Matthews v. Bell et al

Filing 19

DECISION AND ORDER denying 14 Motion to Strike; granting 7 Motion to Change Venue; deferring ruling on 7 Motion to Dismiss. The matter is transferred to the United States District Court for the Middle District of Florida pursuant to 28 U.S. C. § 1404(a). The Court leaves consideration of the merits of Plaintiff's Complaint to the United States District Court for the Middle District of Florida. The Clerk of Court is directed to effectuate the transfer of this matter to the Uni ted States District Court for the Middle District of Florida upon entry of this Decision and Order. Signed by Hon. Elizabeth A. Wolford on 03/11/2019. (CDH) (A copy of this Decision and Order was mailed to Plaintiff). -CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT

MAR 1 1 2019

WESTERN DISTRICT OF NEW YORK

'^>:;^UQEWENGUTVi^%V\H.

^^^^DisTRicro!:-

EEAINE C. MATTHEWS,
Plaintiff,

DECISION AND ORDER

6:I8-CV-06460 EAW

V.

BRIAN M. BEEE and RENEE M. BELE,
Defendants.

INTRODUCTION

Pro se plaintiff Elaine C. Matthews ("Plaintiff), a citizen of Florida, sued

defendants Brian M. Bell and Renee M. Bell (collectively "Defendants"), citizens of New
York, for various claims arising out of the sale of a condominium in Manatee County,
Florida. (Dkt. I). Defendants move for dismissal of the Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) or, in the alternative, to transfer the action pursuant to 28
U.S.C. § 1404(a). (Dkt. 7). Plaintiff opposes Defendants' motion and has filed her own
motion seeking to strike Defendants' references to the contract between the parties. (Dkt.
14). For the reasons set forth below,the Court denies Plaintiffs motion to strike and grants
Defendants' motion to the extent that the matter is transferred to the United States District
Court for Middle District of Florida. The Court leaves consideration of the merits of

Plaintiffs Complaint to the transferee court.

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FACTUAL AND PROCEDURAL BACKGROUND

As is required at this stage ofthe proceedings,the Court treats the factual allegations

set forth in the Complaint as true. The Court has also considered the "Seller's Property
Disclosure—Condominium"(the "Seller's Disclosure") referenced in the Complaint and
attached to Plaintiffs opposition to Defendants' motion and her motion to strike. (See Dkt.
13 at 13-16; Dkt. 14 at 5-8). The Court has further considered the terms of the "'AS IS'

Residential Contract for Sale and Purchase"(the "Purchase Contract") entered into by the
parties on May 8,2018, as relevant to Defendants' motion to transfer. (See Dkt.8 at 4-20);

see also Mohsen v. Morgan Stanley & Co. Inc., No. 11 CIV.6751 PGG,2013 WL 5312525,
at *3 (S.D.N.Y. Sept. 23, 2013)("In deciding a motion to transfer, a court may consider

material outside of the pleadings."); Citibank, N.A. v. Affinity Processing Corp., 248 F.
Supp. 2d 172, 176 (E.D.N.Y. 2003) (noting that a motion under § 1404(a) should be
supported by "affidavits and other materials outside the pleadings").
. On March 26, 2018, prior to the sale of their condominium to Plaintiff, Defendants

completed the Seller's Disclosure, which acknowledges that "Florida law requires a seller
of a home to disclose to the buyer all known facts that materially affect the value of the
property being sold and that are not readily observable or known by the buyer." (Dkt. 14
at 5). In relevant part, in completing the Seller's Disclosure, Defendants indicated that to
their knowledge:(1) all heating and cooling systems were in working condition;(2) all
existing major appliances and mechanical and electrical systems were in working

condition; and (3) no past or present water intrusion or flooding had affected the
condominium. (Id. at 5-6).
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The Purchase Contract was signed by all parties on May 8, 2018. (Dkt. 8 at 15).
Section 18(U) of the Purchase Contract provides that the Purchase Contract "shall be
construed in accordance with the laws of the State of Florida and venue for resolution of

all disputes', whether by mediation, arbitration or litigation, shall lie in the county where
the Real Property is located." {Id.).

