favor of comparable litigation previously filed in another jurisdiction. However, that standard is not applied as universally as defendants would have this court believe. In fact, as defendants acknowledge in a footnote, even Columbia Plaza Corp. v. Security Nat'l Bank, 173 U.S. App. D.C. 403, 525 F.2d 620 (D.C. Cir. 1975), the D.C. Circuit case on which defendants rely for the proposition that duplicative litigation should be avoided, explicitly rejects defendants' contention that the "first to file" rule necessarily determines the proper forum.
In Columbia Plaza, the District of Columbia District Court refused to enjoin the prosecution of a second suit in the Southern District of New York; the second suit was based on matters which, the D.C. plaintiffs alleged, would have been a mandatory counterclaim in the D.C. cause of action. The Court of Appeals reversed, holding that the solution to the problem of enjoining duplicative litigation "requires a balancing not of empty priorities but of equitable considerations genuinely relevant to the ends of justice." Id. at 628 (citation omitted). Taking its cue from the Supreme Court, the D.C. Circuit noted that "the factors relevant to the wise administration here are equitable in nature." Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183, 96 L. Ed. 200, 72 S. Ct. 219 (1952).
The court must follow the D.C. Circuit's view that "choice of forum cannot be suitably made by the mechanical application of [the first to file] principle." Columbia Plaza, 525 F.2d at 627. Although the fact that defendants filed their Minnesota case two days prior to the plaintiffs' filing here is relevant, it cannot obscure the fact that equitable concerns and the interest of justice dictate that the action proceed in this court.
2. Equitable considerations.
One consideration in determining which action should proceed is whether it appears that the declaratory judgment action was filed in anticipation of litigation by the other party. Ven-Fuel, Inc. v. Department of the Treasury, 673 F.2d 1194 (11th Cir. 1982). Courts have held that such a preemptive strike should be disregarded in selecting the proper forum if equitable concerns so merit. See, e.g., Ven-Fuel; State Farm Fire and Cas. Co. v. Taylor, 118 F.R.D. 426 (M.D.N.C. 1988); Yoder v. Heinold Commodities, Inc., 630 F. Supp. 756 (E.D. Va. 1986); Consolidated Rail Corp. v. Grand Trunk Western R. Co., 592 F. Supp. 562 (C.D. Pa. 1984). Anti-trust cases are no exception. See, e.g., Natural Gas Pipeline Co. v. Union Pacific Resources Co., 750 F. Supp. 311, (N.D. Ill. 1990) (court dismissed earlier-filed declaratory judgment action in light of later-filed anti-trust lawsuit).
In this case, it is clear that the NFL filed Hilton to preempt suits brought by players in other fora. At the time it filed Hilton, the NFL had notice of the McNeil and Allen cases (which are based on claims post-dating 1989). In addition, the NFL clearly expected more suits, including suits based on the 1989 season: as paragraph 50 of the NFL's Class Action Complaint for a Declaratory Judgement in Hilton states, "It appears likely that individual players and the NFLPA will take advantage of the District Court's September 30 Order by filing individual anti-trust lawsuits." Complaint at 19. Moreover, even though the defendants disclaim such a motive here, it was certainly in defendants' best interests to adjudicate this matter in a friendly jurisdiction, the Eighth Circuit, rather than to wait for players to file suits in less comfortable fora, such as New Jersey (McNeil), California (Allen), and Washington, D.C. These elements indicate that the NFL's declaratory judgment complaint was a preemptive strike that does not deserve the protection of the first to file rule.
A second equitable concern relevant to the decision to dismiss one of two duplicative lawsuits is that the time of the hearing of the motion to dismiss or transfer, not the time of filing, determines the relevant procedural posture. As of the present time, the existence of this coercive litigation renders moot the declaratory judgment action in Minnesota and argues against the dismissal of this case.
