MEADOWLANDS COMPANY v. ZAJAC et al, No. 2:2013cv04981 - Document 58 (D.N.J. 2014)
Court Description: OPINION AND ORDER granting 44 Motion to Transfer case to the USDC for the Eastern District of Pennsylvania; granting 49 Motion to Withdraw as Attorney. Attorney ROBERT A. VORT terminated. Signed by Magistrate Judge Joseph A. Dickson on 12/18/14. (sr, )
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MEADOWLANDS COMPANY v. ZAJAC et al Doc. 58 NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY BROOKE W. MURPHY, Plaintiff, Civil Action No.13-cv-0498l(JLL) (JAD) v. ERIC G. ZAJAC and ZAJAC, ARIAS & TRICHON, P.C. OPINION AND ORDER Defendants. JOSEPH A. DICKSON. U.S.M.J. This matter comes before the Court upon Defendants, Eric G. Zajac and Zajac, Arias Sl; Trichon P.C., (collectively "Defendants"), renewed Motion to Transfer Venue to the United Sta es District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404(a) ( ie "Motion to Transfer"), (ECF No. 44), and Plaintiffs counsel's Motion to Withdraw. (ECF 1' o. 49). In accordance with Rule 78 of the Federal Rules of Civil Procedure, no oral argument " as heard on either Motion. 1 Upon consideration of the parties' submissions, and for the reasons sta1 1 On August 8, 2014 the Court issued an Order stating that the pending Motion to Withdraw a ld the renewed Motion to Transfer would be heard on October 28, 2014. (ECF No. 50). The hearir were then rescheduled to October 9, 2014. (ECF No. 51). Plaintiff Murphy sent a letter to 1 ie Court dated September 11, 2014, certain portions of which were redacted by the Court in order o safeguard Plaintiffs confidential medical information. (ECF No. 53). Plaintiff Murphy reques1 to be excused from the hearing and further stated that he has "no objection and completely consc nt to Mr. Vort's resignation as [his] personal attorney, or that of Meadowlands Compa1 y, immediately." (Id.). Plaintiff Murphy went on to state that, "[a]s Mr. Vort has formally request to withdraw as attorney for Brooke Murphy and Meadowlands Company, with this letter he a td his firm are hereby released as counsel in this matter immediately as they have requested." Defendants responded on September 30, 2014 indicating that "Defendants are unaware of and fi td no good cause to excuse Brooke Murphy's personal attendance on October 9, 2014." (ECF 1' o. 54). In an Order dated October 6, 2014, the Court adjourned the October 9, 2014 conference m). Dockets.Justia.com below, Defendants' renewed Motion to Transfer is GRANTED. Plaintiff's counsel's Motion o Withdraw is also GRANTED. This matter will be transferred to the United States District Co for the Eastern District of Pennsylvania and Robert A. Vort, Esq., shall be released as counsel. I. BACKGROUND AND PROCEDURAL HISTORY This is a breach of contract action brought by Plaintiff, Brooke W. Murphy2, a New Jers citizen, against Defendants, all citizens of Pennsylvania. (Amended Complaint, ECF No. 48, t 1). Plaintiff alleges to have contracted3 with a non-party, Raymond Rubino, Esq., (hereinaft r "Mr. Rubino"), a New Jersey attorney, "in connection with his representation of the plainti in an action entitled Gilvary v. General Motors Com. and Pompey Motors, Inc.,5 consideration for defendants' promise to pay for his services." (Complaint, ECF No. , if 1). In the Gilvary matter, Ms. Gilvary, a Pennsylvania resident, was involved in an automobi accident in Pennsylvania and suffered substantial injuries. (ECF No. 8-2 at 2; ECF No. 8-3, t 3, if 12). This underlying action was brought in the Court of Common Pleas of Philadelph County. (Answer to Amended Complaint, ECF No. 24, at 3). without date. (ECF No. 55). Furthermore, the Court stated that "Defendants unopposed Moti n to Transfer, (ECF No. 44), is under consideration due to changed circumstances, whi necessitates a re-review of the public and private factors that our case law requires Courts o consider." (@. Although Plaintiff Murphy sent another letter to the Court dated October 9, 20 personally objecting to transferring the case, such objection was not made through his counsel therefore, not considered by the Court. 2 While Plaintiff in this case filed suit as "Meadowlands Company," the record reflects t Plaintiff, Brooke W. Murphy in fact renders accident investigative services under the trade n "Meadowlands Company". (See Cert., ECF No. 11, if 1). Plaintiff filed an Amended Compla' on February 11, 2014, (ECF No. 23), properly titling the caption to include himself as the nam Plaintiff. 3 Hereinafter the "Investigation Contract" or the "Contract." 