
litigate outside of their home state. However, that is not the issue in this case. The
question in this case is whether a New Jersey franchisor should be permitted to litigate in
its home forum against a California franchisee. No New Jersey law or clear public policy
touches on that issue. Moreover, going a step further, the forum selection provision that
directly applies in this case is Section 28.04(B) of the Franchise Agreement, see page 3,
supra, which states only that the Franchisor may file suit in a forum of its choice. It does
not restrict a forum to one outside of California. Thus, the plain language of that
provision does not conflict with California law, even if it applied.
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Finally, Defendants do not make a showing under the third Bremen factor, that
litigating in New Jersey would be so gravely difficult as to deny them their day in Court.
For these reasons, the forum selection provision at issue in this case is valid.
ii.
Modified Transfer Analysis
Having established that there is a valid forum selection provision in this case, the
traditional transfer analysis changes. See Section D, supra. The private interest factors
are not properly considered, and are deemed to weigh in favor of Plaintiff’s selected
forum, i.e., New Jersey. See Atlantic Marine, 134 S. Ct. at 581-82; see also In re
Howmedica, 867 F.3d at 402. That leaves the public interest factors as the sole
consideration, and only under “extraordinary circumstances” will the public factors alone
support transfer of a case. In re Howmedica, 867 F.3d at 406.
This case is certainly a serious matter to the individuals involved; the Court does
not suggest otherwise. However, within the contemplation of the Atlantic Marine
framework, it is not an exceptional case with extraordinary circumstances that would
support transfer to California despite the presence of a valid forum selection provision. It
is a straightforward breach of franchise agreement case.
Defendants’ brief reference to the public interest factors does not support transfer.
There is nothing to suggest that public policies of the respective forums weigh for or
against either party—New Jersey has an interest in protecting its businesses and
California the same. Similarly unpersuasive is Defendants’ contention that California-
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based courts are better situated to address California law, to the extent it applies. See Atl.
Marine, 134 S. Ct. at 584 (“federal judges routinely apply the law of the state other than
the state in which they sit.”). In short, there is simply nothing unique about the facts of
the case or the public interests involved that would support the exceptional act of
transferring this case despite the presence of a valid forum selection clause. Accordingly,
Defendants’ motion to transfer pursuant to 28 U.S.C. § 1404(a) is DENIED.4
4
Even if the forum selection clauses are somehow invalid, which has not been
established, the motion to transfer would still be denied, as Defendants have not shown that
even a traditional Section 1404(a) transfer analysis would support transfer of the case to the
Southern District of California. Specifically, a plaintiff’s choice of venue is generally
entitled to substantial deference, especially when it files suit in its home forum. Shutte v.
Armco Stell Co., 431 F.2d 22, 24 (3d Cir. 1970). Plaintiff has its principal place of business
in New Jersey and has elected to file suit here. No reason has been shown why that decision
should not be entitled to legitimate deference.
Moreover, both sides have raised convenience of party and witness issues that place
them in relative equipoise. Wherever the case is located, one party would be required to
travel. Similarly, Plaintiff claims its witnesses are in New Jersey and Defendants claim their
witnesses are in California. It is true that Plaintiff is a large company and Defendants are
individuals; however, transfer is not about shifting the inconvenience from the party being
sued to the party suing. See, e.g., Superior Precast, Inc. v. Safeco Ins. Co. of Am., 71 F.
Supp. 2d 438, 446 (E.D. Pa. 1999) (“the purpose of transfer is not to shift the inconvenience
from one party to other. [T]he defendant must show that its alternative forum is more
convenient.”).
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CONCLUSION
For the reasons stated above, venue is proper in New Jersey and Defendants’
motion to transfer or dismiss pursuant to 28 U.S.C. § 1406 is DENIED. Further,
Defendants’ alternative request to transfer pursuant to 28 U.S.C. § 1404(a) is DENIED.
s/Mark Falk
MARK FALK
United States Magistrate Judge
Dated: January 31, 2018
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