UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF TENNESSEE 

AT KNOXVILLE 

BROADBENT WILDLIFE SANCTUARY, INC., ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) No. 3:14-CV-109-TAV-HBG 

 ) 

BUDDY GREGG MOTOR HOMES, LLC, ) 

 ) 

 Defendant/Third-Party Plaintiff, ) 

 ) 

v. ) 

 ) 

NEWMAR COPORATION, ) 

 ) 

 Third-Party Defendant/Third-Party Plaintiff, ) 

 ) 

v. ) 

 ) 

FREIGHTLINER CUSTOM CHASSIS CORP., ) 

 ) 

 Third-Party Defendant. ) 

REPORT AND RECOMMENDATION

This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, 

and the referral of the Chief District Judge [Doc. 47]. Now before the Court is a Motion to Stay, 

Transfer or Consolidate [Doc. 41], filed by Defendant/Third-Party Plaintiff Newmar Corporation 

(“Newmar”). This motion is fully briefed and the parties appeared before the undersigned on 

May 8, 2015, to present oral arguments. For the reasons more fully stated herein, the 

undersigned RECOMMENDS that the Motion to Stay, Transfer or Consolidate be GRANTED 

IN PART and DENIED IN PART. 
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I. BACKGROUND 

On March 19, 2013, Plaintiff purchased a motor home from Defendant Buddy Gregg 

Motor Homes, LLC (“Buddy Gregg”). Mary Ann Tobin (“Tobin”), President of Plaintiff 

Broadbent Wildlife Sanctuary, Inc., entered into a contract with Buddy Gregg in Knoxville, 

Tennessee, to purchase a 2013 Newmar Mountain Aire (“the Motor Home”), for over $400,000. 

According to the Plaintiff, the Motor Home began malfunctioning shortly after it was purchased. 

Specifically, Tobin noticed issues with the acceleration, electronics, and speed governance. 

Tobin alleges that in her attempts to have the Motor Home repaired she contacted both Newmar 

and Defendant Freightliner Custom Chassis, Corp. (“Freightliner”), the alleged chassis 

manufacturer. Ultimately, Plaintiff was not satisfied with the Motor Home and filed suit. 

On March 18, 2014, the Plaintiff filed a case in the United States District Court for the 

Northern District of Indiana styled Broadbent Wildlife Sanctuary Inc. v. Newmar Corporation, et 

al., No. 3:14-CV-542, in which Plaintiff sued Newmar, Freightliner Corporation, and 

Freightliner Custom Chassis Corporation. According to Newmar, the Indiana case has 

proceeded at a quicker pace than the pace at which this case has proceeded. In the Indiana case, 

the parties have filed the report of the Rule 26(f) conference, propounded discovery on one 

another, responded to discovery, begun discussing an inspection of the Motor Home, and 

scheduled a mediation to take place on September 9, 2015. 

On March 19, 2014, the Plaintiff filed the instant case suing only Buddy Gregg. Buddy 

Gregg has filed dispositive motions in this case, and Newmar and Freightliner Custom Chassis 

Corporation have been brought in as third parties. The parties in this case only recently filed the 

report from their Rule 26(f) planning meeting. [Doc. 48]. 
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The Indiana case and the instant case are similar in nature and relate to the same 

operative facts. The parties are congruent except that Defendant Buddy Gregg was not sued in 

the Indiana case. 

At the hearing before the undersigned, the parties agreed to consolidate discovery in this 

case and the Indiana case. All parties, including Buddy Gregg, have agreed to participate in 

mediation in the Indiana case that is scheduled for early September. 

II. POSITIONS OF THE PARTIES 

 In its Motion to Stay, Transfer or Consolidate [Doc. 41], Newmar moves the Court to 

either: stay the instant case pending adjudication of the Indiana case; transfer the instant case to 

the Indiana court for consolidation; or to consolidate the two cases for all purposes other than 

trial. Newmar maintains that the Court should transfer this case to Indiana pursuant to the firstto-file rule, so that it can be consolidated with the case in Indiana. Newmar maintains that such a 

transfer will save both judicial resources and the parties’ resources. 

