Sam v. Selip & Stylianou, LLP et al
Filing
13
MEMORANDUM & ORDER: For the foregoing reasons(PLEASE SEE ORDER FOR FURTHER DETAILS), Defendants motion to transfer venue is GRANTED and this case is HEREBY TRANSFERRED to the Western District of New York. The Court makes no finding on the merits of Defendants motion to dismiss. The Clerk of the Court is directed to mark this matter CLOSED. Ordered by Judge Joanna Seybert on 12/28/2015. (Ortiz, Grisel) [Transferred from nyed on 12/30/2015.]
FILED
CLERK
12/28/2015 12:48 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
MARK SAM on behalf of himself
and all others similarly situated,
Plaintiff,
MEMORANDUM & ORDER
15-CV-2780(JS)(GRB)
-against–
SELIP & STYLIANOU, LLP, f/k/a
COHEN & SLAMOWITZ, LLP,
MITCHELL SELIP, DAVID A. COHEN,
and MITCHELL G. SLAMOWITZ,
Defendants.
------------------------------------X
APPEARANCES
For Plaintiff:
Mitchell L. Pashkin, Esq.
775 Park Avenue, Suite 255
Huntington, NY 11743
For Defendants:
Joseph L. Francoeur, Esq.
Wilson, Elser, Moskowitz,
Edelman & Dicker LLP
150 East 42nd Street
New York, NY 10017
SEYBERT, District Judge:
Currently pending before the Court is defendants Selip
& Stylianou, LLP f/k/a Cohen & Slamowitz, LLP, Mitchell Selip,
David
A.
Cohen,
and
Mitchell
Slamowitz’s
(collectively,
“Defendants”) motion to dismiss or, alternatively, for an Order
transferring this matter to the United States District Court for
the Western District of New York (the “Western District”). (Docket
Entry 4.)
For the following reasons, Defendants’ motion to
transfer is GRANTED and this action is HEREBY TRANSFERRED to the
Western District of New York.
BACKGROUND1
Plaintiff Mark Sam (“Plaintiff”) commenced this action,
individually and on behalf of an alleged class, asserting claims
against Defendants pursuant to the Fair Debt Collection Practices
Act (“FDCPA”) (specifically, 15 U.S.C. §§ 1692e and 1692f), New
York General Business Law § 349, and New York Judiciary Law § 487.2
I.
The State Action
Plaintiff alleges that defendant Selip & Stylianou, LLP,
f/k/a Cohen & Slamowitz, LLP (“Cohen & Slamowitz”), commenced a
consumer collections lawsuit against him in the City Court of the
City of Dunkirk, County of Chautauqua (“Dunkirk City Court”) in or
about January 2007 (the “State Action”).
1, ¶ 22.)
(Compl., Docket Entry 1-
The State Action was commenced on behalf of Midland
Funding LLC (“Midland”) and resulted in a default judgment against
Plaintiff (the “Judgment”).
(Compl. ¶¶ 22-23.)
Plaintiff alleges
that at the time the State Action was commenced, the Dunkirk City
Court did not have jurisdiction over him—-and accordingly, had no
basis
to
issue
the
Westfield, New York.
Judgment—-because
he
was
a
resident
of
(Compl. ¶ 23.)
The following facts are taken from the Complaint and presumed
to be true for the purposes of this Memorandum & Order.
1
This action was initially commenced in the Supreme Court of the
State of New York, County of Nassau, and removed to this Court
pursuant to Defendants’ Notice of Removal dated May 13, 2015.
(Docket Entry 1.)
2
2
At the time the State Court Action was commenced, Cohen
& Slamowitz “believed that City Court Act § 213 and 15 USC 1692i
allowed a lawsuit to be brought against a consumer to collect a
consumer debt in any city court within the county of the consumer’s
residence.”
(Compl. ¶ 24.)
However, Plaintiff avers that the
Second Circuit’s subsequent decision in the matter of Hess v. Cohen
& Slamowitz, 637 F.3d 117 (2d Cir. 2011), holds that City Court
Act § 213 and 15 U.S.C. § 1692i do not permit a consumer collection
lawsuit to be commenced in any city court in the county of the
debtor’s residence.
(Compl. ¶ 25.)
Plaintiff alleges that Cohen & Slamowitz’s “account
notes” indicate that they were aware of the Hess decision. (Compl.
¶ 26.)
However, Cohen & Slamowitz did not attempt to ascertain
whether they had an obligation to vacate the Judgment in light of
the Hess decision.
On
(Compl. ¶ 26.)
September
13,
2011,
Cohen
&
Slamowitz
closed
Plaintiff’s State Court Action file pursuant to Midland’s request.
