The opinion of the court was delivered by: DEBORAH A. BATTS
DEBORAH A. BATTS, U.S.D.J.
Defendants move, pursuant to 28 U.S.C. § 1404(a), to transfer venue to the Southern District of California. In the alternative, Defendants move to dismiss "in the interests of justice," arguing that a tort action currently pending in the Superior Court of California between Plaintiff and Defendants renders this contract action duplicative. For the following reasons, the motion to transfer is denied, and the motion to stay is granted.
In 1982, Jamie E. and Randall A. Born (the "Borns") became franchisees of Haagen-Dazs and began operating a store in Orange County, California. In 1992, representatives of Haagen-Dazs contacted the Borns regarding an opportunity to invest in a San Diego Haagen-Dazs franchise, and in the course of discussing and negotiating the franchise agreement between 1992 and 1993, according to the Borns, made certain representations as to the potential for profit, the costs of operation, and the risks involved. In 1993, the Borns entered into a franchise agreement to operate a store in the San Diego area. Sometime after purchasing the franchise, the Borns ceased operating the San Diego shop.
On April 22, 1994, the Borns filed a complaint in Orange County Superior Court against Haagen-Dazs, Mike Reynolds, and fifty (50) John Does alleging, inter alia, that promises and representations made regarding the San Diego franchise were false. This action sounds not in contract, however, but in tort, with causes of actions stated for negligence, negligent misrepresentation, fraud, negligent infliction of emotional distress, and intentional infliction of emotional distress. The Borns allege personal injuries and financial losses to support recovery.
While the California action was filed in April 1994, it appears not to have been served on Defendant Haagen-Dazs until late June 1994. On July 28, 1994, Haagen-Dazs filed the present Complaint in the New York County Supreme Court, seeking declaratory judgment as to the rights and liabilities of the parties with respect to the Borns' abandonment of the San Diego franchise. Further, the Haagen-Dazs Complaint points to language in the offering circular, the franchise agreement, and the closing statement disclaiming any representations outside those documents and seeks a declaratory judgment that the Borns are contractually estopped by that language from asserting any claim against Haagen-Dazs on account of any statements, representations, or conduct not expressly contained in the franchise agreement or offering circular.
On the basis of diversity of citizenship, the Borns removed the New York action to this Court on September 16, 1994; they now move to dismiss or stay this action "pursuant to the duplicative suit rule and in the interests of justice" because of the prior pending California action, and for an order transferring this action to the United States District Court for the Southern District of California for the convenience of the parties and in the interest of justice.
A. Motion to Transfer to Southern District of California
Title 28, United States Code, 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.
The decision to transfer venue rests within the sound discretion of the Court. Elite Parfums, Ltd. v. Rivera, 872 F. Supp. 1269, 1272 (S.D.N.Y. 1995). In consideration of a motion to transfer venue, however, a plaintiff's choice of forum should not be disturbed by the Court unless certain criteria weigh strongly in defendant's favor. Schwartz v. R.H. Macy's, Inc., 791 F. Supp. 94, 95 (S.D.N.Y. 1992). Such criteria include, among others: the convenience of the parties and witnesses, location of counsel, the interests of justice, and the court's familiarity with the law to be applied. Id. ; Elite Parfums, 872 F. Supp. at 1271; International Commodities Export Corp. v. North Pacific Lumber Co., 737 F. Supp. 242, 245 (S.D.N.Y. 1990). The defendant-movant bears the burden of establishing that a change of forum should occur. Filmline (Cross-Country) Productions, Inc. v. United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989); Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), cert. denied, 440 U.S. 908, 99 S. Ct. 1215, 59 L. Ed. 2d 455 (1979).
Defendants have not satisfied their burden. Although they allege that none of the parties reside in New York, Defendants have set forth no facts indicating that either the witnesses, parties, or counsel would be inconvenienced if the action were to be litigated here. Additionally, familiarity with governing law favors this Court because the franchise ...