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Zaretsky v. Gemological Institute of America, Inc.

United States District Court, D. New Jersey

February 20, 2014

STEVEN ZARETSKY, et al., Plaintiffs,
v.
GEMOLOGICAL INSTITUTE OF AMERICA, INC., et al., Defendants.

OPINION & ORDER

FAITH S. HOCHBERG, District Judge.

This matter comes before the Court upon motions to dismiss for improper venue by Defendant Gemological Institute of America, Inc., and Defendants Eve Goldberg and the William Goldberg Diamond Corporation [Docket Nos. 16 & 28]. The Court has decided these motions based upon the submissions of the parties, without oral argument, pursuant to Fed.R.Civ.P. 78.

I. BACKGROUND

This case involves a dispute over the ownership of a piece of jewelry, a 7.35 carat Pear Shaped Diamond. (Compl. ¶ 7). Plaintiff Steven Zaretsky and his wife Suzanne Zaretsky (collectively "Plaintiffs"), both New Jersey residents, contend that they own the diamond. On December 10, 2012, Plaintiffs brought the diamond to K&D Jewelers in New York. (Compl. ¶

7). With Plaintiffs' approval, K&D sent the diamond to Defendant Gemological Institute's New York laboratory to obtain an appraisal and certification. (Compl. ¶ 8). After receiving the Diamond, the Gemological Institute allegedly informed Plaintiffs that the diamond Plaintiffs had submitted for appraisal had been reported stolen and refused to return it to Plaintiffs. (Compl. ¶¶ 10-11).

Years before, in March 2003, Defendant Eve Goldberg had reported the theft, purportedly of the same diamond, from William Goldberg Diamond Corporation's New York location. (Compl. ¶ 30). Defendants contend that the diamond that Plaintiffs submitted for appraisal should not be returned until the Court determines the rightful owner. Plaintiffs assert that their diamond is not the same stone that was reported stolen, and that the diamond was validly purchased in New York City by Ms. Zaretsky's father in December 2003 from Defendant Louis E. Newman, a New York corporation. (Compl. ¶ 27). On June 19, 2013, Plaintiffs brought this action seeking a declaratory judgment finding that Plaintiffs are the owners of the diamond. They also asserted a number of New Jersey state law claims, including breach of fiduciary duty, conversion, intentional infliction of emotional distress, and an action for replevin.

II. DISCUSSION

a. Prior Decisions

Plaintiffs request that the Court dismiss Defendant Gemological Institute's motion based on its purported failure to properly serve the motion upon Plaintiffs. The Gemological Institute counters that their motion was properly served but that Plaintiffs failed to timely oppose the motion, and thus contends that the motion should be deemed unopposed. The Court has already decided these issues - finding that Plaintiffs were properly served with Defendant's motion, but permitting Plaintiffs additional time to file an opposition [Docket No. 27]. The Court declines to revisit this decision.

b. Venue

Both the Gemological Institute and William Goldberg move to dismiss pursuant to Fed.R.Civ.P. 12(b)(3) for improper venue, arguing that a forum selection clause bars venue in this district. The Supreme Court recently held, however, that venue is proper "so long as the requirements of § 1391(b) are met, irrespective of any forum-selection clause...."[1] Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Texas, 134 S.Ct. 568, 578 (2013); see also Nat'l Micrographics Sys., Inc. v. Canon U.S.A., Inc., 825 F.Supp. 671, 678 (D.N.J. 1993) (finding that Federal Rule 12(b)(3) motion to dismiss is not the correct vehicle for enforcing a forum selection clause). Thus, to determine whether venue is proper, the Court turns to the venue statute.

Under 28 U.S.C. § 1391, venue is proper in a civil case if a plaintiff brings the case in a district that is:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (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 property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

The burden to show improper venue is on the moving party. Bockman v. First Am. Marketing Corp., 459 F.Appx. 157, 160 (3d Cir. 2012). In assessing venue, the Plaintiffs' residence is irrelevant. Al-Ghena Int'l Corp. v. ...


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