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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

VINCENT V. ROGGIO, §

Plaintiff, §

§

v. § CIVIL ACTION NO. H-10-3773

§

ANTHONY Z. EMMANOUIL, et al., §

Defendants. §

MEMORANDUM AND ORDER

This case is before the Court on the Motion to Dismiss or, in the Alternative,

to Transfer [Doc. # 12] filed by Defendants Anthony Z. Emmanouil and West Belt

Auto Supply, Inc. (“West Belt”), to which Plaintiff Vincent V. Roggio filed a

Response [Doc. # 25], and Defendants filed a Reply [Doc. # 27]. Having carefully

reviewed the full record and governing legal authorities, the Court denies without

prejudice the Motion to Dismiss and grants the Motion to Transfer this case to the

United States District Court for the District of New Jersey.

I. FACTUAL BACKGROUND

West Belt, a Texas corporation based in Houston, was incorporated in 1976.

In 1985, Emmanouil became the sole shareholder. In April 2002, Emmanouil and

Roggio executed a contract for Emmanouil to sell to Roggio 90% of West Belt stock

for $1,350,000.00. A dispute arose between the parties regarding whether Emmanouil

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breached the contract by failing to convey the stock to Roggio or whether Roggio

breached the contract by failing to pay the required consideration.

In March 2006, Emmanouil, West Belt and others filed a lawsuit against Roggio

and others in the United States District Court for the District of New Jersey. In May

2006, Roggio filed a complaint against Emmanouil, West Belt and others. Roggio

alleged that he was a shareholder in West Belt and that Emmanouil breached his

contract with Roggio. The court in New Jersey consolidated the two lawsuits.

After four years of discovery and other procedural matters, the consolidated

lawsuit was tried to a jury. The parties originally included in their Pre-Trial Order

issues regarding the ownership of West Belt. According to Emmanouil, however, the

parties agreed before trial that the issue of who owned the shares in West Belt would

be determined by the jury’s verdict on the issue of who breached the contract.

On September 3, 2010, at the conclusion of the trial in New Jersey, the jury

returned a verdict finding that Roggio breached the contract and awarding Emmanouil

$1,221,331.00 in damages. The jury found against Roggio on his claims against

Emmanouil.

On September 13, 2010, Roggio filed this lawsuit against Emmanouil and West

Belt. In this Complaint [Doc. # 1], Roggio claims to own 90% of the shares in West

Belt and seeks a declaration to that effect from this Court.

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Meanwhile, in the consolidated lawsuit in New Jersey, Roggio filed a post-trial

motion for judgment as a matter of law or, alternatively, for a new trial. The motion

remains pending before the court in New Jersey.

Defendants in this case seek dismissal or, alternatively, to have this lawsuit

transferred to the District of New Jersey. The issues have been fully briefed and are

ripe for decision.

II. MOTION TO DISMISS

A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure is viewed with disfavor and is rarely granted. Manguno v. Prudential Prop.

& Cas. Ins. Co., 276 F.3d 720, 725 (5th Cir. 2002). The complaint must be liberally

construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken

as true. Id. 

In this case, the basis for Defendants’ Motion to Dismiss is that the issue in this

case has already been decided by the jury in the consolidated lawsuits in New Jersey.

That jury verdict, however, is currently being challenged by Roggio, and that

challenge has not yet been decided by the New Jersey court. Accordingly, dismissal

of this lawsuit based on the jury’s verdict in New Jersey is not appropriate at this

point. The Motion to Dismiss is, therefore, denied without prejudice.

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III. MOTION TO TRANSFER

A. Applicable Legal Standards

“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); In re Volkswagen of Am., Inc., 545

F.3d 304, 308 n.1 (5th Cir. 2008) (en banc), cert. denied, 129 S. Ct. 1336 (2009)

(“Volkswagen II”). To determine whether transfer is appropriate under § 1404, the

Court must first determine “whether the judicial district to which transfer is sought

would have been a district in which the claim could have been filed.” In re

Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”). 

The moving party must also show good cause for a transfer of venue.

Volkswagen II, 545 F.3d at 315. To show good cause, a moving party must “clearly

demonstrate that a transfer is for the convenience of parties and witnesses, in the

interest of justice.” Id. If “the transferee venue is not clearly more convenient than

the venue chosen by the plaintiff, the plaintiff’s choice should be respected.” Id. 

The Court must consider both private and public factors in deciding whether the

transfer would be clearly more convenient for the parties and witnesses and serve the

interests of justice. See Volkswagen II, 545 F.3d at 315. While “a plaintiff’s choice

of venue is not a distinct factor in the venue transfer analysis, it is nonetheless taken

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into account as it places a significant burden on the movant to show good cause for

the transfer.” Id. “However, when a plaintiff is not a resident of the chosen forum,

or the operative facts underlying the case did not occur in the chosen forum, the court

will not give as much deference to a plaintiff’s choice.” See Apparel Production

Servs. Inc. v. Transportes De Carga Fema, S.A., 546 F. Supp.2d 451, 453 (S.D. Tex.

2008) (citing In re Horseshoe Enter. 337 F.3d 429, 434-35 (5th Cir. 2003)).

