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2 

claims against the Zounds Defendants. Bent opposes that motion, and moves for the severance 

of his claims against FranChoice, so that they may be tried here. 

For the following reasons, FranChoice’s motion to transfer venue is granted, and Bent’s 

motion for severance is denied. 

I. Background1

A. Factual Background 

The Court assumes familiarity with the facts set forth in the Court’s November 30, 2015 

decision, Dkt. 32, reported at Bent v. Zounds Hearing Franchising, LLC, No. 15 Civ. 6555 

(PAE), 2015 WL 7721838, at *1 (S.D.N.Y. Nov. 30, 2015), and recites only those directly 

relevant to the pending motions. 

Bent is a resident of New York State. Compl. ¶ 2. Zounds Hearing is an Arizona limited 

liability company, with a principal place of business in Arizona, which grants franchises for the 

right to own and operate a retail hearing aid business. Id. ¶ 3. Zounds Inc. is a Delaware 

corporation, with a principal place of business in Arizona, which offers and sells hearing aid 

devices to franchisees, and is the parent and sole member of Zounds Hearing. Id. ¶ 4. 

Thomasson is a resident of Arizona, the business development advisor and sole manager of 

Zounds Hearing, and the founder and CEO of Zounds Inc. Id. ¶ 5. FranChoice is a Minnesota 

corporation, with a principal place of business in Minnesota. Id. ¶ 6. FranChoice provides 

 

1

 In deciding the parties’ motions, the Court considers Bent’s complaint, Dkt. 25, Ex. 1 

(“Compl.”); FranChoice’s Affirmation in Support of Transfer, Dkt. 33 (“FranChoice Aff.”); the 

Zounds Defendants’ Brief in Support of Transfer, Dkt. 35 (“Zounds Br.”); and Bent’s 

Memorandum of Law in Opposition to Transfer, Dkt. 34 (“Pl. Br.”). The Court also considers 

the exhibits and affidavits submitted in connection with the Zounds Defendants’ original motion 

to transfer. Dkt. 22, Ex. 5 (“Essa Aff.”); Dkt. 22, Exs. 2, 3 (“Franchise Agreement”) (“FA”). 

Case 2:16-cv-00102-SPL Document 36 Filed 01/12/16 Page 2 of 19
3 

franchise consulting services for prospective franchisees, and receives referral fees from 

franchisors, including Zounds. Id. ¶ 6. 

In summer 2013, Bent contacted FranChoice regarding his interest in purchasing a 

franchise. Id. ¶ 11. After submitting an inquiry to the FranChoice website, Bent was put in 

touch with Bob Johnson, a FranChoice consultant. Id. Bent alleges that, although Bent was 

initially interested in purchasing a food franchise, Johnson suggested that a Zounds franchise 

would present a better investment opportunity. Id. Bent alleges that Johnson, on behalf of 

FranChoice, represented that “the profit margins for Zounds franchises were significantly above 

average, that Zounds was the fastest growing franchise in the country, that Zounds franchises 

never failed, and that Zounds had the most advanced technology in hearing aids.” Id. ¶ 13. 

On FranChoice’s recommendation, Bent contacted Thomasson and other “Zounds-related 

individuals” to learn more about the Zounds franchise, and attended a discovery day at Zounds’ 

headquarters in Arizona. Id. ¶¶ 17–18; Essa Aff. ¶¶ 6–7. On September 13, 2013, Bent executed 

franchise agreements (the “FAs”) to buy 10 Zounds franchises for a total of $240,000. Compl. ¶ 

20. Each FA contains a forum-selection clause that requires the parties to litigate “any actions 

arising out of or related to this Agreement” in Arizona. FA ¶ 22(E). 

Pursuant to the Addendum to the FAs, Bent wired Zounds an upfront payment of 

$240,000. Id. ¶ 22; Essa Aff. ¶ 11. However, Bent alleges, Zounds later failed to carry out its 

obligations under the FAs or to fulfill the promises made by the Zounds representatives in 

connection therewith. Compl. ¶¶ 23–29. 

With regard to FranChoice, Bent alleges that each representation made by Johnson was 

false, and that “Johnson had no reason to believe them to be true.” Id. ¶ 13. In fact, Bent 

alleges, Zounds is the successor to an entity that went bankrupt in 2009; many Zounds franchises 

Case 2:16-cv-00102-SPL Document 36 Filed 01/12/16 Page 3 of 19
4 

have failed or are struggling; and numerous franchise owners have sued Zounds. Id. ¶ 14. 

