Babylon Animal Hospital PC et al v. Heska Corporation
| Babylon Animal Hospital, P.C. and Frank Liguori |
| Heska Corporation |
| 1:2021cv01955 |
| July 19, 2021 |
| US District Court for the District of Colorado |
| Michael E Hegarty |
| Contract: Other |
| 28 U.S.C. § 1441 bc |
| None |
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Filing 15
ORDER by Magistrate Judge Michael E. Hegarty on 22 July 2021. Before the Court is the parties' Stipulation for Dismissal with Prejudice pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii) #14 . Here, although Plaintiffs have not yet appeared, all parties have signed the Stipulation. Therefore, this case was DISMISSED WITH PREJUDICE, with each party to bear its own fees and costs, upon the filing of the Stipulation. No order of dismissal is necessary. (cmadr, )
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| Filing 14 STIPULATION of Dismissal of Case with Prejudice by Defendant Heska Corporation. (Kovacevic, Miro) |
| Filing 13 Magistrate Judge consent form issued pursuant to D.C.COLO.LCivR 40.1, direct assignment of civil actions to full time magistrate judges. (jsalz, ) |
| Filing 12 Case assigned to Magistrate Judge Michael E. Hegarty. Text Only Entry (jsalz, ) |
| Filing 11 FIRST AND FINAL NOTICE TO ALL ATTORNEY(S) AND UNREPRESENTED PARTIES IN REMOVED, TRANSFERRED, OR OTHER CASES. To receive any further notice in a case removed or transferred to this court, or special matters including discovery disputes, bankruptcy appeals, or withdrawals of reference, Multi-district litigation (MDL), etc., all attorneys and unrepresented parties must enter an appearance under D.C.COLO.LAttyR 5(a). An attorney must be an active member of this court's bar and be in good standing in accordance with D.C.COLO.LAttyR 3. A waiver of the fee for bar admission may apply in limited situations. (Text Only Entry) (jsalz, ) |
| Filing 10 Case transferred in from District of New York Eastern; Case Number 2:20-cv-04051. File, transfer order and docket sheet received |
| Civil Case Terminated. Case transferred to the District of Colorado. Original file sent electronically to the District of Colorado. ALL FILINGS ARE TO BE MADE IN THE TRANSFER COURT, DO NOT DOCKET TO THIS CASE. (Layne, Monique) [Transferred from New York Eastern on 7/19/2021.] |
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ORDER ADOPTING REPORT AND RECOMMENDATION: On November 9, 2020, Magistrate Judge Anne Y. Shields issued a sua sponte report and recommendation (the "R&R") which recommends that this case be transferred to the District of Colorado pursuant to a binding forum selection clause. No objections to the R&R have been filed. Accordingly, having reviewed the R&R for clear error and, finding none, the Court hereby ADOPTS the R&R in its entirety as the opinion of this Court. As recommended by Magistrate Judge Shields, the forum selection clause found in the contract is binding and this case should be transferred to the District of Colorado. The Clerk of Court is respectfully directed to transfer this action to the United States District Court for the District of Colorado. Ordered by Judge LaShann DeArcy Hall on 7/8/2021. (Williams, Erica) [Transferred from New York Eastern on 7/19/2021.]
