US Engine Production, Inc. v. ISO Group, Inc. et al

Filing 32

MEMORANDUM AND ORDER denying 14 Motion to Change Venue; denying 17 Motion to Change Venue. For the foregoing reasons, Defendants' motions to change venue are DENIED and their motions to dismiss are DENIED with leave to renew. If Defen dants wish to renew their motions to dismiss, they must file such motions within thirty (30) days of the date of this Memorandum and Order. In so holding, however, the Court disagrees with Plaintiff's contention that ISO's motion was "frivolous" and accordingly declines any request on Plaintiff's part to award it costs and expenses in defending against either of the Defendants' motions. So Ordered by Judge Joanna Seybert on 8/20/2013. C/ECF (Valle, Christine)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------X US ENGINE PRODUCTION, INC. d/b/a INTERNATIONAL DIESEL, LTD., Plaintiff, FILED  CLERK    8/20/2013 4:07 pm   U.S. DISTRICT COURT  EASTERN DISTRICT OF NEW YORK  LONG ISLAND OFFICE  MEMORANDUM & ORDER 12-CV-4471(JS)(GRB) -againstISO GROUP, INC. and BCDS, INC., Defendants. ----------------------------------------X APPEARANCES For Plaintiff: John T. Lillis, Jr., Esq. Kennedy, Lillis, Schmidt & English 75 Maiden Lane, Suite 402 New York, NY 10038 For Defendants: ISO Group BCDS Justin T. Marshall, Esq. Richard E. Mitchell, Esq. GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Orlando, FL 32801 Dennis M. Rothman, Esq. Lester, Schwab, Katz & Dwyer 120 Broadway New York, NY 10271 SEYBERT, District Judge: Currently pending before the Court are Defendant ISO Group, Inc.’s (“ISO”) motion to change venue or to dismiss and Defendant BCDS, Inc.’s (“BCDS,” and together with “Defendants”) motion to change venue or to dismiss. following reasons, Defendants’ motions are DENIED. ISO, For the BACKGROUND 1 Plaintiff International US Diesel, Engine Ltd. Production, (“Plaintiff” or Inc. “USEP”) d/b/a commenced this action against Defendants on September 7, 2012 asserting claims against both Defendants for breach of contract, replevin, conversion, unjust enrichment, interference with Plaintiff’s business relationships, interference with Plaintiff’s economic advantages, and for punitive damages. Plaintiff is a New York corporation with an office and manufacturing facility in Ronkonkoma, New York that has researched, designed, developed, and manufactured a multi-part package of upgrades for Vehicles (“HMMWVs”). High-Mobility Multi-Purpose (Compl. ¶¶ 1, 3.) Wheeled Plaintiff initially called its HMMWV upgrade package the “Cobra Extreme Performance Repower and Upgrade Package.” “included engine, modifications transmission, suspension Plaintiff system enhancements cooling and designed, and (Compl. ¶ 20.) system, protective engineered, of This package the vehicle’s gear-shifting armor.” fabricated, (Compl. system, ¶ 20.) assembled, and installed all of the component parts of the upgrade package, with a couple of exceptions where 1 components parts were The following facts are taken from Plaintiff’s Complaint and are presumed to be true for the purposes of addressing Defendants’ motions to dismiss. 2 manufactured by third parties agreement with Plaintiff. under an exclusive licensing (Compl. ¶ 21.) ISO is a Delaware corporation with an office and place of business in distributes Melbourne, components Florida and equipment, and vehicles. which parts for (Compl. ¶¶ 5-6.) markets, sells, military and hardware, BCDS is a Virginia corporation with an office and place of business in Roanoke, Virginia which provides specialized tactical approached driver Plaintiff training. (Compl. ¶¶ 7-8.) In 2010, ISO to discuss possibility of a manufacturer-distributor relationship. ¶¶ 1, 23.) “numerous (Compl. (Compl. ISO travelled to Plaintiff’s offices in Ronkonkoma times” ¶ the 24.) to discuss According this to potential Plaintiff, relationship. “ISO agreed to advertise, market, display, and distribute USEP’s HMMWV Upgrade Package on the global market for the purpose of establishing market share and achieving volume sales for USEP’s benefit.” (Compl. ¶ 28.) “To ensure confidentiality” between Plaintiff and ISO, they entered into an initial Non-Disclosure Agreement (the “ISOUSEP NDA”) on December 6, 2010. (Compl. ¶ 30 & Ex. 1.) On December 14, 2010, ISO provided Plaintiff with a Memorandum of Understanding intentions. (“ISO-USEP MOU”) (Compl. ¶ 31 & Ex. 2.) 