Case 1:05-cv-00777-JBS-JS Document 9 Filed 10/26/05 Page 1 of 10 PageID: 164
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`SENIOR SETTLEMENTS, LLC,
`Plaintiff,
`
`v.
`GROWTH TRUST FUND, et al.,
`Defendants.
`
`HONORABLE JEROME B. SIMANDLE
`Civil No. 05-777 (JBS)
`
`OPINION
`
`APPEARANCES:
`Michael O. Kassak, Esq.
`WHITE AND WILLIAMS, LLP
`457 Haddonfield Road
`Suite 400
`Cherry Hill, New Jersey 08002
`Attorney for Plaintiff
`Howard S. Feintuch, Esq.
`FEINTUCH, PORWICH & FEINTUCH
`721 Newark Avenue
`Jersey City, New Jersey 07306
`Attorney for Defendants
`SIMANDLE, U.S. District Judge:
`Plaintiff brought this action in state court seeking, among
`other things, a declaration that certain Life Insurance Policy
`Purchase and Sale Agreements are valid and enforceable as between
`the parties. The case was subsequently removed to this Court,
`and Defendants now move for dismissal based on improper venue or,
`alternatively, to have this matter transferred to either the
`Eastern District of New York or the Newark Vicinage of this
`District. For the reasons now stated, the Court will deny the
`motion in its entirety.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`SENIOR SETTLEMENTS, LLC,
`Plaintiff,
`
`v.
`GROWTH TRUST FUND, et al.,
`Defendants.
`
`HONORABLE JEROME B. SIMANDLE
`Civil No. 05-777 (JBS)
`
`OPINION
`
`APPEARANCES:
`Michael O. Kassak, Esq.
`WHITE AND WILLIAMS, LLP
`457 Haddonfield Road
`Suite 400
`Cherry Hill, New Jersey 08002
`Attorney for Plaintiff
`Howard S. Feintuch, Esq.
`FEINTUCH, PORWICH & FEINTUCH
`721 Newark Avenue
`Jersey City, New Jersey 07306
`Attorney for Defendants
`SIMANDLE, U.S. District Judge:
`Plaintiff brought this action in state court seeking, among
`other things, a declaration that certain Life Insurance Policy
`Purchase and Sale Agreements are valid and enforceable as between
`the parties. The case was subsequently removed to this Court,
`and Defendants now move for dismissal based on improper venue or,
`alternatively, to have this matter transferred to either the
`Eastern District of New York or the Newark Vicinage of this
`District. For the reasons now stated, the Court will deny the
`motion in its entirety.
`
`
`
`Case 1:05-cv-00777-JBS-JS Document 9 Filed 10/26/05 Page 2 of 10 PageID: 165
`
`I.
`
`BACKGROUND
`According to the Complaint, on or about January 4, 1992,
`Defendants Bernat and Margit Steinmatz created the Defendant
`Growth Trust Fund (“Growth Trust” or “Trust”) for the purpose of
`transferring ownership of various life insurance policies owned
`by, and covering, Bernat Steinmatz. (Compl. ¶¶ 19, 20.) The
`1
`remaining trustees of the Growth Trust included individual
`defendants Michael Steinmetz, Leah Cohen, and Abraham and Fay
`Weingarten (collectively “Trustees”). (Id. ¶¶ 3-8.) Plaintiff
`Senior Settlements is a New Jersey Limited Liability Company
`primarily in the business of investing in “senior settlements”
`such as the Growth Trust Fund. (Id. ¶¶ 1, 17.)
`On or about June 25, 2004, Senior Settlements allegedly
`presented the Trust with offers to buy the Policies. (Id. ¶ 21.)
`According to Plaintiff, the parties executed three separate Life
`Insurance Policy Purchase and Sale Agreements (“Agreements”)
`conveying ownership of the Policies from the Trust to Plaintiff.
`(Pl. Ex. A.) According to the Complaint, on or about October 28,
`2004, Defendant Michael Steinmetz stated that the Steinmetz
`family did not wish to proceed with the Agreements. (Compl. ¶
`29.)
`
`1
`
` The three policies at issue are: (1) North American
`Company Policy No. LN00534750; (2) American General Policy No.
`24002141L; and (3) American General Policy No. 24002079L
`(collectively the “Policies”). (Compl. ¶ 18.)
`2
`
`
`
`Case 1:05-cv-00777-JBS-JS Document 9 Filed 10/26/05 Page 3 of 10 PageID: 166
`
`Plaintiff subsequently instituted this suit in the Superior
`Court of New Jersey, Camden County, seeking a declaration that
`the Agreements are valid and enforceable and asserting a claim
`for breach of contract. The matter was removed to this Court on
`February 7, 2005, and Defendants subsequently filed the instant
`motion.
`II. DISCUSSION
`Defendants have moved, in the first instance, for dismissal
`of the Complaint under Rule 12(b)(3), Fed. R. Civ. P., and 28
`U.S.C. §§ 1391 and 1406, asserting improper venue.
