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)
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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