3 to document the parties’ Plaintiff and ISO disagreed on certain specifics, though, and therefore did not execute the ISO-USEP MOU. (Compl. ¶¶ 32-33.) Rather, Plaintiff alleges that on February 17, 2011, it and ISO entered into a “Non-Circumvention, Non-Disclosure and Confidential Private ¶¶ 1, 33 & Ex. 3.) Working Agreement” (“NCNDCA”). (Compl. Pursuant to the NCNDCA, Plaintiff disclosed to ISO proprietary and confidential information. (Compl. ¶ 1.) Such HMMWV information components, included Plaintiff’s a prototype business existing and targeted customers. of its contacts, and a upgrade list (Compl. ¶¶ 1, 37-39.) of After some discussions with ISO, Plaintiff then agreed to change the name of the upgrade package to the “EMV Transformer” package. (Compl. ¶ 41.) Thereafter, ISO pursued particular sales opportunities, including a trade show in Las Vegas in January 2012. (Compl. ¶¶ 42-44.) Although ISO had received some commitments, no orders were placed with Plaintiff through ISO. (Compl. ¶ 47.) In fact, instead of facilitating sales, “ISO instead co-opted the business contacts USEP provided ISO for entrée to certain customers and markets in a manner that usurped USEP’s future access to those contacts, customers, and markets.” (Compl. ¶ 48.) For example, ISO has and continues to solicit Plaintiff’s customers. (Compl. ¶ 62.) ISO has also sourced from Plaintiff’s competitors similar upgrade components “using 4 in its efforts provided confidential ISO.” (Compl. ¶ and proprietary 64.) In information addition, ISO USEP began advertising and marketing Plaintiff’s HMMWV upgrade package as its own. (Compl. ¶¶ 49-53.) In the meantime, BCDS was one Plaintiff provided to ISO. (Compl. ¶ 2.) Plaintiff, entered of ISO, and BCDS the contacts In January 2011, into a Memorandum of Understanding (the “USEP-ISO-BCDS MOU”) regarding confidential information shared between the three parties. & Ex. 4.) (Compl. ¶¶ 2, 69 At the same time, the parties circulated, but did not execute, a Non-Disclosure Agreement (the “USEP-ISO-BCDS NDA”). (Compl. ¶ 70 & Ex. 5.) Under those agreements, the parties agreed to keep all information exchanged between them confidential, and accordingly Plaintiff provided information regarding business contacts. arrangement, BCDS BCDS its with proprietary HMMWV upgrade and packages (Compl. ¶¶ 2, 73, 76.) knew of Plaintiff’s confidential and its As part of this relationship with Lord Corporation, from which Plaintiff had an exclusive license for Plaintiff’s upgrade package suspension system. (Compl. ¶ 77.) In April 2012, BCDS President William Leaman traveled to Lord Corporation license. and unsuccessfully attempted (Compl. ¶ 78.) 5 to procure its own “Additionally, rather than supporting any business opportunities for the benefit of USEP, BCDS began and continues to support and promote ISO’s marketing, offering, and distribution of USEP’s HMMWV upgrade components as if they were ISO’s products, for the benefit reference or benefit to USEP.” of BCDS and ISO, (Compl. ¶ 83.) without Furthermore, BCDS has revealed confidential and proprietary information and has attempted to find suppliers to produce the components of Plaintiff’s upgrade package from Plaintiff’s competitors. (Compl. ¶¶ 84-85.) DISCUSSION Both transferred to Defendants the Middle now move District to of have this Florida or, alternative, to dismiss Plaintiff’s Complaint. action in the The Court will first address Defendants’ arguments regarding change of venue, followed by a discussion of their motions for dismissal. Before the Court turns to the specific arguments, however, the Court will engage in a choice-of-law analysis. The parties dispute whether New York or Florida law applies to Plaintiff’s claims, and because the applicability of one state’s laws over the other has ramifications for both the change of venue and motion to dismiss analyses, an initial discussion appropriate. 