CHERENKO v. NEWMAR CORPORATION

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH

BERNADETTE M. CHERENKO, )

)

Plaintiff, ) 2:21-CV-00259-CRE

)

vs. )

)

NEWMAR CORPORATION, )

)

Defendant, )

)

)

MEMORANDUM OPINION1

CYNTHIA REED EDDY, Chief United States Magistrate Judge.

I. INTRODUCTION

This civil action was removed to this court from the Court of Common Pleas of Allegheny

County, Pennsylvania. Generally, Plaintiff Bernadette M. Cherenko alleges that she purchased a

defective vehicle manufactured by Defendant Newmar, Corporation and brings breach of warranty

under the Magnuson-Moss Warranty Act 15 U.S.C. § 2301, et seq., and Pennsylvania consumer

protection law causes of action. This court has subject matter jurisdiction under 28 U.S.C. §§ 1331

and 1367.

Presently before the Court is Defendant’s motion to transfer venue to the United States

District Court, Middle District of Florida Fort Myers Division pursuant to 28 U.S.C. § 1404(a).

(ECF No. 4). For the reasons the follow, said motion is denied.

II. BACKGROUND

1 All parties have consented to jurisdiction before a United States Magistrate Judge;

therefore the Court has the authority to decide dispositive motions, and to eventually enter final

judgment. See 28 U.S.C. § 636, et seq.

Plaintiff alleges that she purchased a Newmar Bay Star Sport recreational vehicle (“RV”)

in Florida and registered the RV in Pennsylvania. Plaintiff alleges that the RV included an

extended warranty as well as other guarantees and warranties provided in the owner’s manual.

Plaintiff claims that “as a result of the ineffective repair attempts made by Defendant through its

authorized dealer(s), the vehicle is rendered substantially impaired and unable to be utilized for its

intended purposes and is worthless to Plaintiff.” Compl. (ECF No. 1-1 at ¶ 9). For example,

Plaintiff complained about defects and or non-conformities to the following vehicle components:

defective pump, wrong control board put on at service center, fittings were wrong, rear jack stays

off the ground, passenger side window fogging up, hole in sofa cushion, oil stain on the pocket

door, hood release needs adjusted, driver’s side 5th door back needs adjusted, the passenger side

4th door back not closing at all, hinge gets hung up on the driver’s side 2nd door, water leaking into

two of the baggage doors, no water coming to any of the sinks, coach is uneven when leveled,

driver’s seat valance rusting, water heater not working, indicator light stays on the water heater

causing an overheating issue, jacks do not touch the ground, water all over the floor when sewage

rinse valve under sink is turned on, gate valve leaks, driver’s side seatbelt needs adjusted, screen

door not closing tightly, and water leaking from kitchen sink. (Id. at ¶ 10).

The Purchase Agreement for the RV entered into by Plaintiff and the Florida RV

dealership, North Trail RV Center provides that “[a]ny actions of any kind relating to this sale and

these goods . . . must be filed exclusiv[ely] in Fort Meyers(sic), Florida” and the sale of goods are

governed by Florida Law. (ECF No. 1-1 at 13). Plaintiff does not name North Trail RV Center as

a defendant nor asserts any claims against it.

Plaintiff alleges that the vehicle is defective and exhibits nonconformities that substantially

impairs its use, value and/or safety and asserts the following causes of action: (1) a Magnuson-

Moss Warranty Improvement Act, 15 U.S.C. § 2301, et seq. claim (Count I); and (2) a

Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 Pa. Stat. Ann. § 201-1, et

seq. claim (Count II).

Defendant seeks to transfer this case to the Middle District of Florida Fort Myers Division

under 28 U.S.C. § 1404(a).

III. DISCUSSION

A district court may transfer any civil action to another district or division that the case

might have been brought if such a transfer is for the convenience of the parties and witnesses and

is in the interest of justice. 28 U.S.C. § 1404(a). The Court of Appeals for the Third Circuit has

delineated several private and public factors that courts must balance when determining whether

to transfer a case under the discretionary transfer statute. Jumara v. State Farm Ins. Co., 55 F.3d

873, 883 (3d Cir. 1995).

