MEMORANDUM OPINION
This action concerns a dispute over the online auction (and ultimate purchase) of real property in North Wildwood, New
Following removal to this federal Court, Defendants now move to strike the lis pendens and to transfer this New Jersey-centric litigation to the Northern District of Georgia. [See Docket Items 9 & 10.] Defendants claim, in particular, that the lis pendens must be striken, because Plaintiff cannot demonstrate the necessary underlying property interest (see Defs.’ lis pen: dens Br. at 6-10), and that this action must be transferred on account of the forum selection clause contained within the Terms and Conditions of the online auction site. (See Defs.’ Transfer Br. at 4-11.) Plaintiff, by contrast, takes the position that she claims ah interest in the disputed property that requires continuation of the lis pendens (see Pl.’s lis pendens Opp’n at 4-6), and that the forum selection clause has no application to this litigation. (See Pl.’s Transfer Oрp’n at 3-5.)
The relatively straightforward issues presented by the pending motions are whether Plaintiff’s Complaint contains causes of action that affect title to the disputed property; whether a valid and enforceable forum selection clause governs the parties’ relationship; and whether, in light of a forum selection clause or not, the applicable considerations under 28 U.S.C. § 1404(a) favor the transfer of this action to the.Northern District of Georgia.
For the reasons that follow, Defendants’ motion to strike , the Us pendens will be granted, and their motion to transfer will be denied. The Court finds as follows:
1. Factual and Procedural Background.
2. Based upon her belief that she had an agreement to purchase the property at the “highest price,” Plaintiff brought this action against Defendants, asserting .claims for consumer fraud, common law fraud, and promissory estoppel.
3. Standard Governing Defendants’ Motions to Strike Plaintiffs notice of lis pendens. At common law, the filing of a lawsuit alone provided constructive notice to any subsequent purchaser or lienholder of a pending contest concerning title to the property. See Manzo v. Shawmut Bank, N.A.,
In every action, instituted in any court of this State having civil jurisdiction or in the United States District Court for the District of New Jersey, the object of which is to enforce a lien upon real estate or to affect the title to real estate or a lien or encumbrance thereon, plaintiff or his attorney shall, after the filing of the complaint, file in the office of the county clerk or register of deeds and mortgages, as the case may be, of thе county in which the affected real estate is situate, a written notice of the pen-dency of the action, which shall set forth the title and the general object thereof, with a description of the affected real estate. No notice of lis pendens shall be filed under this article in an action to recover a judgment for money or damages only.
N.J.S.A. 2A:15-6 (emphases added). In considering whether the object of an action “ ‘affects title to real proрerty,’ ” courts “look only to the underlying complaint.” Pharmacia Corp. v. Motor Carrier Servs. Corp., No. 04-3724,
4. As explained above, the crux of this action concerns Plaintiffs contention that Deutsche Bank improperly named -a third-party the highest bidder for the property, despite her higher-dollar-value offer. (See generally Compl. at ¶¶ 5-16.) As a result, Plaintiff argues that her fraud and promissory estoppеl claims “ ‘affect the title’ ” of the property, because she seeks relief in the form of specific performance. (PL’s lis pendens Opp’n at 4.) More specifically, she seeks to require Deutsche Bank to sell, her the property as the highest bidder (see Compl. at ¶¶ 17-33), and argues that the nature of this desired relief requires continuation of the lis pendens, (gee PL’s lis pendens Opp’n at 4.)
5. Nevertheless, specific performance constitutes exclusively a contractual remedy, and can only bе invoked to address a breach of a valid and enforceable agreement. See, e.g., Estate of Cohen, ex rel. Perelman v. Booth Computers,
6. A claim for promissory estoppel, in turn, requires clear and convincing proof of “ ‘(1) a clear and definite promise; (2) made with the expectation that the promisee will rely on it; (3) reasonable reliance [upon the clear and definite promise]; and (4) definite and substantial detriment.’ ”
7. Here, however, the Court need not belabor these elements, because Plaintiffs Complaint demonstrates no sufficiently “ ‘clear and definite’ ” promise to sell the property, nor any qualifying detriment. Id. (citation, omitted).