6 in this regard is I. Choice of Law A federal court sitting in diversity applies choice-of-law rules of the state in which it sits. the See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Bigio v. Coca-Cola Co., 675 F.3d 163, 169 (2d Cir. 2012). “Under New York choice-of-law rules, ‘[t]he first step in any case presenting a potential choice of law issue is to determine whether there is an actual conflict between the laws of the jurisdictions involved.’” Licci v. Lebanese Canadian Bank, SAL, 672 F.3d 155, 157 (2d Cir. 2012) (alteration in original) (quoting Wall v. CSX Transp., Inc., 471 F.3d 410, 415 (2d Cir. 2006)). Here, analysis is though appropriate Defendants and that insist that Florida a law choice-of-law applies to the underlying claims, they poorly define the extent to which there is any (See potential Pl.’s Opp. conflict Br., between Docket Florida Entry 19, and at 12 New York law. (noting that Defendants’ opening briefs did not identify any conflict); ISO Reply Br., Docket Entry 23, at 5 (identifying a conflict between New York and Florida law regarding the “economic loss rule” and relying upon a New York case that has been reversed).) In any event, courts to address claims similar to those Plaintiff has raised have found that New York and Florida law may conflict. See Meszaros v. Klick, No. 09-CV-0765, 2011 WL 5238488, at *6 7 (W.D.N.Y. Oct. 29, 2011) (“[A]s to Plaintiffs’ unjust enrichment claim, Defendants argue that whereas in New York a plaintiff could assert both a breach of contract claim and an unjust enrichment claim concurrently, this would not be possible under Florida law.”); Keefus Ltd. P’ship v. Fromkin Energy, LLC, No. 06-CV-0987, 2007 WL 2454217, at *3 (N.D.N.Y. Aug. 23, 2007) (noting a conflict between how Florida law and New York law interpret conversion claims). In analyses New York, there are upon whether the depending contract. different claims choice-of-law sound in See Keefus, 2007 WL 2454217, at *3. tort or Thus, with respect to Plaintiff’s contract claims, New York courts use a “center of analysis. gravity” or “grouping of contacts” choice of law See AllGood Entm’t, Inc. v. Dileo Entm’t & Touring, Inc., 726 F. Supp. 2d 307, 317 (S.D.N.Y. 2010). “Courts should consider a variety of factors in this analysis, including the place of contracting, place of negotiation and performance, the location of the subject matter and the domicile or place of business of the contracting parties.” Defendants argue that Id. Florida law should Plaintiff’s contract claims because [i]f the proposed NCNDCA agreement had become a valid and binding contract as USEP contends, then: i) ISO would have sent orders to USEP from ISO’s facility in Florida; ii) USEP would have shipped its 8 apply to component parts to ISO’s facility in Florida; iii) ISO would have combined USEP’s components with all other components at ISO’s Florida facility; iv) ISO would have shipped the entire packages to customers from ISO’s facility in Florida under ISO’s export licenses; and v) ISO’s purchase payments to USEP would originate from ISO’s facility in Florida. (ISO Br. to Change Venue or Dismiss, Docket Entry 14, at 15-16.) ISO also maintains that, if there was a valid contract between Plaintiff and ISO, Plaintiff obtaining an exclusive breached distributorship Centauri Corporation (“Omega”). Dismiss at 7, 15.) the contract agreement first with by Omega (ISO Br. to Change Venue or Omega is a corporation that is also based in Melbourne, Florida and is one of ISO’s direct competitors. Br. to Change Venue or Dismiss at 7, 15.) (ISO Accordingly, for this reason as well, Defendants believe that a choice-of-law analysis favors Florida. Here, The Court disagrees. there are two sets of contracts in dispute, Plaintiff’s contractual arrangements with ISO, and Plaintiff’s contractual arrangements with BCDS. The parties, however, focus on Plaintiff’s contractual arrangements with ISO, with little discussion regarding Plaintiff’s arrangements with BCDS. Moreover, the parties seem to have a fundamental disagreement as to the particular exploring. propose business relationship that they were According to Plaintiff, ISO approached Plaintiff to that it market and sell 9 Plaintiff’s HMMWV upgrade package. (Compl. ¶ 23.) According to Defendants, Plaintiff was to be a supplier to ISO for ISO’s own EMV Transformer Package. (ISO Br. to Change Venue or Dismiss at 4; Leaman Decl., Docket Entry 17-1, ¶ 9.) In any event, there does not appear to be any dispute that the contracts were drafted in New York and last signed in New York. (See ISO Reply Br. at 1; see generally BCDS Reply Br., Docket Entry 24.) themselves. These facts are significant in and of See Locator of Missing Heirs, Inc. v. Kmart Corp., 33 F. Supp. 2d 229, 232 (W.D.N.Y. 1999) (finding that New York law applied in part because contract was drafted in New York and last signed in New York). Moreover, Defendants also agree that they travelled to Plaintiff’s offices in New York on several occasions, apparently