Bent II v. Zounds Hearing, Inc. et al
| Bruce R Bent II |
| Zounds Hearing, Inc., Zounds Hearing Franchising, LLC, Samuel L. Thomasson and FranChoice Inc. |
| 1:2015cv06555 |
| August 19, 2015 |
| US District Court for the Southern District of New York |
| Foley Square Office |
| New York |
| Paul A. Engelmayer |
| Recovery of Overpayment and Enforcement of Judgment |
| 28 U.S.C. ยง 1332 |
| None |
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Filing
36
OPINION & ORDER: For the foregoing reasons, FranChoice's motion to transfer venue pursuant to 28 U.S.C. § 1404(a) is granted, and Bent's motion to sever his claims against FranChoice pursuant to Federal Rule of Civil Procedure 21 is denied. The Clerk of Court is respectfully directed to transfer this case, in its entirety, to the District of Arizona. (As further set forth in this Opinion & Order.) (Signed by Judge Paul A. Engelmayer on 1/12/2016) (mro)
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Filing
32
OPINION & ORDER: For the foregoing reasons, the Court holds that the forum-selection clause in the Franchise Agreements is valid and enforceable. The Court thus grants Zounds' motion to transfer all claims against Zounds Hearing, Zounds In c., and Thomasson to the District of Arizona. The Clerk of Court is respectfully directed to terminate the motion pending at Dkt. 21. The Court is, however, mindful that there is a fourth defendant in this case, FranChoice, which is separate from the three defendants who have successfully pursued transfer of the claims against them. The interests of judicial efficiency would clearly be served were Bent's claims against FranChoice also transferred from this District to the District of Arizona, as otherwise Bent's claims arising out of the same controversy would proceed in two separate fora. The Court accordingly directs all parties to meet and confer within one week of this decision, to determine whether all parties cons ent to the transfer of Bent's claims against FrancChoice to the District of Arizona. If there is not complete consent, all parties are directed to submit, within two weeks of this Order, briefs of up to 10 pages, setting out their views on t he transfer of such claims, and addressing whether, in light of the transfer of the claims against the other defendants to the District of Arizona, Bents claims against FranChoice should be transferred there as well. The Court directs the parties t o take account of the factors governing discretionary transfers, see, e.g., Robertson, 2011 WL 5175597, at *3, and the factors considered on motions to sever, see Deajess Med. Imaging, P.C. ex rel. Barry v. Geico Gen. Ins. Co., No. 03 Civ. 7388 (DF), 2005 WL 823884, at *2 (S.D.N.Y. Apr. 7, 2005) (quoting Preferred Med Imaging, P.C. v. Allstate Ins. Co., 303 F. Supp. 2d 476, 277 (S.D.N.Y.2004)) ("[I]n considering motions to sever, courts weigh several factors, including: (1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims present some common questions of law or fact; (3) whether settlement of the claims or judicial economy would be facilitated; (4) whether prejudice would be avoided if severance were granted; and (5) whether different witnesses and documentary proof are required for the separate claims." (internal quotation marks and citations omitted)). The parties may also wish to consider whether the forum-selection clause in the F As reaches Bent's claims against Fran Choice. Pending resolution of the forum in which Bent's claims against FranChoice will be heard, the Court stays the effect of today's ruling transferring Bent's other claims to the District of Arizona, so as to assure that all claims to be transferred to the District of Arizona are transferred simultaneously. (As further set forth in this Order) (Signed by Judge Paul A. Engelmayer on 11/30/2015) (kl)
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