Teachers Insurance & Annuity Association of America v. Butler, 592 F. Supp. 1097, 1106 (S.D.N.Y. 1984) (footnote omitted). See also Stinnes Interoil, Inc. v. Apex Oil Co., 604 F. Supp. 978, 984 (S.D.N.Y. 1985) ("A § 1404(a) motion should not be granted if all transfer would accomplish is to shift the inconveniences from one party to the other.") (citing Brierwood Shoe Corp. v. Sears, Roebuck & Co., 479 F. Supp. 563, 566 (S.D.N.Y. 1979)).
Even if Palmer could demonstrate that more witnesses and parties lived in New Jersey, the argument would fail. Absent extraordinary circumstances, convenience simply cannot be considered a significant issue when the districts are so close to one another. As the court stated in Moyglare Stud Farm, Ltd. v. Due Process Stable, Inc., 562 F. Supp. 289, 292 (S.D.N.Y. 1983):
A request to transfer strikes an extremely hollow note in this case since the proposed transferee courthouse in Newark is located less than 20 miles from this courthouse. Travel convenience is, in this instance, a minimal consideration.
Therefore, this Court concludes that the convenience of the parties and witnesses would not be furthered by transfer.
Ease of Access to Proof
Palmer states that because the promissory notes were signed in New Jersey and the loan meetings were held there, the parties' access to proof militates in favor of transfer. MHT counters by asserting that its files--which it claims are likely to be more voluminous than Palmer's--are in New York, and that the only anticipated non-party witness maintains offices and files in New York. MHT Brief at 13-14.
As in their argument regarding convenience, the defendants have done little more than articulate their own preference. They have failed to show that "it is somehow a greater imposition for [Palmer] to bring [their] proof to New York than for [MHT] to bring its proof to [New Jersey]." Stinnes, 604 F. Supp. at 983. Accordingly, on the grounds of easier access to proof, I do not find the scale tipped in the direction of either forum.
Practical Issues and the Interests of Justice
The Palmer corporations also argue that the pendency of their suit against MHT in New Jersey favors transfer. Their argument is based on interests of judicial economy. As explained by the Second Circuit:
There is a strong policy favoring the litigation of related claims in the same tribunal in order that pretrial discovery can be conducted more efficiently, duplicitous litigation can be avoided, thereby saving time and expense for both parties and witnesses, and inconsistent results can be avoided.
Wyndham Associates v. Bintliff, 398 F.2d 614, 619 (2d Cir.), cert. denied, 393 U.S. 977, 21 L. Ed. 2d 438, 89 S. Ct. 444 (1968). Many cases have relied on this policy to support transfer. National Union Fire Ins. Co. of Pittsburgh, Pa. v. Turtur, 743 F. Supp. 260, 263 (S.D.N.Y. 1990) ("The presence of related litigation in the transferee forum weighs heavily in favor of transfer. . . ."); Nieves v. American Airlines, 700 F. Supp. 769, 773 (1988) ("Transfer is particularly appropriate where there is a pending lawsuit in the transferee district involving the same facts, transactions, or occurrences.") (citations omitted) footnote omitted); Savin, 657 F. Supp. at 1214; Berg v. First American Bankshares, Inc., 576 F. Supp. 1239, 1243 (S.D.N.Y. 1983); Somerville, 576 F. Supp. at 908 ("The existence of a related action in the transferee district is a strong factor to be weighed in the interest of judicial economy.") (citations omitted); Durham Productions, Inc. v. Sterling Film Portfolio, Ltd., 537 F. Supp. 1241, 1244 (S.D.N.Y. 1982); Full-Sight Contact Lens Corp. v. Soft Lenses, Inc., 466 F. Supp. 71, 75 (S.D.N.Y. 1978); see also Securities and Exchange Commission v. First National Finance Corp., 392 F. Supp. 239, 241 (N.D. Ill. 1975) ("As a general proposition, cases should be transferred to the district where related actions are pending.")