The private Jumara factors include: (1) the plaintiff's forum preference as manifested in

the original choice; (2) the defendant's preference; (3) whether the claim arose elsewhere; (4) the

convenience of the parties as indicated by their relative physical and financial condition; (5) the

convenience of the witnesses—but only to the extent that the witnesses may actually be

unavailable for trial in one of the fora; and (6) the location of books and records (similarly limited

to the extent that the files could not be produced in the alternative forum). Jumara, 55 F.3d at 879.

Moreover, the Court must consider “all other practical problems that make trial of a case easy,

expeditious and inexpensive” for the parties. Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist.

of Texas, 571 U.S. 49 n.6, 134 S. Ct. 568, 581, 187 L. Ed. 2d 487 (2013).

The public factors include “the enforceability of the judgment”; “the relative administrative

difficulty in the two fora resulting from court congestion”; “the local interest in deciding local

controversies at home”; “the public policies of the fora”; and “the familiarity of the trial judge with

the applicable state law in diversity cases.” In re: Howmedica Osteonics Corp, 867 F.3d 390, 402

(3d Cir. 2017) (quoting Jumara, 55 F.3d at 879–80).

These factors change, however, where a forum-selection clause is present. In this instance,

“district courts [must] adjust their usual § 1404(a) analysis in three ways[,]” by giving no weight

to the forum preferred by “the party defying the forum-selection clause[,]” considering the private

interests to “weigh entirely in favor of the preselected forum[,]” and to only analyze the public

interest factors. Atlantic Marine Const. Co., 134 S. Ct. at 581–82. See also In re: Howmedica

Osteonics Corp, 867 F.3d at 407 (delineating discretionary transfer statute framework for applying

forum selection clauses in multi-party cases that include non-contracting parties). In this case,

while there is a forum selection clause in the sales agreement between Plaintiff and North Trail

RV Center, North Trail RV Center is not a party to this action and there is no forum selection

clause between Plaintiff and Defendant. Because “a forum-selection clause ‘can be enforced only

by the signator[y] to [the] agreement[],’” In re: Howmedica Osteonics Corp, 867 F.3d at 407

(quoting Dayhoff Inc. v. H.J. Heinz Co., 86 F.3d 1287, 1293–97 (3d Cir. 1996)), there is no

presumption that Plaintiff’s claims against Defendant should be litigated in Florida and the private

Jumara factors will be considered.

“The burden of establishing the need for transfer still rests with the movant[,]” and in

deciding a defendant’s motion for transfer, “the plaintiff’s choice of venue should not be lightly

disturbed.” Jumara, 55 F.3d at 879 (internal quotation marks and citations omitted). “[U]nless the

balance of convenience of the parties is strongly in favor of defendant, the plaintiff's choice of

forum should prevail.” Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970) (quotation and

citation omitted).

As to the first and second factors, Plaintiff filed this lawsuit in the Court of Common Pleas

of Allegheny County, Pennsylvania, and thus her choice of forum is Pennsylvania. Defendant

removed the suit to federal court in the Western District of Pennsylvania, but now argues the proper

venue is the Middle District of Florida. Plaintiff opposes transfer to the Middle District of Florida

and her choice of litigating in Pennsylvania should not be lightly disturbed. Unless there is an

exceptional reason compelling transfer to Florida, Defendant’s motion will be denied.

As to the third factor – whether the claim arose elsewhere – this factor weighs against

transfer to Florida. Defendant argues that because the sale of the RV and service of the RV took

place in Florida, this factor weighs in favor of transferring this action to Florida. Plaintiff responds

that Defendant has a regular presence in the Commonwealth of Pennsylvania and regularly

conducts business in the Western District of Pennsylvania because it sells its units throughout

Pennsylvania and is a national manufacturer whose warranty is good at any dealer across the

Commonwealth. Plaintiff also disputes that the repairs completed on the vehicle were undertaken

in Florida and instead maintains that all repairs were completed by Defendant’s authorized dealers

within Pennsylvania and the Western District of Pennsylvania.

As to where the repairs were completed, neither party has provided this Court with proof

of where the repairs took place, so this will not be considered.2 It is undisputed that Plaintiff chose

to travel to Florida to buy the RV and entered into a sales contract with a Florida dealership.

However, this factor is neutralized because there is no breach of contract claim stemming from the

sales contract and Plaintiff did not bring any claims against the Florida-based dealership. It is also

undisputed that the RV is registered in Pennsylvania, and Defendant does not dispute that it

2 The repair documents submitted by Plaintiff do not illustrate that repairs were undertaken

in Pennsylvania. (ECF No. 1-1 at 15-26).

conducts business and manufacturers RVs for sale in Pennsylvania, and its warranty is applicable

to its RVs in Pennsylvania. Therefore, these factors weigh against transfer to Florida.

