The opinion of the court was delivered by: LASKER
This is an action to recover on a Personal Guaranty ("Guaranty") and a Conditional Sales Note ("Note"). Plaintiffs Credit Alliance Corp. ("Credit") and Leasing Service Corp. ("Leasing") are Delaware and New York corporations respectively, with their principal places of business in New York, while plaintiff Credit America Corp. ("America") is a California corporation with its principal place of business in California. Defendant Vivian Lounsbury Crook ("Crook"), the guarantor and obligor under the Note, is an Oregon resident. Crook cross-claims against plaintiffs, one George J. Marro and C. C. Investors, a California Limited Partnership, and its members for (inter alia) fraud and seeks a declaratory judgment as to whether she is still bound by her Guaranty obligations. Jurisdiction is based on diversity of citizenship. Crook now moves pursuant to 28 U.S.C. § 1404(a) for an order transferring this action to the Central District of California.
On October 31, 1973, Crook executed and delivered to America her personal Guaranty of all obligations of Crook Co., present and future, owing to America (Complaint, Exhibit "A"). On September 26, 1978, Crook signed and delivered to plaintiffs a written Guaranty of Crook Co.'s debts, then or thereafter owing to all the Plaintiffs (Complaint, Exhibit "B"). On November 1, 1979, Crook Co. sold a tractor to Crook and assigned its interest in the Note and property to Credit (Complaint, Exhibits "C", "D"). Although each of the instruments were executed in California, there were clauses within both the 1978 Guaranty and the Note which stated: "[the parties] agree to the venue and jurisdiction of any court in the State and County of New York regarding any matter arising hereunder." (Mehl Affidavit, PP4,5).
Plaintiffs allege that Crook Co. defaulted on its obligations to plaintiffs and that Crook refused to honor her Guaranty of those obligations. Crook is also said to have defaulted on her obligations under the Note held by Credit. Crook maintains that she was released from her Guaranty obligations by Marro, an employee of one or more of the plaintiffs. She alleges that as part of the consideration for the release, Marro fraudulently induced her to sell both her's and her children's shares in Crook Co. to C.C. Investors. This event is also alleged to have occurred in California.
Crook contends that a trial in California would be more convenient for both the parties and the witnesses.Plaintiffs respond that Crook should be precluded from asserting her own convenience as a reason for transfer because she waived that right by "consenting" to venue in New York. With respect to the convenience of the witnesses, plaintiffs assert that a trial in California would be an inconvenient for its witnesses as a trial in New York would be for Crook's witnesses. Accordingly, plaintiffs argue that since the balance of conveniences does not clearly favor California, its choice of forum should not be disturbed.
Although forum-selection clauses are usually upheld absent a showing of reasonableness, The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 32 L. Ed. 2d 513, 92 S. Ct. 1907 (1972), the existence of such a clause, if not mandatory, does not prevent the court from ordering a change of venue under § 1404(a).
Coface v. Optique Du Monde, Ltd., 521 F. Supp. 500 (S.D.N.Y. 1980). In Coface, the defendants, guarantors of the debtor's company's obligations, signed a contract in which they "consent[ed] to the jurisdiction [and venue] of the State and Federal Courts sitting in New York in any action arising out of or connected with this agreement." Id. at 503. The contract also provided that its provisions were to be interpreted according to New York law. Id. at 502. In ordering a transfer of the case to the Northern District of Illinois regardless of the contract provision, Judge Conner considered the fact, among others, that it was more convenient for the guarantors themselves to defend the action in Illinois. Judge Conner concluded that all of the factors, including convenience of the parties, should be weighed by the court since, by its terms, the agreement did not establish "New York as the exclusive forum for litigation" but rather as a "permissible forum" that may be subject to transfer depending on the application of the factors enumerated in § 1404(a). Id. at 506-07. See also First National City Bank v. Nanz, Inc., 437 F. Supp. 184, 186-87 (S.D.N.Y. 1975) (forum-selection clause which provided that New York courts "shall have jurisdiction of any dispute" was not by its terms mandatory).
Plaintiffs cite Plum Tree, Inc. v. Stockment, 488 F.2nd 754 (3d Cir. 1973) as authority for the proposition that a party which consents to venue in one district is deemed to have waived its right to seek a transfer to another district for its own convenience under § 1404(a). Such a waiver occurs, however, only where the party's preselected forum is one that by the terms of the agreement "is assigned exclusive jurisdiction of cases arising under the contract." Id. at 758 n.7. See also Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F. Supp. 71, 72-3 n.3 (S.D.N.Y. 1978) (plaintiff was barred from asserting its own convenience in opposing a transfer since it had contractually agreed that "any suit . . . shall be brought in either San Diego or Los Angeles County") (emphasis added).
The agreements here in dispute provide:
"[the parties] agree to the venue and jurisdiction of any court in the State and County of New York regarding any matter arising hereunder."
(Mehl Affidavit, PP4, 5).Although this language empowers the New York courts to adjudicate this matter, it does not indicate that New York is the exclusive or the only appropriate forum where the case may be heard. In executing the agreement, Crook declared nothing more than her consent to the venue and jurisdiction of a court which might otherwise not exist
-- thus retaining her right to assert her own convenience as a basis for transfer. Thus, the question arises whether the balance of conveniences favors the California or New York forum.
Crook contends that California is a more convenient forum for herself because it is closer to her Oregon residence and because all of the records reflecting the obligations of Crook Co. to plaintiffs are in the possession of Crook Co.'s California offices (Boies Affidavit, P7).
Crook also asserts that all of the witnesses she intends to call at trial, over 14 in number, would be highly inconvenient should they be required to testify in New York since they are all California residents (Notice of Motion, P4). Crook's witnesses include Marro and other members of C.C. Investors, who will testify on the question of release (Boies Affidavit, P6).
Plaintiffs, on the other hand, state that the witnesses who they would call to establish damages -- plaintiff's employees -- all work in New York City (Mehl Affidavit, P9).
The burden is on Crook to establish that the balance of conveniences weighs clearly in favor of the proposed transferee court. Coface v. Optique Du Monde, supra at 507. We conclude that she has met this burden.
First, Crook herself -- though an Oregon resident -- will find it more convenient to litigate this action in California, especially since all Crook Co.'s records and documents are located there. Second, all the cross-defendants, including Marro and C.C. Investors, are residents of that State. Their presence, and thus convenience, is essential to the ultimate resolution of this case because Crook's cross-claim -- whether Crook was defrauded into selling her stock in exchange for a release from her obligations -- is completely intertwined with the question of Crook's liability. Third, Credit America Corp., one of the plaintiffs, will not be inconvenienced at all by a trial in California since it is both incorporated in and has its principal place of business in California. See Y4 Design Ltd. v. Regensteiner ...