 Buddy Gregg has responded in opposition to Newmar’s request to transfer but concedes 

that staying the instant case may be appropriate. [Doc. 42]. Buddy Gregg notes that it is not a 

party to the Indiana litigation. Buddy Gregg argues that this case cannot be transferred to 

Indiana for consolidation, because the Indiana court lacks personal jurisdiction over Buddy 

Gregg. Buddy Gregg maintains that it has not waived personal jurisdiction. It contends that, 

even if jurisdiction were proper in Indiana, a transfer would not be in the interests of justice 

because many witnesses are located in Tennessee. 

 Freightliner objects to staying this case, but it takes no position on transferring the case. 

[Doc. 43]. It agrees that the cases should at least be consolidated for the purposes of discovery. 
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 Plaintiff also objects to staying this case but agrees that the cases should be consolidated 

for discovery. [Doc. 44]. Plaintiff ultimately favors transfer of this case to Indiana and notes 

that it appears Buddy Gregg consented to personal jurisdiction in Indiana through its “2013 

Model Year Dealer Policy & Procedure Manual.” 

 In its reply, Newmar maintains that the first-to-file rule permits a stay and/or transfer and 

consolidation in the Indiana court. [Doc. 46]. Newmar argues that the contract between Buddy 

Gregg and Newmar contains a valid forum selection clause whereby Buddy Gregg consented to 

exclusive jurisdiction in Indiana on all claims related to and arising out of the Motor Home’s 

warranties. 

III. ANALYSIS 

 The Court has considered the parties’ positions and the alternative forms of relief that 

have been proposed. For the reasons stated herein, the undersigned finds that the first-to-file rule 

supports transferring this case to Indiana where it can be consolidated with the case that is 

currently pending in Indiana. 

A. First-to-File Rule 

The first-to-file rule is a well-established doctrine, which provides that “when actions 

involving nearly identical parties and issues have been filed in two different district courts, the 

court in which the first suit was filed should generally proceed to judgment.” Certified 

Restoration Dry Cleaning Network, LLC v. Tenke Corp., 511 F.3d 535, 551 (6th Cir. 2007) 

(internal citations omitted); see also Zide Sport Shop of Ohio, Inc. v. Ed Toberqte Assocs. Inc., 

16 Fed. App’x 433, 437 (6th Cir. 2001); Malibu Boats, LLC v. Marine Power Holding, LLC, No. 

3:14-CV-152-PLR-CCS, 2015 WL 3626997, at *2 (E.D. Tenn. June 9, 2015). 
5 

The Court first finds that two cases were filed in two separate courts: one in the District 

Court for the Northern District of Indiana and one in the District Court for the Eastern District of 

Tennessee. 

The Court further finds that the instant case is nearly identical to the case pending in 

Indiana. The claims in both cases arise out of the same transaction and contracts, and the issues 

to be decided by the trier of fact will be essentially identical. The Court finds that the parties are 

nearly identical, with the only difference being that Buddy Gregg was not sued in the Indiana 

case. The failure to include Buddy Gregg in the Indiana case does not preclude application of 

the first-to-file rule, because regardless of this slight incongruence, the instant case and the 

Indiana case will resolve the same claims and issues. 

Because there are two cases, which are nearly identical, pending in two separate district 

courts, the Court finds that the first-to-file rule is applicable and that the instant case, as the laterfiled case, should be transferred to the Northern District of Indiana, absent any jurisdictional or 

equitable considerations that would prevent such a transfer. 

B. Personal Jurisdiction 

The first-to-file rule works in tandem with 28 U.S.C. § 1404(a), which 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.” 28 U.S.C. § 

1404(a). A court cannot transfer a case against a party to another district court without first 

finding that the transferee court can exercise jurisdiction over the party. See Herman Miller, Inc. 

v. Blumenthal Distrib., Inc., No. 1:14-CV-1111, 2015 WL 1565433, at *2 (W.D. Mich. Apr. 8, 

2015) (“[T]his Court cannot transfer the case against Fris to the Central District of California 
6 

absent a finding prior to transfer that the Central District of California court can exercise 

personal jurisdiction over Fris.”) 