Plaintiffcommencedtheinstantactionon June 19,2018. (Dkt. 1). Plaintiff claims
that she moved into the condominium on May 15, 2018, and that by May 18, 2018, she

was suffering from a "clogged nose and left ear" because the air conditioning was not
working properly. (Dkt. 1 at

4-5). Plaintiff further alleges that the washing machine

leaked, the lanai's ceiling fan was rusted and unusable, the sliding glass doors leading to
the lanai did not close properly and allowed outside air into the condominium, the ceiling

in the hall was damaged from a roof leak, "every room [had] electrical problems," the
faucets leaked, and two smoke detectors were "insufficient as to amount and placement."
{Id. at

5-7, 10). Moreover, according to Plaintiff, she was injured when attempting to

use a Murphy bed in the condominium, because it had "no installed pistons" and knocked
her from a stepladder onto the ground. {Id. at

12-13). Plaintiff contends that it is

irrelevant that she bought the property "as is," because Florida law nonetheless imposes a
legal obligation to disclose material defects that are not readily observable or known to the

buyer. {Id. at 14). Based on these allegations. Plaintiffseeks "the return of her $176,000

'

Section 16(b) of the Purchase Contract defines disputes as "[ujnresolved

controversies, claims and other matters in question between Buyer and Seller arising out
of, or relating to, [the Purchase Contract] or its breach, enforcement or interpretation[.]"
Dkt. 8 at 10.
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paid to Defendants for their defective condominium, and in return Plaintiff seeks to return
to Defendants their condominium" {Id. at 4)—^that is, Plaintiff seeks rescission of the

Purchase Contract.^ Plaintiff also seeks "$100,000 in actual and punitive damages[.]"
{Id.).

On August 13, 2018, Defendants filed their motion to dismiss or to change venue.
(Dkt. 7). Plaintiff filed her opposition to Defendants' motion and her motion to strike on
August 23, 2018. (Dkt. 13; Dkt. 14). Defendants filed a response in opposition to
Plaintiffs motion to strike on September 13, 2018. (Dkt. 16).
DISCUSSION
I.

Motion to Strike

The Court first considers Plaintiffs motion to strike. Purportedly pursuant to
Federal Rule of Civil Procedure 12(f), Plaintiff asks the Court to strike from Defendants'

motion and associated papers "every reference to [the Purchase Contract] as well as the
[Purchase Contract] itself, . . . since [the Purchase Contract] is immaterial to Plaintiffs
cause of action as clearly set forth by her Complaint which makes NO reference to [the

Purchase Contract]." (Dkt. 14 at 4)(emphasis in original). Plaintiffs motion to strike
lacks merit and is denied, for the reasons discussed below.

^

Rescission is "[a] party's unilateral unmaking of a contract for a legally sufficient

reason, such as the other party's material breach, or a judgment rescinding the contract."
Rescission,Black's Law Dictionary {10th ed. 2014);see also United States v. Landers, 128
F. Supp. 97, 102(S.D.N.Y. 1953), aff'd, 219 F.2d 223(2d Cir. 1954)(to rescind a contract
means "to annul the contract and restore the parties to the relative positions which they
would have occupied if no such contract had ever been made").
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As a threshold matter, the Court notes that "by its own terms, Rule 12(f) applies
only to pleadings." Hirsch v. HuiZhen Huang,No. 10 CIV.9497 LTS,2011 WL 6129939,

at *4(S.D.N.Y. Dec. 9,2011). Defendants' motion to dismiss and the papers submitted in
support thereof are not "pleadings" and are therefore not within the purview ofRule 12(f).
See Wright V. Belafonte, No. 12 CIV.7580 GBD RLE,2014 WL 1302632, at *3(S.D.N.Y.

Mar. 31,2014),affd,687 F. App'x 1 (2d Cir. 2017)(Rule 12(f)"only applies to pleadings,
which do not include motions to dismiss."); see also Fed. Rule. Civ. P. 7(a) (defining

"pleadings" as the complaint, the answer to the complaint, an answer to a counterclaim or
crossclaim, a third-party complaint, an answer to a third-party complaint, and "if the court

orders one, a reply to an answer"). Plaintiffs motion to strike thus fails to identify any
relevant legal authority for the relief sought.

Moreover, even if Rule 12(f) did apply, the Court rejects Plaintiffs contention that
this action is unrelated to the Purchase Contract. To the contrary,the duty to disclose under

Florida law upon which Plaintiffs Complaint is based only exists between a seller and
buyer of residential property. See Johnson v. Davis, 480 So. 2d 625, 629 (Fla. 1985)
("[Wjhere the seller of a home knows offacts materially affecting the value ofthe property

which are not readily observable and are not known to the buyer, the seller is under a duty
to disclose them to the buyer.")(emphasis added). In other words, in the absence of the
Purchase Contract, Defendants would have had no duty whatsoever to Plaintiff, and so the
Purchase Agreement and its terms and conditions are integral to Plaintiffs Complaint. Cf.
Glob. Network Commc'ns, Inc. v. City ofN.Y., 458 F.3d 150, 157(2d Cir. 2006)(holding

that "a contract or other legal document containing obligations upon which the plaintiffs
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complaint stands or falls, but which for some reason... was not attached to the complaint"
is nonetheless integral to the complaint and can be considered on a motion to dismiss).

