92 F. Supp. 287 | S.D.N.Y. | 1950
This is an action for trademark infringement and unfair competition commenced on July 20, 1949. Both plaintiff and defendant are New York corporations. On December 9, 1947, plaintiff’s entire capital stock was vested and seized by the Attorney General of the United States from the former German owners under the Trading with the Enemy Act.
Defendant moves under 28 U.S.C.A. § 1404(a) for a transfer of this action to the United States District Court for the Dis-' trict of Connecticut, or, alternatively, for a stay of this action pending determination of an action brought by it against plaintiff May 20, 1949, in the Superior Court for the State of Connecticut, Fairfield County.
The motion for a change of venue will be denied. “ * * * unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”
Defendant’s assertion that it will be inconvenienced by having to transport records and witnesses from its place of business in Stamford, Connecticut, is not persuasive. The distance between Stamford and New York, and Stamford and New Haven, where the Connecticut District Court sits, is about the same, and the plaintiff’s records and its prospective witnesses, on the other hand, are in New York.
Another ground advanced by defendant in support of transfer is that it desires to consolidate this action with one brought by plaintiff against one Carl J. Herzog in the .Connecticut District Court. Herzog is the president of defendant corporation, and while defendant asserts that the issues in the action against him are such that consolidation will lie, I am not convinced from the papers before me that such is the case.. The plaintiff’s action against Herzog is based on his alleged breach of fiduciary duties during the period 1938-1947 when he was an officer and director of the plaintiff corporation. The parties here disagree on whether that case involves issues and proof similar to those in this action. The pleadings in the Herzog action are not before me and so I hold that the defendant has not sustained its burden on this point.
It is clear from the foregoing that defendant has failed to establish the strong balance in its favor necessary to support its motion for change of venue.
The statutory privilege of access to a federal court is no longer regarded as absolute. It may be curtailed if its exercise causes inconvenience, delay and expense to the defendant.
While the Connecticut Superior Court action is one for a declaratory judg
The plaintiff urges that a stay of this action to allow the Connecticut action to proceed will not avail to accomplish that, because, it is said, Duke Laboratories is enjoined from proceeding in Connecticut by an order entered last February in the New York Supreme Court in another proceeding between these parties to compel arbitration on the contract involved here. The decision of Mr. Justice Hecht, on which this order was entered in New York, indicates that the stay he ordered may not have been intended to reach the Connecticut proceeding.
Last April the Connecticut Court denied a motion to stay its proceedings. That motion was based on Justice Hecht’s order. Its decision, now on appeal, does not appear to have been reversed. As far as now appears, the action in Connecticut may proceed. If it does, all the issues raised here may be adjudicated there.
In accordance with the policy against multiplicity of suits
Submit order.
. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055; see Ford Motor Co. v. Ryan, 2 Cir., 182 F.2d 329, 330.
. Mottolese v. Kaufman, 2 Cir., 176 F.2d 301. 302.
. Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153.
. Crosley Corporation v. Hazeltine Corporation, 3 Cir., 122 F.2d 925, 930; see Note, 59 Yale L.J. 978, 988-90.
. Mottolese v. Kaufman, supra.