1 Also pending are Plaintiff’s Motion to Dismiss Anthony Pizzichillo’s Counterclaim

[Doc. # 101], Motion to Dismiss Jeanne Rondeau’s Counterclaim [Doc. # 102],

Motion to Compel Depositions [Doc. # 115], and Motion to Strike Certification [Doc.

# 119]. Because the Court is transferring this case to New Jersey, these motions are

denied without prejudice to being reurged in New Jersey following transfer.

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

FINANCIAL CASUALTY & §

SURETY, INC., §

Plaintiff, §

§

v. § CIVIL ACTION NO. H-11-0120

§

JAMES V. MASCOLA et al., §

Defendants. §

MEMORANDUM AND ORDER

This case is before the Court is Defendants Anthony Pizzichillo (“Pizzichillo”)

and Jeanne Rondeau’s (“Rondeau”) Motion to Dismiss or to Transfer Venue [Doc. #

84] (“Motion”).1

 Defendants Pizzichillo and Rondeau, who are proceeding pro se,

seek to dismiss the complaint against them for lack of personal jurisdiction and for

failure to state a claim upon which relief may be granted. Alternatively, these

Defendants seek a transfer to the United States District Court for the District of New

Jersey. Plaintiff Financial Casualty & Surety, Inc. (“FCS”) filed a Response [Doc. #

98]. Having considered the parties’ briefing, the applicable legal authorities, and all

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matters of record, the Court denies the Motion to Dismiss for lack of personal

jurisdiction, grants the Motion to Transfer Venue, and denies without prejudice the

Motion to Dismiss for failure to state a claim.

I. BACKGROUND

This lawsuit arises out of the issuance of bail bonds in New Jersey. On or about

October 10, 2007, Plaintiff FCS entered into a General Agent Bail Bond Agreement

with Defendants James Mascola, Genevieve Steward and Bail Group Management,

LLC (collectively, “Bail Group”). Under the terms of the agreement, Bail Group

operated a bail bonding service and FCS functioned as an authorized surety for those

bonds. Bail Group was authorized to retain producers and sub-producers who could

issue bonds with FCS operating as the surety. On November 21, 2008, Bail Group

entered into a Sub-Producer Bail Bond Agreement with Rondeau, Pizzichillo, and A1

Bail 4U, LLC. See Sub-Producer Bail Bond Agreement [Doc. # 84-2] (“Agreement”).

In January 2011, FCS filed this lawsuit to compel Defendants to comply with

the terms of these various bail bond agreements. After conducting an evidentiary

hearing, the Court issued a Temporary Restraining Order [Doc. # 9], which was later

converted into a preliminary injunction [Doc. # 25].

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On April 13, 2011, Defendants Pizzichillo and Rondeau filed the instant

Motion, seeking to dismiss this case for lack of jurisdiction, failure to state a claim

upon which relief may be granted, or alternatively to transfer venue in this case to the

United States District Court for the District of New Jersey. The Motion is now ripe

for decision.

II. MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

The Agreement, executed by Defendants Pizzichillo and Rondeau, contains the

following forum selection clause:

APPLICABLE LAW, VENUE, AND FORUM. At the discretion of

Company, the Agreement is to be interpreted in accordance with the laws

of the State of Texas, where Company is based, or of the Sub-Producer’s

home state. The parties hereto do hereby consent and stipulate to the

jurisdiction (at the discretion of Company) of the courts in the State of

Texas, County of Harris or of the Sub-Producer’s home state for any

action brought under this Agreement.

See Agreement, ¶ 28. It is undisputed that the relevant sub-producers’ home state is

New Jersey.

Parties may designate by contract a forum to litigate disputes. See Carnival

Cruise Lines, Inc. v. Shute, 499 U.S. 585, 588 (1991). “The purpose of enforcing

forum selection clauses is to encourage parties to honor their contractual obligations

and to promote the use of forum selection clauses to spare the time and expense of

determining the proper forum for disputes.” Fin. Fed. Credit, Inc. v. NE Rentals, Inc.,

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2009 WL 4667571, at *2 (S.D. Tex. Dec. 1, 2009) (citing ABC Rental Sys., Inc. v.

Colotyme, Inc., 893 F. Supp. 636, 638 (E.D. Tex. 1995), and Carnival Cruise Lines,

499 U.S. at 594).

Forum selection clauses are generally considered prima facie valid and should

be enforced. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972); SeattleFirst National Bank v. Manges, 900 F.2d 795, 799 (5th Cir. 1990); Kessman &

Assocs., Inc. v. Barton-Aschman Assocs., Inc., 10 F. Supp. 2d 682, 688 (S.D. Tex.