`Alternatively, Defendants seek to transfer this matter to either
`the Eastern District of New York or the Newark Vicinage of the
`District of New Jersey pursuant to 28 U.S.C. § 1404. The
`parties, through counsel, have submitted briefs in support and
`opposition to the motion, which this Court has considered. The
`Defendants are residents of Brooklyn, New York, while Plaintiff
`is a New Jersey Limited Liability Company with its principal
`place of business in Cherry Hill, New Jersey, located in Camden
`County. (Compl. ¶¶ 1-8.) This Court has jurisdiction under 28
`U.S.C. § 1332.
`A.
`Duty of Disclosure
`Preliminarily, the Court notes that Defendants’ written
`submission omits any reference to the forum selection clause
`contained in the Agreements. (Pl. Ex. A. ¶ 17.) That provision
`
`3
`
`
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`identifies New Jersey as the exclusive forum for any legal
`proceedings “arising out of or in connection with” the Agreement.
`(Id.) The Court would like to remind Defendants’ counsel of his
`“continuing duty to inform the Court of any development which may
`conceivably affect the outcome” of the litigation. Fusari v.
`Steinberg, 419 U.S. 379, 391 (1975) (Burger, C.J., concurring).
`This is so even where the information may be unfavorable to the
`interests of the litigant. See In re Universal Minerals Inc.,
`755 F.2d 309, 313 (3d Cir. 1985). Cf. Model Rules of
`Professional Conduct, Rule 3.3 (2002) (candor toward tribunal).
`This obligation is designed to promote respect for the judicial
`process as well as the just resolution of juridical disputes.
`Counsel’s failure here to bring to the Court’s attention the
`forum selection provision serves only to frustrate these twin
`aims. Arguing that the contract is not binding is not a
`substitute for ignoring the forum selection clause for disputes
`concerning the alleged contract. The Court hereby admonishes
`counsel to avoid such conduct in the future.
`B.
`Forum Selection Provision
`As already noted, the Agreements at issue contain a forum
`selection clause choosing New Jersey. That provision states, in
`pertinent part:
`The parties hereto irrevocably and unconditionally
`agree that any suit, action, or other legal proceeding
`arising out of or in connection with this Agreement, or
`the transactions contemplated hereby, shall be brought
`
`4
`
`
`
`Case 1:05-cv-00777-JBS-JS Document 9 Filed 10/26/05 Page 5 of 10 PageID: 168
`
`in the courts of record of the State of New Jersey or
`the courts of the United States located in said state,
`consent to the jurisdiction of each such court in any
`such suit, action or proceedings, and waive any
`objection to the venue of any such suit, action or
`proceedings in any of such courts.
`
`(Pl. Ex. A at ¶ 17.) The instant dispute unquestionably
`“aris[es] out of or in connection with th[e] Agreement,” thereby
`triggering the above provision. The issue, then, is whether that
`clause is valid. For the reasons now explained, the Court holds
`that it is. 2
`In The Bremen v. Zapata Off-Shore Co., the United States
`Supreme Court held that forum selection clauses are “prima facie
`valid and should be enforced unless enforcement is shown by the
`resisting party to be ‘unreasonable’ under the circumstances.”
`
` Under 28 U.S.C. § 1391(a):
` civil action wherein jurisdiction is founded only on
`diversity of citizenship may, except as otherwise
`provided by law, be brought only in (1) a judicial
`district where any defendant resides, if all defendants
`reside in the same State, (2) a judicial district in
`which a substantial part of the events or omissions
`giving rise to the claim occurred, or a substantial
`part of the property that is the subject of the action
`is situated, or (3) a judicial district in which any
`defendant is subject to personal jurisdiction at the
`time the action is commenced, if there is no district
`in which the action may otherwise be brought.
`(Emphasis added). In the present case, venue would ordinarily
`lie in New York unless a substantial part of the events or
`omissions giving rise to the claim occurred in New Jersey. The
`forum selection clause, however, displaces the statutory venue
`selection unless unreasonable under the circumstances, as
`discussed in the text which follows.
`5
`
`2 A
`
`
`
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`
`Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1218-19 (3d Cir.
`1991) (quoting 407 U.S. 1, 10 (1972)). A forum selection clause
`is “unreasonable” if the defendant can make a “strong showing”
`either (1) that the forum thus selected is “so gravely difficult
`and inconvenient” that the defendant “will for all practicable
`purposes be deprived of his day in court” or (2) that the clause
`was procured through “fraud or overreaching.” Foster, 933 F.2d
`at 1219 (quoting The Bremen, 407 U.S. at 15, 18). “That there
`may not have been actual negotiations over the [forum selection]
`clause does not affect its validity.” Foster, 933 F.2d at 1219
`(citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585
`(1991)).
`As in Foster, Defendants here have made “[n]o showing – let
`alone a “strong showing” – of either of these elements . . . .”
`Defendants argue that this action should be transferred, among
`other reasons, due to the age of a single defendant.
`Specifically, Defendants note that “[t]he primary defendant
`Bernat Steinmatz is 80 years old, a Holocaust survivor, and,
`understandably has difficulty traveling long distances from his
`home in Brooklyn, New York.” (Defs. Br. at 8.) By itself, Mr.
