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Intelect Corporation v. Cellco Partnership Gp

United States District Court, District of Columbia

February 5, 2016

CELLCO PARTNERSHIP GP, et al., Defendants. Re Document Nos. 5, 11


          RUDOLPH CONTRERAS United States District Judge.

         Denying Defendants’ Motion to Transfer Venue and Granting in Part and Denying in Part Defendants’ Motion to Dismiss


         In 2009, a consortium of four cellular telephone carriers (collectively “Defendants” or the “Carrier Consortium”), [1] entered into a Master License Agreement with the Washington Metropolitan Area Transit Authority (“WMATA”) for the design and construction of a wireless communications infrastructure that would allow WMATA riders to use their cellular phones in Metrorail tunnels and stations. In this action, Plaintiff Intelect Corporation (“Intelect”) claims that the Carrier Consortium failed to ensure that the general contractor they hired to undertake the WMATA project, Powerwave Technologies, Inc. (“Powerwave”), obtained the required surety payment bond covering the entire contract price-upwards of $65 million-in order to assure payment to all of Powerwave’s subcontractors. Powerwave ultimately suffered financial difficulties and has since defaulted on its construction contract with the Carrier Consortium and filed for bankruptcy in the District of Delaware. Because of Powerwave’s default and bankruptcy, Intelect claims that Powerwave failed to make payments on several invoices, and that a total of $1, 013, 016.83 remains due to Intelect. Intelect initiated this lawsuit not against Powerwave, but directly against the Carrier Consortium, contending that the Carrier Consortium knew that the project was not fully bonded, failed to inform Intelect and other subcontractors about that alleged problem, and, after Powerwave filed for bankruptcy, nevertheless induced Intelect to retain its employees by representing that the project would commence again in Spring 2013.

         Now before the Court is Defendants’ motion to transfer venue to the United States District Court for the District of Delaware (ECF No. 5) and Defendants’ motion to dismiss this action for failure to state a claim (ECF No. 11). For the foregoing reasons, the Court will deny Defendants’ motion to transfer venue and will grant in part and deny in part Defendants’ motion to dismiss.


         In 2008, as a condition of receiving $1.5 billion in federal funding, Congress required WMATA to ensure “that customers of [WMATA’s] rail service . . . have access within the rail system to services provided by any licensed wireless provider . . . .” Passenger Rail Investment and Improvement Act of 2008, Pub. L. No. 110-432, Div. B, § 601(e)(1), 122 Stat. 4907, 4969; see also Am. Compl. ¶ 10, ECF No. 8. On February 26, 2009, WMATA’s governing board granted approval for WMATA “to enter into a Master License Agreement with the Carrier Consortium to design, build, operate, and maintain seamless wireless communications coverage for 47 underground stations and 50.5 miles of tunnels” for the Carrier Consortium’s own use and for the use of WMATA and its customers. Am. Compl. ¶ 11. The contract required the Carrier Consortium to fund the Project at its own expense, and Intelect alleges that the Defendants essentially “assumed the role of Project Owner.” Id. ¶ 12. On June 18, 2009, Defendants hired Powerwave as the project’s general contractor. Id. ¶ 14. Powerwave, in turn, hired Intelect as a subcontractor on June 16, 2010, entering into a $5, 629, 122.26 subcontract under which Intelect was to complete a portion of the project. Id. ¶ 17. The specific contours of Intelect’s portion of the project are not described in the complaint.

         Intelect alleges that WMATA’s “internal policies and standard contract forms” typically require its contractors to supply a payment bond “in the amount of . . . 100% of the contract” to ensure that all persons who supply labor and materials to the project are paid. Id. ¶ 13. Because the project was a “public-private partnership, ” however, WMATA only required the Carrier Consortium to obtain a nominal bond, in lieu of a surety payment bond for the full contract price. Id. Intelect alleges that WMATA “rel[ied] on the Carrier Consortium to require its contractor to bond the Project in the full amount of the contract.” Id. The full amount of the project, according to the Carrier Consortium’s contract with Powerwave, was $65, 671, 000. Id. ¶ 14. And Intelect claims that, although the contract between the Carrier Consortium and Powerwave divided the project into four milestones, or “phases, ” the Carrier Consortium’s contract with Powerwave nevertheless “required Powerwave to provide for bonding in the amount of 100% of the full contract price.” Id. ¶¶ 15-16.

         Intelect alleges that Powerwave did obtain a bond, naming Defendants as joint obligees, but that the bond was only valued at $5, 000, 000-a small fraction of the contract price. Id. ¶¶ 18-20 & Ex. A (providing a copy of the payment bond documents). Intelect thus contends that it was apparent to Defendants on the face of the bond that Powerwave had failed to comply with the terms of the Powerwave-Carrier Consortium contract and had failed to secure the required bond. Id. ¶¶ 20-22.