1997). The party resisting the forum selection clause must show the clause is

“unreasonable” before a court may decline to enforce the clause. Carnival Cruise

Lines, 499 U.S. at 595; Marinechance Shipping, Ltd. v. Sebastian, 143 F.3d 216, 220

(5th Cir. 1998). Unreasonableness may be demonstrated by “a showing that the clause

results from fraud or overreaching, that it violates a strong public policy, or that

enforcement of the clause deprives the [party resisting the clause] of his day in court.”

Afram Carriers, Inc. v. Moeykens, 145 F.3d 298, 301 (5th Cir. 1998) (quoting Mitsui

& Co. (USA), Inc. v. Mira M/V, 111 F.3d 33, 35 (5th Cir. 1997)). “The party resisting

enforcement on these grounds bears a ‘heavy burden of proof.’” Haynsworth v. The

Corporation, 121 F.3d 956, 963 (5th Cir. 1997) (quoting The Bremen, 407 U.S. at 17).

Defendants Pizzichillo and Rondeau have failed to satisfy their “heavy burden”

to show that the forum selection clause in the Agreement is unreasonable and should

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not be enforced. Defendants have produced no evidence that the forum selection

clause was the result of fraud or overreaching, that it violates a strong public policy

of this forum, or that it would deprive them of their day in court. See Afram Carriers,

145 F.3d at 301.

Defendants rely on City of New Orleans v. Mun. Admin. Serv., 376 F.3d 501

(5th Cir. 2004), to argue that the forum selection clause is ineffective because it is not

a “clear and unequivocal waiver” of jurisdiction. The Court is unpersuaded. City of

New Orleans, which involved a dispute over whether a forum selection clause

operated as a waiver of the right of removal to federal court, is inapplicable here.

Moreover, the forum selection clause here is not ambiguous; it contains a clear and

unequivocal consent to personal jurisdiction and venue in this court. The clause gives

FCS the discretion to bring a suit in Texas or in New Jersey, but that does not render

the clause ambiguous. 

A valid forum selection clause shows a party’s consent to personal jurisdiction

in the specified forum, and, absent fraud or overreaching, courts enforce such consent.

Alliantgroup, L.P. v. Feingold, 2009 WL 2498551, at *6 n.2 (S.D. Tex. Aug. 12,

2009) (citing Kevlin Servs., Inc. v. Lexington State Bank, 46 F.3d 13, 15 (5th Cir.

1995)). Because Defendants Pizzichillo and Rondeau have failed to show that the

forum selection clause in the Agreement is unreasonable, the clause is valid and will

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2 Because Pizzichillo and Rondeau contractually consented to personal jurisdiction in

this forum, the Court need not conduct an analysis of the Texas long-arm statute and

the parties’ contacts with the forum state. Alliantgroup, 2009 WL 2498551, at *6

(S.D. Tex. Aug. 12, 2009). 

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be enforced. The Court holds that Defendants Pizzichillo and Rondeau have

contractually consented to both venue and personal jurisdiction in this forum.2

Accordingly, Defendants’ Motion to Dismiss for lack of personal jurisdiction is

denied.

III. MOTION TO TRANSFER VENUE

Defendants Pizzichillo and Rondeau also move, in the alternative, to transfer

this case to the District of New Jersey pursuant to 28 U.S.C. § 1404(a). Section

1404(a) provides that “[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.” 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(a), 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”). It is uncontested that, both under

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general rules governing venue and personal jurisdiction and pursuant to the forum

selection clause in the Agreement, FCS could have filed this lawsuit in the District of

New Jersey. 

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.

Courts analyze pertinent private and public factors as to whether transfer would be

more convenient for the parties and witnesses and in the interests of justice. See In

re Horseshoe Enter., 337 F.3d 429, 433-35 (5th Cir. 2003). 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)).