Moreover, Plaintiff seeks rescission of the Purchase Contract in her Complaint, further
confirming that the Complaint implicates the Purchase Contract. Under these
circumstances, there is no basis for the Court to strike Defendants' references to the

Purchase Contract and Plaintiffs motion seeking that relief is denied.
11.

Transfer Pursuant to 28 U.S.C. $ 1404(ai

Defendants' motion both attacks the merits of Plaintiffs Complaint and seeks
transfer of the matter based on a forum-selection clause and on considerations of

convenience. "It is well-settled that a court should resolve issues ofjurisdiction and venue
before addressing merits-based arguments." Edme v. Internet Brands, Inc., 968 F. Supp.
2d 519, 523 n.4 (E.D.N.Y. 2013). Moreover, a party "should benefit from the forum

selection clause[] for which it bargained at the earliest possible time." Magi XXI, Inc. v.
Stato Delia CittaDel Vaticano, 818 F. Supp. 2d 597,621 (E.D.N.Y. 2011), aff'd, 714 F.3d

714 (2d Cir. 2013). Accordingly, before considering the merits of Plaintiffs Complaint,
the Court first considers whether the matter should be transferred to the United States

District Court for the Middle District of Florida and, for the reasons set forth below,
concludes that it should.

A.

Legal Standard

Defendants seek transfer of venue pursuant 28 U.S.C. § 1404(a), which provides
that "[f]or the convenience ofparties and witnesses, in the interest ofjustice, a district court
may transfer any civil action to any other district or division where it might have been
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brought or to any district or division to which all parties have consented." Id. Section

1404(a)is "a codification ofthe doctrine offorum nan conveniens" and "governs the subset
ofcases in which the [proposed]transferee forum is within the federal system[.]" Martinez
V. Bloomberg LP, 740 F.3d 211, 221 (2d Cir. 2014) (quotations omitted). "The
determination of whether an action should be transferred pursuant to § 1404(a) depends
upon a balancing of many different factors. These factors include not only convenience to
the parties and witnesses but also the relative ease of access to proof, availability of
witnesses ... and all other practical problems which make trial of a case easy, expeditious,

and inexpensive." Heyco, Inc. v. Heyman, 636 F. Supp. 1545, 1548 (S.D.N.Y. 1986).
"The party seeking the transfer bears the burden of establishing that the transfer is
warranted[.]" Id.
Defendants contend that the forum-selection clause in the Purchase Contract

supports their request for transfer. A forum-selection clause "may be enforced through a
motion to transfer under § 1404(a),"

Marine Const. Co. v. U.S. Dist. Courtfor W. Dist.

of Texas, 571 U.S. 49, 59 (2013), and "[t]he presence of a valid forum-selection clause

requires district courts to adjust their usual § 1404(a) analysis in three ways," id. at 63.
"First, the plaintiffs choice offorum merits no weight. ... Second, a court evaluating a
defendant's § 1404(a) motion to transfer based on a forum-selection clause should not

consider arguments about the parties' private interests. ... Third, when a party bound by

a forum-selection clause flouts its contractual obligation and files suit in a different forum,
a § 1404(a)transfer ofvenue will not carry with it the original venue's choice-of-law rules."
Id. at 63-64. "[A] valid forum-selection clause [should be] given controlling weight in all

but the most exceptional cases." Id. at 63 (quotation omitted and second alteration in
original). Where a valid forum-selection clause applies,"the plaintiffmust bear the burden
of showing why the court should not transfer the case to the forum to which the parties
agreed." Id.
B.

Relevance of the Purchase Contract's Forum-Selection Clause

Defendants contend that this case should be transferred to the Middle District of

Florida pursuant to the forum-selection clause found in the Purchase Contract. The
Purchase Contract's forum-selection clause provides that "venue for resolution of all

disputes .. . shall lie in the county where the Real Property is located." (Dkt. 8 at 13).
Contrary to Defendants' arguments,this forum-selection clause does not warrant or permit
transfer ofthis case to the Middle District ofFlorida because its plain language limits venue
to courts within Manatee County, Florida, and there is no federal courthouse within
Manatee County, Florida.