Moreover, Bent alleges, at the time Bent spoke with Johnson, Zounds lacked an “in-the-ear” 

hearing aid product, which was “particularly critical in the New York City market.” Id. ¶ 15. 

B. Procedural History 

On July 28, 2015, Bent initiated this lawsuit in New York State Supreme Court, bringing 

claims against the Zounds Defendants for breach of contract, and against all defendants for (1) 

fraudulent and unlawful practices, in violation of N.Y. Gen. Bus. Law §§ 687, 691; (2) 

fraudulent misrepresentation and inducement; and (3) negligent misrepresentation. Id. ¶¶ 33–58. 

On August 19, 2015, the Zounds Defendants filed a notice of removal pursuant to 28 

U.S.C. § 1446. Dkt. 1. On August 27, 2015, FranChoice consented to the removal. Dkt. 13. On 

September 24, 2015, FranChoice filed a motion to dismiss the complaint. Dkt. 16. On October 

1, 2015, the Zounds Defendants filed both a motion to transfer and a motion to dismiss the 

complaint. Dkt. 21. 

On October 6, 2015, the Court notified the parties that it would resolve the motion to 

transfer before considering, if necessary, the motions to dismiss. Dkt. 24. On November 30, 

2015, the Court granted the motion to transfer Bent’s claims against the Zounds Defendants to 

the District of Arizona, pursuant to the forum selection clause binding those parties. Dkt. 32. 

The Court then solicited briefing on the issue of whether, in light of that ruling, Bent’s claims 

against FranChoice should be transferred to the District of Arizona, as well. Id. at 17–18. 

On December 14, 2015, FranChoice submitted an affirmation in favor of transferring all 

of Bent’s claims to the District of Arizona,2

 FranChoice Aff., and the Zounds Defendants 

submitted a memorandum of law in support, Zounds Br. Defendants contend that the forum 

 

2

 The Court treats this affirmation as a motion for transfer pursuant to 28 U.S.C. § 1404(a). 

Case 2:16-cv-00102-SPL Document 36 Filed 01/12/16 Page 4 of 19
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selection clause in the FAs compels the transfer of Bent’s claims against FranChoice to Arizona, 

and that, in any event, the factors governing discretionary transfer and severance weigh in favor 

of transferring the action as a whole. FranChoice Aff. ¶¶ 9, 12–17, 24; Zounds Br. 2–4, 6–9.

The same day, Bent submitted a brief opposing transfer and requesting severance of his claims 

against FranChoice from those against the Zounds Defendants.3 Pl. Br. 

II. Motion to Transfer Venue 

A. Legal Standards Governing Transfer Under 28 U.S.C. § 1404(a) 

Under 28 U.S.C. § 1404(a), “[f]or 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 . . . or to which all parties have consented.” 

In general, § 1404(a) gives district courts wide latitude to decide whether to transfer 

venue. In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. 

v. Ricoh Corp., 487 U.S. 22, 29 (1988)); Guardian Life Ins. Co. of Am. v. Hernandez, No. 11 

Civ. 2114 (SAS), 2011 WL 3678134, at *2 (S.D.N.Y. Aug. 22, 2011). In deciding a motion to 

transfer, a court should first inquire “whether the action could have been brought in the 

transferee district and, if yes, whether transfer would be an appropriate exercise of the Court’s 

discretion.” Robertson v. Cartinhour, No. 10 Civ. 8442 (LTS), 2011 WL 5175597, at *3 

(S.D.N.Y. Oct. 28, 2011). 

Assessing whether transfer is a valid exercise of discretion ordinarily requires the court to 

balance various factors, including: 

(1) the convenience of witnesses; (2) the convenience of the parties; (3) the location 

of relevant documents and the relative ease of access to sources of proof; (4) the 

locus of operative facts; (5) the availability of process to compel the attendance of 

unwilling witnesses; (6) the relative means of the parties; (7) the forum’s familiarity 

 

3

 The Court treats Bent’s submission both as an opposition to FranChoice’s motion for transfer, 

and as a motion for severance pursuant to Federal Rule of Civil Procedure 21. 

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6 

with the governing law; (8) the weight accorded the plaintiff’s choice of forum; and 

(9) trial efficiency and the interests of justice, based on the totality of the 

circumstances. 

