938 F.2d at 394-95; see also Resolution Trust Corp. v. Youngblood, 807 F. Supp. 765 (N.D. Ga. 1992) (counterclaims and affirmative defenses against RTC alleging intentional infliction of emotional distress, failure to follow standard practices, and a duty to indemnify are all within paragraphs (5) and (13)(D)); Resolution Trust Corp. v. Wayne Coliseum Ltd, 793 F. Supp. 900 (D. Minn. 1992) (counterclaims for breach of contract and breach of the covenant of good faith and fair dealing are within paragraphs (5) and (13)(D)).
To summarize, I conclude that the forum provisions of paragraph (6)(A) apply to Plaintiff's claims because (i) the claims referred to in paragraph (6)(A) are coextensive with those in paragraph (5), the administrative claims procedure; (ii) the claims in paragraph (5) are coextensive with those in paragraph (13)(D), the jurisdictional bar; and (iii) paragraph (13)(D) covers Plaintiffs' claims against the receiver. This conclusion is consistent the conclusions of other courts that have addressed similar issues. See Mansolillo, 804 F. Supp. 426 (applying paragraph (6)(A) to claims against the Receiver for refusing to honor agreement for construction financing); TPO Inc. v. F.D.I.C., 325 F. Supp. 663 (S.D.N.Y. 1971) (applying 12 U.S.C. § 94 to claims against the Receiver); cf. Resolution Trust Corp., 813 F. Supp. at 955 (refusing to apply paragraph (6)(A) because plaintiff commenced action before the RTC was appointed Receiver).
This conclusion is also consistent with the purpose of FIRREA's administrative claims procedures. Congress' primary goal in drafting these procedures was efficiency: "to allow RTC to perform its statutory function of promptly determining claims so as to quickly and efficiently resolve claims against a failed institution without resorting to litigation." Rosa, 938 F.2d at 396. Congress' concerns with efficiency did not stop with the claims procedures themselves. Congress also expedited the prompt resolution of lawsuits involving failed institutions by directing that the lawsuits be filed in only two locations: the institution's principal place of business or the District of Columbia. 12 U.S.C. § 1821(d)(6)(A). Without this forum clause, the FDIC would be "forced to defend actions at various locations throughout the country, with the attendant disruption of the Bank's records and personnel, [and] the defendant's task would become further complicated." TPO Inc., 325 F. Supp. at 665.
Accordingly, I find that Plaintiff has improperly brought this action in the District of New Jersey. The appropriate fora are the District of Columbia or Connecticut, Citytrust's principal place of business. In the interests of justice, 28 U.S.C. § 1406(a), I shall grant the Receiver's motion to transfer this action to the District of Connecticut.
B. CARC'S Arguments: 28 U.S.C. § 1404(a)
CARC, in a brief "in further support" of the Receiver's motion, suggests that transfer is appropriate under 28 U.S.C. § 1404(a). Section 1404(a) permits a district court to transfer a case to any other district where venue is proper "for the convenience of parties and witnesses, in the interest of justice . . . ." 28 U.S.C. § 1404(a).
The purpose of section 1404(a) "is to prevent the waste of 'time, energy and money' and 'to protect litigants, witnesses and the public against unnecessary inconvenience and expense . . . .'" Van Dusen v. Barrack, 376 U.S. 612, 616, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964) (quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26-27, 80 S. Ct. 1470, 4 L. Ed. 2d 1540 (1960)); see also American Tel. & Tel. v. MCI Communications Corp., 736 F. Supp. 1294, 1305 (D.N.J. 1990).
The statute itself identifies three factors that a court should weigh when transferring a case: (1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice. Sandvik, Inc. v. Continental Ins. Co., 724 F. Supp. 303, 306 (D.N.J. 1989); Derry Finance N.V. v. Christiana Cos., 555 F. Supp. 1043, 1045 (D. Del. 1983). In addition, a court should also consider its own convenience when weighing the advisability of transfer. Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d 628, 632 (3d Cir. 1989) [hereinafter Lony I].
These various factors can be grouped into two broad categories: public interests and private interests.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). The private interests include the plaintiff's choice of forum, the ease of access to sources of proof, the availability of compulsory process over unwilling witnesses, the cost of attendance of willing witnesses, the obstacles to a fair trial, and the possibility of a jury view of the premises. Gulf Oil, 330 U.S. at 508. The public interests include easing court congestion and other administrative difficulties, placing the burdens of jury duty on those with the closest ties to the action, resolving issues within the communities most affected by those issues, and trying issues before judges familiar with the applicable law. Id. at 508-09; Sandvik, 724 F. Supp. at 307 .
The party moving for transfer not only has the burden of coming forward, but also the burden of persuasion. Lony v. E.I. Du Pont De Nemours & Co., 935 F.2d 604, 609 (3d Cir. 1991) [hereinafter Lony II]. Thus, unlike jurisdiction, a plaintiff's choice of venue benefits from a presumption of correctness. Accordingly, the moving party must establish that its alternative forum is not only adequate, but more convenient than the present forum. Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43-44 (3d Cir. 1988). Indeed, "unless the balance is strongly tipped in favor of transfer, the plaintiff's choice of forum should not be disturbed." Hardaway Constr., Inc. v. Conesco Indus., Ltd., 583 F. Supp. 617, 620 (D.N.J. 1983); see also Lony II, 935 F.2d at 609; Lacey, 862 F.2d at 44.
In balancing the factors weighing for and against transfer, a "district court is required to develop adequate facts to support its decision and to articulate specific reasons for its conclusion" that transfer to another venue is appropriate. Id. at 39. Among the considerations are whether the moving party submitted adequate data of record to facilitate the appropriate analysis, Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756-57 (3d Cir. 1973), whether the moving party has met its burden of persuasion, whether the contentions of the plaintiff were adequately considered and whether the relevant private and public interests were both adequately considered and balanced. Lacey, 862 F.2d at 39.
In the present case, it appears that transfer to Connecticut might be appropriate under section 1404(a). The alleged wrongdoing was committed in Connecticut by CARC (a Connecticut firm), Chase (a Connecticut-based association), and the FDIC as receiver of a Connecticut bank. Of course, Plaintiff resides in New Jersey, but virtually every document and witness related to Defendants' wrongdoing appears to reside in Connecticut.
However, neither CARC nor the Receiver has submitted materials of record that I can use to evaluate their motion. The record contains no competent evidence as to which witnesses are in Connecticut, which documents are in Connecticut, or what sort of inconveniences a New Jersey trial might cause. Accordingly, I find that section 1404(a) does not provide an alternative ground for transferring this action to Connecticut.
I shall grant the Receiver's motion to transfer for improper venue pursuant to 28 U.S.C. § 1406(a). An appropriate order shall issue.
Dickinson R. Debevoise, U.S.D.J.
Date: September 15, 1993