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May 10, 1995

XPRESSIONS FOOTWEAR CORP., Plaintiff, against TOM PETERS, Defendant.

John G. Koeltl, United States District Judge

The opinion of the court was delivered by: JOHN G. KOELTL

John G. Koeltl, District Judge.

 This is an action for contract damages and declaratory relief in which jurisdiction is based on diversity of citizenship. The plaintiff, Xpressions Footwear Corporation ("Xpressions"), a New York corporation with its principal place of business in New York, alleges in the complaint as follows. On August 1, 1993, Xpressions entered into an oral sales representative agreement (the "Agreement") with the defendant Tom Peters, a resident of Colorado. Peters was to act as an exclusive agent for Xpressions in thirteen states in the Midwest. Xpressions agreed to pay him a commission on the sales of shoes he generated and a monthly draw as an advance against the commissions he would generate. Peters was to pay back to Xpressions any excess of the draw over the commissions he actually earned. He did not generate any sales from August 1, 1993 until January 21, 1994. Xpressions terminated the Agreement, effective January 21, 1994, on account of his failure to generate sales.

 In the present action, Xpressions seeks to recover the $ 52,500 that it paid Peters as a draw, alleging that he breached the contract by, among other things, failing to generate sales, failing to adequately represent Xpressions as a sales representative, and failing to pay back the excess draw he received. Xpressions also seeks declaratory relief that the Agreement with Peters was properly terminated because Peters contends that the Agreement was improperly terminated and that Xpressions is therefore liable to him.

 Peters has sued Xpressions and Premier Footwear, Inc., an allegedly related company, in the District of Colorado, alleging that the companies breached their contract with him and that they are also liable to him under a theory of promissory estoppel and a Minnesota statute governing the termination of sales representatives (the "Colorado Action"). The Colorado Action has been consolidated with another complaint by another former sales representative against the same defendants.

 Peters now moves to dismiss this action, or, in the alternative, to stay the action while the Colorado Action proceeds or to transfer this action to the District of Colorado pursuant to 28 U.S.C. § 1404(a). The motions are denied for the reasons explained below.


 Peters argues, first, that the action should be dismissed because it is an improper effort to use a declaratory judgment action as a means to "forum shop." He asserts this action is nothing more than an effort to preempt the Colorado Action. This action was filed on August 26, 1994, whereas the Colorado Action was filed on October 7, 1994. Peters alleges that Xpressions led him to delay his filing of the Colorado Action with talk of possible settlement and then rushed to bring the current suit, which he alleges is nothing more than an effort to obtain a declaratory judgment that the Colorado Action does not present a valid cause of action.

 The defendant's argument fails. This action seeks far more than a declaration that Xpressions did not violate the Agreement. It seeks the return of the commissions paid to Peters which he allegedly committed to repay and thus seeks significant affirmative relief which Xpressions claims is the most important part of the dispute and which is, in any event, a claim distinct from the claim in the Colorado Action.

 Moreover, the evidence proffered by both parties belies the defendant's claim that this action is simply an effort to win the race to the courthouse and an attempt to foreclose the Colorado Action. The correspondence reflects that Xpressions made an effort to settle this matter before filing suit and gave notice that it would file suit if the matter was not settled. On August 23, 1994, Xpressions' general counsel faxed a letter to Peters' counsel explaining that the shareholders of Xpressions had met, that no settlement would be paid to Peters, that Peters would be required to repay $ 52,500 to Xpressions, and that if Peters' counsel did not respond in three days, "we will assume that there is no desire for an amicable resolution, and we will immediately seek redress otherwise." The letter demonstrates that Xpressions was then maintaining a claim for relief independent of the claim that was to be asserted in the Colorado Action and that Xpressions did provide notice of this claim to Peters well before the Colorado Action was brought. This lawsuit is not an anticipatory declaratory judgment action. It is not an effort to jump the gun on the Colorado Action. Cf. Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 219 (2d Cir. 1978) (affirming that a declaratory judgment action should not be a prize to the winner of a race to the courthouse), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 (1979); Great American Ins. Co. v. Houston General Ins. Co., 735 F. Supp. 581, 586 (S.D.N.Y. 1990) (Leisure, J.) (finding that "the misuse of the Declaratory Judgment Act to gain a procedural advantage and preempt the forum choice of the plaintiff in the coercive action militates in favor of dismissing the declaratory judgment action"); Cooperative Centrale Raiffeisen-Boerenleen Bank B.A. v. Northwestern Nat'l Ins. Co., 778 F. Supp. 1274, 1278-79 (S.D.N.Y. 1991) (Patterson, J.) (holding that the "first filed rule" should not be mechanically applied when a declaratory judgment action is filed in anticipation of a coercive action).


 The convenience of the parties and witnesses and the interests of justice argue strongly that this case should not be transferred from the Southern District of New York. More specifically, the factors to be considered are: (1) the place where the operative facts occurred; (2) the convenience of the parties; (3) the conveniences of witnesses; (4) the relative ease of access to sources of proof; (5) the availability of process to compel attendance of unwilling witnesses; (6) the plaintiff's choice of forum; (7) the forum's familiarity with the governing law; and (8) trial efficiency and the interests of justice. See Viacom Int'l, Inc. v. Melvin Simon Prods., Inc., 774 F. Supp. 858, 867-68 (S.D.N.Y. 1991); Don King Prods., Inc. v. Douglas, 735 F. Supp. 522, 533 (S.D.N.Y. 1990); Schneider v. Sears, 265 F. Supp. 257, 263 (S.D.N.Y. 1967); Richardson Greenshields Sec., Inc. v. Metz, 566 F. Supp. 131, 134 (S.D.N.Y. 1983).

 In this case, a substantial portion of the operative facts occurred in New York. The Agreement was negotiated and finalized in New York by a New York Corporation and the defendant came to New York at least twice in connection with entering into the Agreement. The defendant also attended two trade shows in New York in an effort to perform under the Agreement. Colorado was only one of thirteen states in which the plaintiff attempted to ...

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