relationships and to presumably contractual arrangements. at 5 (“During business the Package, their to potential negotiate any business potential (ISO Br. to Change Venue or Dismiss course relationship Transformer discuss of with ISO’s vetting USEP in a possible relation executives to traveled contractual ISO’s to EMV USEP’s facilities located in Ronkonkoma, New York on six (6) occasions from 2011 to 2012.”); Leaman Decl. ¶¶ 7-8 (discussing visits from BCDS President to Plaintiff’s offices).) weighs in favor of applying New York law. Inc., 726 F. Supp. 2d at 317 10 (finding Again, this See AllGood Entm’t, that choice of law analysis alleged favored that agreements Tennessee the at contract issue in part because negotiations occurred in and the plaintiffs formation Tennessee, the though even of the contract was signed and notarized elsewhere). In addition, disagreement as to even the considering exact the contractual parties’ arrangements contemplated, the subject matter of the contracts were either Plaintiff’s component parts or full upgrade package and its confidential and proprietary information, all of which are in New York. 170 F. See Ackerley Media Grp., Inc. v. Sharp Elecs. Corp., Supp. 2d 445, 451 (S.D.N.Y. 2001) (finding that Washington law applied where subject matter of contract was in Washington). After balancing these considerations and Defendants’ arguments, the Court finds that New York law applies to Plaintiff’s contract claims. With respect to Plaintiff’s non-contract claims, New York courts apply an “interest analysis” to determine choice-oflaw issues. See AllGood Entm’t, Inc., 726 F. Supp. 2d at 315. This analysis differs depending on whether the law at issue is loss-allocating or conduct-regulating. See id. Where, as here, Plaintiff’s claims are generally conduct-regulating, “the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has 11 the greatest interest in regulating tortious behavior within interference its with borders.” contract is Id. a (noting that conduct-regulating rule); see Keefus, 2007 WL 2454217, at *4 (tortious interference and conversion are conduct-regulating). “These include the place where the injury occurred, the place where the conduct causing the injury occurred, the domicile, residence, nationality, place of incorporation and place of business of the parties, and the place where the relationship, if any, between the parties is centered.” AllGood Entm’t, Inc., 726 F. Supp. 2d at 315. Here, while there is no definitive locus, on balance the Court agrees with Plaintiff that New York law should apply. The injury occurred in New York, which is significant even though the conduct causing the injury presumably occurred in Florida, where ISO is where BCDS is located. located, and potentially in Virginia, See Mark Andrew of Palm Beaches, Ltd. v. GMAC Commercial Mortg. Corp., 265 F. Supp. 2d 366, 378 (S.D.N.Y. 2003) (“The place of the tort is usually the place where the alleged injury causing the is injury inflicted, rather originated.”). than where Moreover, the the actions contractual relationships, to the extent that there were any, center around New York. (“[T]he See AllGood Entm’t, Inc., 726 F. Supp. 2d at 316 only thing we know for certain about the alleged contract is that the parties asserting a breach are based in New 12 Jersey and would have ultimately received the benefit of its bargain in that state.”). Thus, the Court finds that New York law applies to Plaintiff’s contract and tort claims. With this in mind, the Court turns to Defendants’ arguments regarding change of venue and dismissal. II. Change of Venue The Court will first outline the general considerations on a motion to change venue before turning to the specific factors and analysis. A. Legal Standard District courts may transfer a civil matter “[f]or the convenience of parties and witnesses, in the interest of justice . . . to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). In determining whether to grant a motion to transfer venue, courts must engage in a two-part inquiry: “(1) whether the action ‘might have been brought’ in the proposed transferee forum; and promotes convenience and justice.” Sheres, 291 F. Supp. 2d 181, 185 (2) whether the transfer Excelsior Designs, Inc. v. (E.D.N.Y. 2003) (quoting Schertenleib v. Traum, 589 F.2d 1156, 1161 (2d Cir. 1978)). Courts have broad discretion in deciding whether transfer is warranted, and they