4 Sarahjuan Gilvary, hereinafter "Ms. Gilvary." 5 Hereinafter the "Gilvary" matter. 2 Plaintiff claims that Defendants filed a substitution of attorney replacing Mr. Rubi rendering them liable under the Contract. (Id. at , if 2). Plaintiff claims that he continued o provide investigatory services for Defendants, and based on the agreement made with Rubino (and subsequently assigned to Defendants), Plaintiff billed Defendants the amount f $169,770.00, which remains outstanding. (Defs.' Br., ECF No. 8, at 2). On March 2, 2012 Defendants filed an initial Motion to Transfer6 the action to the Uni States District Court for the Eastern District of Pennsylvania. (ECF No. 8). Defendants ar that dismissal, or in the alternative transfer, was appropriate for both the convenience of the part s and witnesses and in the interests of justice because: (i) there is no proper basis for venue in N w Jersey pursuant to 28 U.S.C. § 1391; (ii) no substantial act or omission that forms the basis oft is action arose in New Jersey; (iii) all the claims in this case are based upon conduct in Pennsylv where all Defendants reside; and (iv) Pennsylvania is the most convenient forum. (Id. at Plaintiff opposed the Motion on the grounds that: (i) Plaintiffs choice of forum in the District New Jersey is entitled to great deference; (ii) the matter has a meaningful connection to New Jer inasmuch as the agreement at issue was made by Plaintiff, a New Jersey citizen, with Mr. Rubi , in New Jersey; and (iii) a substantial part of the events at issue occurred in New Jersey. (P ' Opp., ECF No. 11, at 1-2). This Court issued a Report and Recommendation on April 17, 2014 recommending Defendants' initial Motion to Transfer, (ECF No. 8), be denied. (ECF No. 35). When consid as a whole, this Court reasoned that the action originated from a contract that was executed in N 6 Defendants' Motion to Transfer, (ECF No. 8), was filed as a Motion to Dismiss, or in alternative, transfer venue. However, because Defendants argued for dismissal for lack of ve pursuant to 28 U.S.C. 1406(a), the Court reviewed both motions in conjunction as the Motio Transfer. (Def. Br., ECF No. 8-2, at 1 and 4). 3 e e o Jersey. (Id. at 5). This Court noted, however, that the action could have originally been broui llt in the Eastern District of Pennsylvania, and thus engaged in a balancing of public and privi e factors. (Id.). The primary private interests at issue were Plaintiff's choice of forum, where 1 te claim arose, and the convenience of the parties and witnesses. (Id. at 6). This Court went throu h each factor and found: (i) "Defendants failed to overcome the presumption in favor of Plaintif choice of forum," (ECF No. 35, at 6); (ii) "that the substantial performance of the contract canr be deemed to have occurred in either New Jersey or Pennsylvania independently, but rather weig neutrally," (Id. at 7); (iii) that "[h]aving considered where the Contract at issue was allegec y negotiated, executed, performed, and breached, the Court finds that this factor weighs neutrally a.t best in transferring this case and therefore does not aid the Defendants in overcoming 1 e presumption in favor of Plaintiff's choice of forum," (Id. at 8); (iv) and finally "neither party" ts able to offer evidence suggesting that any witness would be unavailable for trial, including J\i s. Givalry, in either forum, as opposed to merely being affected by the distance. 7" (.I!h at 9). This Court further noted that the public interests8 weighed against transferring the ca1 (Id.). Defendants argued that practical considerations that could make the trial easy, expeditio e. or inexpensive were apparent, as this case stems from the trial in Givalrv v. General Mote '"s Com. and Pompey Motors, Inc., which was conducted in Pennsylvania. (citation omitted) (Def . ' Br., ECF No. 8 at 9). At the time, this Court did not agree because the breach of contract cla tn for investigatory services performed related to the Givarly matter had little to no connection w h 7 See Days Inns Worldwide, Inc. v. Ram Lodging, LLC, No. 09-2275 (SDW), 2010 WL 15409 6 (D.N.J. Apr. 14, 2010). 8 This Court found the following Jumara factors to be of neutral value, and as Defendants did 11 :>t argue their relevance, as is their burden, the Court did not incorporate them into the analysis: t e enforceability of the judgment; the local interest in deciding local controversies at home; the pub c policies of the fora; and the familiarity of the trial judge with the applicable state law in divers y cases. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3rd Cir. 1995). 