Opinion
1:18-CV-0775-RP 1:22-CV-0985-RP
2023-07-11
Bruce WRIGHT, et al., Plaintiffs, v. KELLER WILLIAMS REALTY, et al., Defendants. James Havassy, Plaintiff, v. Keller Williams Realty, Inc., Defendant.
Avi R. Kaufman, Kaufman P.A., Coral Gables, FL, Stefan Coleman, Law Offices of Stefan Coleman, P.A., Miami, FL, Adam T. Muery, Austin, TX, for Plaintiff Bruce Wright in 1:18-CV-0775. Adam T. Muery, Austin, TX, Avi R. Kaufman, Kaufman P.A., Coral Gables, FL, for Plaintiff Jorge Valdes in 1:18-CV-0775. John P. Ryan, Peter E. Pederson, Todd P. Stelter, Hinshaw & Culbertson, LLP, Chicago, IL, Levi G. McCathern, II, Ty Mychael Sheaks, McCathern, PLLC, Dallas, TX, Stephanie Laird Tolson, Hinshaw & Culbertson, LLP, Houston, TX, for Defendant Keller Williams Realty, Inc. in 1:18-CV-0775. Craig Thor Kimmel, Jacob U. Ginsburg, Kimmel & Silverman, P.C., Ambler, PA, Christopher E. Roberts, Butsch Roberts & Associates LLC, Clayton, MO, for Plaintiff in 1:22-CV-0985. Kyle A. Ferachi, Stephanie Laird Tolson, Hinshaw & Culberston, LLP, Houston, TX, John P. Ryan, Todd P. Stelter, Hinshaw & Culbertson, LLP, Chicago, IL, John D. Shea, Freeman Mathis & Gary, LLP, Cherry Hill, NJ, for Defendant Keller Williams Realty Inc. in 1:22-CV-0985.
Avi R. Kaufman, Kaufman P.A., Coral Gables, FL, Stefan Coleman, Law Offices of Stefan Coleman, P.A., Miami, FL, Adam T. Muery, Austin, TX, for Plaintiff Bruce Wright in 1:18-CV-0775. Adam T. Muery, Austin, TX, Avi R. Kaufman, Kaufman P.A., Coral Gables, FL, for Plaintiff Jorge Valdes in 1:18-CV-0775. John P. Ryan, Peter E. Pederson, Todd P. Stelter, Hinshaw & Culbertson, LLP, Chicago, IL, Levi G. McCathern, II, Ty Mychael Sheaks, McCathern, PLLC, Dallas, TX, Stephanie Laird Tolson, Hinshaw & Culbertson, LLP, Houston, TX, for Defendant Keller Williams Realty, Inc. in 1:18-CV-0775. Craig Thor Kimmel, Jacob U. Ginsburg, Kimmel & Silverman, P.C., Ambler, PA, Christopher E. Roberts, Butsch Roberts & Associates LLC, Clayton, MO, for Plaintiff in 1:22-CV-0985. Kyle A. Ferachi, Stephanie Laird Tolson, Hinshaw & Culberston, LLP, Houston, TX, John P. Ryan, Todd P. Stelter, Hinshaw & Culbertson, LLP, Chicago, IL, John D. Shea, Freeman Mathis & Gary, LLP, Cherry Hill, NJ, for Defendant Keller Williams Realty Inc. in 1:22-CV-0985. ORDER ROBERT PITMAN, UNITED STATES DISTRICT JUDGE
Before the Court is Plaintiff James Havassy's ("Havassy") Opposed Motion to Transfer Venue to the Eastern District of Pennsylvania. (Wright v. Keller Williams Realty, Inc., No. 1:18-cv-0775-RP (W.D. Tex. filed Sept. 12, 2018) (Mot., Dkt. 109) [hereinafter Wright]). Defendant Keller Williams Realty, Inc. ("Keller Williams") filed a response, (Wright, Dkt. 110), and Havassy filed a reply, (Wright, Dkt. 116). Having considered the parties' briefs, the record, and the relevant law, the Court finds that the motion should be granted.
I. BACKGROUND
Havassy filed a class action complaint in the Court of Common Pleas of Lehigh County, Pennsylvania, on September 24, 2021. (Havassy v. Keller Williams Realty Inc., No. 1:22-cv-0985-RP (W.D. Tex. filed Sept. 29, 2022) (Compl., Dkt. 1-1) [hereinafter Havassy]). Keller Williams removed the case to the Eastern District of Pennsylvania on October 20, 2021. (Havassy, Notice of Removal, Dkt. 1). On September 29, 2022, over Havassy's objections, United District Court Judge Timothy J. Savage transferred the case to the Western District of Texas to be consolidated with an earlier-filed case, Wright, No. 1:18-cv-0775 (W.D. Tex. filed Sept. 12, 2018), based on the "first-filed" doctrine. (Havassy, Order, Dkt. 49); Havassy v. Keller Williams Realty, Inc., No. 21-4608, 2022 WL 4586126 (E.D. Penn. Sept. 29, 2022). After the case transfer, Havassy moved to consolidate the cases. (Havassy, Mot., Dkt. 59).