         Powerwave began to suffer financial difficulties in late 2012. As a consequence, Powerwave failed to make several payments to Intelect. In total, Intelect contends that invoices totaling $1, 013, 016.83 remain unpaid. Id. ¶¶ 23-24. Once Powerwave defaulted on its payment obligations, Intelect claims that one of its officers and its counsel both “requested a copy of the Powerwave Payment Bond” from the Carrier Consortium, which they “refused to provide.” Id. ¶ 30. Intelect states that it was only after it “was able to obtain a copy of the bond, indirectly, through its insurance agent, that Intelect discovered, in January 2013, that the bond was limited in amount and restricted to Phase I, and that the monies then due from Powerwave to Intelect were primarily for work performed in Phases II and III.” Id. ¶ 31.

         Notwithstanding Powerwave’s failure to pay Intelect, Intelect “continued to supply labor and materials to the Project for the benefit [of] and use by the Carrier Consortium.” Id. ¶ 26. Intelect further claims that although Defendants “had actual knowledge that Powerwave was financially unstable” as of the fall of 2012, “and that the work being performed by Powerwave’s subcontractors and suppliers were not covered by the Payment Bond . . . the Carrier Consortium continued to accept the benefits of Intelect’s performance.” Id. ¶ 28. Moreover, as relevant to its promissory estoppel claim, Intelect alleges that “the Carrier Consortium represented to Intelect that work on the Project would resume in early Spring 2013, and requested that Intelect leave its equipment and materials on site, and to continue to maintain its labor force in place.” Id. ¶ 80.

         On January 28, 2013, Powerwave filed for bankruptcy in the United States Bankruptcy Court for the District of Delaware. See Chapter 11 Voluntary Petition, In re Powerwave Techs., Inc., No. 13-10134 (Bankr. D. Del. Jan. 28, 2013), ECF No. 1. Intelect filed a proof of claim in those bankruptcy proceedings seeking $1, 013, 017.00. See Defs.’ Mot. to Dismiss Ex. A, ECF No. 11 (attaching proof of claim). Separately, Intelect commenced this action in District of Columbia Superior Court against the Carrier Consortium. Intelect’s complaint seeks judgment in the amount of $1, 013, 016.83 on alternative theories of negligence, negligent misrepresentation, implied contract, unjust enrichment, constructive fraud, and as a third-party beneficiary to the various agreements between WMATA, Defendants, and Powerwave. See Am. Compl. at 15. Each of these counts are based on the Carrier Consortium’s alleged failure to ensure that the project was fully bonded or to advise Powerwave’s subcontractors that they might not be paid by the payment bond should Powerwave default on its obligations.[3] See Id. ¶¶ 29-77. Intelect also brings a separate claim of promissory estoppel seeking $400, 000 it allegedly incurred in continuing to employ its employees when the Carrier Consortium represented that the project would resume in spring 2013 and asked that Intelect maintain its labor force in place. Id. ¶¶ 80- 81.

         Defendants removed the action to this Court on June 11, 2015, invoking diversity jurisdiction under 28 U.S.C. § 1332, and bankruptcy jurisdiction under 28 U.S.C. § 1334. See Notice of Removal at 6, ECF No. 1. Defendants have since filed a motion to transfer venue to the United States District Court for the District of Delaware, where Powerwave’s bankruptcy proceedings are ongoing, see Defs.’ Mot. to Transfer Venue, ECF No. 5, and a motion to dismiss Intelect’s Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, see Defs.’ Mot. to Dismiss, ECF No. 11.

         III. ANALYSIS

         The Court will first consider Defendants’ motion to transfer venue. Finding that the convenience of the parties and witnesses and the interest of justice weigh against transferring this case, the Court will deny that motion. As a result, the Court proceeds to consider Defendants’ motion to dismiss and, as explained below, will grant the motion in part and dismiss Counts II and V of the Amended Complaint, but will otherwise deny the motion.

         A. Motion to Transfer Venue

         Defendants seek to transfer this case to the United States District Court for the District of Delaware. Changes of venue in civil actions are generally governed by 28 U.S.C. § 1404(a), which states that: “For 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 or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). A separate change of venue provision, 28 U.S.C. § 1412, applies when a party seeks to transfer a bankruptcy case or proceeding.[4] Section 1412 provides that: “A district court may transfer a case or proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties.” 28 U.S.C. § 1412.