4 the trial in Pennsylvania. (ECF No. 35, at 9). Ultimately, this Court concluded that Defendru ts did not meet their burden in demonstrating that it would be more convenient for all the parties o have this case litigated and tried in the Eastern District of Pennsylvania and recommended tl at Defendants' Motion to Transfer, (ECF No. 8), be denied. (ECF No. 35, at 10). Defendants appealed the Report and Recommendation on May 1, 2014 and argued tha a transfer was in fact warranted because Ms. Gilvary, the "intended beneficiary of this contra t, could be liable to [Plaintiff] Murphy from the funds held in escrow on her behalf." (ECF No. 3 72, at 12-13). In addition, Defendants argued that Ms. Gilvary could not be brought into this acti n "by any party because she is a Pennsylvania citizen [and] [t]his Court lacks personal jurisdicti in over her." (Id. at 13). As such, Defendants asserted that transferring the matter to the Eastt n District of Pennsylvania would best serve the interests of justice." (Id.). The Hon. Jose L. Linares, U.S.D.J. issued an Order on June 4, 2014 adopting this Cour 's Report and Recommendation. (ECF No. 42). Judge Linares noted that Defendants' argued "tl is matter should be transferred because the disposition of this matter could implicate interests of 1 le plaintiff in the underlying action." (Id. at 10) (emphasis in original). Judge Linares, howev !f, found the argument to be unpersuasive because "it [was] premised on a hypothetical scenaric " (Id.). Judge Linares further noted that Defendants did not argue that Ms. Gilvary was a necessa y party under Federal Rule of Civil Procedure 19. (IQ,_). Therefore, the fact that this litigation m y have impacted the interests of Ms. Gilvary in the underlying action was insufficient to overco1 e Plaintiffs choice of forum in the District of New Jersey. (Id.). In response to Judge Linares' Order, "Defendants promptly filed a declaratory judgm(; tit action in the Court of Common Pleas entitled Zaiac and Arias. LLC In Trust for Sarahiuan Gilve :v vs. Brooke Murphy d/b/a/ Meadowlands Company et. al., June Term 2014 No. 2569. The escrc w 5 account holding the settlement proceeds [were] impleaded along with all parties with claims to t e funds." (ECF No. 44, at 5). On June 27, 2014 Defendants filed a renewed Motion to Transf r. (Id.). Defendants incorporate by reference the legal arguments made in the initial Motion o Transfer, (ECF No. 8), and all responsive briefs, (ECF Nos. 26, 30, and 37). (ECF No. 44, at c ). Furthermore, Defendants argue that certain facts that have occurred since Judge Linar •s highlighted the "hypothetical" nature of Defendants' concerns, are significant to this renew kl Motion to Transfer. (IQJ. Defendants posit that the Court of Common Pleas of Philadelphia h the power to fully determine the rights and liabilities of all interested parties and that any ancilla IY issues should be heard in the Eastern District of Pennsylvania. (Id.). Defendants claim that ":rv s. Gilvary indicated that she will not willingly participate in this Court's proceedings ... and canr >t be joined because this Court lacks personal jurisdiction." (Id. at 5) (citation omitted). II. LEGAL ANALYSIS a. The Legal Standards Applicable on a Motion to Transfer Under § 1404(a) Defendants ask the Court to transfer this action to the United States District Court fort e Eastern District of Pennsylvania pursuantto 28 U.S. C. § 1404(a). That statue provides, in pertim: part, that"( :fJor the convenience of parties and witnesses, in the interest of justice, a district co1 rt may transfer any civil action to any other district or division where it might have been brough " The purpose of§ 1404(a) is to "prevent the waste of time, energy and money and to prot€ Yn litigants, witnesses and the public against unnecessary inconvenience and expense." Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal quotations and citations omitted). T e decision of whether to transfer a case is committed to the trial court's sound discretion. Cadao1 It Graphic Sys. v. Tektronix, Inc., 98 F. Supp. 2d 560, 564 (D.N.J. 2000); Davs Inns Worldwide.Ir v. RAM Lodging, LLC, No. 09-2275, 2010 WL 1540926, at *2 (D.N.J. April 14, 6 >. Additionally, the moving party bears the burden of establishing the need to transfer. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3rd Cir. 1995). In determining whether to transfer a matter pursuant to§ 1404(a), and based on the pll n language of that statute, a court must consider: (1) the convenience of the parties, (2) 1 ie convenience of the witnesses, and (3) the interests of justice. Rannonort v. Steven Soielbern: In ., 16 F. Supp. 2d 481, 497 (D.N.J. 1998). In addition to these statutory factors, the United Sta' Court of Appeals for the Third Circuit has established a list of public and private interests tha a court should examine when deciding whether to transfer an action: The private interests have included: plaintiff's forum preference as manifested in the original choice; the defendant's preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses-but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location ofbooks and records (similarly limited to the extent that the files could not be produced in the alternative forum). The public interests have included: the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; the public policies of the fora; and the familiarity of the trial judge with the applicable state law in diversity cases. Jumara, 55 F.3d at 879-80. The Court must, therefore, engage in a two part analysis to determine whether any moti n to transfer venue should be granted. As a threshold matter, the Court must decide whether t e transferee district has proper jurisdiction and venue, such that the case could have been brought n the transferee district in the first instance. Lawrence v. Xerox Corp., 56 F. Supp. 2d 442, 4 0 (D.N.J. 1999). The Court must then conduct an "individualized, case-by-case consideration 1f convenience and fairness" regarding which forum is most appropriate to consider the case. J !::. 7 "There is no rigid rule governing a court's determination; 'each case turns on its facts."' Id. (citi g Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43 (3d Cir. 1988) (internal citations omitteo ); Rappoport, 16 F. Supp 2d at 498 ("Transfer analysis under Section 1404 is a flexible a d individualized analysis and must be made on the unique facts presented in each case.") (citi g Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249-250 (1981)). The Court is also mindful of 1 Third Circuit's admonition against any court considering the merits of a case during the penden y of a transfer application. McDonnell Douglas Corp. v. Polin, 429 F.2d 30 (3d Cir. 1970) ("Judie al economy requires that another district court should not burden itself with the merits of the acti n until it is decided that a transfer should be effected and such consideration additionally requir es that the court which ultimately decides the merits of the action should also decide the vario is questions which arise during the pendency of the suit instead of considering it in two courts"). III. ANALYSIS a. The Initial Motion to Transfer This Court previously found that although the instant matter could have been brought n the Eastern District of Pennsylvania, the District of New Jersey is in fact a proper venue. (E< f No. 35, at 5). This Court also examined both the private and public factors and found that althou h many of the factors weighed neutrally, or were unaddressed by Defendants, when taken as a who e, the case should not be transferred. (Id.). b. New Factors Now Weigh in Favor of Transfer Defendants' renewed Motion to Transfer, (ECF No. 44), contains new facts that the Cm. rt must now consider when balancing the private and public factors as is required by Jumm !l. Defendants initially argued that a transfer is warranted because Ms. Gilvary is allegedly t e intended beneficiary of the Contract and, therefore, "could be liable to [Plaintiff] from the fun s 8 held in escrow on her behalf." (ECF. No. 37-2, at 12-13) (emphasis added). In adopting t s Court's Report and Recommendation, Judge Linares found Defendants' argument to e unpersuasive because it was based on a hypothetical scenario. (ECF No. 42, at 10). Followi g Judge Linares' Opinion, (ECF No. 42), Defendants filed a declaratory action in the Court f Common Pleas, where "the escrow account holding the settlement proceeds [were] implea along with all parties with claims to the funds." (ECF No. 44, at 5) (emphasis in original). A a result, Defendants' argument that disposition of this case could implicate the interests of Gilvary is no longer based on a hypothetical scenario. (See ECF No. 42, at 10). In fact, the real y of Ms. Gilvary's involvement weighs in favor of transferring the action to the Eastern District f Pennsylvania. Furthermore, while Defendants argue that Ms. Gilvary has been unwilling to participate n this Court's proceedings, (ECF No. 44, at 5), Ms. Gilvary sent a letter to the Court express· g otherwise. 