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| SUA SPONTE REPORT AND RECOMMENDATIONS. As set forth on the record during the motion hearing held on November 9, 2020, this Court respectfully recommends that Defendant Heska's #6 motion to transfer this action pursuant to 28 U.S.C. 1404(a) be granted. After hearing argument from both parties, this Court respectfully recommends that the forum selection clause found in the contract is binding and that the case be transferred to the District of Colorado.The mechanism by which to enforce forum-selection clauses is the venue-transfer provision in 28 U.S.C. 1404(a). See Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Tx., 571 U.S. 49, 5960 (2013). That statute provides that "[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 or to any district or division to which all parties have consented." 28 U.S.C. 1404(a). But while the typical 1404 analysis involves a holistic balancing of various interests, a forum-selection clause commands "controlling weight" in the 1404 analysis. Atlantic Marine, 571 U.S. at 63 (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 33 (1988) (Kennedy, J., concurring)). "When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause. Only under extraordinary circumstances unrelated to the convenience of the parties should a 1404(a) motion be denied." Id. at 62 (footnote omitted).Whether analyzed under New York or Delaware law, Plaintiff has failed to set forth any valid argument that the forum selection clause is not binding. Alleging a breach of contract does not invalidate the forum selection clause within the contract, nor, do allegations of fraud, unless such allegations claim the fraud is specific to the forum selection clause itself. See Ashall Homes, Ltd., v. ROK Entertainment Group Inc., 992 A.2d 1239, 1250-51 (Del. Ch. 2010); S & L Birchwood, LLC v. LFC Capital, Inc., 752 F. Supp. 2d, 280, 283 (S.D.N.Y. 2010) ("So long as the plaintiff was not induced to enter into the agreement through fraud or overreaching and had reasonable notice of the clause, it will be enforced.") (citation omitted)). Accordingly, the forum selection clause at issue is binding.A copy of this Report and Recommendation is being provided to all counsel via ECF. Any written objections to this Report and Recommendation must be filed with the Clerk of the Court within fourteen (14) days of service of this report. 28 U.S.C. 636(b)(1) (2006 & Supp. V 2011); Fed. R. Civ. P. 6(a), 72(b). Any requests for an extension of time for filing objections must be directed to the district judge assigned to this action prior to the expiration of the fourteen (14) day period for filing objections. Failure to file objections within fourteen (14) days will preclude further review of this report and recommendation either by the District Court or Court of Appeals. Thomas v. Arn, 474 U.S. 140, 145 (1985) ("[A] party shall file objections with the district court or else waive right to appeal."); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrates decision."). Entered by Magistrate Judge Anne Y. Shields on 11/9/2020. (Mucciaccio, Dina) NEF regenerated for statistical purposes on 11/16/2020 (Florio, Lisa). [Transferred from New York Eastern on 7/19/2021.] |
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ELECTRONIC ORDER granting #6 Motion for Pre Motion Conference. A pre-motion telephone conference has been scheduled for November 9, 2020 at 11:00 AM. Counsel are directed to call the AT&T Teleconference Center at (877) 810-9415 at the time of the conference and enter Access Code 9005911 when prompted. Counsel should note that, in appropriate cases, the pre-motion letters along with counsel's argument at the pre-motion conference, may be construed, at the direction of the Court, as the motion itself. Arguments not raised in the pre-motion letters or during the pre-motion conference shall be deemed waived. See In re Best Payphones, Inc., 450 F. App'x 8, 15 (2d Cir. 2011). So Ordered by Magistrate Judge Anne Y. Shields on 10/21/2020. (Mucciaccio, Dina) [Transferred from New York Eastern on 7/19/2021.]
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ORDER terminating #9 Motion to Stay; granting #9 Motion for Extension of Time to Answer. The Defendant's time to answer or otherwise respond to the Complaint is EXTENDED until after a decision on Defendant's motion to transfer venue is rendered. So Ordered by Magistrate Judge Anne Y. Shields on 10/21/2020. (Mucciaccio, Dina) [Transferred from New York Eastern on 7/19/2021.]
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ORDER REFERRING MOTION: Defendant's request for a pre-motion conference regarding its anticipated motion to transfer venue #6 is respectfully referred to Magistrate Judge Anne Y. Shields for a report and recommendation. Ordered by Judge LaShann DeArcy Hall on 10/19/2020. (Williams, Erica) [Transferred from New York Eastern on 7/19/2021.]