The Second Circuit has held that"the meaning ofa forum selection clause is a matter
of contract interpretation and the initial interpretation of a contract is a matter of law for

the court to decide." Yakin v. Tyler Hill Corp., 566 F.3d 72, 75(2d Cir. 2009)(quotations
and alteration omitted). In Yakin, the Second Circuit considered a forum-selection clause

providing that "the venue and place of trial of any dispute that may arise out of this
Agreement... shall be in Nassau County, New York." Id. at 76. Plaintiff argued, and the
Second Circuit agreed,that this language did not permit removal ofthe matter to the United
States District Court for the Eastern District of New York, because there was no federal

courthouse in Nassau County and "no reasonable reading of the [forum-selection] clause
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permits the interpretation that the parties had agreed to trial in Suffolk County or Brooklyn
because those courthouses were within the Eastern District of New York, which spans an
area including Nassau County." Id.
The forum-selection clause at issue in this case, like the forum-selection clause at

issue in Yakin, identifies a specific county in which venue must lie. In particular, the
forum-selection clause states that venue must lie in "the county where the Real Property is
located." (Dkt. 8 at 13). The real property at issue here is located in Manatee County,
Florida. (Dkt. 8 at 4). Manatee County is within the geographic jurisdiction ofthe Middle
District of Florida; however, there is no federal courthouse in Manatee County. Instead,
Manatee County is part ofthe Middle District of Florida's Tampa Division, which has its
courthouse in Tampa, within Hillsborough County. See United States District Court for
the Middle District of Florida, https://www.flmd.uscourts.gov/locations/tampa (last
accessed March 4,2019).

The Second Circuit's decision in Yakin forecloses the possibility that the forumselection clause in this case can be read to include venue in the Middle District ofFlorida's

Tampa Division. In the words of the Yakin court,"no reasonable reading of the [forumselection] clause permits the interpretation that the parties had agreed to trial in
[Hillsborough County] because [that] courthouse[] [was] within the [Middle District of
Florida], which spans an area including [Manatee County]." 566 F.3d at 76; see also
Bartels by & through Bartels v. Saber Healthcare Grp., LLC,880 F.3d 668,674 (4th Cir.

2018)("Because there is no federal courthouse in the designated county, removal of the
case to federal court would mean that the dispute would be resolved in a county other than
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the one designated by the contract.")- The Court is therefore faced with a situation where
Defendants "do not really seek to enforce the forum selection clause, they seek to rewrite
it." Whitney Lane Holdings, LLC v. Sgambettera & Assocs., P.O., No. 08-CV-2966 JS
AKT,2010 WL 4259797, at *2(E.D.N.Y. Sept. 8,2010)(denying motion to transfer based
on forum-selection clause where the forum-selection clause identified "Saratoga County

Supreme Court" as the appropriate venue and the defendants requested transfer to the
United States District Court for the Northern District of New York). Accordingly, the
Court finds that transfer ofthis action is not warranted as a result ofthe Purchase Contract's

forum-selection clause.^
C.

Consideration of $ 1404(a) Factors

Forum-selection clauses are waivable. See LG Capital Funding, LLC v. M Line

Holdings,Inc., No. 16-CV-6012(LDH),2017 WL 9250296,at *5(E.D.N.Y. June 1,2017),
report and recommendation adopted. No. 16CV06012LDHRLM, 2018 WL 3599731
(E.D.N.Y. July 27, 2018)(collecting cases). Accordingly, because none of the parties in

this case properly seek to enforce the Purchase Contract's forum-selection clause,the Court
will disregard it, and consider the § 1404(a) factors as it would in the absence of a forum-

selection clause."^ See Whitney Lane Holdings, 2010 WL 4259797.

For the reasons

^
Forum-selection clauses may be enforced either through a Rule 12(b) motion to
dismiss or a § 1404(a) motion to transfer. See TradeComet.com LLC v. Google, Inc., 647
F.3d 472, 475-78 (2d Cir. 2011). Here, Defendants opted to seek transfer, and the Court
will not sua sponte construe their request as seeking dismissal on this basis.
^
In the absence of a forum-selection clause, venue would have been proper in the
Middle District of Florida, because it is the "judicial district in which a substantial part of
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discussed below, the Court finds that Defendants have satisfied their burden of

demonstrating that transfer under § 1404(a) is warranted.

First, the Court notes that while "a plaintiffs choice of forum is presumptively
entitled to substantial deference,...the degree ofdeference to the plaintiffs forum depends

in part on a number ofconsiderations,such as the plaintiffs own connection to that forum."
Gross V. British Broad. Corp., 386 F.3d 224, 230(2d Cir. 2004). Here, Plaintiff has no

connections to the Western District of New York, nor has she identified any reasons why
venue is this district would be more convenient for her or any of her potential witnesses.
Moreover, the operative facts in this case arose outside the Western District of New York,

and "the weight afforded to a plaintiffs choice is diminished where the operative facts lack
a meaningful connection to the chosen forum." Rosen v. Ritz-Carlton Hotel Co. LLC,No.

