Opinion
00 Civ. 7389 (GBD)
January 28, 2002
MEMORANDUM OPINION AND ORDER
Defendant Howard University ("Howard") moves to transfer this action to the United States District Court for the District of Columbia pursuant to 28 U.S.C. § 1404 (a). Plaintiff Paul Robeson, Jr. ("Robeson") opposes Howard's motion and conversely makes a motion in this Court to transfer an action filed by Howard in the District of Columbia to the Southern District of New York.
On October 18, 1978 and February 5, 1979 Robeson signed "agreements of deposit" with Howard, thereby agreeing to deposit a portion of the Robeson Properties with the Moorland Spingarn Research Center at Howard University in Washington, D.C. The Robeson Properties consists of photographs, writings, tape recordings, records, music sheets and other artifacts of the deceased Paul Robeson Sr. The "agreements of deposit" state, in part, that "the collection shall remain on deposit in the collections of the Research Center for a term of no less than ten years . . . the depositor hereby declares the intention to transfer to Howard University, for the benefit of the Research Center, title to the entire collection. . ." Robeson deposited portions of the Robeson Properties with Howard but has not delivered a signed deed of transfer or full ownership. For over twenty years, the materials have been processed, stored and maintained at the Moorland-Spingarn Research Center at Howard University in Washington, D.C. The parties now dispute ownership and title of the property.
On September 7, 2000, Robeson, a citizen of New York, filed a summons with notice in the Supreme Court of the State of New York against Howard University, a citizen of the District of Columbia, seeking replevin of the deposited Robeson Properties and damages in the amount of $6,000,000.00. On September 11, 2000, at the close of a previously agreed-upon settlement meeting in New York City, Robeson served agents of Howard University with the summons and notice. On September 22, 2000, Howard filed a complaint in the United States District Court for the District of Columbia against Robeson, Paul Robeson Archives, Inc., and the Paul Robeson Foundation, Inc. seeking to establish title and ownership over the Robeson Properties. On September 29, 2000, Howard removed Robeson's New York State action to this Court pursuant to 28 U.S.C. § 1441 and 1446.
Each of these defendants purports to have an interest in Robeson Properties.
Defendant Howard University argues that the Court should transfer plaintiffs claim to the United States District Court for the District of Columbia, where it can be consolidated with the University's suit pending in that court against the three parties claiming an interest in the Robeson materials. Defendant argues that Howard's lawsuit in the District of Columbia involves the same facts and issues presented here in the Southern District of New York but unlike the New York case, Howard's suit includes other interested defendants. Howard also contends that the District of Columbia is the situs of the disputed property and many of the relevant witnesses are also located there. Plaintiff, however, maintains that he was the first to file his lawsuit in New York and claims that a transfer to the District of Columbia would not advance the interests of justice and the convenience of the witnesses.
Under 28 U.S.C. § 1404 (a), "[f]or 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." This statute gives district courts discretion to transfer cases according to "an individualized, case-by-case consideration of convenience and fairness." Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). In determining whether or not to grant a motion for change of venue, the district court must first consider whether the plaintiff could have commenced the action in the district to which the defendant seeks to transfer the action. See Dahl v. HEM Pharmaceuticals Corp., 867 F. Supp. 194, 195 (S.D.N.Y. 1994). Once the court determines that the action could have been initiated in the forum to which the defendant is attempting to transfer the action, the court then must consider several factors to determine whether transfer is appropriate. These factors include "(1) the place where the operative facts occurred; (2) the convenience to the parties; (3) the convenience of the witnesses; (4) the relative ease of access to sources of proof; (5) the availability of process to compel attendance of witnesses; (6) the plaintiffs choice of forum; (7) the forum's familiarity with the governing law; and (8) trial efficiency and the interests of justice." APA Excelsior III v. Premiere Technologies, Inc., 49 F. Supp.2d 664, 667 (S.D.N.Y. 1999).