`Steinmatz’s age does not demonstrate how enforcement of the forum
`selection clause would be “so gravely difficult and inconvenient
`that he will for all practicable purposes be deprived of his day
`in court.” Arentowicz v. CAP Gemini Ernst & Young, 2004 U.S.
`
`6
`
`
`
`Case 1:05-cv-00777-JBS-JS Document 9 Filed 10/26/05 Page 7 of 10 PageID: 170
`
`Dist. LEXIS 16536, at *16 (D.N.J. July 16, 2004) (quoting Foster,
`933 F.2d at 1219).
`To be sure, courts may consider the age of the parties as a
`factor in deciding whether to transfer an action to a venue other
`than that designated by a forum selection clause. In BSB Bank &
`Trust Co. v. Morrison, for example, the district court made the
`following observation in transferring an action from the
`designated forum: “Normally, the Court would have little
`difficulty denying the motion to change venue on the basis that
`the forum selection clause was controlling. Here, however, the
`Court is presented with two elderly defendants, both of whom have
`significant health problems.” 2003 U.S. Dist. LEXIS 5408, at *5
`(N.D.N.Y. April 4, 2003). In addition to their age, though, the
`defendants there presented “significant medical evidence” that
`each was “at risk for sudden death.” The court further explained
`that due to “the extreme nature of the[ir] illnesses,” if the
`action were not transferred the defendants “would be entirely
`left out of the process due to their health concerns.” Id. at
`*5-6.
`Here, on the other hand, Defendants have failed to present
`any evidence suggesting that Mr. Steinmatz (or any of the other
`six individual defendants) suffers from such serious medical
`infirmities. Additionally, the Agreements were purportedly
`entered into just last year. Conceivably, Mr. Steinmatz’s age
`
`7
`
`
`
`Case 1:05-cv-00777-JBS-JS Document 9 Filed 10/26/05 Page 8 of 10 PageID: 171
`
`was as much an obstacle (if any) to his ability to travel then as
`it is now. At the very least, such an impediment to travel would
`have been foreseeable by Mr. Steinmatz at the time of contract.
`See General Engineering Corp. v. Marietta Alumina, Inc., 783 F.2d
`352, 359 (3d Cir. 1986) (holding risk of witness unavailability
`at the time of contract easily forseeable and, thus, enforcement
`of forum selection clause not unreasonable).
` Moreover, Brooklyn and Camden are separated by about 100
`miles – less than a two-hour car ride. This is not a
`circumstance which makes attendance in court unusually difficult
`for Mr. Steinmatz or other Defendants. In any event, even
`accepting that travel may be inconvenient for Defendants, “mere
`inconvenience . . . is not the test for unreasonableness.”
`Arentowicz, 2004 U.S. Dist. LEXIS 16536, at *16 (quoting Danka
`Funding, L.L.C. v. Page, Scrantom, Sprouse, Tucker & Ford, P.C.,
`21 F. Supp. 2d 465, 472 (D.N.J. 1998) (quoting Central
`Contracting Co. v. Maryland Casualty Co., 367 F.2d 341, 344 (3d
`Cir. 1966)). For these reasons, the forum selection clause in
`the Agreements is enforceable and, thus, venue in New Jersey is
`proper.
`Finally, the Court must examine whether transfer to Newark
`is appropriate. For the following reasons, the Court holds that
`3
`
`3
`
` The forum selection clause does not require that this
`action be brought in any particular vicinage within the District
`of New Jersey. (Pl. Ex. A at ¶ 17.) Under 28 U.S.C. § 1404(a),
`8
`
`
`
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`
`it is not. It is sufficient to state only that Newark is located
`roughly 80 miles from this Court. Such a short distance does not
`warrant transfer, especially considering that Plaintiff’s
`principal place of business is in Cherry Hill, New Jersey, and
`the Court will not order transfer of a case if doing so merely
`shifts the burden from one party to another. Van Dusen v.
`Barrack, 376 U.S. 612, 646 (1964). See also Leesona Corp. v.
`Duplan Corp., 317 F. Supp. 290 (D.R.I. 1970) (denying motion to
`transfer where distance between two forums, 200 miles, was
`relatively short). Additionally, the Newark Vicinage has no
`known connection with the circumstances of this case. Because
`the convenience of the parties and witnesses would not best be
`served by transferring this case to Newark, and because the
`interests of justice do not so require, this Court will deny
`Defendants’ motion to transfer venue to Newark.
`
`“For the convenience of the parties and witnesses, in the
`interest of justice, a district court may transfer any civil
`action to any other . . . division where it might have been
`brought.”
`
`9
`
`
`
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`
`III. CONCLUSION
`For the reasons explained supra, the forum selection clause
`contained in the Agreements at the center of this dispute is
`enforceable. Accordingly, the action will not be dismissed for
`improper venue or transferred to the Eastern District of New
`York. Moreover, this Court will deny Defendants’ motion to
`transfer the action to Newark.
`The accompanying Order is entered.
`
`October 26, 2005
`Date
`
`s/ Jerome B. Simandle
`JEROME B. SIMANDLE
`U.S. District Judge
`
`
`
`10
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