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Crackau v. Lucent Technologies


February 2, 2004


The opinion of the court was delivered by: Dickinson R. Debevoise, Ussdj



Plaintiffs brought suit against Lucent Technologies, Inc. ("Lucent") for injuries they sustained or might sustain, allegedly due to exposure to Lucent's product. Lucent moved to transfer the case to the U.S. District Court for the Western District of Texas ("Texas District Court"), where an identical case is pending. In the interests of judicial economy and efficiency, and for the convenience of all involved, the court grants Lucent's motion.


Named plaintiffs ("Plaintiffs") and proposed class members are members of the U.S. Armed Forces and the armed forces of other NATO countries who worked as radar technicians, radar operators, and radar mechanics for periods between 1958 through 1994. They claim that they suffer from or are at increased risk of developing diseases such as leukemia, lymphoma and brain cancer due to their exposure to ionizing radiation emitted by radar devices designed and/or manufactured or distributed by defendant Lucent. Plaintiffs allege that Lucent negligently designed and manufactured the radar devices, and failed to warn of the potential hazards of working with them. They seek certification of two classes, one of which requests injunctive relief and the other of which requests compensatory and punitive damages. *fn1


Plaintiffs filed the instant action in the Superior Court of New Jersey, Law Division, Union County, in January, 2003. Lucent removed the action to this court on March 28, 2003. Plaintiffs moved to remand the action to New Jersey state court, but the court denied that motion, holding that removal was proper because the district court could legitimately exercise jurisdiction over Lucent pursuant to 28 U.S.C. § 1442 (federal officer jurisdiction) and Article I, section 8, clause 17 of the U.S. Constitution (federal enclave jurisdiction). Crackau, et al. v. Lucent Technologies, Civ. No. 03-1376, 2003 WL 21665135 at *5-6 (D.N.J. June 25, 2003).


Two cases intimately related to this one were filed before this case was filed, and are currently pending in federal district courts in Texas and Massachusetts.

A. The Texas Case

On October 8, 2002, several named plaintiffs ("Texas Plaintiffs") *fn2 filed suit ("Texas case") in Texas state court on behalf of themselves and all others similarly situated against Raytheon Company, General Electric Corporation, Honeywell International, Inc., ITT Industries, and ITT-Gilfillan. Inc., as well as Lucent ("Texas Defendants"). They seek certification of identical classes as seek certification in this court, *fn3 and make similar claims against the named defendants as are made here against Lucent. Because the plaintiff class is the same in the Texas case and the instant case, Lucent is a defendant in both cases, and the allegations in both cases are substantively identical, the instant case is merely a "subset" of the Texas case.

The Texas Defendants removed the case to the Texas District Court. The Texas Plaintiffs moved to remand, but Magistrate Judge Garney recommended that the motion be denied on the ground that federal enclave jurisdiction was present. The District Court judge presumably took this recommendation because the Texas Defendants then moved to dismiss on forum non conveniens grounds. Magistrate Judge Garney recommended that the court grant the motion, but, on September 29, 2003, District Judge Martinez nevertheless denied the motion. *fn4

B. The Massachusetts Case

Still other named plaintiffs ("Massachusetts Plaintiffs") filed suit ("Massachusetts case") in Massachuetts state court against Raytheon Company on December 20, 2002. Like the Texas Plaintiffs, the Massachusetts Plaintiffs seek certification of the same classes as seek certification in this court, and make similar claims against Raytheon as are made against Lucent here. Raytheon removed to federal district court, and, on May 6, 2003, the Massachusetts Plaintiffs moved to remand. The court is unaware whether the Massachusetts district court has decided this motion.


Lucent asks the court to transfer this case to the Texas District Court where a substantively identical case is pending, or alternately to stay the action pending resolution of the proceedings in that court. Alternately, Lucent claims, the court should dismiss the case on forum non conveniens grounds because though the Texas District Court would be a more convenient forum for the resolution of these claims than this court is, Germany ultimately would be the most appropriate forum. Finally, Lucent moves to dismiss the case for failure to join the government of Germany, which it claims is an indispensable party.

