The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.
MEMORANDUM DECISION AND ORDER
Plaintiff Kellen Company, Inc. ("Kellen"), brought this action
against defendant Calphalon Corporation ("Calphalon"), seeking to
recover unpaid commissions and other damages pursuant to the New
York Sales Representative Act, New York Labor Law, §§ 191-a —
191-c. Before the Court is defendant's motion pursuant to
Fed.R.Civ.P. 12(b)(6) to dismiss without prejudice due to a
pending, previously filed suit in the United States District
Court for the Northern District of Ohio involving the same
parties and issues. In the alternative, defendant moves to stay
further proceedings in this case pending the final resolution of
the Ohio action. Finally, if this action is neither dismissed nor
stayed, defendant moves to transfer the case to the Northern
District of Ohio, Western Division, pursuant to 28 U.S.C. § 1404
(a). For the reasons set forth below, judgment is entered in
favor of defendant Calphalon Corporation dismissing this case
without prejudice, leaving the parties to resolve thier
differences in the United States District Court for the Northern
District of Ohio.
Kellen, a New York corporation, served as a sales
representative for Calphalon, an Ohio corporation for twenty
years. Over the years, Calphalon regularly paid Kellen
commissions for the sale of its cookware products. On February 1,
1997, the two companies entered into a written Manufacturers'
Representative Agreement ("MRA") under which Kellen continued as
a Manufacturer's Representative for Calphalon and Calphalon
continued to pay Kellen for its services. The parties signed an
MRA for the period February 1, 1997 through January 31, 1998 with
an option to renew. The MRA also provided that it was to be
interpreted under the laws of the state of Ohio. On December 18,
1997, Calphalon notified Kellen and its other sales
representatives that it would not renew their MRAs in 1998.
On May 6, 1998, Kellen and seven other former Calphalon sales
representatives filed a lawsuit in the United States District
Court for the Northern District of Ohio, seeking to recover
unpaid commissions and other damages that allegedly resulted
because Calphalon did not renew the MRAs. Plaintiffs asserted
eight claims in that action: (1) breach of contract for
termination of the MRAs; (2) breach of contract for failure to
pay commissions earned; (3) promissory estoppel/breach of implied
contract; (4) tortious interference with contract; (5) breach of
the implied covenants of good faith and fair dealing; (6)
negligent misrepresentation; (7) breach of fiduciary duty, and
(8) a demand for an accounting.
Five months later, on October 5, 1998, Kellen filed this
lawsuit in New York Supreme Court, County of Westchester,
asserting claims under the New York Sales Representative Act, New
York Labor Law, §§ 191-a — 191-c, for failure to pay sales
commissions and for late payment of sales commissions. Calphalon
timely removed the action to this court,*fn1 pursuant to
28 U.S.C. § 1441(a). Calphalon now moves alternatively to dismiss,
stay or transfer this action.
Calphalon's principal argument in favor of dismissal without
prejudice is that, because the Ohio lawsuit was filed first and
involves the same parties and issues, it alone should proceed to
avoid duplicative litigation. This Court agrees.
The Second Circuit has long adhered to the first-filed doctrine
in deciding which case to dismiss where there are competing
litigations. See Fort Howard Paper Co. v. William D. Witter,
Inc., 787 F.2d 784, 790 (2d Cir. 1986); Semmes Motors, 429
F.2d at 1202; William Gluckin & Co., Inc. v. International
Playtex Corp., 407 F.2d 177, 178 (2d Cir. 1969). "`[W]here 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.'"
Adam v. Jacobs, 950 F.2d 89, 91 (2d Cir. 1991) (quoting First
City Nat'l Bank and Trust Co. v. Simmons, 878 F.2d 76, 79 (2d
Cir. 1989)). The first-filed rule seeks to advance judicial
economy, protect the plaintiff's choice of forum and to avoid
duplicative litigation. First City Nat'l Bank & Trust, 878 F.2d
at 79-80; Comedy Partners v. Street Players Holding Corp.,
34 F. Supp.2d 194, 196 (S.D.N.Y. 1999). It also protects parties from
the considerable expense and potential for inconsistent judgments
that duplicate litigation entails. Comedy Partners, 34
F. Supp.2d at 196-97.
It is well-established that the balancing of convenience
"should be left to the sound discretion of the district courts."
William Gluckin, 407 F.2d at 178. The interests analysis under
the first-filed rule requires consideration of the same factors
relevant to stay a "second filed" action on a motion to transfer
under 28 U.S.C. § 1404(a). 800-Flowers, Inc. v.
Intercontinental Florist, Inc., 860 F. Supp. 128, 133 (S.D.N Y
1994); Ivy-Mar Co., Inc. v. Weber-Stephen Products Co., No. 93
Civ. 5973, 1993 WL 535166, at *2 (S.D.N.Y. Dec.22, 1993). These
factors include (1) the convenience of witnesses, (2) the
location of relevant documents and the relative ease of access to
sources of proof, (3) the convenience of the parties, (4) the
locus of the operative facts, (5) the availability of process to
compel attendance of unwilling witnesses; (6) the relative means
of the parties; (7) a forum's familiarity with the governing law;
(8) the weight accorded a plaintiff's choice of forum, (9) trial
efficiency and the interests of justice based on the totality of
the circumstances. 800-Flowers at 133; Ivy-Mar, 1993 WL
535166, at *4.
The first-filed rule is not to be applied mechanically, but is
intended to aid judicial administration by acting "as a
`presumption' that may be rebutted by proof of the desirability
of proceeding in the forum of the second-filed action." Hanson,
932 F. Supp. at 106. The party opposing application of the
first-filed doctrine has the burden to show that special
circumstances exist to justify an exception. Id.; 800 Flowers,
860 F. Supp. at 132.
Most cases in which the first-filed rule is applicable present
scenarios in which the plaintiff in the first action is the
defendant in the second action. See, e.g., Isogon Corp. v.
Amdahl Corp., No. 97 Civ. 6219, 1997 WL 759435 (S.D.N.Y. Dec.10,
1997); 800-Flowers, Inc. v. Intercontinental Florist, Inc.,
860 F. Supp. 128 (S.D.N.Y. 1994). By contrast in this case, the
plaintiff is the same in both the New York and Ohio ...