         Defendants’ motion to transfer venue hollowly invokes 28 U.S.C. § 1412, and does little to justify the existence of bankruptcy jurisdiction. In their opening motion, Defendants argue in a footnote that this action “involves matters that are both ‘core’ and that ‘arise under’ title 11, ” specifically referencing Count VII of Intelect’s original complaint. See Defs.’ Mot. to Transfer Venue at 2 n.3; Notice of Removal Ex. A, ¶¶ 78-84 (reproducing initial complaint, including Count VII). That Count alleged that Defendants had converted certain Intelect property Defendants “purported to purchase . . . in a bankruptcy-court approved transaction, notwithstanding actual knowledge that such property was owned by Intelect.” Notice of Removal Ex. A, ¶ 81. Defendants contend that title to this property was transferred to them pursuant to an order of the Bankruptcy Court approving a settlement agreement between Powerwave and Defendants, and therefore argue that Count VII represents a direct challenge to the Settlement Approval Order. See Defs.’ Mot. to Transfer Venue at 2 n.2, 4; Notice of Removal at 8 (arguing that Count VII “‘arises under’ and ‘arises in’ Powerwave’s Bankruptcy Case” because that count “directly implicates-on the face of the Complaint-the Delaware Bankruptcy Court’s Settlement Approval Order”).

         Perhaps in an effort to counter that argument, Intelect amended its complaint to omit Count VII after Defendants filed their motion to transfer venue, see generally Am. Compl., and now argues in a single, four-sentence paragraph in opposition to Defendants’ motion to transfer that the absence of Count VII from this case “moots the Motion to Transfer.” Pl.’s Opp’n to Defs.’ Mot. to Transfer Venue at 1, ECF No. 12. Intelect is plainly incorrect. It ignores the bulk of Defendants’ motion, which specifically discusses the remaining counts of the complaint and raises arguments for transferring this case on the basis of those other counts. See Defs.’ Mot. to Transfer Venue at 3-4; Defs.’ Reply Supp. Mot. to Transfer Venue at 1, ECF No. 16 (reiterating these points). Thus, to the extent that Intelect’s unsupported statement is intended to imply that the sole ground for invoking § 1412 in support of transferring this case was Count VII, the Court does not share that understanding. On the contrary, Defendants’ Notice of Removal explicitly contends that “Counts 1 through 6 ‘relate to’ the Powerwave Bankruptcy Case” because “[t]hose counts seek to hold Defendants liable for Powerwave’s debts” and seek to recover the same amount that Intelect seeks on its proof of claim in the bankruptcy proceeding. Notice of Removal at 7-8.

         Nevertheless, with Count VII of the original complaint no longer a part of this case, the application of § 1412 depends upon a finding that Counts I through VI of the Amended Complaint “relate to” the Powerwave bankruptcy proceedings. Briefly stated, the Court has considerable doubt that they are. While the D.C. Circuit has not yet discussed the contours of “related to” bankruptcy jurisdiction, the Supreme Court has generally agreed with the test expressed by the Third Circuit in Pacor, Inc. v. Higgins, 743 F.2d 984 (1984), despite noting some minor differences among circuits. See Celotex Corp. v. Edwards, 514 U.S. 300, 308 & n.6 (1995); see also 1 Collier on Bankruptcy ¶ 3.01[3][e][ii], at 3-16 (16th ed. 2015) (“Almost every other court considering the issue, including the United States Supreme Court, has agreed in principle with Pacor’s statement of the law” (footnotes omitted)). As described in Pacor, “[t]he usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy . . . .” Celotex Corp., 514 U.S. at 308 n.6 (quoting Pacor, 743 F.2d at 994); see Abbey v. Modern Africa One, LLC, 305 B.R. 594, 601 (D.D.C. 2004) (applying the Pacor test). This includes proceedings among third parties-and not including the debtor-so long as the “outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively).” Celotex Corp., 514 U.S. at 308 n.6 (quoting Pacor, 743 F.2d at 994); see also 1 Collier on Bankruptcy ¶ 3.01[3][e][ii][B] (providing examples of cases between third parties that are “related to” bankruptcy proceedings).