Id. at *4; see also Kreinberg v. Dow Chem. Co., 496 F. Supp. 2d 329, 330 (S.D.N.Y. 2007); 

Reliance Ins. Co. v. Six Star, Inc., 155 F. Supp. 2d 49, 56–57 (S.D.N.Y. 2001). 

“The calculus changes, however, when the parties’ contract contains a valid forumselection clause, which ‘represents the parties’ agreement as to the most proper forum.’” Atl. 

Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568, 581 (2013) (quoting 

Stewart, 487 U.S. at 31). A forum-selection clause is “presumptively enforceable” if the moving 

party can demonstrate that: (1) the clause was reasonably communicated to the party challenging 

enforcement; (2) the clause is mandatory, rather than permissive, in nature; and (3) the clause 

encompasses the plaintiff’s claims. Phillips v. Audio Active Ltd., 494 F.3d 378, 383 (2d Cir. 

2007). If these conditions are satisfied, the clause must be enforced unless the party opposing 

transfer makes a “sufficiently strong showing that enforcement would be unreasonable or unjust, 

or that the clause was invalid.” Martinez v. Bloomberg LP, 740 F.3d 211, 221 (2d Cir. 2014) 

(quoting M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1, 15 (1972)). 

B. Analysis 

1. The Forum Selection Clause in the FAs Does Not Compel Transfer of 

Bent’s Claims Against FranChoice 

In its November 30, 2015 decision, the Court held that Bent’s claims against the Zounds 

Defendants should be transferred to Arizona pursuant to the presumptively enforceable forum 

selection clause contained in the FAs. Defendants now argue that the forum selection clause 

compels the transfer of Bent’s claims against FranChoice, as well. That argument fails, because 

the forum selection clause does not encompass Bent’s claims against FranChoice. 

Case 2:16-cv-00102-SPL Document 36 Filed 01/12/16 Page 6 of 19
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The Second Circuit has held that “the fact [that] a party is a non-signatory to an 

agreement is insufficient, standing alone, to preclude enforcement of a forum-selection clause.” 

Aguas Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 701 (2d Cir. 2009). Rather, a nonsignatory will be bound where he is found to be “closely related” to a signatory to the agreement, 

such that “the non-signatory’s enforcement of the forum selection clause is ‘foreseeable.’” Magi 

XXI, Inc. v. Stato della Citta del Vaticano, 714 F.3d 714, 722 (2d Cir. 2013). That is not the case 

here. 

In most cases where a non-signatory has been found sufficiently “closely related” to a 

signatory to a contract, such that a forum selection clause contained therein could be enforced 

against him, the non-signatory played an active role in the transaction, see, e.g., Firefly Equities, 

LLC v. Ultimate Combustion Co., Inc., 736 F. Supp. 2d 797, 800 (S.D.N.Y. 2010) (holding 

company’s president sufficiently “closely related” to signatory company, in part because he 

signed contract in his representative capacity), or was a principal of the signatory company, see 

Recurrent Capital Bridge Fund I, LLC v. ISR Sys. & Sensors Corp., 875 F. Supp. 2d 297, 311 

(S.D.N.Y. 2012) (corporate officer was bound by forum-selection clause in corporation’s 

contract, where he participated in, and stood to benefit from, the underlying transaction); 

Nanopierce Techs., Inc. v. Southridge Capital Mgmt. LLC, No. 02 Civ. 767 (LBS), 2003 WL 

22882137, at *5 (S.D.N.Y. Dec. 4, 2003) (finding CFO of signatory company bound by forum 

selection clause). 

 Here, in contrast, “[w]hile there is certainly a business relationship between [Zounds 

Hearing] and [FranChoice], it is not the type of close business relationship that other courts have 

found imperative.” Leviton Mfg. Co. v. Reeve, 942 F. Supp. 2d 244, 259 (E.D.N.Y. 2013), 

amended (Mar. 23, 2013). First, FranChoice did not play a direct role in the execution of the 

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FAs. Second, as an independent contractor of Zounds Hearing, FranChoice is not among the 

actors designated as a third-party beneficiary to the FAs. See FA ¶ 22(F) (“Franchisor’s officers, 

directors, shareholders, agents and/or employees are express third party beneficiaries of the 

provisions of this agreement, including the dispute resolution provisions set forth in this 

Section.”). Third, there is no indication that Bent perceived FranChoice to be acting as an agent 

of Zounds Hearing, or that he was even aware of the referral fee arrangement between the two 

companies. 