(Compl. ¶ 27.) Cohen & Slamowitz was aware that Midland had placed
Plaintiff’s file “with another agency” and on March 25, 2014,
Midland executed a Consent to Change Attorney to substitute Eltman,
Eltman & Cooper (the “Eltman Firm”) as their attorneys of record.
(Compl. ¶ 27.)
Cohen & Slamowitz executed the Consent to Change
Attorney on April 15, 2015 and returned it to the Eltman Firm the
next day.
(Compl. ¶ 28.)
Cohen & Slamowitz did not inform Midland
3
or the Eltman Firm of any potential issues with respect to the
Judgment based on the Hess decision.
(Compl. ¶ 29.)
On April 24, 2014, the Eltman Firm issued an income
execution
in
connection
with
the
Judgment.
(Compl.
¶
30.)
However, Plaintiff was not served with the summons and complaint
in the State Action; Cohen & Slamowitz had not consistently
attempted to collect the alleged debt over the years; and Plaintiff
had moved several times since the commencement of the State Action.
(Compl. ¶ 31.)
Accordingly, Plaintiff was not aware of the
Judgment until he received the income execution issued by the
Eltman Firm.
(Compl. ¶ 31.)
Plaintiff and the Eltman Firm
ultimately entered into a stipulation vacating the Judgment and
discontinuing the State Action with prejudice, and the State Action
Court signed an Order vacating the Judgment on February 4, 2015.
(Compl. ¶¶ 33, 35.)
II.
The Western District Action
On July 29, 2014, Plaintiff commenced an action against
Cohen & Slamowitz LLP, Mitchell Selip, Mitchell G. Slamowitz, and
David A. Cohen in the Western District, individually and on behalf
of an alleged class (the “Western District Action”).
Sam v. Cohen
& Slamowitz, LLP, No. 14-CV-611, 2015 WL 114076 (W.D.N.Y. Jan. 8,
2015) (Denying defendants’ motion for judgment on the pleadings
and
denying
premature).
plaintiff’s
motion
for
class
certification
as
Plaintiff’s complaint in the Western District Action
4
(the “Western District Complaint”) alleges that Cohen & Slamowitz
violated the FDCPA (specifically, 15 U.S.C. § 1692i) by commencing
the State Action in Dunkirk City Court.
Plaintiff also alleges
that Cohen & Slamowitz’s delivery of the Consent to Change Attorney
to the Eltman Firm was a continuation of that violation.
(Western
Dist. Compl., Pl.’s Opp., Ex. J., Docket Entry 10-10, ¶¶ 38, 41,
43.)
Plaintiff’s counsel in this action, Mitchell Pashkin,
Esq., who maintains an office in Huntington, New York, executed
the Western District Complaint as attorney for Plaintiff along
with Frank Borgese, Esq. of Graham & Borghese, LLP, which maintains
an office in Buffalo, New York.
III.
(See Western Dist. Compl.)
Defendants’ Motion
On June 2, 2015, Defendants filed a motion to dismiss
the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)
or, alternatively, for an Order transferring this matter to the
Western District pursuant to 28 U.S.C. § 1404(a).
Docket Entry 4.)
(Defs.’ Mot.,
With respect to transfer of venue, Defendants
argue that: (1) the Western District action arises from the same
set of facts as this matter; (2) litigating this matter in the
Eastern
District
of
New
York
(the
“Eastern
District”)
is
inconvenient for Defendants’ witnesses because it may require them
to testify in multiple districts; (3) litigating this matter in
the Eastern District is inconvenient for the parties due to the
5
fact that “Defendants will be forced to expend resources to
litigate Plaintiff’s multiple actions flowing from the [State
Action] in multiple districts”; (4) the locus of operative facts
is in the Western District because of the Dunkirk City Court’s
location in that District; and (5) transfer to the Western District
will avoid potentially inconsistent rulings.
(Defs.’ Br., Docket
Entry 4-1, 20-21.)
Plaintiff opposes Defendants’ motion and argues, inter
alia, that this matter should not be transferred to the Western
District.
(Pl.’s Br., Docket Entry 10, at 22-25.)
Plaintiff
alleges that: (1) this matter turns on “pure legal questions”
(i.e., the application of the Hess decision) and, accordingly,
there is no locus of operative facts; (2) alternatively, the locus
of operative facts relates to what Defendants knew or should have
known in light of the Hess decision and thus lies in the Eastern
District
where
all
Defendants
are
located;
(3)
Plaintiff’s
counsel, a sole practitioner who is bearing the costs for this
action and will only be reimbursed for costs if Plaintiff prevails
or
settles,
would
incur
greater
expenses
if
this
case
is
transferred; (4) the Eltman Firm is located in Manhattan and the
communications between Defendants and Midland and Defendants and
the Eltman Firm are not at issue in the Western District Action;
(5) if the Eltman Firm is an unwilling witness, the Southern
District
of
New
York
will
entertain
6
a
proceeding
to
compel
compliance
with
subpoenas;
(6)
the
Complaint
in
the
Western
District Action does not assert violations of state law; and
(7) Plaintiff’s counsel and his adversary in the Western District
Action were advised that Judge John T. Curtin, the presiding judge
in that matter, “will not be able to handle any summary judgment
motion or trial[ ] and therefore the case eventually will have to
be re-assigned.