8. Indeed, as to the existence of a promise, Plaintiff alleges only that the REAL-Home agent, Mr. Sweeney, “indicated to Plaintiffs agent[, Mr: Shаpiro,] that a bid around 93% of asking price, of $347,000 would be acceptable,” and that Plaintiff, in turn, “made another offer of $322,000 prior to the bidding period end on August 13, 2015.” (Compl. at ¶¶ 13-14 (emphasis added).) The actual communications that underlie these allegations, however, reflect that Mr. Sweeney stated only that a 93% bid would “likely do it,” impliedly acknowledging the uncertainty. (Ex. A to Shapiro Aff.)
9. These circumstances reflect little more than an ongoing exchange of indefinite promises, and therefore fall far short of a probable showing of a ‘“clear and definite’” promise by Defendants to sell the property to Plaintiff at a specific price. Nye,
10. Aside from these deficiencies, Plaintiffs allegations do not suggest that she suffered a definite and substantial detriment. (See generally Compl.) Rather, the Complaint only states,' in condusory fashion, that Defendants’ alleged conduct proved “detrimental” (Compl. at ¶ 32), presumably because she missed оut on the opportunity to purchase “the unique piece of [foreclosed] property.”
11. In view of these issues, the Court cannot conclude that Plaintiffs Complaint, demonstrates a probability of success sufficient to allow her to unilaterally cloud title to the property, particularly given Defendants’ representation that an innocent bidder/purchaser remains waiting in the wings. As a result, Defendants’ motion to strike the lis pendens will be granted, and the lis,pendens will be discharged without prejudice.
12. Standard Governing Defendants’ Motion to Transfer. 28 U.S.C. § 1404(a) permits the Court to transfer an action to another District where it could originally have been brought. Here, however, the existence of an allegedly applicable and binding forum selection clause motivates Defendants’ motion to transfer. See Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Tx., — U.S. —,
13. Applicability and Enforceability of the Forum Selection Clause. Robust authority has endorsed the enforcement of forum selection clauses, unless the clause resulted from fraud, violates public policy, or requires resolution in a seriously inconvenient forum. See, e.g., M/S Bremen v. Zapata Off-Shore Co.,
14. Here, Defendants argue that the forum selection clause :of HUBZU’s “Terms and Conditions”' govern this action, because Mr. Shapiro, Plaintiffs real estate agent, registered to use HUBZU and therefore “accepted the Terms and Conditions” on Plaintiffs behalf. (Defs.’Transfer Br. at 7-9.) Plaintiff, by contrast, takes the position that HUBZU’s “Terms and Conditions” have no application here, because her claims do not arise from any agreement with HUBZU and because she received no noticе of the provision. (PL’s Transfer Opp’n. at 3-5.)
15. The “Terms and Conditions” imbedded within HUBZU’s website include, on the twelfth page, a provision that “[a]ll parties agree that any and all disputes, brought in the United States, [and] arising from [the] use of Hubzu or its Affiliated Websites will be resolved solely through the Federal Courts in Georgia.” (Ex. B to Britsch Dec. at § -17.9 (emphasis added).) The sole predicate for this litigation, however, concerns Plaintiffs position that Defendants agreed to- sell her the disputed property in an email exchange between two real' estate agents, and in a manner separate and apart from the HUBZU website. (See Compl. at ¶¶ 6-16.) Indeed, Plaintiffs • theory of liability is premised upon her belief that Defendants should have placed her “email bid” on equal footing to bids placed through the HUBZU
16. Section 1404(a) Factors.
[1] plaintiffs forum preference; [2] ,. whether the claim arose elsewhere; [3] the convenience of the parties; [4] the convenience of the witnesses; and [5] the location of books and records.
See Jumara,
[1] the enforceability of the judgment; [2] practical considerations that could make the trial easy, expeditious, or inexpensive; [3] relative court congestion; [4] the locаl interest, if any, in deciding local controversies at home; [5] the public policies of the fora; and [6] the relative familiarity of the trial judge with the applicable law.
See id. at 879-80 (citations omitted). Nevertheless, given the paramount importance of the plaintiffs chosen forum, its choice will rarely be disturbed “unless the balance of interest[s]” strongly favor transfer. Reed v. Weeks Marine, Inc.,
17. The parties give little to no attention to the section 1404(a) factors. (See, e.g., Defs.’ Transfer Br. at 10-11; PL’s Transfer Opp’n (no discussion); Defs.’ Transfer Reply (no discussion),) Nevertheless, the transfer analysis in this instance requires no complex inquiry, because the relevant considerations hardly tip strongly in favor of transfer.
