Jurisdiction – Forum non conveniens – Concurrent litigation

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Where a plaintiff wholesale furniture supplier has brought suit alleging that the defendant freight management company failed to store inventory properly at a warehouse in California, the complaint should not be dismissed despite the fact that a separate suit arising out of the same transaction is pending in Montana state court.

“Before plaintiff filed this action, defendant had filed an action arising out of the same transaction in Montana state court. Defendant contends that the Montana court is an adequate alternative forum for the purposes of this motion. Plaintiff contends that the Montana state court does not have personal jurisdiction over it, and thus cannot be considered an adequate alternative forum. Assuming, without deciding, that the Montana court is an adequate alternative forum, the Court finds that the defendant has failed to carry its ‘heavy burden’ to show that the balance of public and private interest factors favors litigation in the Montana court to overcome the presumption in favor of plaintiff’s choice of home forum. …

“Defendant contends that the private interest factors favor Montana because the majority of the current and former employees of [defendant] Watkins who might serve as witnesses, and all of the relevant documents of Watkins, are located in Montana. However, the same can be said of [plaintiff] Jofran’s witnesses and documents. …

“Defendant makes much of the fact that concurrent litigation on the same matter is pending before a Montana state court. That argument is highly relevant in the context of a motion to transfer a case from a federal district court to a different federal district court pursuant to 28 U.S.C. section1404, where the presence of a first-filed motion in an alternative forum is given substantial weight. … However, the First Circuit does not permit the consideration of concurrent litigation in forum non conveniens analysis. … Although the presence of concurrent litigation may be relevant to demonstrate the availability of an alternative adequate forum, it is not properly considered when balancing the factors of convenience. …

“Defendant further contends that the public interest factors also support dismissal. Defendant has not, however, provided the Court with information about the relative congestion of the competing dockets of the two jurisdictions. … Likewise, the factors related to having localized controversies decided at home, ease of access for interested members of the public, and the burden of jury duty do not weigh in favor of either party because the parties are each at home in the competing jurisdictions.

“The only public interest factor that may cut in defendant’s favor is an alleged choice of law provision in the 2015 [Storage Pricing] Agreement. Defendant contends that the 2015 Agreement incorporates a choice of law provision from a different contract providing that Montana law shall govern the interpretation of the contract. Plaintiff contests this assertion, arguing that the provision was not incorporated, but merely referenced. The Court need not decide at this time whether Montana law or another state’s law is the appropriate framework for analyzing the 2015 Agreement. Even assuming that the choice of law provision applies to the 2015 Agreement, that factor is relevant, but not dispositive. … Defendant has not made a strong showing that the balance of factors strongly weighs in favor of litigating this action in Montana. Accordingly, the defendant’s motion to dismiss on the basis of forum non conveniens will be denied.”

G.L.c. 93A claim

“Plaintiff has alleged that defendant’s issues with storage, invoicing, and communication go beyond mere breach of contract. Taken in the light most favorable to plaintiff, the complaint alleges that defendant breached the 2015 Agreement in ‘a deliberate attempt to obtain the benefits of the contract, and to avoid fulfilling its own obligations under it.’ … That allegation is sufficient to survive a motion to dismiss; whether the underlying facts are sufficient is a question for another day. Accordingly, plaintiff has alleged facts sufficient to make out a claim under Mass. Gen. Laws ch. 93A section11.

“Defendant further contends that plaintiff has not alleged facts sufficient to show that the violations of ch. 93A occurred ‘primarily and substantially’ within Massachusetts. The Massachusetts Supreme Judicial Court does not use enumerated factors to analyze a ‘primarily and substantially’ challenge, instead preferring a ‘fact-intensive approach’ in which the judge must consider ‘whether the center of gravity of the circumstances that give rise to the claim is primarily and substantially within the Commonwealth.’ …

“Although the inquiry is generally a holistic one, at the pleading stage a section11 claim may survive a motion to dismiss based on a ‘primarily and substantially’ challenge upon a showing that the plaintiff is located in Massachusetts and that the injury occurred in Massachusetts. …

“The verified complaint alleges that plaintiff is a Massachusetts company, that at least one employee traveled from Massachusetts to California to tour potential facilities after it was forced out of the Hemlock Avenue warehouse, and that the injury occurred in Massachusetts. The uncontested exhibits attached to the verified complaint also make clear that the communications between the parties were being sent and received at each party’s office in Massachusetts and Montana, respectively. Taking these facts in the light most favorable to plaintiff, the verified complaint alleges a plausible claim that the events giving rise to the 93A claim occurred ‘primarily and substantially’ in Massachusetts. Therefore, defendant’s motion to dismiss Count Five of the verified complaint for failure to state a claim upon which relief can be granted will be denied.”

Jofran Sales, Inc. v. Watkins and Shepard Trucking, Inc. (Lawyers Weekly No. 02-417-16) (15 pages) (Saylor, J.) (USDC) (Civil Action No. 16-11174-FDS) (Nov. 2, 2016).

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