As a third concern, a district court is within its discretion to refuse to entertain a declaratory judgment action when another proceeding in another jurisdiction will resolve the issue in its entirety. Sturge v. Diversified Transport Corp., 772 F. Supp. 183 (S.D.N.Y. 1991). See also Brillhart v. Excess Ins. Co., 316 U.S. 491, 495, 86 L. Ed. 1620, 62 S. Ct. 1173 (1942). Defendants readily admit that this case will indeed resolve all issues of law and fact raised by the Hilton action. And, there is no indication that adjudication will be had more quickly in Minnesota than here. Thus, even though this line of cases addresses the role of the "first court," it offers guidance to this court in its "second court" role. There is no reason to transfer this case to Minnesota when full, fair, and complete adjudication of all issues may be had before this court.
Finally, and perhaps most importantly, the plaintiffs have made the District of Columbia their choice of forum for this action in which they litigate harms allegedly done to them by the NFL defendants. That choice must be afforded proper weight and cannot be dismissed merely because defendants opt for a different forum.
These considerations render the first to file rule inapplicable to the present situation. The equitable concerns weigh in favor of granting the plaintiffs their choice of forum. Thus, defendants' motion to dismiss will be DENIED.
B. Defendants' Motion to Transfer: Forum Shopping, and Equitable Concerns.
Defendants have asserted that the "interest of justice" requires a transfer of this case. 28 U.S.C. § 1404(a). Their first arguments, as in their motion to dismiss, concern forum shopping. In addition, they also claim that the equitable considerations demonstrate that this case should be transferred. Finally, as an example, they rely heavily on Judge Bissell's decision to transfer McNeil v. NFL from New Jersey to Minnesota. Each of these contentions are addressed below.
1. Forum Shopping.
While each party has accused the other of engaging in impermissible forum shopping in choosing the situs of this lawsuit, it is plainly evident that both sides have filed their respective cases in a jurisdiction favorable to their respective positions. Notwithstanding both parties' protestations of innocence, there is sufficient evidence to indicate that the District of Columbia is the proper forum for this suit.
Defendants first claim that Minnesota is the proper forum since it was chosen by the Powell plaintiffs several years ago; defendants claim that the current plaintiffs now should have to abide by that decision. However, although these plaintiffs may have been class members in the Powell case, they were not named plaintiffs and there is no indication that they had any say in where that lawsuit was brought. Thus, there is no reason to bind them to somebody else's strategic decisions.
Defendants next assert that the District of Columbia is an improper forum because no plaintiffs reside here, only one resides close to this district (Mr. Paige resides in Silver Spring, Maryland, a suburb of Washington, D.C.), and even he does not wish to serve as a class representative. Defendants' Supplement at 2. These arguments are unavailing. Under 28 U.S.C. § 1391 and 15 U.S.C. § 22, venue is proper here due to the contacts the defendants have with this district.
Thus, venue is proper in this district; further confirmation of this determination is supplied by equitable factors.
2. Equitable Concerns.
As in the discussion of the motion to dismiss, above, the court finds that, on the whole, the equities run in favor of maintaining this litigation here.
Defendants first note that an identical case, Hilton, is pending before Judge Doty. As demonstrated above, however, there is no magic in the fact that a declaratory judgment action has been filed in Minnesota. In fact, as this opinion demonstrates, the interest of justice indicates that Hilton, not this case, should be transferred or dismissed.
Defendants next claim that litigation in Minnesota and before the Eighth Circuit might moot this case. Since briefs were filed, however, the McNeil5 case has been decided against the NFL, thus destroying one of their arguments. In the Defendants' Reply, the NFL places great emphasis on the fact that collateral estoppel might bar the claims in this case if the Eighth Circuit were to decide Powell against the players. Of course, collateral estoppel applies to an individual regardless of the forum, and transfer is thus not justified on that basis.
Finally, defendants note the expertise Judge Doty has acquired in NFL anti-trust cases. Of course, this court has already completed a 235-member anti-trust class action against the NFL
and has another NFL player anti-trust class action pending
Notwithstanding Judge Doty's expertise, and recognizing that the specific issues in the various cases are not identical, the court feels quite competent in being able to handle the class certification, discovery, and trial matters arising from this particular type of professional football antitrust case.
When these considerations are combined with the plaintiffs' election of forum and defendants' preemptive declaratory judgment action, discussed above, the equitable concerns again weigh against defendants' motion to transfer.
