The opinion of the court was delivered by: David G. Larimer United States District Judge
This action was commenced on July 2, 2010, in New York State Supreme Court, Monroe County, by plaintiff Preston Frankford Shopping Center Dallas, Tx. Limited Partnership ("Preston"), against defendants Butler Dining Services, LLC d/b/a Newk's Cafe ("Newk's"), Tommy E. Butler, and Gale M. Butler ("the Butlers"). Preston, a Delaware corporation with its principal place of business in Rochester, New York, alleges that in July 2008, Preston and Newk's entered into a ten-year lease, under which Newk's was to lease space in a Dallas, Texas shopping center owned by Preston. In conjunction with that lease, the Butlers entered into an agreement with Preston, in which they unconditionally guaranteed Newk's performance of the terms and conditions of the lease.
On September 18, 2010, the Court issued a Decision and Order denying defendants' motion for a temporary restraining order enjoining plaintiff from proceeding with the public sale of certain movable property belonging to defendants, which had been seized by plaintiff for nonpayment of rent from the leased premises. 2010 WL 3609469. Defendants now move for an order dismissing this case for improper venue under Fed. R. Civ. P. 12(b)(3), or in the alternative transferring this action either to the United States District Court for the Southern District of Mississippi or to the Northern District of Texas, pursuant to 28 U.S.C. § 1404(a). For the following reasons, the motion is denied.
The relevant facts are set out in the Court's prior Decision and Order, familiarity with which is assumed. Additional facts will be recited here only insofar as they are of particular relevance to the motion before me.
The lease agreement between Preston and Newk's, which was signed by plaintiff Tommy Butler on behalf of Newk's, states, inter alia, that "Owner [Preston] and Tenant [Newk's] agree that any action, suit or proceeding arising out of this Lease or otherwise, may be brought in the courts in which Owner's principal office is located," and that in the event of such a suit, "Tenant expressly and specifically consents to the jurisdiction of the state in which Owner's principal office is located; Tenant agrees that venue may be laid in the county of Owner's principal place of business; and Tenant waives all objections to venue on the grounds of forum non conveniens or for any other reasons." Dkt. #1 at 12, § 22.03. That agreement also states at the top of page one that it is being entered into by Newk's and by Preston, "with its principal office located at 270 Commerce Drive, Rochester New York 14623." Dkt. #1 at 11.
The lease guaranty, which was entered into and signed by both the Butlers, states, inter alia, that the Butlers "guarantee, unconditionally and absolutely, the full and faithful performance and observance of all the covenants, terms, and conditions of the Lease ... ." Dkt. #1 at 45, § (a). It also states that "Owner and Tenant agree that any action, suit or proceeding arising out of this Lease or otherwise, may be brought into the courts in which Owner's principal office is located ...," and it goes on to repeat the rest of the language of the forum selection clause in the lease agreement. Dkt. #1 at 46, § (n).
In support of their motion to dismiss or to transfer, defendants have submitted an affidavit of Tommy Butler, in which he states that "at no time did [he] ever understand [that by signing the guaranty he would] be forced to bring any claims related to this Guaranty, exclusively in the State of New York." Dkt. #23 ¶ 15. He contends that "neither [Gale Butler] nor [he] ever 'expressly agreed' to submit to jurisdiction in New York," and that "[i]t was never explained to [them] that executing such a guaranty would mean submitting to exclusive jurisdiction in New York State .... ." Id. ¶¶ 16, 17. Defendants contend that Preston's "concealment or purposeful omission of this alleged material fact in inducing [the Butlers] to sign such a document was intentional and ultimately part of a scheme to defraud [them]," as well as "a deplorable effort by Plaintiff to prejudice [the Butlers'] rights and abilities to seek legal intervention in a forum more convenient or accessible" to them. Id. ¶ 17.
Butler goes on to state that defendants have filed an action against Preston in the United States District Court for the Southern District of Mississippi. A copy of the complaint in that action, which was filed in Mississippi on October 21, 2010, has been submitted by defendants; see Dkt. #24-2.
A district court may exercise its discretion to transfer venue "for the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). Among the factors to be considered in determining whether to grant a motion to transfer venue "are, inter alia: (1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, and (7) the relative means of the parties." D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006) (internal quotation marks and alteration omitted).
"[T]he party requesting transfer carries the 'burden of making out a strong case for transfer,'" and the Second Circuit has endorsed the application of the clear-and-convincing-evidence standard in determining whether a court should exercise its discretion to grant a transfer motion. New York Marine and Gen. Ins. Co. v. Lafarge North America, Inc., 599 F.3d 102, 114 (2d Cir. 2010) (quoting Filmline (Cross-Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989)).
The Court of Appeals has also stated that "[a]ny review of a forum non conveniens motion starts with 'a strong presumption in favor of the plaintiff's choice of forum.'" Norex Petroleum Ltd. v. Access Indus., Inc., 416 F.3d 146, 154 (2d Cir. 2005) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981)), cert. denied, 547 U.S. 1175 (2006). "Indeed, it is generally understood that, 'unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.'" Id. (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. at 501, 508 (1947)).
In the case at bar, not only has plaintiff selected this district as its chosen forum, but the underlying contracts also contain forum selection clauses selecting Monroe County, New York as a permissible venue, as well as waivers of any objections to venue being laid here. In deciding whether to enforce a ...