September 27, 1991
PRPJ BERGEN, INC., JAMES ATKINSON, VICTOR COLAIO, BERNARD FAVUZZA, ROBERT FLEMING, JAMES SMYTH, ROBERT CLEMENTS, WILLIAM JONES, WILLIAM MINARDI, RICHARD ROBERTI, KEVIN RYAN, THOMAS ROBERTS, PAUL DALY, GERALD HAYES, GREGORY SHEERINS, MARTIN DONOHUE, SEVEN SAMURAI ASSOCIATES, INC., GREGORY RYAN, RICHARD GREENE, THOMAS CONAGHAN, RICHARD JACKSON, ANTHONY LUPO, TIMOTHY COUGHLIN, LEONARD MONTELEONE, THEODORE SMITH AND JOSEPH DICKEY, PLAINTIFFS,
JAMES R. PLATE, EDWARD DONNELLY, PLATE DONNELLY ASSOCIATES, COUGHLIN MANAGEMENT, INC., CONDO MART, INC., LITTLE VIEW, INC., MARINA VISTA ASSOCIATES, L.P., LAWRENCE MCALLISTER, ROBERT VINICOMBE AND SKYSHORE REALTY, INC., DEFENDANTS. PRPJ BERGEN, INC., PETER MCKAY, RICHARD JACKSON, PAUL RYAN, JOHN ATKINSON, JAMES ATKINSON, VICTOR COLAIO, BERNARD FAVUZZA, ROBERT FLEMING, MATTHEW LAURENCE, JAMES SMYTH, ROBERT CLEMENTS, WILLIAM JONES, WILLIAM MINARDI, RICHARD ROBERTI, KEVIN RYAN, PAUL DALY, GERALD HAYES, GREGORY SHEERINS, THOMAS ROBERTS AND MARTIN DONOHUE, PLAINTIFFS, V. UNITED JERSEY BANK, A BANKING INSTITUTION OF THE STATE OF NEW JERSEY AND SUCCESSOR IN INTEREST TO UNITED JERSEY/COMMERCIAL TRUST AND TO COMMERCIAL TRUST COMPANY OF NEW JERSEY, CATHERINE A. BRENNAN, JOHN M. KRIVACS, RICHARD O. CARMICHAEL, MARTIN J. CARBOTTI, WILLIAM SCHUMACHER, MARC P. SULLIVAN, PETER J. GINDIN AND ROBERT W. BROWN, DEFENDANTS.
The opinion of the court was delivered by: Lasker, District Judge.
These motions concern the most appropriate forum for the
litigation of three lawsuits all arising from claims of fraud in
the sale and financing of certain New Jersey real estate
projects. Two of the claims are pending before this Court, and
one is pending in the District of New Jersey.
The first action before this court ("New York Action 1"), PRPJ
Bergen, Inc., et al. v. United Jersey Bank, et al., No. 90 Civ.
6788, was filed on October 22, 1990. PRPJ Bergen Inc. ("PRPJ"), a
New Jersey corporation, and a number of individual investors,
most of whom are residents of New York, sued James R. Plate, a
New Jersey real estate developer, his partners, and associated
entities, all of whom are New Jersey residents, for having
fraudulently induced plaintiffs to invest in certain real estate
limited partnerships and condominium units in New Jersey ("New
York Action 1"). On March 28, 1991, United Jersey Bank ("UJB"), a
New Jersey banking institution, filed a lawsuit in the District
of New Jersey ("New Jersey Action"), United Jersey Bank v.
McKay, No. 91-1321, which is in many respects the mirror image
of this action. UJB named most of the plaintiffs in the New York
action (the investors)*fn1 as well as Plate and his associates,
as defendants. The New York plaintiffs
now move to enjoin or stay the prosecution of the in personam
claims in the New Jersey Action; while the plaintiffs in the New
York action (defendants here) cross-move to dismiss, transfer, or
stay this action.