Because of the strong private and public interests in ensuring that identical cases are tried in the same forum, the court grants Lucent's motion to transfer this case to the Texas District Court. The court does not reach the remaining motions.

A. Sequence in which the court must consider Lucent's motions

In general, when a court is confronted with both a motion to dismiss on forum non conveniens grounds and a § 1404(a) motion to transfer to another district court, it is appropriate for the court to consider the transfer motion first. Dismissal would be wrong where transfer was possible.

Under the common law doctrine of forum non conveniens, a district court may in its discretion dismiss an action - even if it has jurisdiction over the subject matter and parties, and venue is proper - when (1) an adequate alternative forum is available and (2) "trial in the chosen forum would 'establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's convenience,' or the 'chosen forum [is] inappropriate because of considerations affecting the court's own administrative and legal problems.' " Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 (1981) (quoting Koster v. American Lumbermens Mutual Casualty Co., 330 U.S. 518, 524 (1947)). Under federal statutory law, a district court may - for the convenience of parties and witnesses or in the interest of justice - transfer an action to any other district or division where it might have been brought in the first place. 28 U.S.C. §1404(a). Section 1404(a) was enacted to avoid "the harshness of dismissal" when an alternate federal court forum is available. Hoffman v. Blaski, 363 U.S. 335 (1960). *fn5 Since the enactment of § 1404(a) in 1948, the doctrine of forum non conveniens is applicable only in cases in which the alternate forum is abroad. American Dredging Co. v. Miller, 510 U.S. 443, 448 n. 2 (1994); 17-111 James Wm. Moore et al., Moore's Federal Practice §111.71 (Matthew Bender 3d ed.).

Under typical circumstances, it is appropriate for the defendant to make only a § 1404(a) motion to transfer or a motion to dismiss on forum non conveniens grounds because the alternate forum in question is either another district court or a foreign country. *fn6 In this case, it is possible at the outset that both a foreign tribunal and another U.S. district court is a more appropriate forum for this case than this court. Under these circumstances, the court should rule out the possibility that the action can be transferred before it considers whether to take the more radical action of dismissing the action for filing in a more convenient foreign forum. *fn7 See, e.g., Yerostathis v. A. Luisi, Ltd, 380 F.2d 377, 379 (9th Cir. 1967) (transfer, as opposed to dismissal, is appropriate "whenever the more convenient tribunal is a United States District Court . . . [b]ut the federal courts retain the inherent power to refuse jurisdiction of cases . . . which should have been brought in a foreign jurisdiction"); Curiale v. Tiber Holding Corporation, No. 94 Civ. 4770 (SS), 1995 WL 479474 at *2 (S.D.N.Y. Aug. 11, 1995) (Sotomayor, J.) ("The enactment of 28 U.S.C. § 1404(a) . . . has superceded the common law doctrine of forum non conveniens insofar as transfer to another federal district court is possible. A dismissal for forum non conveniens is thereby warranted only when a weighing of all factors in favor of any possible domestic fora indicates that the case should have been brought abroad") (citations and internal quotations omitted); Nun v. Telectronics Pacing Systems, Inc., No. 93 Civ. 5434 (KMW),1994 WL 361488 at *2 (S.D.N.Y.July 11, 1994) (Wood, J.) (refusing to dismiss a case though "as between Canada and New York, Canada is the preferable forum" because "[s]ince the enactment of 28 U.S.C. §1404(a) . . . the doctrine of forum non conveniens is inapplicable, and dismissal inappropriate, in cases in which transfer to another federal forum is proper").

Even if it were appropriate in general for a court to consider a forum non conveniens motion before a § 1404(a) motion, however, it might not be appropriate for this court to consider Lucent's forum non conveniens motion because the Texas District Court's denial of the Texas Plaintiffs' forum non conveniens motion might preclude it from doing so. Several courts have held, under the doctrine of issue preclusion, that one federal court's resolution of a forum non conveniens motion bars a second federal court in which the same action has been brought from considering an identical motion unless the relevant factors would weigh differently in the two courts (e.g., it would be more convenient to litigate the case in the second court in which the motion is brought than it was in the first court, which dismissed on forum non conveniens grounds). *fn8 In order for the Texas District Court's denial of the forum non conveniens motion not to have preclusive effect on this court's consideration of the motion, then, Plaintiffs would have to show facts demonstrating that New Jersey is a less convenient forum for this case than the Western District of Texas is. Plaintiffs might be able to do this, but the court need not decide the question, as it holds that transfer is appropriate here.

