The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This case, filed on July 6, 2004, based on diversity
jurisdiction, involves allegations by the plaintiff Pasquale
Matera ("Matera" or the "Plaintiff") that the defendant Native
Eyewear, Inc. ("Native Eyewear" or the "Defendant") failed to
honor its obligations under a written consulting agreement.
Presently before the Court is a motion by the Defendant
pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.")
12(b)(3) to dismiss the complaint in its entirety for improper
venue, or in the alternative, to transfer venue to the United
States District Court for the Eastern District of Pennsylvania
pursuant to 28 U.S.C. § 1404(a) or § 1406(a).
For purposes of a motion to dismiss for improper venue pursuant
to Rule 12(b)(3), "the Court must accept the facts alleged in the
complaint and construe all reasonable inferences in the
plaintiff's favor." Fisher v. Hopkins, No. 02 Civ. 7077, 2003
WL 102845, at * 2 (S.D.N.Y. Jan. 9, 2003) (citations omitted).
The Plaintiff, a designer in the field of sunglass products,
was at all times relevant to this action, a resident of the
County of Nassau, State of New York. The Defendant is a
Pennsylvania corporation with its principal place of business in
Huntington Valley, Pennsylvania. Native Eyewear is engaged in the
business of manufacturing sunglass products and is the successor
by merger to J.W. Envisions, Inc., which did business under the
name "Ultimate Vision."
On August 5, 1997, the Plaintiff and Ultimate Vision entered
into a written consulting agreement (the "Agreement") pursuant to
which the Plaintiff agreed to supply the Defendant with certain
design and marketing services, including designs, packaging
ideas, trade names, trademarks, logos and intellectual property
assets concerning sunglass products (the "Assets"). In return,
the Defendant agreed to pay the Plaintiff specified royalties on
the sale of sunglass products incorporating the Plaintiff's
designs. The Agreement also provided that Ultimate Vision had to
pay certain royalties to Matera based upon the sale of all Matera
designs. In addition, Ultimate Vision agreed to supply a
statement of sales made and a description of the calculation used
in determining the royalty amount due. Significant to the
resolution of this motion, Article 9 of the Agreement contained a
provision addressing the "Construction" of the Agreement. This
The construction and performance of this Agreement
shall be governed by the law of the Commonwealth of
Pennsylvania, USA. In the event of litigation, the
first forum for deciding issues of venue and
jurisdiction shall be the U.S. District Court for the
Eastern District of Pennsylvania.
Agreement Art. 9.
The Plaintiff alleges that Native Eyewear breached the
Agreement by failing to pay to the Plaintiff the full amount of
the royalties due, and, also failing to furnish royalty
statements for the calendar years 2001, 2002, 2003, and 2004 as
provided for in the Agreement. The Plaintiff also seeks
injunctive relief restraining the Defendant from, among other
things, the distribution and/or sale of any products
incorporating the Assets. In addition, the Plaintiff claims that
as a shareholder of the Defendant's corporation, he is entitled
to a proportionate distribution of the Defendant's taxable
income. Finally, the complaint contains a cause of action for
Less than one month after the Plaintiff filed the instant
complaint, on July 26, 2004, the Defendant filed an action in the
Eastern District of Pennsylvania alleging that Matera breached
various provisions of the Agreement and also unlawfully disclosed
certain confidential trade secrets.
In support of its motion, the Defendant claims that this action
should be dismissed for improper venue because the Plaintiff has
not established that venue is proper under 28 U.S.C. § 1391
(a)(1) and (2). In the alternative, should the Court find that
venue is proper in the Eastern District of New York, the
Defendant argues that Article 9 of the Agreement mandates that
venue be transferred to the Eastern District of Pennsylvania.
Despite the abundance of case law setting forth the
requirements to succeed on a motion to transfer venue the
Defendant failed to submit any affidavit in support of their
motion. See Modern Computer Corp. v. Ma, 862 F. Supp 938, 948
(E.D.N.Y. 1994) ("The movant must support the application with an
affidavit containing detailed factual statements relevant to why
the transferee forum is more convenient, including potential
principal witnesses expected to be called and a general statement
of the substance of their testimony."); see also Pall Corp. v.
PTI Technologies, Inc., 992 F. Supp. 196, 198 (E.D.N.Y. 1998).
Attached to its reply brief, the Defendant included affidavits
setting forth, for the first time, additional facts and arguments
supporting its motion to transfer venue. However, these
affidavits and arguments will not be considered by the Court. Not
only did the Court deny the Plaintiff the opportunity to submit a
sur-reply to respond to the additional factual contentions, but
arguments cannot be made for the first time in reply papers. See
Knipe v. Skinner, et al., 999 F.2d 708, 711 (2d Cir. 1993)
("Arguments may not be made for the first time in a reply
brief."). In addition, the Court notes that the Defendant's Reply
Brief violated the Courts Individual Rules and Motion Practices
as it contained in excess of 20 pages and had several footnotes.
See Indiv. Motion Practices IV(B)(I) ("reply memoranda are
limited to 10 pages . . . [and] shall not contain footnotes").
A. As to the Motion to Dismiss for Improper Venue
Under Rule 12(b)(3) of the Federal Rules of Civil Procedure, a
district court may dismiss an action based on improper venue.
Upon such a motion, a court has the authority to dismiss an
action pursuant to 28 U.S.C. § 1406(a), which provides in
pertinent part that
The district court of a district in which is filed a
case laying venue in the wrong division or district
shall dismiss, or if it be in the interest of
justice, transfer such case to any district or
division in which it could have been brought.
28 U.S.C. § 1406(a) (emphasis added). The fact that a forum
selection clause exists is not a relevant part of the analysis to
determine whether venue is proper in the Eastern District of New
York. GMAC Commercial Credit, LLC v. Dillard Department Stores,
Inc., 198 F.R.D. 402, 405 (S.D.N.Y. 2001) (citing Stewart
Organization, Inc. v. Ricoh Corp., 487 U.S.22, 28 n. 8,
108 S. Ct. 2239, 101 L. Ed. 2d 22 (1998)); see also Licensed Practical
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