Accordingly, the Court cannot infer that it was foreseeable to Bent that FranChoice might 

seek to enforce the forum selection clause in an action such as this. The forum selection clause, 

therefore, does not support the transfer of Bent’s claims against FranChoice. 

2. Discretionary Transfer is Appropriate 

Although the forum selection clause does not compel transfer of Bent’s claims against 

FranChoice, the Court finds that transfer of this entire action to Arizona is nonetheless 

appropriate under the multi-factor test governing § 1404(a). 

a. Bent’s Claims Against FranChoice Could Have Been Brought 

in the District of Arizona 

Bent’s claims against FranChoice could have been brought in the District of Arizona 

because that District has personal jurisdiction over FranChoice and is an “appropriate venue” for 

Bent’s claims. Robertson, 2011 WL 5175597, at *3 (“A court may only transfer an action 

pursuant to § 1404(a) if the transferee district has personal jurisdiction over the defendants and 

the transferee district is an appropriate venue.”); Dostana Enters. LLC v. Fed. Express Corp., 

No. 00 Civ. 747 (RWS), 2000 WL 1170134, at *2 (S.D.N.Y. Aug. 16, 2000) (“An action ‘could 

have been brought’ in another forum if the defendant would have been amenable to personal 

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9 

jurisdiction in the transferee forum at the time the action was commenced and venue is proper 

there.”). 

The District of Arizona has personal jurisdiction over FranChoice by virtue of 

FranChoice’s express consent. FranChoice Aff. ¶ 8 (“FranChoice consents to the transfer of the 

claims posed against it by Bent to the District of Arizona.”); see Burger King Corp. v. 

Rudzewicz, 471 U.S. 462, 472 n.14 (1985) (an out-of-state defendant may give “express or 

implied consent to the personal jurisdiction of the court”) (internal quotation marks and citation 

omitted). 

The District of Arizona also constitutes an appropriate venue for the litigation of Bent’s 

claims against FranChoice. Section 1391 of Title 28 provides, in pertinent part, that venue is 

proper in “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.” 

28 U.S.C. § 1391(b)(2). In determining venue, “courts are not, in general, required to determine 

the ‘best venue,’ but merely a logical one with a substantial connection to the litigation.” 

Reliance Ins. Co. v. Polyvision Corp., 474 F.3d 54, 59 (2d Cir. 2007) (citing Bates v. C & S 

Adjusters, Inc., 980 F.2d 865, 867 (2d Cir. 1992)).

As discussed more fully below, Bent’s claims against FranChoice hinge on (1) the nature 

of the referral relationship between FranChoice and Zounds Hearing, which is located in 

Arizona; and (2) Bent’s communications with the Zounds Defendants, which occurred in 

Arizona. The District of Arizona thus bears a “substantial connection” to this litigation, making 

it an appropriate venue for Bent’s claims. Polyvision Corp., 474 F.3d at 59; see U.S. Titan, Inc. 

v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 153–54 (2d Cir. 2001) (communications 

relevant to dispute that were directed to venue are sufficient to make it proper venue); Sabilia v. 

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Richmond, No. 11 Civ. 739 (JPO) (MHD), 2011 WL 7091353, at *5 (S.D.N.Y. Oct. 26, 2011), 

report and recommendation adopted, 2012 WL 213656 (S.D.N.Y. Jan. 24, 2012) (Southern 

District of New York was proper venue for action involving claims of, inter alia, fraudulent 

misrepresentation, where “the various acts giving rise to plaintiffs’ claims, including [one 

defendant’s] communications to the other defendants, . . . occurred in this district”); Shpak v. 