(Pl.’s Br., Docket Entry 10, at 23-25.)
DISCUSSION
Prior to addressing the merits of Defendants’ motion,
the Court must determine the threshold matter of whether the
Eastern District is the appropriate venue for this case.
Blechman
v. Ideal Health, Inc., 668 F. Supp. 2d 399, 403 (E.D.N.Y. 2009).
I.
Legal Standard
The district court is empowered to transfer a civil
action to any district where the action might have been commenced
“[f]or the convenience of parties and witnesses, in the interest
of justice.”
28 U.S.C. § 1404(a).
The movant bears the burden of
demonstrating the propriety of a transfer of venue by clear and
convincing evidence.
Neil Bros. Ltd. v. World Wide Lines, Inc.,
425 F. Supp. 2d 325, 327 (E.D.N.Y. 2006) (citations omitted).
A
motion
to
transfer
requires
a
two-fold
inquiry:
(1) whether the action could have been commenced in the transferee
court, and (2) whether a transfer is appropriate “considering the
‘convenience
of
parties
and
witnesses’
7
and
the
‘interest
of
justice.’”
Invivo Research, Inc. v. Magnetic Resonance Equip.
Corp., 119 F. Supp. 2d 433, 436 (S.D.N.Y. 2000) (quoting Wilshire
Credit Corp. v. Barrett Cap. Mgmt. Corp., 976 F. Supp. 174, 180
(W.D.N.Y. 1997)).
Additionally, the following factors are considered in
determining a motion to transfer: “(1) convenience of witnesses;
(2) convenience of parties; (3) locus of operative facts; (4)
availability of process to compel the attendance of unwilling
witnesses; (5) location of relevant documents and other sources of
proof; (6) relative means of the parties; (7) relative familiarity
of the forum with the governing law; (8) weight accorded to the
plaintiff’s choice of forum and (9) the interests of justice.”
Kroll v. Lieberman, 244 F. Supp. 2d 100, 102 (E.D.N.Y. 2003).
These factors are not singularly dispositive; instead, the Court
weighs all factors in rendering a determination.
Blechman, 668 F.
Supp. 2d at 403 (citations omitted).
It is well settled that transfer is appropriate where
there is a prior pending lawsuit in the transferee district that
involves “‘the same facts, transactions, or occurrences.’”
Pall
Corp. v. PTI Tech., Inc., 992 F. Supp. 196, 201 (E.D.N.Y. 1998)
(emphasis in original) (quoting Levitt v. State of Md. Deposit
Ins. Fund Corp., 643 F. Supp. 1485, 1493 (E.D.N.Y. 1986)).
Accord
Nabisco, Inc. v. Brach’s Confections, Inc., No. 00-CV-5875, 2000
WL 1677935, at *5 (S.D.N.Y. Nov. 8, 2000).
8
Indeed, transferring
cases to the district where related actions are pending serves to
“promote judicial economy and to avoid duplicative litigation.”
NBA Properties, Inc. v. Salvino, Inc., No. 99-CV-11799, 2000 WL
323257, at *9 (S.D.N.Y. Mar. 27, 2000).
Additionally, the “first filed” rule provides that where
an action is commenced in one federal district court and an action
involving the same issues and parties is brought in another federal
court, “the court which first has possession of the action decides
it.”
Am. Steamship Owners Mut. Prot. and Indem. Ass’n, Inc. v.
Lafarge N. Am., Inc., 474 F. Supp. 2d 474, 481 (S.D.N.Y. 2007),
aff’d sub. nom., N.Y. Marine and Gen. Ins. Co. v. Lafarge, 599
F.3d 102 (2d Cir. 2010).
This rule only applies to lawsuits that
are duplicative such that the actions substantially overlap with
parties and claims that are identical or substantially similar.
Blechman, 668 F. Supp. 2d at 404.
While there is generally a
“strong presumption in favor of the forum of the first-filed suit,”
this
rule
need
not
be
applied
where
convenience
or
special
circumstances warrant giving priority to the second case.
Am. Steamship, 474 F. Supp. 2d at 481.