9 Additionally, Defendants assert that Ms. Gilvary cannot be joined to this acf n because this Court lacks personal jurisdiction over her. (ECF No. 44, at 6). However, Gilvary's letter to the Court indicated that any assertions that she is unwilling to accept service r be involved in this case is "not true" and that she could be "served with court papers at anyti and she is "always home." It is, however, unclear whether Ms. Gilvary is consenting to perso jurisdiction in this matter, thereby defeating the thrust of Defendants' argument that this Co does not have the power to fully determine the rights and liabilities of all interested parties, ( e 9 Ms. Gilvary, in an undated letter to the Court stated, "I recently learned that Meadowlands Brooke Murphy's former lawyer, Mr. Vort said to you that I was not willing to accept service to be involved in this case. This is not true. I want nothing more than to come to court on t case and see that a wrong is righted. I can be served with court papers at anytime. I am alw home." Additionally, Ms. Gil vary stated that she "fully intend[ s] to be involved in this case. [S told Mr. Murphy and [her] mother several times that [she] want[ s] to come to court and testify Mr. Murphy." (ECF No. 57, at 1). 9 r s ] r ECF No. 44, at 6), or whether Ms. Gilvary is simply stating she is willing to testify on Murphy's behalf. The Court has also recently been made aware that Ms. Gilvary is the <laugh r of Plaintiffs wife, (ECF No. 49-1, at 4, 11), information that only complicates the matter furth Plaintiffs family connection to the plaintiff in the underlying Pennsylvania action changes t e complexion of this matter, which Plaintiff previously argued was all about New Jersey Regardless of Ms. Gilvary's involvement, the Court finds it more significant that Plaint has been less than forthcoming about his address, not having provided one, and he has authorized "his attorney to accept service for him in the declaratory judgment action" n Pennsylvania. (Id. at 5) (citing Exhibit B, ECF No. 44). Additionally, the Court finds it signific that the Defendants are now involved in a dispute with Ms. Gilvary over the settlement proce s in Pennsylvania. 10 (see ECF No. 44, at 5). Those settlement proceeds may well constitute a lar e portion of the monies that will be paid to Plaintiff, should he prevail. The Pennsylv connections to this dispute appear to grow daily. After careful consideration of the new facts, e balance of the public and private factors now weigh in favor of a transfer to the United Sta s District Court for the Eastern District of Pennsylvania. c. Motion to Withdraw Plaintiffs counsel, Mr. Vort submitted a Motion to Withdraw on August 4, 2014. (E F No. 49). As explained above, a hearing was not held, but Plaintiff submitted multiple letters tot e Court, one of which consented to his counsel's withdrawal. (ECF No. 53). Plaintiff counse s 10 Defendants' explained in a footnote in their renewed Motion to Transfer that, "Ms. Gilva medical bills were paid for by the Pennsylvania Department of Public Welfare. The Departmen s lien is well in excess of the settlement proceeds. Exhibit A, Zajac Declaration; Lien. An attorn y has a legal responsibility to notify and hold settlement proceeds for the Department of Pub Welfare. 62 P.S. 1409(b)(9). Defendants cannot distribute the money to either party with notifying the Department." (ECF No. 44, at 5 n.l). 10 Motion to Withdraw was unopposed. The Court has considered the parties' submissions and fi s there is good cause to relieve Mr. Vort as counsel. IV. CONCLUSION For the reasons set forth above, and for good cause shown; IT IS on this _ _ day of December 2014, ORDERED that Plaintiffs attorney's Motion to Withdraw as counsel, (ECF No. 49), ·s GRANTED; and IT IS FURTHER ORDERED that Robert A. Vort, Esq. is terminated as attorney ofrec for Plaintiff; and IT IS FURTHER ORDERED that Robert A. Vort, Esq. shall provide Plaintiff wi copy of this Order; and IT IS FURTHER ORDERED that Defendants Renewed Motions to Transfer, (ECF 44), is GRANTED, and this matter shall be transferred to the United States District Court for e Eastern District of Pennsylvania; and IT IS FURTHER ORDERED that Plaintiff provide the Clerk of the Court in the East District of Pennsylvania with all the required contact information, including his address and pho e number; and IT IS FURTHER ORDERED that Plaintiff shall sign up for electronic filing with Eastern District of Pennsylvania within 30 days of the case being opened in the Eastern District Pennsylvania. SO ORDERED 11 cc: Hon. Jose L. Linares, U.S.D.J. 12
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