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Robin A. Mato, Cherie B. Mato and Merc Investment Corp. v. Window World

February 28, 2011


The opinion of the court was delivered by: Stengel, J.


The defendant in this action, Window World, Inc., has filed a motion to dismiss or in the alternative, to transfer this action to the Western District of North Carolina. For the reasons set forth below, the motion to transfer will be granted.


Plaintiffs Robin Mato, Cherie Mato, and Merc Investment Corporation ("the Matos") are former licensees of Window World Philadelphia. They filed their complaint against defendant Window World, Inc. ("Window World") on December 30, 2010, and moved for a preliminary injunction on January 4, 2011.

The facts alleged in the complaint are as follows: the Matos are Window World licensees pursuant to a Licensing Agreement entered into between the parties on November 16, 2005. Compl. ¶ 1; Licensing Agreement ("Agreement"), Pl.'s Ex. A. The Agreement was to last for a five year term, so it expired on November 16, 2010. Id. With respect to renewal of the license, the Agreement provides that:

If LICENSEE is not in any manner in default hereunder, under the conditions set forth herein and with the written consent of the LICENSOR, LICENSEE may renew this Licensing Agreement for successive renewal terms of five (5) years each. LICENSEE must provide LICENSOR with written notice of LICENSEE'S intention to renew not less than six (6) months nor more than twelve (12) months prior to the expiration of the initial term[.]"

Agreement, ¶ 2(c). The Matos did not provide written notice to Window World of their intent to renew within the period set forth in the Agreement. Compl. ¶ 13. However, on November 17, 2010 (the day after the Agreement expired) Window World President Blair Ingle contacted plaintiffs and asked whether they wanted to renew the Agreement. Id. at ¶ 14. The informed him that they did, and as a result, both parties "continued to operate pursuant to the terms of the [Agreement]." Id. at ¶ 15. On November 19, 2010, Ingle sent the Matos a "Request to Renew License" form, which they completed and returned to Window World three days later. Id. at ¶¶ 16-17. On November 28, 2010, they complied with Window World's request for financial information about the franchise. Id. at ¶ 18. On December 5, 2010, Window World informed the Matos that it did not intend to renew the Agreement for another five year term. Id. at ¶ 20. On December 23, 2010, Window World provided written notice that the Agreement would terminate on January 1, 2011. Id. at ¶ 21; Termination Notice, Pl.'s Ex. B.

The Matos filed suit against Window World alleging breach of contract and breach of the implied covenant of good faith and fair dealing. The Matos are Pennsylvania residents and Merc Investment Corporation is a Pennsylvania corporation. Window World is a North Carolina corporation with its principal place of business in North Carolina. Therefore, this court properly has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a).

Window World has filed a motion to dismiss or, in the alternative, to transfer this action pursuant to 28 U.S.C. § 1404(a). In support of its motion for transfer, Window World cites language in the Agreement stating that:

[T]his Agreement shall be governed by the laws of the state of North Carolina. . . .

The LICENSEE and LICENSOR hereby agree that in the event any dispute arises regarding this Agreement, either the North Carolina Superior Court for the 23rd Judicial District or the United States Federal Court for the Western District of North Carolina shall have jurisdiction over any such dispute(s) and the parties agree that one or the other of these courts would be the proper venue for the resolution of any legal or equitable dispute which may arise from this Agreement.

Agreement ¶ 13(e).


"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." 28 U.S.C. § 1404(a). Section 1404(a) applies when venue is proper both in the district originally chosen and in the proposed transfer district. "Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). A defendant moving for transfer under Section 1404(a) normally bears the burden of showing that its requested venue is proper, that it would be more convenient for the parties and the witnesses, and that transfer is in the interest of justice. 28 U.S.C. § 1404(a); Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). "Transfer is not ...

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