3. Contrast: The decision to transfer McNeil.
Finally, the defendants claim that the "fundamental statutory goals" of 28 U.S.C. § 1404(a) (as cited by defendants), the conservation of time and resources and consistent adjudication, require transfer (even though it appears that these would be satisfied by a unified proceeding in either court). To substantiate their claim that Minnesota is the superior forum, the defendants rely on Judge Bissell's decision to transfer McNeil.
Defendants fail to acknowledge, however, that the situation facing Judge Bissell was radically different from that facing this court. First, Judge Bissell concluded that "the claims in the two cases presently under review in Minnesota encompass the underlying claims presented in the litigation here." McNeil v. NFL, Civ. Act. 90-1402, slip op. at 12 (D.N.J. June 12, 1990). Judge Bissell then noted that the eight McNeil plaintiffs were also members of the Powell class; thus, the relief sought in McNeil was encompassed by that already sought on behalf of the McNeil plaintiffs by virtue of their membership in the Powell class.
On the other hand, this suit, claiming damages for the implementation of the first refusal/compensation system for the 1989 season, is not before Judge Doty; in fact, these claims were omitted from the Powell litigation by Judge Doty's decision. Moreover, these issues have expressly been excluded from consideration by the Eighth Circuit's decision in Powell. Thus, the unity of parties and issues evident in McNeil is not present here.
Judge Bissell then sought to avoid creating inconsistent adjudications between New Jersey and Minnesota regarding the players' rights. As this court's decision in Brown v. Pro Football, Inc., No. 99-1071, June 4, 1991, has already determined that the NFL faces anti-trust liability for the 1989 season, consistent adjudication regarding the 1989 season may only be had if this case is tried in this court. Moreover, as that decision is in conflict with the decision of the Eighth Circuit, the creation of a split is no longer an issue.
Therefore, despite defendants' best efforts to demonstrate that Minnesota is the proper forum for this action, defendants' arguments are unavailing. Rather, there appears to be a race to the courthouse, and the interest of justice, the touchstone of 28 U.S.C. § 1404(a), demands that defendants' victory in that race not prejudice the valid claims of the plaintiffs. The equities, properly considered, justify trial in this jurisdiction. Defendants' motion to transfer is therefore DENIED.
C. Defendants' Motion to Stay this Case.
Finally, defendants argue that a final alternative would be to stay this lawsuit until the issues are resolved in Hilton, Powell, and McNeil. As discussed above, there is no reason to hold this lawsuit for the declaratory judgment action in Hilton; rather, of the two lawsuits, this one is the superior. Moreover, there is no indication that the Eighth Circuit will reverse Judge Doty's decision in Powell, which closely tracked the Eighth Circuit's first Powell decision. Thus, a stay would only serve to postpone, potentially to plaintiffs' detriment, an inevitable resolution of this case. And finally, the McNeil case has already been decided, and its outcome was not favorable to the NFL. Therefore, a stay of the present lawsuit would serve no purpose and defendants' motion to stay this case is DENIED.
In short, the defendants won the race to the courthouse and beat the plaintiffs in the filing of their anticipated litigation by two days. However, but for the earlier filing date, the equitable concerns do not weigh in favor of a Minnesota trial. Rather, a proper lawsuit lies in this court, and the motion to dismiss, transfer, or stay the present lawsuit will therefore be DENIED.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 813 F. Supp. 1.
A separate order shall issue consistent with this opinion.
Royce C. Lamberth
United States District Judge
DATE: NOV 3 1992
ORDER -- November 3, 1992, Filed
This matter comes before the court on Defendants' Motion to Dismiss or Transfer or, in the Alternative, for a Stay; Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss or Transfer or, in the Alternative, for a Stay of this Action; Defendants' Reply Memorandum in Support of Motion to Dismiss, Transfer, or Stay; Plaintiffs' Surreply in Opposition to Defendants' Motion to Dismiss or Transfer or, in the Alternative, for a Stay of this Action; and Defendants' Supplemental Memorandum in Support of Defendants' Motion to Dismiss, Transfer, or Stay. Upon consideration of the representations of counsel, and for the reasons presented in the memorandum opinion issued this date, it is hereby ORDERED that Defendants' Motion to Dismiss or Transfer or, in the Alternative, for a Stay is DENIED.
Royce C. Lamberth
United States District Judge
DATE: NOV 3 1992