B. § 1404(a) Motion to Transfer

Section1404(a) provides: "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." The purpose of a transfer under §1404(a) "is to avoid waste of time, energy and money and, in addition, to safeguard litigants, witnesses and the public against avoidable inconvenienece and expense." Lawrence v. Xerox Corp., 56 F. Supp. 2d 442, 449 (D.N.J. 1999). The burden of establishing the need for transfer rests with the movant. Jumara v. State Farm Insurance Company, 55 F.3d 873, 879 (3d Cir. 1995).

1. Jurisdiction Exists and Venue is Proper in this Court

The court may not transfer an action under § 1404(a) unless it itself has subject matter jurisdiction over - and is a proper venue for - the action. 17-111 James Wm. Moore et al., Moore's Federal Practice §111.14 (3d ed. 1997) (subject matter restriction required); Osteotech, Inc. v. GenSci Regeneration Sciences, Inc., 6 F.Supp.2d 349, 357 (D.N.J. 1998) (proper venue required). The court has already affirmed its own subject matter jurisdiction over this matter. Crackau, et al. v. Lucent Technologies, Civ. No. 03-1376, 2003 WL 21665135 (D.N.J. June 25, 2003). The court need not consider whether it may exercise personal jurisdiction over Lucent for the purposes of deciding this motion to transfer, Gehling v. St. George's School of Medicine, Ltd., 773 F.2d 539, 544 (3d Cir. 1985); U.S. v. Berkowitz, 328 F.2d 358, 361 (3d Cir. 1964), but nevertheless the court notes that it does have personal jurisdiction over Lucent, which is headquartered and does business in New Jersey. Because Lucent is subject to personal jurisdiction in this judicial district, the company "resides" here under 28 U.S.C. § 1391(c), *fn9 and venue thus properly lies in this forum.

2. The Case "Might Have Been Brought" in the Texas District Court

The court must next establish whether the instant case "might have been brought" in the U.S. District Court for the Western District of Texas (i.e., whether at the time the action was originally filed, the Texas District Court would have had subject-matter jurisdiction over the action and personal jurisdiction over the parties, and venue would have been proper). Ricoh Co., Ltd. v. Honeywell, Inc., 817 F.Supp. 473, 487 (D.N.J. 1993). Lucent maintains that this should be a simple exercise because the case essentially had been brought in the Texas district court before the instant case was ever filed and that court accepted the case. Brief in Support of Lucent's Motion to Dismiss at 14.

Merely that the Texas District Court accepted the case, however, is not enough to confirm that the case against Lucent "might have been brought" in it for the purposes of § 1404(a). This is because the Texas District Court could have accepted the case in the absence of a basis for venue and personal jurisdiction so long as Lucent waived any objections. Fed. R. civ. P. 12(h)(1). *fn10 For the purposes of § 1404(a), however, the transferee court's right to exercise jurisdiction must exist independent of the defendant's wishes. Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960) ("`If when a suit is commenced, plaintiff has a right to sue in that district independently of the wishes of defendant, it is a district where the action might have been brought. If he does not have that right, independently of the wishes of defendant, it is not a district where it might have been brought") (citations omitted); 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3845 (2d ed. 1986) ("consent of defendant cannot cure defects with regard to venue or process in the proposed transferee forum"). For this reason this court must undertake an independent evaluation of whether the instant case might have been brought in the Texas District Court.

