cases can be consolidated. We agree that the Muller/Disney cases are ripe for consolidation pursuant to Fed.R.Civ.P. 42(a). If Disney's action against Muller were transferred to this district, we would certainly consolidate them.
While the progress of the proceedings and discovery in the two Muller/Disney actions differ in no meaningful way, application of the "first to file" rule does favor transfer. The "prior pending action" rule generally means that "where there are two competing lawsuits, the first suit should have priority, absent the showing of balance of convenience . . . or . . . special circumstances." First City Nat. Bank & Trust Co. v. Simmons, 878 F.2d 76, 79 (2d Cir. 1989). We do not apply the "first to file" rule mechanically.
We note that plaintiff initially advised Disney on November 10, 1992 that he was about to commence suit against Disney. The day before the deadline set by plaintiff, Disney requested more time to respond. Telephone calls ensued. Plaintiff alleges that Disney suggested mediation and later informed plaintiff that it would contact plaintiff in early January 1993 to relate Disney's position on settlement.
On December 30, 1992, Disney advised plaintiff that it would not negotiate any settlement. Disney filed its action against plaintiff in the Eastern District of Pennsylvania that same day. One might infer from the course of events that Disney used the prospect of settlement to delay Muller's filing of suit so that Disney could have the Stokowski action and the Association's existing action heard in the same district, obviously for its own convenience. While perhaps not the usual type of forum shopping, this suggests forum shopping of a sort. Disney's action is Philadelphia is primarily an action for a declaratory judgment, although an indemnification claim is included. Declaratory judgment actions filed in anticipation of a later-filed suit are frequently involved in "races to the courthouse." See Don King Productions, Inc. v. Douglas, 735 F. Supp. 522, 532 (S.D.N.Y. 1990).
Further, despite defendants' contentions, the Eastern District of Pennsylvania's interests in the Muller/Disney actions seem almost non-existent. Philadelphia's interests in the Muller/Disney actions are not as pronounced as Disney urges. Where the Orchestra recorded the music for "Fantasia" and where Stokowski lived while the recordings were made have no relevance to the issues in the Muller/Disney actions. Stokowski's right to royalties will be decided based on the terms of his contracts with Disney.
Without question, Philadelphia has a great interest in the Association's action against Disney. However, New York's interest in the estates of its domiciliaries is no less significant. And in the case at bar, New York's interests clearly predominate.
As we have also noted, nothing suggests that any witnesses in Philadelphia, if any exist, will have any evidence bearing on the intent of Stokowski and Disney behind their contracts. Disney's arguments for transfer rest on the Association's suit being in Philadelphia and the fact that its filing in Philadelphia preceded Muller's filing in New York. Under the circumstances, we find these reasons insufficient.
After considering all the relevant factors, we do not find that Disney has made a convincing case for transfer. Convenience of the witnesses and access to sources of proof is purely speculative. Convenience of the parties favors New York, the plaintiff's chosen forum, and the location of Disney's main offices in the Northeast. The Association's action in Philadelphia, while marginally related, involves distinct legal issues arising from separate contracts and negotiations. It is not so interconnected as to justify transferring plaintiff's claims.
In addition, we are reluctant to transfer this action to a forum where personal jurisdiction over one of the parties is in doubt. There are grounds to doubt whether the Eastern District of Pennsylvania would have personal jurisdiction over Stokowski's estate. The claims between Disney and Stokowski do not arise out of any conduct by Stokowski in Philadelphia. All of the contracting activity between Disney and Stokowski occurred elsewhere. It also appears that Muller intends to move to dismiss Disney's action in Pennsylvania for lack of personal jurisdiction.
For all the foregoing reason, defendants' motion to transfer is denied without prejudice to renew if circumstances change such that reconsideration of a transfer would be merited.
Lastly, we address defendants' alternative motion to stay these proceedings. Disney stresses that this court should follow the well-known rule that "where there are two competing lawsuits, the first suit should have priority, absent the showing of balance of convenience in favor of the second action, or unless there are special circumstances which justify giving priority to the second." Fort Howard Paper Co. v. William D. Witter, Inc., 787 F.2d 784, 790 (2d Cir. 1986)).
As we have explained, we view the balance of convenience favoring the plaintiff. While Disney's action against Muller in the Easter District of Pennsylvania was filed approximately twenty days before the present action, we are told that no discovery has taken place in either action. Since no witnesses have been identified, their convenience is not a factor, though New York and Philadelphia are in general proximity to each other. In addition, Michael Myerberg, who negotiated the contract with the Orchestra on behalf of Disney and Stokowski, had offices in California and New York. The convenience of the parties favors New York given that Disney has offices in New York and can easily litigate in any forum. We also noted that New York's interests in the Disney/Muller actions are plainly stronger than Philadelphia's. For the foregoing reasons, we decline to stay these proceedings.
Dated: White Plains, New York.
May 26, 1993
GERARD L. GOETTEL