14-CV-1385 RJS,2015 WL 64736, at *2(S.D.N.Y. Jan. 5,2015)(quotation and alteration
omitted). Accordingly, while the Court affords some deference to Plaintiffs choice of

forum, it applies a lesser degree of deference than is generally warranted.
Second, the other relevant factors either strongly favor transfer of this action or are

neutral. The potential witnesses in this case (apart from the parties) reside in Florida. The
evidence in this case centers on the condition of the condominium at the time Defendants

sold it to Plaintiff, and the non-party witnesses who have knowledge of those facts
(specifically. Defendants' real estate agents) are located in Florida. "Courts typically

regard the convenience ofwitnesses as the most important factor in considering a § 1404(a)

the events or omissions giving rise to the claim occurred, or a substantial part of property
that is the subject ofthe action is situated." 28 U.S.C. § 1391(b)(2).
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motion to transfer," particularly with respect to non-party witnesses. Dickerson v. Novartis
Corp., 315 F.R.D. 18, 27(S.D.N.Y. 2016)(quotation omitted). This Court also would not

have the authority to compel the attendance ofwitnesses in Florida at any trial in this action.
See Fed. R. Civ. P. 45(c)(1)(a subpoena cannot require attendance of a trial witness who
is more than 100 miles away). This factor strongly favors transfer.
With respect to the convenience ofthe parties. Plaintiff does not live in the Western
District of New York—she lived in Florida at the time she commenced this action and has

subsequently moved to Ann Arbor, Michigan. (See Dkt. 17). Plaintiff will therefore be

required to travel a significant distance regardless of whether this matter is heard in the
Western District of New York or in the Middle District of Florida. Defendants have

disclaimed any inconvenience to them in having the matter heard in Florida. (See Dkt. 8
at ^ 9). As such, the convenience of the parties is a neutral factor in the analysis.

"The location of the operative events is [also] a primary factor in determining a
§ 1404(a) motion to transfer." Billing v. Commerce One, Inc., 186 F.Supp.2d 375, 377

(S.D.N.Y. 2002)(quotations and citations omitted). Here, the alleged failure to disclose
took place in Florida, as did the negotiation and consummation of the Purchase Contract
and the completion ofthe Seller's Disclosure. Moreover, all the physical evidence(that is,
the condominium itself, along with its contents) is located in Florida. This factor strongly
favors transfer to the Middle District of Florida.

The Court further notes that this lawsuit is based on and will require the application
of Florida law. A "forum's familiarity with the governing law" is an appropriate
consideration on a § 1404(a) motion to transfer. ESPN, Inc. v. Quiksilver, Inc., 581 F.
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Supp. 2d 542, 551 (S.D.N.Y. 2008). A judge in the Middle District of Florida will have
substantially more familiarly with Florida real estate law than this Court, and so this factor
also favors transfer.

Plaintiffs opposition to Defendants' request for transfer fails to meaningfully argue

that venue in this Court serves the interests ofjustice, convenience, or efficiency. To the
contrary. Plaintiff simply argues that she is "uncomfortable with the Defendants wanting

to transfer venue" because she does not believe they are operating in good faith. (Dkt. 13
at 8). However, a judge in the Middle District ofFlorida is equally as capable of ensuring
that this litigation runs smoothly and that all parties appropriately comply with their legal
obligations as is this Court.

Having considered all the factors, and under the totality of the circumstances
presented here, the Court finds that transfer of this case to the United States District Court
for the Middle District of Florida pursuant to § 1404(a) is warranted. Accordingly, the

Court grants Defendants' motion to the extent it seeks transfer ofthis action.
CONCLUSION

For all the foregoing reasons, the Court denies Plaintiffs motion to strike(Dkt. 14)
and grants Defendants' motion (Dkt. 7) to the extent that the matter is transferred to the
United States District Court for the Middle District of Florida pursuant to 28 U.S.C.

§ 1404(a). The Court leaves consideration of the merits of Plaintiffs Complaint to the
United States District Court for the Middle District of Florida and accordingly does not

rule on that portion of Defendants' motion seeking dismissal of the Complaint under
Federal Rule of Civil Procedure 12(b)(6). The Clerk of Court is directed to effectuate the
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transfer ofthis matter to the United States District Court for the Middle District of Florida

upon entry ofthis Decision and Order.
SO ORDERED.

L. WOI

States District Judge
Dated: March 11, 2019
Rochester, New York

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