The New York plaintiffs also move to consolidate New York
Action 1 with an action filed on May 15, 1991, in the Southern
District of New York, PRPJ Bergen Inc. v. United Jersey Bank, et
al., No. 91-3331 ("New York Action 2), by essentially the same
plaintiffs as in New York Action 1, or, in the alternative, to
amend the complaint in the first New York action to add claims
against UJB and the individual UJB defendants. The basic
difference between the second New York action and the first one
is that plaintiffs name UJB, the plaintiff in the New Jersey
action, and eight UJB former or present officers as defendants in
the second action.
In addition, two of the New York defendants have made motions
to dismiss on grounds of lack of personal jurisdiction.
New York Action 1 alleges that Plate and certain of his
affiliates and companies ("Plate Entities") promoted and sold to
plaintiffs certain fraudulent real estate investments. Damages
are sought with respect to two Plate projects located in New
Jersey: the Park River Towers project and the Marina Vista
project. PRPJ, a New Jersey corporation that was formed to serve
as an investment vehicle for the purchase and subsequent
conversion into a condominium of Park River Towers, is the lead
plaintiff in this action. Neither UJB nor any of its employees is
a defendant in New York Action 1.*fn2
UJB financed a number of Plate's real estate projects by
providing loans to investors in Plate's projects, including a
$6.75 million loan to PRPJ in connection with the Park River
Towers project. In the New Jersey Action, UJB sued PRPJ and a
number of other investors, alleging that they had conspired with
Plate to induce UJB to lend money on the basis of false financial
projections.*fn3 As stated earlier, the New Jersey Action is
essentially the mirror image of the New York action: UJB is
claimed to be the victim of what is alleged to have been a fraud
perpetrated by the plaintiffs (investors) with Plate (the
developer) against UJB; while in the New York actions, plaintiffs
claim that they were defrauded by Plate and UJB. In addition to
damages, the New Jersey Action seeks foreclosure with respect to
sixty-five parcels of New Jersey real estate.
The investors responded to the filing of the New Jersey Action
by instituting New York Action 2, which alleges that UJB and
eight of its present or former officers aided and abetted Plate
by facilitating the fraudulent real estate transactions by
providing ready financing when it knew that the investments would
Because the New York and New Jersey lawsuits are essentially
mirror images of each other, considerations of judicial economy
and the threat of inconsistent results dictate that the cases be
handled by only one court. Neither party seriously opposes
consolidation:*fn5 The dispute rather is over whether the cases
should be consolidated in New Jersey or New York.
The rule in this circuit is that "[w]here there are two
competing lawsuits, the first suit should have priority, absent a
showing of balance of convenience . . . or . . . special
circumstances giving priority to the second." First City
National Bank & Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir.
1989) (citations omitted). Thus, "where an action is brought in
one federal district court and a later action embracing the same
issue is brought in another federal district court, the first
court has jurisdiction to enjoin the prosecution of the second
action unless there are special circumstances which justify
giving priority to the second action." New York v. Exxon Corp.,
932 F.2d 1020, 1025 (2d Cir. 1991) (citations omitted).
Accordingly, on this motion to enjoin or stay the New Jersey
action, the issues to be decided are: (1) whether the action
filed in this Court is the "first filed" action, and, if so, (2)
whether it falls under either the "special circumstances" or
"balance of convenience" exceptions.
New York Action 1 was filed on October 22, 1990; UJB filed its
New Jersey action on March 28, 1991. The New York suit was thus
first in time. UJB argues, however, that in order to enforce the
first-filed rule, there must be absolute identity of parties and
that since neither UJB nor the individual UJB defendants are
parties to New York Action 1, New York Action 1 is not
"first-filed" with respect to the New Jersey Action. However, it
is unnecessary to decide which action was first-filed because
even if the New York actions enjoy "first-filed" status, the
"special circumstances" exception to the first-filed rule
mandates that the case be tried in New Jersey.
The "Special Circumstances" Exception.
In general, a first-filed action will preempt all later filed
actions. However, the first-filed rule is not to be mechanically
applied. Where the circumstances surrounding the filing of the
first suit cast suspicion on the plaintiff's motives for filing
suit or where other "special circumstances" exist which weigh
heavily in favor of the second forum, the determination of which
action should proceed is entrusted to the trial court's
discretion. See 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); First City National Bank & ...
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