Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

NEMO ASSOCS. v. HOMEOWNERS MKTG. SERVS. INT'L

July 8, 1996

NEMO ASSOCIATES, INC., and GREG KENWOOD and ROBERTA KENWOOD V. HOMEOWNERS MARKETING SERVICES INTERNATIONAL, INC.


The opinion of the court was delivered by: PADOVA

 Padova, J.

 July 8, 1996

 Plaintiffs Nemo Associates, Inc. ("Nemo"), Greg Kenwood, and Roberta Kenwood bring this action against Defendant Homeowners Marketing Services International, Inc. ("HMSI"), alleging breach of contract, fraud in the inducement, and seeking invalidation of certain restrictive covenants contained in the parties' affiliation agreement. *fn1" Jurisdiction is based on diversity. Currently before the Court is Defendant's motion to transfer the case to the United States District Court for the Southern District of Florida. For the reasons that follow, Defendant's motion will be granted.

 I. BACKGROUND

 HMSI, a Florida corporation, is a national franchisor of financial services targeted to the real estate industry. Nemo is a Pennsylvania corporation that sells HMSI products and has been a franchisee of HMSI since 1984. The Kenwoods are Nemo's principal shareholders and officers. Nemo last renewed its affiliation agreement with HMSI in 1994. The 1994 renewal incorporates by reference the terms of the earlier agreements.

 Briefly stated, the allegations in Plaintiffs' Complaint are as follows. In the early 1990s, due to changing market conditions and alleged business errors by HMSI, the market for HMSI's products began shrinking. Because of this situation, and prior to signing the 1994 renewal of the franchise agreement, Nemo sought assurances from HMSI regarding its financial condition. HMSI assured Nemo that it was financially sound. In reliance on this assertion, Nemo executed the 1994 renewal. In fact, HMSI was in severe financial difficulty.

 In September of 1995, HMSI conducted an audit of Nemo. As a result of the audit, HMSI claimed that Nemo had failed to meet its required sales quotas and was therefore in arrears to HMSI in the amount of $ 83,400.00. HMSI threatened to terminate the affiliation agreement if payment was not forthcoming. Plaintiffs assert that HMSI's actions constitute breach of contract because the demands for payment are barred by the affiliation agreement, and because HMSI previously misrepresented that Nemo would not be held responsible for the arrearages at issue. Nemo also alleges that the deficiencies are the direct result of HMSI's mismanagement and financial difficulty. Because Nemo refused to pay the monies demanded, HMSI terminated the affiliation agreement.

 Plaintiffs filed their Complaint in the Pennsylvania Court of Common Pleas for Bucks County. Defendant removed the case to this court and subsequently filed its motion to transfer the case to the United States District Court for the Southern District of Florida. A hearing on the motion was held on May 7, 1996, and the issue is now ripe for disposition.

 II. STANDARD OF REVIEW

 Defendant's Motion to transfer is brought pursuant to 28 U.S.C.A. § 1404(a) (West 1993). Section 1404(a) provides that "for 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." Section 1404(a) is the appropriate statutory provision for transfer of an action when jurisdiction is proper in both the original and the requested forum. Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995). The parties do not dispute the propriety of jurisdiction in Florida.

 In ruling on a § 1404(a) motion, the court need not limit its analysis to the three factors stated in § 1404(a) (convenience of the parties, convenience of witnesses, or the interest of justice), but should consider "all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." Id. at 879. In this analysis, the plaintiff's choice of venue should not lightly be disturbed. Id.

 The United States Court of Appeals for the Third Circuit has enumerated the following private and public interests that the court may consider in deciding whether to grant a motion to transfer:

 
The private interests [include]: plaintiff's forum preference as manifested in the original choice; the defendant's preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses -- but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location of the books ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.