arising out of each Note. The bases for this consent are "Investor Representations," allegedly agreed to by Liebman in connection with his investment in each limited partnership. The Investor Representations each contained the following clause:
The undersigned hereby agrees and consents to the in personam jurisdiction of any court of competent jurisdiction and proper venue within (i) the state in which the Partnership has its principal place of business at the time of any suit, action, or proceeding, and (ii) the state in which the transferee of the Negotiable Investor Note is domiciled or otherwise has its principal place of business at the time of the suit, action or proceeding, arising out of or in connection with the Negotiable Investor Note or the Investment in the Partnership.
Complaint, Exhs. B, D, F, H. Plaintiff argues that because it is the transferee of each Note and because its principal place of business in New York City, Defendant has consented to jurisdiction in the Southern District of New York.
Defendant opposes jurisdiction by consent on the ground that "the forum selection clause in each of the underlying investor notes is indefinite, unreasonable and unenforceable . . ." Def. Mem. at 4. Essentially, Defendant advances two arguments: (A) that the clause is too "uncertain" to be enforced, and (B) that the clause is unenforceable because it is tainted by fraud and overreaching.
In support of his first argument, Defendant relies on Atlas Credit Corp. v. Ezrine, 25 N.Y.2d 219, 303 N.Y.S.2d 382, 250 N.E.2d 474 (1969). In Atlas, the New York Court of Appeals refused to enforce two Pennsylvania judgments obtained pursuant to a cognovit clause
in a guarantee agreement. The cognovit clause provided:
in the event of any default hereunder, the undersigned, and each of them hereby empowers any Attorney of any Court of record within the United States of America, or elsewhere to appear for them, and with or without a declaration filed, confess judgement or judgements against them in favor of Atlas * * * waiving all errors, defects and imperfections, whatsoever of a procedural nature, in the entering of said judgments or any process or proceedings relating thereto.
303 N.Y.S.2d at 384. The court held that because the judgments were obtained without acknowledgment by the obligor of the facts constituting the underlying liability, and because the obligor himself did not confess judgment but authorized an unknown third-party to do so through warrant, the judgments were unenforceable as repugnant to public policy. 303 N.Y.S.2d at 393. With regard to the jurisdiction of the court in which the judgments were obtained, the court ruled, "a warrant of attorney which permits entry of judgment by confession anywhere in the world without notice violates due process and deprives the rendering court of jurisdiction." 303 N.Y.S.2d at 392.
The instant facts are, however, distinguishable from those in Atlas. First, the clause at issue here is significantly more restrictive than that in Atlas. Defendant did not consent to be sued anywhere in the world, but only in the jurisdiction of the partnership's principal place of business or in the jurisdiction of a transferee's domicile or principal place of business. Second, there is an element of "uncertainty" whenever a forum selection clause identifies a forum by the residency of a party. Plaintiff has not shown that to be "certain" and hence enforceable, a forum selection clause must indicate a specific geographic jurisdiction in which consent to be sued is given. Lastly, the due process concerns at issue in Atlas are absent here. AICCO served Liebman with its complaint, and he has not been denied the opportunity to defend this action.
Accordingly, Defendant's reliance on Atlas is misplaced, and the forum selection clause is not void for uncertainty.
B. Fraud and Overreaching
Defendant also argues that the forum selection clause should not be enforced because his purchase of the limited partnership interests was tainted by fraud and overreaching. The Supreme Court has recognized that forum selection clauses "are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be 'unreasonable' under the circumstances." M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 32 L. Ed. 2d 513, 92 S. Ct. 1907 (1972). Enforcement is unreasonable where the opposing party establishes fraud, undue influence, or overreaching bargaining power with respect to the forum selection clause. Id. at 12-13.
A party may not, however, avoid the effect of a forum selection clause by merely alleging fraud or coercion in the inducement of the contract at issue. Rather, the party must show that "the inclusion of that clause in the contract was the product of fraud or coercion." Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, 41 L. Ed. 2d 270, 94 S. Ct. 2449 n.14 (1974) (emphasis in the original). See also Ritchie v. Carvel Corp., 714 F. Supp. 700, 703 (S.D.N.Y. 1989) ("A forum selection clause is to be enforced except where the clause itself is procured by fraud (emphasis in original)). Here, Defendant merely alleges that he was induced to purchase the limited partnership interests on the basis of fraud and coercion and that his relationship with Colonial was characterized by unequal bargaining power. He does not state that the forum selection clause itself was made a part of the contract by means of fraud or overreaching. Thus, Defendant has failed to show that the forum selection clause is unenforceable as "unreasonable under the circumstances."
Where, as here, jurisdiction is founded only on diversity of citizenship, venue is proper:
only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced.
28 U.S.C. § 1391(a). As discussed above, Plaintiff is subject to personal jurisdiction in this district by virtue of his consent. Accordingly, venue is proper pursuant to 28 U.S.C. § 1391(a)(3).
III. MOTION TO TRANSFER
Defendants move pursuant to 28 U.S.C. § 1404(a) to transfer this action to the District of Connecticut, arguing that transfer would be more convenient for the parties and witnesses to this action. Section 1404(a) provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
On a motion pursuant to this section, the burden falls on the moving party to establish that there should be a change of venue. Factors, Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 (1979).
Because Plaintiff is located in New York and Defendant is located in Connecticut, transfer of this case would not further the convenience of the parties, but would merely shift the inconvenience from Defendant to Plaintiff. See Milgrim Thomajan & Lee, P.C. v. Nycal Corp., 775 F. Supp. 117, 122 (S.D.N.Y. 1991).
Furthermore, Defendant has not shown that transfer would further the convenience of the witnesses to this action. Defendant specifies numerous Connecticut witnesses who he claims have knowledge of the allegedly fraudulent nature of the under lying transactions. Affidavit of Steven Liebman sworn to on January 24, 1992, P 16; Reply Affidavit of Steven Liebman, sworn to on February 25, 1992, PP 8-9. Plaintiff, however, lists numerous witnesses, the far majority of whom live or work in or near the Southern District of New York, who would offer testimony regarding Plaintiff's acquisition of the Notes without knowledge of underlying fraud. Affidavit of Corinne McIntosh-Douglas, sworn to on February 7, 1991, P 6-8. If Defendant raises the defense of fraud, trial testimony will focus not only on the existence of that fraud, but also on Plaintiff's knowledge of that fraud at the time it acquired the Notes. Therefore, transfer of this action would merely tend to shift the inconvenience from Defendant's witnesses to Plaintiff's witnesses.
Accordingly, Defendant has failed to sustain his burden of proof on this issue, and the motion to transfer is denied.
For the reasons set forth above, Defendant's motion is denied. All counsel are ordered to appear for a pre-trial conference on May 20, 1992 at 9:00 a.m. in courtroom 302.
IT IS SO ORDERED.
Dated: New York, New York
May 13, 1992
Robert P. Patterson, Jr.