Curtis, No. 10 Civ. 1818 (RRM), 2011 WL 4460605, at *6 (E.D.N.Y. Sept. 26, 2011) (selected 

forum bore “sufficient nexus to the transactions and occurrences underlying the plaintiffs’ 

claims,” where “representations underlying the alleged fraud . . . were made in [that district],” 

and plaintiffs “allege[d] numerous communications with the forum state”). 

b. Transfer is an Appropriate Exercise of the Court’s Discretion 

Having found that Bent’s claims against FranChoice could have been brought in the 

District of Arizona, the Court considers whether transfer is an “appropriate exercise of the 

Court’s discretion.” Robertson, 2011 WL 5175597, at *3. Here, the relevant factors under 

§ 1404(a) overwhelmingly support transferring this action as a whole to the District of Arizona. 

i. The locus of operative facts 

For several reasons, the locus of the facts undergirding Bent’s claims against FranChoice 

is Arizona, as opposed to New York. Bent has not alleged that FranChoice’s misrepresentations 

occurred in New York. “Misrepresentations and omissions are deemed to ‘occur’ in the district 

where they are transmitted or withheld, not where they are received.” In re Nematron Corp. Sec. 

Litig., 30 F. Supp. 2d 397, 404 (S.D.N.Y. 1998) (internal quotation marks and citation omitted); 

SBAV LP v. Porter Bancorp, Inc., No. 13 Civ. 372 (PAE), 2013 WL 3467030, at *4 (S.D.N.Y. 

July 10, 2013) (quoting In re Hanger Orthopedic Grp., Inc. Sec. Litig., 418 F. Supp. 2d 164, 169 

(E.D.N.Y. 2006)). Here, the alleged misrepresentations were made by Johnson, a franchise 

consultant of FranChoice, which is headquartered in Minnesota. Compl. ¶ 11. Although the 

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11 

complaint does not specify where Johnson was located at the time he communicated with Bent, 

the most reasonable inference is that the alleged misrepresentations were transmitted from, and 

thus “occurred” in, Minnesota. There is no basis to infer that they were made in New York. 

In contrast, a number of the key events underlying Bent’s claims occurred, at least 

partially, in Arizona. For instance, the communications establishing the referral relationship 

between FranChoice and Zounds Hearing were made between parties in Minnesota (FranChoice) 

and Arizona (Zounds Hearing). FranChoice Aff. ¶ 13. And FranChoice’s defenses—including 

that (1) it was not involved in representations made to Bent by the Zounds Defendants, (2) it did 

not make representations to Bent when he was deciding whether to purchase a Zounds franchise, 

and (3) Bent could not have reasonably relied on FranChoice’s representations, if made, in light 

of his personal investigation into Zounds, see id. ¶ 13; Dkt. 18, at 11–14—all implicate events in 

Arizona. Finally, the majority of FranChoice’s alleged misrepresentations revolve around 

corporate information pertaining to Zounds’ hearing-aid business, which is located, if anywhere, 

in Arizona. 

For these reasons, the Court concludes, substantially more events material to Bent’s 

claims against FranChoice occurred in or relate to Arizona than New York. This factor thus 

supports transfer to Arizona. 

ii. Trial efficiency and the interests of justice 

The interests of justice and trial efficiency provide a compelling basis for transferring all 

of Bent’s claims to Arizona. “Transfer of an action to a district where a related case is pending 

enables more efficient conduct of pretrial discovery, [and] saves witnesses time and money in 

both trial and pretrial proceedings . . . thereby eliminating unnecessary expense to the parties 

while at the same time serving the public interest.” Foothill Capital Corp. v. Kidan, No. 03 Civ. 

3976 (RMB), 2004 WL 434412, at *4 (S.D.N.Y. Mar. 8, 2004) (internal quotation marks and 

Case 2:16-cv-00102-SPL Document 36 Filed 01/12/16 Page 11 of 19
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citation omitted); accord Wyndham Assoc. v. Bintliff, 398 F.2d 614, 619 (2d Cir. 1968) 

(recognizing a “strong policy favoring the litigation of related claims in the same tribunal” in 

order to promote judicial efficiency); Stroud Prods. & Enters. v. Castle Rock Entm’t, No. 07 Civ. 

8638 (HB), 2009 WL 2391676, at *3 (S.D.N.Y. Aug. 4, 2009) (“[T]rial efficiency and the 

interests of justice weigh heavily in favor of litigating all related causes of action . . . in a single 

forum.” (citation omitted)). Such is especially true where, as here, the claims have already been 

joined in a single action, and there is substantial commonality of issues underlying the plaintiff’s 

causes of action against all defendants. See Cont’l Grain Co. v. The FBL-585, 364 U.S. 19, 26 

(1960) (“To permit a situation in which two cases involving precisely the same issues are 

simultaneously pending in different District Courts leads to the wastefulness of time, energy and 

money that § 1404(a) was designed to prevent.”). 

