the location of the subject matter of the contract; and the domicile of the contracting parties"). Therefore, this Court's familiarity with New York law counsels against transfer.
With regard to judicial efficiency, the courts in Colorado and New York would both deal expeditiously with this lawsuit. The defendant argues that given the pending lawsuit against Xpressions in Colorado by yet another discharged sales representative, which has been consolidated with the Colorado Action, Colorado is the only forum that can dispose efficiently of all of the lawsuits. However, the ultimate fate of the Colorado Action is unclear since there is a pending motion to dismiss it and, in any event, a decision on the claim for a declaratory judgment in this case may well provide sufficient guidance to the parties to resolve all the lawsuits.
For the foregoing reasons, the defendant has not shouldered his burden of demonstrating that the plaintiff's choice of a proper forum should be disregarded and that this action should be transferred to the District of Colorado. The motion to transfer is therefore denied.
Considerations of judicial efficiency and the interests of justice also do not provide the basis for a stay of this action at this time. It is unclear what will happen with the actions in Colorado. If those actions proceed, it may well be possible for the parties to coordinate them with this action and to cooperate in discovery. If the parties find themselves involved in duplicative litigations, the parties can make appropriate applications at that time to stay. The motion to stay is therefore denied without prejudice to renewal.
The defendant had originally argued that this action should be dismissed for failure to allege proper venue. That argument was abandoned. See n.1, supra. In its reply brief, the defendant offered a new basis for its motion to dismiss, arguing that under both New York and Colorado law Xpressions lacked "standing" to demand reimbursement of the defendant's draw in the absence of "an express or implied agreement." The fact that this alleged basis for dismissal was not raised until the reply brief would be reason enough to reject it. See, e.g., United States v. Gigante, 39 F.3d 42, 50 n.2 (2d Cir. 1994); Firma Melodiya v. ZYX Music Gmbh, No. 94 Civ. 6798, 1995 U.S. Dist. LEXIS 795, 1995 WL 28493 at *4 n.3 (S.D.N.Y. Jan. 25, 1995); Kalso Systemet, Inc. v. Jacobs, 474 F. Supp. 666, 669 n.2 (S.D.N.Y. 1979). In any event, the Complaint expressly alleges as a matter of contract that Peters agreed "to pay Xpressions the excess of the Draw received over the Commission actually earned." Complaint P 6. This allegation raises an issue of fact that cannot be decided on a motion to dismiss.
The defendant's motion to dismiss is denied as is the defendant's motion to transfer this action to the District of Colorado. The defendant's motion for a stay is denied without prejudice to renewal.
The parties are directed to complete discovery by July 28, 1995. Dispositive motions, if any, are to be served by August 18, 1995 in accordance with this Court's rules. A conference is scheduled for August 29, 1995 at 4:00 p.m.
Dated: New York, New York
May 10, 1995
John G. Koeltl
United States District Judge