While it may be clear that one forum is better than two, which of the two fora is better follows from another principle: the "first-filed rule." "The well-settled principle rule in this Circuit [is] that 'where there are two competing lawsuits, the first suit should have priority, absent the showing of balance of convenience . . . or special circumstances . . . giving priority to the second." First City National Bank and Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989) (citing and quoting prior Circuit decisions). However, the first filed rule "is not to be applied in a mechanical way regardless of other considerations." National Patent Development Corp. v. American Hospital Supply Corp., 616 F. Supp. 114, 118 (S.D.N.Y. 1984) (Weinfeld, J.) (quoting Hammett v. Warner Brothers Pictures, Inc., 176 F.2d 145, 150 (2d Cir. 1949)). Applying the first-filed rule to the case at bar is complicated by several factors.
The first complication arises out of the sequence of events involved in the filing of the two actions. The Palmer corporation filed its complaint against MHT on July 31, 1991, six days before MHT filed its complaint. That first action, however, was filed in New Jersey state court. It was not removed to the federal court in New Jersey until August 22, 1991--16 days after MHT filed its action in this Court. Accordingly, I must determine whether the state filing date or the date of removal is the date to look to under the first-filed rule.
My research has not uncovered a Second Circuit case that directly addresses this issue. Outside this Circuit, however, there is ample authority for the proposition that the state court filing date is the relevant benchmark. Igloo Products Corp. v. The Mounties, Inc., 735 F. Supp. 214, 217 (S.D. Tex. 1990); Specialty Insurance Agency, Inc. v. Walter Kaye Associates, Inc., CIV No. 89-1708, 1989 WL 65618 at *5 (D.N.J. June 7, 1989); Owens v. Ohio Cent. R. Co., 20 F. 10 (C.C.W.Va. 1884); contra Pesco Distribution Corp. Inc. v. Del-Rain Corp., Civ. A. No. 91-1150, 1991 WL 125177 at *2 (E.D. Pa. June 28, 1991); see also Staple v. United States, 740 F.2d 766, 769-70 (9th Cir. 1984) (looking to the original date of filing in state court for purposes of the running of a statute of limitations). The principles underlying removal also weigh in favor of the state filing date. See 14a Wright, Miller & Cooper, Federal Practice and Procedure § 3738 at 556-57 (1985) ("After removal, a federal court acquires full and exclusive jurisdiction over the litigation. The removed case proceeds according to the Federal Rules of Civil Procedure and is treated as though, it had been commenced originally in the federal court.") (footnotes omitted) (emphasis added). I therefore find that July 31, 1991 is the date Palmer commenced the New Jersey action and treat that as the first case to be filed.
The second factor complicating the first-filed rule in this case concerns the nature of the two actions. While Palmer may have filed its action first, transfer is not appropriate on that basis if the actions are unrelated. See, e.g., Generale Bank, New York Branch v. Wassel, 779 F. Supp. 310, 313 (S.D.N.Y. 1991) (denying transfer where parties were different and actions were distinct). Palmer claims the two actions are related; MHT states otherwise.
MHT's argument for unrelatedness rests on a narrow view of MHT's $ 600,000 loan. MHT urges the Court to focus on this transaction to the exclusion of other negotiations and alleged agreements. Palmer insists that it must be seen in the context of a larger, more elaborate loan transaction. Thus, while MHT characterizes its action as a discrete matter involving a straightforward default on a $ 600,000 loan, Palmer describes that transaction as an advance on the $ 6.8 million loan package that MHT promised but never delivered.
I decline to view the events through the narrow lens offered by MHT. The interests of justice require that the cases be related, not identical. Both actions arose from loan negotiations among the parties, and both involve the same witnesses and parties. Furthermore, in their answer to MHT's amended complaint, the Palmer corporations asserted the same claims of fraudulent breach that are pending in the New Jersey action. Courts should avoid duplicative litigation whenever possible, and obsessing over slight differences between actions does not promote judicial economy. I am not prepared to consider the dispute at bar in the skewed way I must in order to hold in MHT's favor.