Here, although Bent’s claims against FranChoice and the Zounds Defendants are not 

identical, there will unavoidably be significant overlap in the relevant evidence and witnesses, as 

reflected in Bent’s decision to bring a common case against these defendants. See Mfrs. 

Hanover Trust Co. v. Palmer Corp., 798 F. Supp. 161, 167 (S.D.N.Y. 1992) (“The interests of 

justice require that the cases be related, not identical.”). It is also possible, if not likely, that 

FranChoice and the Zounds Defendants will bring crossclaims against one another for indemnity 

and/or contribution. Zounds Br. 5 (noting the “possibility of cross-claims”); see Posven, C.A. v. 

Liberty Mut. Ins. Co., 303 F. Supp. 2d 391, 406 (S.D.N.Y. 2004) (“[I]t is well established that the 

ability to implead a third-party in the proposed transferee forum and thereby resolve related 

claims in a single action weighs heavily in favor of transfer.”) (collecting cases). 

Under these circumstances, transfer will “substantially advance[ ] the interests of 

fairness, efficiency and judicial economy” by preventing duplicative proceedings, avoiding 

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13 

inconsistent results, and “reducing the overall burden on the parties, non-party witnesses and the 

judicial system.” Id. This factor, too, therefore strongly supports transfer. 

iii. The convenience of the witnesses 

The convenience of witnesses, frequently described as the single most important 

§ 1404(a) factor, see, e.g., Eres N.V. v. Citgo Asphalt Ref. Co., 605 F. Supp. 2d 473, 480 

(S.D.N.Y. 2009); Capitol Records, LLC v. VideoEgg, Inc., 611 F. Supp. 2d 349, 366 (S.D.N.Y. 

2009), also favors transfer of all of Bent’s claims to the District of Arizona. 

Here, three areas of witness testimony will be implicated if Bent’s claims against 

FranChoice reach trial: (1) testimony as to the statements or misrepresentations allegedly made 

by FranChoice, (2) testimony as to the extent to which Bent reasonably relied on any such 

misrepresentations, and (3) testimony bearing on the truth or falsity of FranChoice’s statements, 

and the factual basis on which they were made. It is reasonable to expect that witnesses as to the 

latter two issues will be dominantly sited in Arizona, where Zounds Hearing is headquartered 

and the Zounds discovery day was held. In contrast, there is no indication that New York would 

present a more convenient forum than Arizona for Johnson, who, aside from Bent, will be the 

central witness as to the first point. Tellingly, Bent does not identify a single witness other than 

himself for whom New York is a more convenient forum. 

Moreover, to the extent that any witnesses’ testimony pertains to Bent’s claims against 

both FranChoice and the Zounds Defendants—as the Court expects will be the case for many, if 

not most, witnesses—those witnesses will be spared much inconvenience by being called to 

testify in a single trial in a single location. See DISH Network, L.L.C. v. Am. Broad. Cos., Inc., 

No. 12 Civ. 4155 (LTS), 2013 WL 1091318, at *3 (S.D.N.Y. Mar. 15, 2013) (“[B]ecause the 

contract interpretation dispute between NBCU and DISH will be heard in the California Action 

in any event, any potential inconvenience to some witnesses is significantly outweighed by the 

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14 

convenience of providing testimony in a single consolidated action.” (internal quotation marks 

and citation omitted)). Accordingly, this factor, too, strongly favors transfer.4

 See Ravenwoods 

Invest. Co., L.P. v. Bishop Capital Corp., No. 04 Civ. 9266 (KMK), 2005 WL 236440, at *5 

(S.D.N.Y. Feb. 1, 2005) (this factor “weighs heavily in favor of transfer” where plaintiff’s 

inconvenience would be “minor” in comparison to that which defendants would endure absent 

transfer).

iv. The convenience and relative means of the parties 

Neither Bent nor FranChoice has asserted that undue financial hardship would ensue 

were the litigation to proceed in the other’s preferred forum. But, because trying all claims in a 

common forum is far more efficient than bifurcating them, transfer to Arizona will save money 

and enhance convenience for all parties. The relative convenience of the parties, therefore, 

favors transfer. 