Generally, the presence of a forum selection clause is a significant factor in

determining a motion to transfer, and the Court must consider the parties’ convenience

and fairness in light of the parties’ expressed preference for the chosen forum. See

Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988). A party’s consent to

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jurisdiction and venue in one forum, however, does not necessarily waive its right to

argue that the action should be heard in another. Id. “For a forum selection clause to

be exclusive, it must go beyond establishing that a particular forum will have

jurisdiction and must clearly demonstrate the parties’ intent to make that jurisdiction

exclusive.” Id. Where the language in the forum selection clause is not clear,

unequivocal, and mandatory, the clause is permissive and jurisdiction in other courts

is not precluded. See id.; Caldas & Sons, Inc. v. Willingham, 17 F.3d 123, 127 (5th

Cir. 1994). In this case, the forum selection clause is permissive, allowing the case

to be heard in either Texas or New Jersey. Because the forum selection clause

contemplates that the forum chosen may be the District of New Jersey, the forum

selection clause in this case weighs less heavily in the § 1404(a) analysis than is

generally the case. 

Similarly, while “a plaintiff’s choice of venue is not a distinct factor in the

venue transfer analysis, it is nonetheless taken into account as it places a significant

burden on the movant to show good cause for the transfer.” See Volkswagen II, 545

F.3d at 315. In this case, it is undisputed that FCS is a citizen of Texas. Because the

Defendants reside in New Jersey and all the bail bonds at issue were filed in courts in

New Jersey, FCS’s choice to file this lawsuit here in taken into account but does not

weigh heavily in the § 1404(a) analysis. 

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The Court must also consider private interest factors. “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 v. Collegiate

Licensing Co., 402 F. Supp. 2d 786, 790 (S.D. Tex. 2005). In considering the

convenience of witnesses, the relative convenience to key witnesses and key non-party

witnesses is accorded greater weight in the venue transfer analysis. See id. 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).

The private interest factors weigh heavily in favor of transfer. Although FCS

is a Texas corporation, the dispute involves bail bonds filed in New Jersey courts and

records that are located in New Jersey. Most, if not all, key witnesses reside in New

Jersey, and none have been identified who reside in Texas. The attendance of all key

witnesses could be obtained with significantly less difficulty and undue expense for

a trial in New Jersey. It is undisputed that the vast majority of the depositions need

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to be conducted in New Jersey, and all relevant documents are located in New Jersey.

Plaintiff has often requested relief from this Court that can only be granted by a court

in New Jersey and, as a result, this Court has been required to deal with discovery

issues which must be addressed by the New Jersey courts. See, e.g., Hearing Minutes

and Order [Doc. # 106] (directing Plaintiff to seek subpoenas from the New Jersey

courts).

The Court must also consider public interest factors, including (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).

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

District of Texas is an exceedingly busy court. This is not a local Houston dispute

because the bail bonds at issue were filed in courts in New Jersey, not in Texas.

Indeed, the genesis of the lawsuit is an investigation conducted by the New Jersey

Attorney General regarding forfeitures of bail bonds. The New Jersey court has much

more familiarity with the application of the New Jersey law relied upon by Defendants

in their Motion to Dismiss for failure to state a claim. The public interest favors

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resolving this dispute in the district where the bail bonds were filed, and where key

non-party witnesses and documents are located.

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

have been brought. Notwithstanding the parties’ contractual choice of either this

forum or the District of New Jersey, Defendants have demonstrated that the case

should be transferred for the convenience of the parties and witnesses under § 1404(a).

IV. CONCLUSION AND ORDER

Defendants Pizzichillo and Rondeau contractually consented to personal

jurisdiction and venue in this court. As a result, their Motion to Dismiss for lack of

personal jurisdiction is denied. Defendants have demonstrated that, notwithstanding

the permissive forum selection clause in the Agreement, the interests of the parties and

witnesses strongly favors transfer of the case to the District of New Jersey, where

Defendants may reassert their Motion to Dismiss for failure to state a claim. Based

on the foregoing, it is hereby

ORDERED that Defendants’ Motion [Doc. #84] is DENIED as to the Motion

to Dismiss for lack of personal jurisdiction, GRANTED as to the Motion to Transfer

Venue, and DENIED WITHOUT PREJUDICE as to the Motion to Dismiss for

failure to state a claim. It is further

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ORDERED that FCS’s Motion to Dismiss Anthony Pizzichillo’s Counterclaim

[Doc. # 101], Motion to Dismiss Jeanne Rondeau’s Counterclaim [Doc. # 102],

Motion to Compel Depositions [Doc. # 115], and Motion to Strike Certification [Doc.

# 119] are denied without prejudice.

The Court will issue a separate order transferring this case to the United States

District Court for the District of New Jersey.

SIGNED at Houston, Texas, this 22nd day of July, 2011. 

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