While Havassy's motion was pending, Defendant Keller Williams filed a status report in Wright. (Wright, Status Report, Dkt. 100). In its notice, Keller Williams notified the Court that it had finalized a settlement in Florida state court (the "Florida Settlement") that would resolve the claims between the parties in Wright and requested an administrative closure of the case. (Id. at 1). The Court stayed Wright on December 5, 2022. (Wright, Order, Dkt. 101). The Court granted Havassy's motion to consolidate on January 20, 2023. (Havassy, Dkt. 73). Shortly after consolidation, Havassy informed the Court that the Florida Settlement excluded the Pennsylvania class that Havassy seeks to represent. (Wright, Notice, Dkt. 103, at 2).
In light of the exclusion, Havassy filed this motion to retransfer his case to the Eastern District of Pennsylvania. (Wright, Mot. Transfer, Dkt. 109). Havassy argues that his case should return to Pennsylvania because the sole purpose of the original transfer, consolidation with Wright, is now precluded by the settlement of those claims. (Id. at 5-9). In its response, Keller Williams that the case should not be transferred because the Eastern District of Pennsylvania lacks personal jurisdiction over it. (Wright, Resp., Dkt. 110, at 5-6).
II. LEGAL STANDARD
Transferee courts generally do not review a transferor court's decision to transfer a case because doing so would disturb the law of the case. In re Cragar Industries, Inc., 706 F.2d 503, 505 (5th Cir. 1983). However, the transferee court is empowered to act if " 'the most impelling and unusual circumstances' " apply or if the transfer was " 'manifestly erroneous.' " Id. (quoting United States v. Koenig, 290 F.2d 166, 173 n. 11 (5th Cir. 1961), aff'd, 396 U.S. 121, 90 S.Ct. 396, 24 L.Ed.2d 305 (1962) (cleaned up)). For example, when "unanticipatable post-transfer events frustrate the original purpose for transfer, a return of the case to the original transferor court does not foul the rule of the case nor place the transferee court in a position of reviewing the decision of its sister court. It, instead, represents a considered decision that the case then is better tried in the original forum for reasons which became known after the original transfer order." Id.
III. DISCUSSION
In his motion to retransfer, Havassy argues that the original purpose of the transfer has been frustrated because the Florida Settlement excludes Havassy and the class he intends to represent, thereby defeating the first-filed rule. (Havassy, Mot., Dkt. 109, at 2). The Florida Settlement specifically carves out Havassy's class: "persons who received a call, or to whom a call was placed, by or on behalf of Peter Hewitt or Kelly Houston and/or which contained a pre-recorded voice identifying Peter Hewitt or Kelly Houston." (Florida Order, Dkt. 103-2, at 7).
The threshold inquiry for the first-filed rule is whether the issues raised in both suits "substantially overlap." Save Power Ltd. v. Syntek Finance Corp., 121 F.3d 947, 950 (5th Cir. 1997). The Eastern District of Pennsylvania found that the first-filed rule applied and transferred the case "[b]ecause the class definitions in Wright [were] almost identical to those here and all parties in this action [were] covered by those class definitions." Havassy, No. 21-4608, at *4. However, the settlement of the Wright claims eliminates the "substantial overlap." Although issues do not need to be identical for the first-filed rule to apply, the settlement, which Keller Williams has indicated applies to the parties in Wright, explicitly excludes Havassy and his class from its class definitions. The first-filed rule cannot apply when defendant's actions in the first-filed case deliberately excludes the plaintiffs in the second-file case. Accordingly, the Court finds that the Florida Settlement is an "unanticipatable post-transfer event" that frustrates the purpose of the original transfer and will grant the motion to retransfer.
Keller Williams does not contest the fact that the settlement excludes Havassy and his class. Instead, Keller Williams argues that the Eastern District of Pennsylvania lacks personal jurisdiction over it. (Resp., Dkt. 110, at 2). But "[t]he first-to-file rule is a venue and efficiency consideration, not an adjudication on the merits or a question of jurisdiction." Wapp Tech Limited Partnership v. Micro Focus International, PLC, 406 F. Supp. 3d 585, 599 (E.D. Tex. Aug. 13, 2019). "While the likelihood of a jurisdictional dispute in the first-filed court may be a factor to consider in applying the rule, resolving the dispute in favor of that court's jurisdiction is never a condition precedent to applying it." Cadle Co. v. Whataburger of Alice, Inc., 174 F.3d 599, 605 (5th Cir. 1999). The Court is thus not required to resolve the personal jurisdiction question, and, in any case, the Eastern District of Pennsylvania is better positioned to determine its own jurisdiction.
IV. CONCLUSION
For the reasons given above, IT IS ORDERED that Havassy's Motion to Transfer Venue, (Wright, No. 18-cv-0775-RP, Dkt. 31), is GRANTED.
IT IS FURTHER ORDERED that the case Havassy v. Keller Williams Realty Inc., No. 1:22-cv-0985-RP (W.D. Tex. filed Sept. 29, 2022), is UNCONSOLIDATED from the case Wright v. Keller Williams Realty, Inc., No. 1:18-cv-0775-RP (W.D. Tex. filed Sept. 12, 2018).
IT IS FURTHER ORDERED that the case Havassy, No. 1:22-cv-0985-RP, is TRANSFERRED to the Eastern District of Pennsylvania.