Consistent with the first-filed rule, then, the appropriate course would be to transfer this action in the interests of justice. MHT argues, however, that "special circumstances" exist which preclude application of the first-filed rule. Such circumstances exist, according to MHT, because of a clause in the three promissory notes executed by Palmer. That clause states: "each maker or indorser in any litigation . . . in which [MHT] and any of them shall be adverse parties, waive trial by jury, and each maker and indorser waives the rights to interpose any set-off or counterclaim of any nature or description." Amended Complaint, Exh. A, B. MHT states that New York courts have upheld such waiver provisions and that if this action were to be transferred and consolidated with the New Jersey action, Palmer "will have managed to circumvent clear New York law prohibiting precisely the result they are attempting to accomplish, the assertion in the same action of a set-off or counterclaim adverse to MHT's suit on the notes, notwithstanding the contractual waiver provision to the contrary." MHT Brief at 7-8.
There are two flaws in MHT's argument. The, first concerns the extent of the waiver provision. While the New York courts have indeed upheld such loan provisions, see, e.g., Silbert v. Silbert, 85 A.D.2d 661, 445 N.Y.S.2d 215 (App.Div. 1981); Federal Deposit Insurance Corp. v. Frank L. Marino Corp., 74 A.D.2d 620, 425 N.Y.S.2d 34 (App.Div. 1980), these waivers "will not be enforced so as to bar a viable setoff or counterclaim sounding in fraud." Federal Deposit Insurance Corp., 425 N.Y.S.2d at 35 (citing Sterling Nat. Bank & Trust Co. of New York v. Giannetti, 53 A.D.2d 533, 384 N.Y.S.2d 176 (App.Div. 1976)).
While I intimate no view on whether Palmer's allegations are meritorious, Palmer does sound a claim in fraud. Palmer has asserted that MHT misrepresented the nature of its commitment to Palmer, leading Palmer into a near desperate situation; at the time the notes were signed, Palmer had "nowhere else to go for badly needed funds" because it had ceased negotiations with other banks after the signing of the September 28, 1990 contract for $ 6.8 million. Grassi Reply Aff. at P 13. MHT allegedly pulled the rug out from under Palmer by failing to close the larger loan, thereby inducing Palmer to sign the notes when Palmer "had no choice but to accept the Bank's offer." Id. at P 12. If true, these circumstances would invalidate the waiver. See National Equipment Rental, Ltd. v. Hendrix, 565 F.2d 255, 258 (2d Cir. 1977) (where owner of construction company "did not have any choice but to accept the. . .contract as written if he was to get badly needed funds," there was a "gross inequality of bargaining power" that voided the waiver provision) (citing Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972)). Palmer also claims that MHT committed fraud by representing that the $ 600,000 loan would be "rolled over" into the loan package under the original agreement.
Id. at 11; Reply Affidavit of Peter Balner at P 3.
Taken together, then, Palmer alleges circumstances that would vitiate the clause relied on by MHT. MHT therefore overestimates its case when it asserts that New York law precludes a counterclaim.
But MHT also underestimates its case when it discribes the dismal fate awaiting it if transfer is granted. Contrary to MHT's professed fears, the District of New Jersey is free to find that Palmer's fraud claims are incredible and, therefore, that the waiver is valid. The New Jersey court may also elect not to consolidate the two actions, instead taking them as related cases and addressing each separately. True, consolidation of the two actions and invalidation of the waiver may ensue; but transfer does not automatically trigger either.
For the reasons stated above, the defendants' motion to transfer this action to the District of New Jersey at Newark is granted. Because of this Court's holding, I need not address the application for a stay.
The Clerk of the Court is directed to transfer this action forthwith.
It is SO ORDERED.
Dated: New York, New York
July 13, 1992
CHARLES S. HAIGHT, JR.