consider factors that include: 13 a (1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, [and] (7) the relative means of the parties. D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006) (alteration in original) (internal quotation marks and citation omitted). As Defendants correctly note, additional factors include the Court’s familiarity with the governing law and judicial economy. (ISO Br. to Change Venue or Dismiss at 11 (citing cases).) The party requesting transfer carries the “burden of making out a strong case for transfer,” N.Y. Marine & Gen., Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 114 (2d Cir. 2010) (internal quotation marks and citation omitted), and the plaintiff’s choice of forum “should not be disturbed unless the balance Wildwood of factors Imps. v. tips M/V decidedly Zim in Shanghai, favor No. of a transfer,” 04-CV-5538, 2005 WL 425490, at *3 (S.D.N.Y. Feb. 20, 2005) (citation omitted). Here, even assuming that this action may have been brought in the Middle District of Florida, the Court finds that venue should not be transferred based upon the aforementioned factors. 14 B. Convenience of the Parties ISO argues that, because Plaintiff has an exclusive distributorship Florida, that agreement it would travel to Florida. with not be Omega, based inconvenient in for Melbourne, Plaintiff to (ISO Br. to Change Venue or Dismiss at 13.) However, Defendants have admittedly travelled to New York on several occasions as well, showing that it is not particularly inconvenient for them to travel here either. “[A] transfer of venue should not merely shift the burden of inconvenience from one party to another.” Ltd. v. World (E.D.N.Y. 2006). should it defendant Creative 1987). Lines, Inc., 425 F. Supp. 2d 325, 328 “No matter where this action is to be heard, proceed will substantial Wide Neil Bros. be to trial, inconvenienced distance.” Jewelers, either Inc., Designs 657 F. by by the having Glory, Supp. plaintiff to Ltd. 1257, or travel the a v. Manhattan 1259 (S.D.N.Y. Therefore, the Court finds that the convenience of the parties is a neutral factor in this case. C. Convenience and Attendance of the Witnesses Defendants provide lists of potential witnesses, including individuals from Omega, whom they say can be expected to testify. (See ISO Br. to Change Venue or Dismiss at 9-10; Lowdermilk Aff., Docket Entry 14-1, ¶ 21; Leaman Decl. ¶ 13.) 15 Some of these witnesses are located in Melbourne, Florida, while others are located in various other states and countries. When making a motion to transfer venue on the ground that witnesses will generally what Corp. Griffin, v. be their inconvenienced, testimony 838 F. will Supp. 836, Defendants cover. state Falconwood 840-41 (S.D.N.Y. Here, ISO includes several witnesses from Omega. to Change Venue or Dismiss at 10.) must Fin. 1993). (See ISO Br. While the relevance of Plaintiff’s agreement with Omega is unclear at this stage in the litigation, the Court agrees with Plaintiff that ISO’s inclusion of some of the witnesses from Omega is overbroad. Specifically, to the extent that witnesses from Omega would be relevant, it would be in the context of Plaintiff’s exclusive distributorship agreement with Omega. have knowledge of ISO fails to explain why witnesses who Omega’s operations and international distributorship arrangements generally would be relevant. Moreover, several of the other witnesses that Defendants themselves identify are neither within 100 miles of Melbourne, Florida nor of Ronkonoma, New York. Accordingly, the Court finds that, although the convenience of witnesses is a significant factor, it weighs only slightly in favor of transfer. 16 D. Location of Relevant Documents and Relative Ease of Access to Proof ISO also argues that the documents” are located in Florida. Dismiss at 14.) “[t]he location factor in However, of today’s documents.” as relevant world “majority relevant (ISO Br. to Change Venue or ISO also documents of of faxing, apparently is largely scanning, concedes, a and neutral emailing Am. S.S. Owners Mut. Prot. & Indem. Ass’n, Inc. v. Lafarge N. Am., Inc., 474 F. Supp. 2d 474, 484 (S.D.N.Y. 2007). Ultimately then, this factor is neutral, or if anything, weighs only slightly in favor of transfer. E. Locus of Operative Facts and Familiarity with Governing Law As the Court has already discussed in the choice-of- law analysis, New York law applies and, contrary to Defendants’ assertions, the locus of operative events is not necessarily Florida just because occurred in Florida. any alleged misconduct on ISO’s part Accordingly, the Court finds that this factor weighs against transfer. F. The Relative Means of the Parties ISO concedes, and the Court agrees, that the relative means of the parties is a neutral factor here. G. Plaintiff’s Choice of Forum Defendants assert that Plaintiff’s choice of forum should be given little weight because there is little or no 17 connection between New York and the locus of operative facts and because the other factors weigh heavily in favor of transfer. (ISO Br. outlined to Change above, the Venue Court or Dismiss at disagrees 18.) that However, there is as little connection to New York or that the factors weigh heavily in favor of transfer. forum is entitled Furthermore, to the considerable “plaintiff’s weight, and choice should not of be disturbed unless the balance of the several factors is strongly in favor of the defendant.” Orb Factory, Ltd. v. Design Sci. Toys, Ltd., 6 F. Supp. 2d 203, 210 (S.D.N.Y. 1998). This is particularly so where, as here, Plaintiff is a resident of the forum district. See Berman v. Informix Corp., 30 F. Supp. 2d 653, 659 (S.D.N.Y. 1998). Accordingly, the Court finds that this factor weighs against transfer. In sum, Defendants have not adequately shown that a change of venue is appropriate here, and their motions to change venue are therefore DENIED. III. Motions to Dismiss Finally, both Defendants move, in the alternative, to dismiss Plaintiff’s Complaint. and rejects, inappropriate ISO’s Preliminarily, the Court notes, assertion “shotgun” pleading that the that fails Complaint to requirements of Federal Rule of Civil Procedure 8. Br. to Change Venue or Dismiss at 19-20.) 18 is an satisfy the (See ISO’s While it is true that Rule 8 requires a “short and plain” statement, there is nothing necessarily inappropriate or confusing about Plaintiff’s Complaint or its incorporation of prior paragraphs in setting forth its causes of action. Bongo Apparel, (S.D.N.Y. Inc., No. 8, 2008) July See Iconix Brand Grp., Inc. v. 06-CV-8195, (“[I]t 2008 must WL be 2695090, noted at that *3 the incorporation of preceding paragraphs into subsequent causes of action is a standard practice . . . .”); ReSource N.E. of Long Island, Inc. v. Town of Babylon, 80 F. Supp. 2d 52, 57 (E.D.N.Y. 2000) (after initially dismissing the original ninety-seven page, 442-paragraph complaint, the court found that the amended complaint of forty-nine pages and 215 paragraphs was not “so opaque as to defy understanding or prevent the Defendants from answering”). Accordingly, Defendants’ motion to dismiss the Complaint on this ground is DENIED. The Court thus turns to Defendants’ additional arguments in support of their motions to dismiss the Complaint. In doing dismiss so, however, discusses Florida law only. 26.) brief. the the Court viability notes of that ISO’s Plaintiff’s motion claims to under (ISO Br. to Change Venue or Dismiss at 19- BCDS’s moving papers then incorporates by reference ISO’s (Leaman Decl. ¶ 2.) addresses the possible Although BCDS’s reply brief then application of New York law, a cannot raise arguments for the first time in a reply brief. 19 party See Fairfield Fin. Mort. Grp., Inc. v. Luca, 584 F. Supp. 2d 479, 485 n. 2 (E.D.N.Y. 2008) (declining to address defendants’ arguments raised for the first time in the reply papers); Vilkhu v. City of N.Y., No. 06-CV-2095, 2008 WL 1991099, at *8 (E.D.N.Y. May 5, 2008) (“Because defendants have raised this argument for the first time in their reply papers, I decline to consider it on this motion.”). Accordingly, Defendants’ motion to dismiss is DENIED with leave to renew. CONCLUSION For the foregoing reasons, Defendants’ motions to change venue are DENIED and their motions to dismiss are DENIED with leave to renew. If Defendants wish to renew their motions to dismiss, they must file such motions within thirty (30) days of the date of this Memorandum and Order. In Plaintiff’s so holding, contention however, that ISO’s the motion Court was disagrees with “frivolous” and accordingly declines any request on Plaintiff’s part to award it costs and expenses in defending against either of the Defendants’ motions. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: August 20, 2013 Central Islip, NY 20

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