Here, Robeson asserts that it is more convenient to litigate this case in New York. He notes that a copy of the contract containing the properties deposited with Howard is located in New York. He also contends that many potential witnesses are located in New York. Howard University counters that it is more convenient to litigate this case in the District of Columbia. Howard contends that the deposited Robeson Properties and a host of witnesses are in the District of Columbia. The District of Columbia is also the location of the property at issue, the place where numerous meetings between the parties occurred, as well as the location of the deposits made by Robeson. The Court believes that the balance of factors tends to favor the District of Columbia as the forum most convenient to deciding the outcome of this litigation.
In support of plaintiff's opposition to the motion to transfer, Robeson argues that since there are two competing lawsuits pending in different venues that should be reviewed together, this Court should defer to the forum of the first filed suit in New York absent special circumstances. The first-to-file rule states: "where 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." First City National Bank and Trust Co. v. Simmons, 879 F.2d 76, 79 (2nd Cir. 1989). Thus, generally, a case will proceed in the forum chosen by the party who filed first.
One "special circumstance," which may override the first-to-file rule, exists when the parties intend to continue settlement discussions. A party may not exploit the first-to-file rule by expressing a willingness to negotiate in order to delay his adversary's filing and, thereby, win the "race to the courthouse." Ontel Products, Inc. v. Project Strategies Corp., 899 F. Supp. 1144, 1150-51 (S.D.N.Y. 1995). This exception to the first-to-file rule protects potential plaintiffs who wish to resolve a controversy amicably, "without fear that the defendant will be permitted to take advantage of the opportunity to institute litigation in a district of its own choosing . . ." Columbia Pictures Industries Inc. v. Schneider, 435 F. Supp. 742, 747 (S.D.N.Y. 1977).
In this case, Howard University and Robeson agreed to a settlement meeting to be held on September 11, 2000. Nevertheless, Robeson filed a summons with notice in the Supreme Court of the State of New York four days earlier, on September 7, 2000. Howard claims that it was ready to file its complaint on August 21, 2000, but refrained from doing so due to the scheduled settlement meeting. Howard maintains that Robeson's actions lulled Howard's representatives into believing that negotiations would precede any litigation. See Hanson PLC v. Metro Goldwyn-Mayer, Inc., 932 F. Supp. 104, 108 (S.D.N.Y. 1996).
Robeson counters that it served Howard University only after the settlement meeting deteriorated. This argument, however, overlooks the fact that Robeson filed his summons with notice prior to serving Howard at the meeting on September 11, 2000. While Howard was anticipating settlement discussions, Robeson raced to the courthouse in an apparent attempt to benefit from the first-to-file rule. In light of the special circumstance of the settlement negotiations, the Court declines to apply the first-to-file rule.
The parties dispute whether Robeson's filing of a summons with notice without a complaint was sufficient to commence an action for purposes of the first-to-file rule. However, because this Court declines to apply the first-to-file rule, it unnecessary to resolve this issue.
Both Robeson and Howard agree that the two actions should be consolidated and adjudicated in one forum in order to avoid duplicative litigation. The District of Columbia is the the forum which has an on-going suit involving plaintiff, defendant and three additional parties, the situs of the property in issue, as well as the location of meetings and deposits which occurred between plaintiff and defendant. Moreover, this Court has no authority to grant Robeson's motion to transfer Howard's action from the District of Columbia to the Southern District of New York. Therefore, Howard University's motion to transfer this action to the District of Columbia is granted.
"A case may be removed from one district to another upon the ground of forum non conveniens. 28 U.S.C. § 1404 (a). But the application must be made in the district in which the case is pending and not in the district to which it is to be removed." Facen v. Royal Rotterdam Lloyd S.S. Co., et. al. v. Royal Rotterdam Lloyd S.S. Co., 12 F.R.D. 443 (S.D.N.Y. 1952); see National Equipment Rental, Ltd. v. A.L. Fowler, D.O., 287 F.2d 43 (2nd Cir. 1961).