Id.;
The first-filed rule does
not supersede the Court’s Section 1404(a) inquiry and is considered
as one of the many factors in analyzing efficiency and the interest
of justice.
HomeoPet LLC v. Speed Lab., Inc., No. 14-CV-663, 2014
WL 2600136, at *14 (E.D.N.Y. Jun. 11, 2014).
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II.
Analysis
The parties do not dispute that this matter could have
been commenced in the Western District.
Accordingly, the Court’s
inquiry is limited to whether transfer is appropriate based on the
convenience of the parties and their witnesses and the interest of
justice,
with
the
additional factor.
first-filed
rule
to
be
considered
as
an
See Invivo Research, 119 F. Supp. 2d at 436;
HomeoPet, 2014 WL 2600136 at *14.
The
Court
finds
that
the
Western
District
Action
involves identical facts and issues as those asserted in this
action
and,
accordingly,
the
first-filed
rule
is
applicable.
Blechman, 668 F. Supp. 2d at 404 (Holding that the first-filed
rule
applies
to
duplicative
lawsuits
with
identical
or
substantially similar parties and claims.). Both actions are based
on Cohen & Slamowitz’s commencement of a collections action against
Plaintiff in Dunkirk City Court notwithstanding his residence in
Westfield, New York.
¶¶ 22, 26, 35-36.)
(See Compl. ¶¶ 22-24; Western Dist. Compl.
Moreover, the defendants in both actions are
identical and both actions assert claims pursuant to the FDCPA,
albeit under different provisions.
(See generally Compl.; Western
Dist. Compl.)
The
substantial
similarity
between
the
two
weighs in favor of transfer to the Western District.
wholly
inconvenient
for
the
parties
10
to
litigate
actions
It would be
virtually
identical lawsuits in separate venues and it would be equally
inconvenient for the parties’ witnesses to testify in both the
Eastern and Western Districts.
Such a result is antithetical to
judicial
economy
the
rulings.
See Pall Corp., 992 F. Supp. at 201 (Noting that this
and
creates
potential
for
inconsistent
Circuit favors that related claims be resolved in the same forum
in consideration of more efficient pretrial discovery, saving
witnesses time and money with respect to pretrial proceedings and
trial,
and
avoiding
duplicative
and
potentially
inconsistent
litigation.)
Plaintiff’s argument that his counsel, Mr. Pashkin,
would incur greater costs if this case is litigated in the Western
District is not compelling.
(See Pl.’s Br., 23-24.)
See Butcher
v. Gerber Prods. Co., No. 98-CV-1819, 1998 WL 437150, at *11
(S.D.N.Y. Aug. 3, 1998) (Granting defendant’s motion to transfer
venue and noting that “the location of Plaintiffs’ attorneys is
given little, if any weight.”)
A review of the Docket for the
Western District Action confirms that Mr. Pashkin continues to
serve as attorney of record for Plaintiff.
A transfer of this
matter to the Western District would, in actuality, be more cost
efficient for Plaintiff and/or his counsel to the extent that
appearances in both actions could be scheduled on the same dates.
Additionally, the Complaint states that Plaintiff is a resident of
Dunkirk, Chautauqua County, New York.
11
(Compl. ¶¶ 5, 23.)
The
Court takes judicial notice of the fact that Dunkirk is located
significantly closer to the Western District’s courthouses in
Buffalo and Rochester than the Eastern District’s courthouses in
Brooklyn and Central Islip.
The Court rejects Plaintiff’s remaining arguments as
unpersuasive.
Parenthetically, Plaintiff argues both that “the
locus of operative facts either has no relation to the Western
District or has a much greater relationship to the Eastern District
of New York” and that if this case turns on the interpretation of
the Hess decision, “[t]hese are pure legal questions and therefore
have no particular connection to any particular district.”
Br. at 23.)
(Pl.’s
To the extent Plaintiff argues that there is no locus
of operative facts, such a result actually weighs in favor of
transfer, as the substantial weight placed on plaintiff’s choice
of forum “‘is significantly diminished’ where, as here, ‘the
operative facts have no connection to the chosen district.’” Larca
v. U.S., No. 11-CV-3952, 2012 WL 6720910, at *3 (S.D.N.Y. Dec. 16,
2012) (quoting Carder v. D&D Jewelry Imports, 510 F. Supp. 2d 344,
346 (S.D.N.Y. 2007)).
CONCLUSION
For
the
foregoing
reasons,
Defendants’
motion
to
transfer venue is GRANTED and this case is HEREBY TRANSFERRED to
the Western District of New York.
12
The Court makes no finding on
the merits of Defendants’ motion to dismiss.
The Clerk of the
Court is directed to mark this matter CLOSED.
SO ORDERED
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:
December
28 , 2015
Central Islip, New York
13
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