As to the fourth factor – the convenience of the parties as indicated by their relative physical

and financial condition – this factor weighs in favor of a Pennsylvania forum. Neither party resides

in Florida. Plaintiff is a Pennsylvania citizen residing within the Western District of Pennsylvania

which is over 1,000 miles from Florida. Defendant is headquartered in Nappanee, Indiana which

is over 1,000 from Florida and approximately 300 miles from the Western District of Pennsylvania.

Neither party addressed their financial condition, and that factor will not be considered.

As to the fifth factor – the convenience of the witnesses – this factor weighs in favor of a

Pennsylvania forum. Defendant argues that it would be a burden for non-party sale and service

witnesses who work and reside in Florida to travel to Pittsburgh for discovery and trial.3 Plaintiff

responds that Defendant has provided no affidavit as to who these witnesses are and what

testimony is expected from them. Plaintiff also argues that she is not asserting claims against the

selling dealership in Florida, implying any sales witnesses are not relevant to this suit. Defendant

provides no basis for this Court to conclude that individuals who sold Plaintiff a car that she now

claims is defective under its manufacturer’s warranty are witnesses necessary to prove or defend

against her claims. Lacey v. Cessna Aircraft Co., 932 F.2d 170, 181 (3d Cir. 1991) (to determine

the potential inconvenience of lay witnesses, a court “must immerse itself to a certain degree in

the facts of the case.”). As to unnamed service individuals, the Court was not provided enough

information regarding the location of these individuals and will not conduct an analysis of their

3 Defendant does not argue that any of these alleged witnesses are unavailable because they

are beyond the Court’s subpoena power.

convenience. Therefore, Defendant has not identified any witness who would be so

inconvenienced to overcome Plaintiff’s choice of forum.

As to the sixth factor - the location of books and records – this factor weighs in favor of a

Pennsylvania forum. Defendant argues that to the extent records cannot be produced

electronically, they would be located at the Florida RV dealership. Defendant has provided no

reason to believe that any records would not be stored electronically and why either party would

require records, besides sales and warranty documents already in either party’s possession, from

the Florida RV dealership. Accordingly, because Defendant has the burden of showing transfer,

this factor does not weigh in favor of transferring this case to Florida.

Therefore, all the private factors considered together weigh in favor of a Pennsylvania

forum.

Considering the public factors, there is no dispute that a judgment would be enforceable in

either forum, and there is no need to transfer this case to ensure that a judgment will be enforced.

Second, regarding the practical considerations making trial easy, expeditious or inexpensive, it

would be easier for one party to travel 300 miles from its corporate headquarters to Pennsylvania

than both parties to travel over 1,000 miles to Florida to adjudicate this action and this factor

weighs against transfer. Third, as to issues of court congestion, this factor is neutral as alleged by

Defendant, the Western District of Pennsylvania has a current case load of 2,153 cases and the

Middle District of Florida has a current case load of 6,938 cases. Considering Defendant’s exhibit,

in 2020, judges in the Western District of Pennsylvania had an average of 344 pending cases

compared to an average of 584 pending cases for judges in the Middle District of Florida. See

uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2020.pdf at 18, 91.

Therefore, this factor is neutral and does not support a transfer. As to Pennsylvania or Florida’s

interest in the controversy and the public policies of the fora, this factor weighs against transfer

because as explained, while the sale occurred in Florida, the underlying action does not concern a

breach of the sales contract against the Florida-based dealership. As to the applicable law, Plaintiff

asserts claims under Pennsylvania and federal law, which are analyzed regularly in this court. A

judge sitting in the Middle District of Florida could certainly scrupulously analyze issues arising

under Pennsylvania law making this factor is neutral and providing no reason for transfer.

Therefore, all the public factors considered together weigh in favor of a Pennsylvania forum.

IV. CONCLUSION

Defendant has not met its burden of showing that the private or public factors sufficiently

outweigh Plaintiff’s choice of forum in Pennsylvania. Accordingly, Defendant’s motion is denied.

An appropriate Order follows.

Dated: December 10, 2021. By the Court,

s/ Cynthia Reed Eddy

Cynthia Reed Eddy

Chief United States Magistrate Judge