In this case, the “2013 Model Year Dealer Policy & Procedure Manual,” (“the Manual”), 

which Buddy Gregg entered into as a dealer, provides, “All sales of Newmar products are 

deemed to occur in Indiana . . . .” [Doc. 44-1 at 2]. Further, the Manual states, “The courts 

(state or federal) located in the State of Indiana have exclusive jurisdiction to resolve any dispute 

based on this warranty, any implied warranty, or any alleged warranty breach, as well as any 

claim [or] cause filed in conjunction with a breach of warranty claim.” [Doc. 44-1 at 1]. 

A forum selection clause “should be upheld absent a strong showing that it should be set 

aside.” Wong v. PartyGaming, Ltd., 589 F.3d 821, at 828 (6th Cir. 2009) (citing Carnival Cruise 

Lines, Inc. v. Shute, 499 U.S. 585, 595 (1991)). “When evaluating the enforceability of a forum 

selection clause, this court looks to the following factors: (1) whether the clause was obtained by 

fraud, duress, or other unconscionable means; (2) whether the designated forum would 

ineffectively or unfairly handle the suit; and (3) whether the designated forum would be so 

seriously inconvenient such that requiring the plaintiff to bring suit there would be unjust.” Id. 

(citing Sec. Watch, Inc. v. Sentinel Sys., Inc., 176 F.3d 369, 375 (6th Cir. 1999)). 

Buddy Gregg has stated generally that it does not consent to personal jurisdiction in 

Indiana and has not waived personal jurisdiction to allow this case to proceed in Indiana. [Doc. 

42 at 3]. The Court finds these general statements do not amount to a strong showing that the 

forum selection clause should be set aside. Buddy Gregg has not made any showing that it 

entered into the agreement containing the forum selection clause while under duress, nor has it 

shown that the forum selection clause is unfair or ineffective. Buddy Gregg has argued that 

Indiana may not be as convenient a forum as Tennessee. However, its general allegations that 
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more witnesses may be found in Tennessee does not amount to a showing that litigating these 

claims in Indiana would be “seriously inconvenient such that requiring the plaintiff to bring suit 

there would be unjust.” Wong, 589 F.3d at 828. Thus, the Court cannot find that Buddy Gregg 

has made a sufficiently strong showing for setting aside the forum selection clause found in the 

Manual. 

C. Other Equitable Considerations

 As noted above the first-to-file rule may be set aside where equitable considerations 

weigh against its imposition. In this case, there is no evidence that the Indiana case was filed 

first in an effort to forum shop or beat a would-be plaintiff to the courthouse. Moreover, while 

Tennessee may be a more convenient venue for certain witnesses associated with Buddy Gregg, 

the Court cannot find that Tennessee is the most convenient venue for all of the witnesses. 

Further, the Court finds that the value of litigating all the claims at issue in a single forum – and 

thereby eliminating redundancies and saving resources – outweighs Buddy Gregg’s convenience 

in litigating in Tennessee. Accordingly, the Court finds that there is no equitable basis for setting 

aside or declining to endorse the first-to-file rule in this case. 

 
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IV. CONCLUSION 

Based upon the foregoing, the undersigned RECOMMENDS:

1

1. The Motion to Stay, Transfer or Consolidate be GRANTED IN PART and DENIED IN 

PART; and 

2. The Clerk of Court be DIRECTED to transfer this case to the Northern District of 

Indiana, South Bend Division, to allow it to be consolidated with Broadbent Wildlife 

Sanctuary, Inc. v. Newmar Corporation, et al., No. 3:14-cv-542, as that court deems 

appropriate. 

Respectfully Submitted, 

 

 United States Magistrate Judge 

 

 

 

1 Any objections to this Report and Recommendation must be served and filed within fourteen (14) days 

after service of a copy of this recommended disposition on the objecting party. Fed. R. Civ. P. 72(b)(2). 

Such objections must conform to the requirements of Rule 72(b), Federal Rules of Civil Procedure. 

Failure to file objections within the time specified waives the right to appeal the District Court’s order. 

Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985). The district court need not provide de novo review 

where objections to this report and recommendation are frivolous, conclusive or general. Mira v. 

Marshall, 806 F.2d 636 (6th Cir. 1986). Only specific objections are reserved for appellate review. Smith 

v. Detroit Federation of Teachers, 829 F.2d 1370 (6th Cir. 1987).