Moreover, each of the Indemnification Agreements signed by
the Hart defendants contained a forum selection clause,
pursuant to which the Hart defendants agreed not to do exactly
what they are now doing: that is, argue that the United States
District Court for the Southern District of New York is an
inconvenient forum.*fn10 A forum selection clause "`will be
enforced unless it clearly can be shown that enforcement "would
be unreasonable or unjust, or that the clause was invalid for
such reasons as fraud or overreaching."'" Karl Koch Erecting
Co., Inc. v. New York Convention Center Development Corp.,
838 F.2d 656, 659 (2d Cir. 1988) (quoting Bense v. Interstate
Battery System of America, 683 F.2d 718, 721-22 (2d Cir. 1982)
(quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92
S.Ct. 1907, 1916, 32 L.Ed.2d 513 (1972))); cf. Stewart
Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct.
2239, 2243-44, 101 L.Ed.2d 22 (1988) (in deciding motion to
transfer venue, "[t]he presence of a forum-selection clause . .
. will be a significant factor that figures centrally in the
district court's calculus."). The Hart defendants have failed
to demonstrate why the clear provisions of the forum selection
clause should not be enforced in the Hart actions. For that
reason, and because the Hart defendants have not met their
burden of showing why plaintiff's choice of forum should be
disturbed, Transunion Corp., supra, 811 F.2d at 129, the Hart
defendants' motion to dismiss on the grounds of forum non
conveniens is denied.
IV. Stay of the Hart Actions
The Hart defendants have also moved, in the alternative, for
a stay of the Hart actions pending final resolution of the
Pyper action. It is axiomatic that "`the pendency of an action
in the state court is no bar to proceedings concerning the same
matter in the Federal court having jurisdiction. . . .'"
Colorado River Water Conservation District v. United States,
424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976)
(quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501,
505, 54 L.Ed. 762 (1910). Where, as here, a federal court
properly has subject matter jurisdiction, the court has a
"virtually unflagging obligation" to exercise that
jurisdiction, even if an action concerning the same matter is
pending before the state court. Colorado River, supra, 424 U.S.
at 817, 96 S.Ct. at 1246; see also Bethlehem Contracting Co. v.
Lehrer/McGovern, Inc., 800 F.2d 325, 327 (2d Cir. 1986). A
district court may decline to exercise its jurisdiction,
however, in "exceptional circumstances," based on
"`considerations of "[w]ise judicial administration, giving
regard to conservation of judicial resources and comprehensive
disposition of litigation."'" Moses H. Cone Memorial Hospital
v. Mercury Construction Corp., 460 U.S. 1, 15, 103 S.Ct. 927,
936, 74 L.Ed.2d 765 (1983) (quoting Colorado River, supra, 424
U.S. at 817, 96 S.Ct. at 1246 (quoting Kerotest Manufacturing
Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct.
219, 221, 96 L.Ed. 200 (1952))); see also Bethlehem
Contracting, supra, 800 F.2d at 327. As discussed in detail,
supra, with respect to the Hart defendants forum non conveniens
motion, considerations of convenience and efficiency do not
weigh sufficiently — if at all — in favor of staying or
dismissing the Hart actions. The Hart defendants' motion to
stay is, therefore, denied.
For the reasons set forth above, plaintiff's motion to
consolidate these actions for pretrial purposes only is
granted. Defendants' motion to dismiss these actions pursuant
to the FDCPA is denied. The motions of the Hart defendants to
dismiss the Hart actions on the grounds of forum non
conveniens, or, in the alternative, to stay the Hart actions,
are also hereby denied.