“The private interest factors are: (1) the relative ease of access to sources of

proof; (2) the availability of compulsory process to secure the attendance of witnesses;

(3) the cost of attendance for willing witnesses; and (4) all other practical problems

that make trial of a case easy, expeditious, and inexpensive.” Volkswagen II, 545 F.3d

at 315 (citing Volkswagen I, 371 F.3d at 203). 

The relative convenience to the witnesses is often recognized as the most

important factor under § 1404(a). Spiegelberg, 402 F. Supp. 2d at 790. In considering

the convenience of witnesses, the relative convenience to key witnesses and key nonparty witnesses is accorded greater weight in the venue transfer analysis. See

Spiegelberg, 402 F. Supp. 2d at 790–91 (non-party witnesses); Gundle Lining Const.

Corp. v. Fireman’s Fund Ins. Co., 844 F. Supp. 1163, 1166 (S.D. Tex. 1994) (key

non-party witnesses); Continental Airlines, Inc. v. Am. Airlines, Inc., 805 F. Supp.

1392, 1396 (S.D. Tex. 1992) (key witnesses). 

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“The public interest factors are: (1) the administrative difficulties flowing from

court congestion; (2) the local interest in having localized interests decided at home;

(3) the familiarity of the forum with the law that will govern the case; and (4) the

avoidance of unnecessary problems of conflict of laws or in the application of foreign

law.” Volkswagen II, 545 F.3d at 315 (citing Volkswagen I, 371 F.3d at 203).

These public and private factors are not necessarily exhaustive or exclusive, and

none can be said to be of dispositive weight. Action Indus., Inc. v. U.S. Fid. & Guar.

Corp., 358 F.3d 337, 340 (5th Cir. 2004) (citing Syndicate 420 at Lloyd’s London v.

Early Am. Ins. Co., 796 F.2d 821, 827 (5th Cir. 1986)).

B. Analysis

The initial inquiry is whether this case could have been brought in New Jersey.

Although Roggio argues that it could not have been, the undisputed fact is that the

case was brought in New Jersey and has been pending there for four years.

Defendants filed a lawsuit against Roggio in New Jersey, submitting themselves to

that court’s jurisdiction. Roggio filed a lawsuit against Emmanouil and West Belt,

and the parties submitted to the New Jersey court’s jurisdiction as well as venue. As

a result, the Court finds that this case could have been, and indeed the identical claims

were, brought in New Jersey.

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The private interest factors weigh heavily in favor of transfer. It is undisputed

that neither Roggio nor Emmanouil reside in Houston. The dispute involves the

ownership of shares of West Bank stock, and there is no evidence that those shares are

held in Texas. Most key witnesses reside in New Jersey, as does Roggio. The

attendance of all key witnesses was apparently obtained without difficulty or undue

expense for the trial in New Jersey. All documents are located in New Jersey,

including those that have been obtained from sources outside that state. A trial of this

dispute will not be necessary should the New Jersey court determine that the issue has

been effectively decided by the jury in New Jersey.

The public interest factors also weigh heavily in favor of transfer. The Southern

District of Texas is an exceedingly busy court, and it is a waste of judicial time and

resources for this Court to decide an issue that may well have been decided in New

Jersey. Except that West Belt, which has ceased operations, is a Texas corporation,

this is not a local Houston dispute. The New Jersey court has much more familiarity

with this case, including the governing law, than this Court. The public interest also

disfavors trying to avoid a decision in one jurisdiction by filing a declaratory

judgment action in another.

The Court finds that the private and public interest factors weigh heavily in

favor of transferring this case to the District of New Jersey, where it could originally

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have been brought. Indeed, Roggio previously sued Emmanouil and West Belt in

New Jersey for a determination regarding who owns the West Belt stock. Apparently

dissatisfied with the result of that litigation, Roggio now seeks to pursue a declaratory

judgment action in this federal district. The convenience of the parties and the

witnesses, and the interests of justice, favor having this lawsuit decided in the same

court where the dispute has been pending for four years and remains pending on

Roggio’s post-trial motion.

IV. CONCLUSION AND ORDER

The jury verdict on which Defendants base their Motion to Dismiss is currently

the subject of a post-trial motion pending before the New Jersey court. As a result,

the Court cannot dismiss this case at this point.

Nonetheless, both the private and public factors strongly favor transfer of this

case to the federal court in New Jersey. Roggio’s current choice of this forum is

entitled to little deference because he is not a resident of this forum and it is not his

first choice of forum for this dispute. See Apparel Production, 546 F. Supp. 2d at 453.

Because Defendants have “clearly demonstrate[d] that a transfer is for the

convenience of parties and witnesses, [and] in the interest of justice,” this case will be

transferred to New Jersey. It is hereby

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1 It would seem that the case, following transfer to the District of New Jersey, should

be assigned to Chief Judge Garrett E. Brown, for consideration in connection with

Emmanouil v. Roggio, Civil Action No. 06-cv-1068. That decision, however, rests

with the court in New Jersey.

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ORDERED that Defendants’ Motion to Dismiss [Doc. # 12] is DENIED

WITHOUT PREJUDICE and the Motion to Transfer [Doc. # 12] is GRANTED.

This case will be TRANSFERRED by separate order to the United States District

Court for the District of New Jersey.1

SIGNED at Houston, Texas, this 17th day of February, 2011. 

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