18. Private Interest Considerations. As to the private interest factors, the Court notes that the principal fabric of this litigation — the Wildwood, New Jersey property — sits within this forum. (See generally Compl.) In that way, the critical
19. Public Interest Considerations. Nor can the Court conclude that the public interest considerations support transfer. Yocham,
20. An accompanying Order will be entered. •
Notes
. For purposes of the pending motions, the Court accepts as true the version of events reflected . in Plaintiff’s Complaint. See Schmidt v. Skolas,
. Plaintiff’s consumer fraud claim arises under New Jersey's Consumer Fraud Act,
. Defendants removed this action on September 17, 2015. [See Docket Item 1.]
. On November 2, 2015, the Court denied Defendants' request for expedited disposition of the pending motion, but resolved to decide the motions promptly. [See Docket Item 14.]
. For that reason, the Court disregards, as it must, much of the series of documents appended to Plaintiff’s opposition. See Pharmacia Corp.,
. Plaintiff’s claims for common law fraud and statutory consumer fraud, by contrast, rely • solely upon allegedly uncоnscionable conduct and business practices, but not any agreement. (See Compl. at ¶¶ 17-26.) Even more critically, these claims enable an ággrieved party to recover only monetary damages, see, e.g., Francis E. Parker Mem'l Home, Inc. v. Georgia-Pac. LLC,
. Because this action concerns the transfer/sale of real estate, the traditional promissory estoppel elements must be viewed through the lens of New Jersey’s Statute of Frauds, which requires "clear and convincing evidence” of an oral agreement to sеll real property. N.J.S.A. § 25:1-13; see also On the Hill Realty, LLC v. Kelly, No. SOM-C-12016-05,
. The Court culls this presumed detriment from Plaintiffs briefing, because her Complaint itself provides no detail on the issue of detriment.
. Even upon review of the documents attached to Plaintiff’s opposition (which consist mostly of emails between Mr. Shapiro and Mr. Sweeney), the Court has serious doubts concerning, whether any amount of pleading supplementation and/or discovery will add life to Plaintiff's promissoiy estoрpel claim. (See Ex. A to Shapiro Aff.) Indeed, certain of these documents appear to run contrary to Plaintiff’s theories. (See generally id.) Nevertheless, the Court leaves open the possibility that additional evidence may bring into focus the basis, if any, for Plaintiff’s promissory estop-pel claim.
. Moreover, even if it did, the present record creates significant doubt concerning whether Plaintiff received sufficient notice of the forum selectiоn provision. Indeed, although Defendants argue that HUBZU’s website "prominently’’ displayed HUBZU’s "Terms and Conditions” (Defs.' Transfer Br. at 7), the website itself contains only a hyperlink to the "Terms and Conditions.” (Ex. A to Britsch Dec. ("By clicking on Register, you accept the Terms & Conditions and PRIVACY Rights of Hubzu.”).) The forum selection clause then hides deep within the single-spaced provisions, under the heading "Disputes” and on the second to last page (of 13). (Ex. B to Britsch Dec. at § 17.9.) Even at this preliminary stage, these circumstances do not favor enforcement. See, e.g., Selective Way Ins. Co. v. Glasstech, Inc., No. 14-3457,
. In diversity cases, federal law governs the effect tо be given contractual forum selection clauses. See Jumara v. State Farm Ins. Co.,
. The Court recognizes the disparity between the median time to disposition of a civil case by trial in the Northern' District of Georgia (26.6 months) and the median time to disposition by trial in this District (36.3 months). See Table C-5, Administrative Office of the United States Courts, Statistical Tables for the Federal Judiciary, available at http:// www.uscourts.gov/statistics/table/c-5/ statistical-tablesfederal-judiciary/2015/06/30. Neverthelеss, because both Districts resolve relatively few cases by trial, the median time to disposition for all cases, not just trials, provides the more relevant measure of court congestion and speed to resolution of the average case. The median time to disposition for all cases differs only slightly between this District (7.8 months) and the Northern District of Georgia (6.7 months) for the period ending June 30, 2015. See id. Even with this slight disparity, however, it cannot said that the Northern District of Georgia w.ould dispose of this litigation faster than this District, particularly with the parties marching dutifully towards a December 21, 2015 Initial Scheduling Conference.