The Texas District Court could obviously have exercised subject matter jurisdiction over this action - as the court itself affirmed in its denial of the Texas Plaintiffs' motion to remand - because federal enclave jurisdiction was present under Article I, section 8, clause 17 of the U.S. Constitution. The Texas District Court likewise could have exercised personal jurisdiction over Lucent because the Texas Plaintiffs claim "a substantial portion of the events giving rise to this controversy occurred in Texas," *fn11 and Lucent, though it contested the proposition that Texas is the best venue for the case (arguing that that honor is reserved for Germany), concedes that Plaintiffs are correct. *fn12 As the court had personal jurisdiction over Lucent, venue would have been proper under § 1391(c).

3. The Convenience of the Parties & Witnesses and the Interests of Justice

Because the instant action might have been brought in the Texas District Court, the court must now determine whether transferring it there would be convenient and just. While there is "no definite formula" for making this determination under § 1404(a), courts generally look to a familiar list of private interests and public interests implicated by the potential of transfer. Jumara, 55 F.3d at 879. The private interests that courts weigh in this context include plaintiff's forum preference as manifested in the original choice, convenience to parties and witnesses, the location of evidence, and whether the claim arose elsewhere. The public interests that courts take into account include the interests in judicial efficiency and consistency, and the familiarity of the trial judge with the applicable state law.

Though courts weigh many factors in a § 1404(a) analysis, different factors are dispositive in different factual contexts. "A transfer analysis under Section 1404 is a flexible and individualized analysis which must be made on the unique facts presented in each case . . . There is no rigid rule governing a transfer determination by a court; `each case turns on its facts.'" Lawrence, 56 F. Supp. 2d at 450 (quoting Lacey v. Cessna Aircraft Co., 862 F.2d 38, 43 (3d Cir. 1988)). *fn13 In this case, the dispositive factor - as is often the case with transfer motions when a related case is pending in a different district - is the interest of all (parties, witnesses and the court) in avoiding wasteful duplication of efforts.

In Continental Grain Co. v. Barge FBL-585, the Supreme Court noted that "to permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts leads to wastefulness of time, energy and money that 1404(a) was designed to prevent." 364 U.S. 19, 26 (1960). This court frequently has heeded this admonition and transferred a case to another forum when a related action was pending there. See, e.g., Lawrence, 56 F. Supp. 2d at 453-55; Ricoh Co., 817 F.Supp. at 487; A.T. & T. v. MCI, 736 F. Supp. 1294, 1307-1308 (D.N.J. 1990) ; Todd Shipyards Corp. v. Cunard Line Ltd., 708 F.Supp. 1440 (D.N.J.,1989). *fn14

Because an identical case has been filed in another district, the central inquiry for the court is not - as it usually is in the context of motions to transfer - whether the case would be better litigated in one district or another. The case is already being litigated in Texas, and nothing the court decides here will change that fact. Thus, the sole question before the court is whether adequate reasons exist for this action to be litigated twice (once here and once in Texas), as opposed to only once. The court concludes that there do not.

i. Private interests: convenience to witnesses and parties & location of evidence

The evidence in this case and the Texas case is identical. Transfer would thus create a logistically simpler reality for all those involved (witnesses, Plaintiffs and Lucent).

Transfer would clearly be more convenient for the witnesses who would have to offer the same testimony in two states if this action and the Texas action were allowed to proceed independently of each other. Transfer would also be more convenient for the plaintiff class and for Lucent because they are obliged (respectively) to prosecute and defend the case in El Paso anyway; if the court denied the motion to transfer, the parties would merely have to prosecute and defend it a second time in Newark. Nothing Plaintiffs argue mitigates these propositions.

The location of the relevant documents in this case does not weigh against transfer. Most of the documents and records relevant in this case, Lucent claims, are located in Germany. *fn15 It will already be inconvenient for Lucent to produce them in the United States; how much more inconvenient would it be for the company to have to produce duplicate copies of them in two different states?

