United States District Court, D. New Hampshire
Fargo Financial Leasing, Inc., Plaintiff, represented by
Michael P. Marsille, Cohn & Dussi LLC.
Automotive Group, Inc., Defendant, represented by Paul M.
DeCarolis, Gottesman & Hollis PA.
McCAFFERTY, District Judge.
contract dispute, out-of-state plaintiff Wells Fargo
Financial Leasing, Inc. ("Wells Fargo") sues a New
Hampshire business, Tulley Automotive Group, Inc.
("Tulley"), alleging that Tulley defaulted on a
lease agreement for computer networking equipment. Because
Tulley is already defending against a related but distinct
lawsuit in New Jersey (a lawsuit brought by a different
plaintiff), Tulley seeks to transfer this lawsuit to New
Jersey (doc. no. 8) and defend itself in a single venue.
Wells Fargo seeks to remand this lawsuit back to the state
court where Wells Fargo originally filed it (doc. no. 6). For
the reasons explained below, both motions are denied.
the summer of 2013, Tulley purchased a computer operating
system for its auto dealerships known as a dealer management
system ("DMS"). To acquire the DMS, Tulley entered
into separate contracts with two associated organizations:
one contract to obtain the software in June 2013 and one
contract to obtain the computer equipment in July
2013. First, to acquire software licenses
and maintenance services related to the DMS, Tulley entered
into a Master Services Agreement with ADP Dealer Services,
Inc. ("ADP Dealer"). Next, to obtain the computer
networking equipment, Tulley and ADP Commercial Leasing, LLC
("ADP Commercial") executed an equipment lease
agreement ("Equipment Lease").
point, Tulley allegedly stopped making payments and defaulted
on its obligations under both the Master Services Agreement
and the Equipment Lease. Tulley is now the defendant in two
separate lawsuits: (1) an action for breach of the Master
Services Agreement currently pending in a New Jersey federal
court, and (2) the instant case filed by Wells Fargo for
breach of the Equipment Lease.
1, 2015, CDK Global, LLC ("CDK"), as
successor-ininterest to ADP Dealer, filed suit against Tulley
in the United States District Court for the District of New
Jersey for breach of the Master Services Agreement. See CDK
Glob., LLC v. Tulley Auto. Grp., Inc., No. 15-cv-3103-KM-JBC
(D.N.J.) (hereinafter, referred to as the "New Jersey
Action"). Wells Fargo is not a party to the New Jersey
filed counterclaims in the New Jersey Action alleging
fraudulent inducement, rescission, breach of contract,
violation of the New Jersey Consumer Fraud Act, and unjust
enrichment. In those counterclaims, Tulley alleged that ADP
Dealer made several misrepresentations and omissions to
induce Tulley to purchase the DMS. CDK moved to dismiss
Tulley's counterclaims under Federal Rule of Civil
Procedure 12(b)(6), but, with the exception of the rescission
claim, the district court denied CDK's motion. CDK Glob.,
LLC v. Tulley Auto. Grp., Inc., No. 15-cv-3103-KM-JBC, 2016
WL 1718100 (D.N.J. Apr. 29, 2016). The parties have engaged
in discovery. See doc. no. 8-4 at 11.
point, Wells Fargo acquired ADP Commercial's rights under
the Equipment Lease. In April 2016, Wells Fargo filed this
lawsuit for breach of the Equipment Lease in New Hampshire
Superior Court, alleging that Tulley defaulted under the
terms of the Equipment Lease after making 27 of 60 monthly
payments. Wells Fargo alleges that Tulley owes $84, 310.69 as
a result of its breach. Tulley removed the case to this court
on the basis of diversity jurisdiction.
the court are Wells Fargo's motion to remand the case to
state court and Tulley's motion to transfer or, in the
alternative, stay the proceedings.
Motion to Remand
case has been removed to federal court, the plaintiff may
move to remand the case to state court because of a defect,
other than lack of subject matter jurisdiction, within 30
days of removal. See 28 U.S.C. Â§ 1447(c). "To oppose a
motion to remand, the defendant bear[s] the burden of
showing that removal was proper." Sevigny v. British
Aviation Ins. Co., No. 15-cv-127-JD, 2015 WL 3755204, at *1
(D.N.H. June 16, 2015) (internal citations omitted).
has met its burden of establishing that removal was timely
and proper based on the court's diversity jurisdiction,
and Wells Fargo does not argue that this court lacks subject
matter jurisdiction over this case. Rather, Wells Fargo moves
to remand based on the following clause contained in
Paragraph 25 of the Equipment Lease:
THE RIGHTS OF THE PARTIES UNDER THIS LEASE SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW JERSEY WITHOUT REFERENCE TO
CONFLICT OF LAW PRINCIPLES[.] ANY ACTION BETWEEN LESSEE AND
LESSOR SHALL BE BROUGHT IN ANY STATE OR FEDERAL COURT LOCATED
IN THE COUNTY OF MORRIS, NEW JERSEY, OR AT LESSOR'S ...