FranChoice will be required to travel from Minnesota to present its defense regardless of 

which venue the Court chooses. Given the possibility that the Zounds Defendants would 

implead FranChoice in the Arizona litigation, see Zounds Br. 5, or that FranChoice personnel 

would be required to testify as witnesses there, transfer of the remaining claims to the District of 

Arizona for a common trial presents the more convenient and cost-effective forum for 

FranChoice. 

As to Bent, any inconvenience that he will experience from being required to litigate his 

claims against FranChoice in Arizona is minor, given that he is already destined to travel to 

 

4

 The factor of availability of process to compel the attendance of unwilling witnesses is neutral, 

as neither party has yet identified witnesses whose testimony would likely need to be compelled. 

See SBAV LP, 2013 WL 3467030, at *11.

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Arizona to litigate his claims against the Zounds Defendants. It will almost certainly be less 

costly and more convenient for Bent to efficiently litigate all of his claims in one forum, than to 

litigate some in Arizona and others in New York. See McCain v. Racing, No. 07 Civ. 5729 

(JRS), 2007 WL 2435170, at *4 (S.D.N.Y. Aug. 27, 2007) (finding that, although plaintiff 

contested transfer, it would “plainly be more convenient” and “less costly” for both parties to 

litigate related claims in a single forum); Bruhl v. PriceWaterhouseCoopers Int’l, Ltd., No. 03 

Civ. 6644 (CSH), 2004 WL 447232, at *3 (S.D.N.Y. Mar. 10, 2004) (finding any inconvenience 

to defendant “more apparent than real,” where defendant was already a litigant in a related case 

in the transferee district). Indeed, a unitary trial will undoubtedly be shorter than the combined 

length of two proceedings in different fora, generating fewer expenses, including counsel fees 

and disbursements. The convenience and relative means of the parties, therefore, support 

transfer.

v. The location of relevant documents and sources of proof 

The Court notes that the majority of documents bearing on Bent’s claims against 

FranChoice will likely be located at Zounds Hearing’s corporate headquarters in Arizona. 

However, given electronic discovery, the location of relevant documents and relative ease of 

access to sources of proof do not materially favor either venue. See Guardian Life Ins. Co., 2011 

WL 3678134, at *3; Am. S.S. Owners Mut. Prot. & Indem. Ass’n v. Lafarge N. Am., Inc., 474 F. 

Supp. 2d 474, 484 (S.D.N.Y. 2007). 

vi. The forum’s familiarity with governing law 

The fact that Bent brings, among other claims, claims under the NYFSA, N.Y. Gen. Bus. 

Law §§ 687, 691, favors this District, but only slightly. “A forum’s familiarity with the 

governing law . . . is one of the least important factors in determining a motion to transfer, 

especially where no complex questions of foreign law are involved.” Posven, 303 F. Supp. 2d at 

Case 2:16-cv-00102-SPL Document 36 Filed 01/12/16 Page 15 of 19
16 

405. Here, the parties have not indicated that any complicated or novel issues of law are 

implicated by Bent’s claims, and the Court is confident that the courts in the District of Arizona 

can ably apply this New York statute. See id. This factor therefore merits little weight. 

vii. The weight accorded to the plaintiff’s choice of forum 

Bent’s choice of forum is the sole factor that weighs significantly against transfer to 

Arizona. Under the circumstances, the Court does not find this factor dispositive. 

Although a plaintiff’s choice of forum is “presumptively entitled to substantial 

deference,” Gross v. British Broad. Corp., 386 F.3d 224, 230 (2d Cir. 2004), it is accorded less 

weight where “the connection between the case and the chosen forum is minimal,” Chiste v. 

Hotels.com L.P., 756 F. Supp. 2d 382, 401 (S.D.N.Y. 2010); accord Kreinberg, 496 F. Supp. 2d 

at 330 (“[W]hen the operative facts have few meaningful connections to the plaintiff's chosen 

forum . . . the importance of the plaintiff’s choice of forum measurably diminishes.”) (collecting 

cases); Stein v. Microelectronic Packaging, Inc., No. 98 Civ. 8952 (MBM), 1999 WL 540443, at 

*8 (S.D.N.Y. July 26, 1999). 

As discussed above, the vast majority of operative facts here occurred outside of New 

York, and Arizona presents, on balance, the more convenient forum for all parties and witnesses 

to this action. Moreover, the interests of fairness and judicial efficiency militate strongly in 

favor of transfer, particularly given that it was Bent’s decision to pursue his claims against the 

Zounds Defendants and FranChoice together in the same action. 