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| Filing 9 Consent MOTION to Stay Pending Resolution of Motion to Transfer, Consent MOTION for Extension of Time to File Answer Pending Resolution of Motion to Transfer by Heska Corporation. (Fenlon, Christopher) [Transferred from New York Eastern on 7/19/2021.] |
| Filing 8 STATE COURT RECORD Received from County of Suffolk - Suffolk County Clerk's Office dated 9/15/2020 re: Index #609701/2020 with Copy of Notice of Removal enclosed. (Galeano, Sonia) [Transferred from New York Eastern on 7/19/2021.] |
| Filing 7 Letter in reply to defendant'sletter by Frank Liguori (Attachments: #1 Exhibit) (Blair, Patricia) [Transferred from New York Eastern on 7/19/2021.] |
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ORDER: In direct contravention of the Court's Individual Practices, Plaintiffs failed to respond to Defendant's request for a pre-motion conference regarding its anticipated motion to dismiss #6 . Plaintiffs are directed to file a letter responding to Defendant's request, or indicating that they do not intend to oppose Defendant's motion. Any response must not exceed three pages and must be filed on or before September 21, 2020. Ordered by Judge LaShann DeArcy Hall on 9/18/2020. (Williams, Erica) [Transferred from New York Eastern on 7/19/2021.]
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| Filing 6 MOTION for pre motion conference regarding Heska's motion to transfer venue pursuant to contractual forum-selection clause by Heska Corporation. (Attachments: #1 Exhibit A (Agreement and Guaranty), #2 Exhibit B (District of Colorado Complaint)) (Fenlon, Christopher). Added MOTION to Change/Transfer Venue on 11/16/2020 (Florio, Lisa). [Transferred from New York Eastern on 7/19/2021.] |
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ORDER denying #5 Motion for Pre Motion Conference; granting #5 Motion for Extension of Time to Answer. Defendant Heska Corporation's time to answer or otherwise respond to the Complaint is EXTENDED to October 8, 2020. Defendant's motion for a pre-motion conference regarding leave to file a motion for transfer is denied without prejudice to renewal. Any such application must be made to the District Judge and not combined with a motion for an extension of time to answer, as the instant application has been styled. So Ordered by Magistrate Judge Anne Y. Shields on 9/3/2020. (Mucciaccio, Dina) [Transferred from New York Eastern on 7/19/2021.]
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| Filing 5 MOTION for pre motion conference regarding Heska's motion to transfer venue pursuant to contractual forum-selection clause, First MOTION for Extension of Time to File Answer by Heska Corporation. (Attachments: #1 Exhibit A (Agreement and Guaranty), #2 Exhibit B (District of Colorado Complaint)) (Fenlon, Christopher) [Transferred from New York Eastern on 7/19/2021.] |
| Filing 4 In accordance with Rule 73 of the Federal Rules of Civil Procedure and Local Rule 73.1, the parties are notified that if all parties consent a United States magistrate judge of this court is available to conduct all proceedings in this civil action including a (jury or nonjury) trial and to order the entry of a final judgment. Attached to the Notice is a blank copy of the consent form that should be filled out, signed and filed electronically only if all parties wish to consent. The form may also be accessed at the following link: #http://www.uscourts.gov/uscourts/FormsAndFees/Forms/AO085.pdf. You may withhold your consent without adverse substantive consequences. Do NOT return or file the consent unless all parties have signed the consent. (Landow, Concetta) [Transferred from New York Eastern on 7/19/2021.] |
| Case Assigned to Judge LaShann DeArcy Hall and Magistrate Judge Anne Y. Shields. Please download and review the Individual Practices of the assigned Judges, located on our #website. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. (Landow, Concetta) [Transferred from New York Eastern on 7/19/2021.] |
| Filing 3 This attorney case opening filing has been checked for quality control. See the attachment for corrections that were made, if any. (Bowens, Priscilla) (Additional attachment(s) added on 9/2/2020: #1 Additional Corrections) (Landow, Concetta).[Transferred from New York Eastern on 7/19/2021.] |
| Filing 2 Corporate Disclosure Statement by Heska Corporation (Fenlon, Christopher) [Transferred from New York Eastern on 7/19/2021.] |
| Filing 1 NOTICE OF REMOVAL by Heska Corporation from Suffolk Supreme, case number 609701/2020.Was the Disclosure Statement on Civil Cover Sheet completed -NO ( Filing fee $ 400 receipt number ANYEDC-13290696) (Attachments: #1 Notice of Related Case Designation, #2 Civil Cover Sheet) (Fenlon, Christopher) Modified on 9/2/2020 (Landow, Concetta). [Transferred from New York Eastern on 7/19/2021.] |
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