Plaintiffs claim that insufficient discovery has occurred for the court to know the location of most witnesses and evidence. It is true that while plaintiffs' class is on record as arguing that "[i]f this controversy has a center . . . it is Fort Bliss [Texas]," Texas Plaintiffs' Brief in Opposition to Defendants' Motion to Dismiss on Forum Non Conveniens Grounds at 23, Lucent has not produced an avalanche of evidence showing that relevant evidence exists in the Western District of Texas. However, under these specific circumstances - i.e., because the Texas case is already pending - the dispositive factor will not be the location of the evidence, but rather how many times the parties will have to produce it. Again, the choice before this court is not whether the case should proceed in Texas or New Jersey, but whether it should proceed once or twice. *fn16

The private interest that usually weighs most heavily against transfer is respect for the plaintiff's choice of forum. Jumara, 55 F.3d at 879 ("in ruling on defendants' motion the plaintiff's choice of venue should not be lightly disturbed."). That factor is here offset by the costs of duplicative litigation. See Lawrence, 56 F. Supp. 2d at 453. *fn17

ii. Public Interest in Judicial Economy & Consistency

If these identical cases were allowed to proceed in both this court and the Texas district court, the U.S. court system - as well as the parties and witnesses -- would be forced to spend twice the money, time and energy that would be called for if the court transferred this case to Texas. The Court of Appeals noted in 1941

In view of the constant increase in judicial business in the federal courts and the continual necessity of adding to the number of judges, at the expense of taxpayers, public policy requires us to seek actively to avoid the waste of judicial time and energy. Courts heavily burdened with litigation with which they must of necessity deal should therefore not be called upon to duplicate each other's work in cases involving the same issues and the same parties.

Crosley Corporation v. Hazeltine Corporation, 122 F.2d 925, 930 (3d Cir. 1941). This is certainly at least as true today as it was in 1941.

Allowing this case and the Texas case to proceed independently would not only be costly, but also would create the possibility of inconsistent results. In the context of the "first filed rule," *fn18 the Court of Appeals has noted that "[i]t is of obvious importance to all . . . litigants to have a single determination of their controversy, rather than several decisions which if they conflict may require separate appeals to different circuit courts of appeals. Comity must serve as a guide to courts of equal jurisdiction to exercise forbearance to avert conflicts and to avoid `interference with the process of each other.'" E.E.O.C. v. University of Pennsylvania, 850 F.2d 969, 974 (3d Cir. 1988), cert. granted in part, 488 U.S. 992 (1988) (citations omitted).

Plaintiffs claim that Lucent's motion to transfer is predicated on the "first filed rule" which is grounded in equitable considerations, and that Lucent should not be allowed to avail itself of the rule because the company's motives are suspect. Specifically, Plaintiffs claim that the only reason Lucent urges the court to transfer this action to Texas is because it wants the case dismissed on forum non conveniens grounds, and the standard for a forum non conveniens dismissal is more relaxed in the Fifth Circuit than it is in the Third Circuit. Plaintiffs' Brief in Opposition to Lucent's Motion to Transfer at 41-43.

First, while Lucent's alternative motion to stay the action is predicated on the first filed rule, its transfer motion is not explicitly predicated on that rule. The public and private interests in avoiding duplicative litigation are sufficiently weighty under a § 1404(a) analysis to justify granting Lucent's transfer motion; there is no need for the court to address the first filed rule, which is ordinarily applicable in the context of motions to enjoin or stay proceedings, rather than motions to transfer, anyway. *fn19 Second, and most importantly, even assuming Plaintiffs' characterization of Fifth and Third Circuit caselaw on forum non conveniens is accurate, their argument appears to be moot as the Texas District Court has already denied Lucent's forum non conveniens motion; indeed, it had done so before Plaintiffs submitted their brief. Thus, any argument that Lucent seeks transfer to Texas due to its hope that the court there will grant its forum non conveniens motion no longer makes sense. *fn20

Plaintiffs also argue that the fact that the Texas District Court might have to apply New Jersey law with which it is unfamiliar to the claims against Lucent weighs against transfer. This fact does not affect the court's consideration, however, because if New Jersey law applies to the claims against Lucent, the Texas District Court will have to apply it whether or not this case is transferred because Lucent is a defendant in the Texas case.


For the foregoing reasons, the court grants Lucent's motion to transfer to the United States District Court for the Western District of Texas. An appropriate order will be entered.

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