Accordingly, the Court finds that the other relevant considerations substantially outweigh 

Bent’s choice of forum.5

 Discretionary transfer is, therefore, an appropriate exercise of the 

Court’s discretion. 

 

5

 In so holding, the Court notes that in many other cases, the interests served by consolidating 

claims in the same forum have been found so compelling as to outweigh even a binding forum 

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III. Motion for Severance 

A. Legal Standards Governing Severance Under Federal Rule of Civil 

Procedure 21 

In an alternative bid to keep his claims against FranChoice in this venue, Bent seeks 

severance of those claims from the claims he brought against the Zounds Defendants. Federal 

Rule of Civil Procedure 21 permits a court to “sever any claim against a party.” “The decision 

[as to] whether to grant a severance motion is committed to the sound discretion of the trial 

court.” A & E Prod. Group v. The Accessory Corp., No. 00 Civ. 7271 (LMM), 2002 WL 

1041321, at *1 (S.D.N.Y. May 23, 2002) (quoting New York v. Hendrickson Bros., Inc., 840 

F.2d 1065, 1082 (2d. Cir. 1988)). 

In considering a motion to sever, the Court must weigh several factors, including “(1) 

whether the claims arise out of the same transaction or occurrence; (2) whether the claims 

present some common questions of law or fact; (3) whether settlement of the claims or judicial 

economy would be facilitated; (4) whether prejudice would be avoided if severance were 

granted; and (5) whether different witnesses and documentary proof are required for the separate 

claims.” Deajess Med. Imaging, P.C. ex rel. Barry v. Geico Gen. Ins. Co., No. 03 Civ. 7388 

(DF), 2005 WL 823884, at *2 (S.D.N.Y. Apr. 7, 2005) (quoting Preferred Med. Imaging, P.C. v. 

Allstate Ins. Co., 303 F. Supp. 2d 476, 277 (S.D.N.Y. 2004)). 

 

selection clause favoring a different forum. See, e.g., Capital Venture Int’l v. Network 

Commerce, Inc., No. 01 Civ. 4390 (JSM), 2002 WL 417246, at *2 (S.D.N.Y. Mar. 15, 2002); 

APA Excelsior III L.P. v. Premiere Techs., Inc., 49 F. Supp. 2d 664, 668, 671–72 (S.D.N.Y. 

1999) (collecting cases). There is, of course, no such agreement favoring New York here. 

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B. Analysis 

The same factors that overwhelmingly support transfer counsel against the severance of 

Bent’s claims against FranChoice from those he brought against the Zounds Defendants. Indeed, 

all five factors relevant under Rule 21 disfavor severance here. 

 First, Bent’s claims against both FranChoice and the Zounds Defendants all arise from 

one set of events: Bent’s decision, following FranChoice’s recommendation, to invest in Zounds 

franchises, and the communications that led to it. And Bent’s claims against all defendants will 

present common questions of law—Bent asserts three identical causes of action against both 

FranChoice and the Zounds Defendants, see Compl. ¶¶ 36–38, 40–53—and fact (e.g., the extent 

to which Bent reasonably relied on the alleged misrepresentations by FranChoice and the Zounds 

Defendants, the extent to which Bent sustained injury, etc.). Accordingly, there is certain to be 

great overlap in the witnesses and documentary proof on which both sets of claims will turn. 

Kirk v. Metro. Transp. Auth., No. 99 Civ. 3787 (RWS), 2001 WL 25703, at *3 (S.D.N.Y. Jan. 

10, 2001) (finding that “overlap in facts, evidence, and witnesses” weighed against severance). 

 Moreover, as reviewed above, severance would hinder—not serve—the interests of 

justice and judicial efficiency. By forcing FranChoice and the Zounds Defendants to proceed in 

separate fora, severance might also create a risk of inconsistent outcomes, and potentially 

complicate settlement discussions—both of which would prejudice the defendants. See Lutz v. 

Buono, No. 05 Civ. 4879 (GAY), 2009 WL 3364032, at *1 (S.D.N.Y. Oct. 16, 2009) (finding 

joint trial “prudent in order to avoid the potential problem of inconsistent verdicts”). While Bent 

insists that he will be further prejudiced by the transfer of his claims against FranChoice, see Pl. 

Br. 3, he overlooks the burden that severance would impose on the defendants, witnesses, and 

the judiciary. 

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