         In the circumstances of this case, the question is a close one. On the one hand, it is somewhat difficult to conclude that this action is “related to” the Powerwave bankruptcy action. Powerwave is not a party to this action, and no monetary recovery is being sought from directly from Powerwave. See Abbey, 305 B.R. at 602-03 (declining to transfer case, and concluding that the bankruptcy court would lack jurisdiction, in part because no monetary award was being sought from the debtor). Although Intelect seeks to recover a sum identical to the amount it seeks through its proof of claim in the bankruptcy proceeding, it has brought separate claims based on Defendants’ own actions and liability, which are independent from the breach of contract claims it asserts against Powerwave. Cf. DeLuca v. McKenna (In re Remington Dev. Grp., Inc.), 180 B.R. 365, 370 (Bankr. D.R.I. 1995) (finding that the bankruptcy court lacked jurisdiction over a claim that the creditor had initiated against a third-party because the “successful third-party claim would only establish [the third party]’s liability to [the creditor]” and “would create no rights or liabilities on the debtor’s account). Even if Defendants might seek to offset any recovery Intelect obtains in this case with recovery obtained upon Intelect’s proof of claim in the bankruptcy proceeding, it is not clear that any recovery here will directly affect that proceeding or the bankruptcy court’s consideration of Intelect’s proof of claim or Powerwave’s own liability. Cf. Cenith Partners, LP v. Hambrecht & Quist, Inc. (In re VideOcart, Inc.), 165 B.R. 740, 744 (Bankr. D. Mass. 1994) (remanding case between third-parties removed on the basis of bankruptcy jurisdiction because, despite the “appearance of the plaintiff as a creditor in the Debtor’s schedules, ” recovery by the plaintiff “will not directly affect the Debtor’s bankruptcy estate” and the fact that defendants “might have contribution claims against the Debtor in the future if the plaintiff is successful” was “too tenuous and speculative an event . . . to confer ‘related to’ jurisdiction”). But see Bankest v. United Beverage Fla., Inc. (In re United Container LLC), 284 B.R. 162, 169-71 (Bankr. S.D. Fla. 2002) (disagreeing with In re VideOcart and other cases, and finding that related to jurisdiction existed “albeit barely” where defendants claimed they had both contractual and state and federal legal bases for indemnity by the Debtor and where both parties had filed proofs of claim in the Debtor’s bankruptcy case).

         On the other hand, Defendants’ Notice of Removal posits that resolution of Counts I through VI will have a “conceivable effect” on the Powerwave bankruptcy case because “any award of damages would relieve Powerwave of its obligation to satisfy these amounts” and therefore “impact Powerwave’s liability to Intelect.” Notice of Removal at 8; cf. HH1, LLC v. Lo’r Decks at Calico Jacks, LLC, Adv. Case No. 10-02004, 2010 WL 1009235, at *2 (Bankr. M.D. N.C. Mar. 18, 2010) (concluding that “related to” jurisdiction existed where a plaintiff might recover from a guarantor of the debtor’s debt which “would reduce or eliminate the plaintiff’s claim in the bankruptcy case and result in a substitution of the guarantors as the claimants against the Debtor” despite the existence of “additional issues related to whether the guarantors are liable even if there is a showing of liability on the part of the Debtor”). And Pacor itself stands for the proposition that “[a]n action is related to bankruptcy if the outcome could alter the debtor’s rights, [or] liabilities, . . . (either positively or negatively)” even if the claims are not brought against the debtor or the debtor’s property. 743 F.3d at 994 (emphasis added); accord Celotex Corp., 514 U.S. at 308 n.6 (quoting same).

         The Court is inclined to think that Intelect’s claims in this case do not “relate to” the Powerwave bankruptcy proceeding in the legal sense. Intelect does not claim that Defendants are guarantors of Powerwave’s obligations to Intelect. And Intelect’s claims here arise out of Defendants’ own actions, so it is therefore unlikely that the Court will have to meaningfully consider Powerwave’s liability to resolve Intelect’s claims against the Carrier Consortium. If the Court is not being asked to determine Powerwave’s liability, then it is not immediately clear that a successful recovery against the Defendants here would lessen or eliminate Powerwave’s liability under the proof of claim. If anything, Defendants’ factual proposition may only follow in the opposite direction: because Intelect is seeking recovery on Counts I through VI of a sum identical to the amount it alleges remain due from Powerwave, if Intelect were to recover from Powerwave to some degree on its proof of claim, that might eliminate some or all of the recovery Intelect seeks from Defendants in this action.

         In any event, the Court declines to definitively resolve the question.[5] As several courts have noted, § 1412 and § 1404(a) demand essentially the same inquiry. See 15 Charles Alan Wright, Arthur R. Miller & Edward D. Cooper, Federal Practice & Procedure § 3843, at 45-46 (4th ed. 2013) (explaining that “although bankruptcy matters are governed by their own transfer statute, 28 U.S.C.A. § 1412, courts have held that this provision requires essentially the same analysis and turns on the same issues as the transfer of civil actions under Section 1404(a)”); accord, e.g., New Eng. Wood Pellet, LLC v. New Eng. Pellet, LLC, 419 B.R. 133, 148 (D.N.H. 2009); City of Liberal, Kan. v. Trailmobile Corp., 316 B.R. 358, 362 (D. Kan. 2004). “The only substantial difference between the statutes is the additional requirement under § 1404(a) that an action may be transferred to any place where venue could have been valid originally.” City of Liberal, 316 B.R. at 362.

         Consequently, the Court will consider Defendants’ motion to transfer venue under § 1404(a) but notes that its conclusion would remain the same if § 1412 applies.

         1. Legal Standard

         “For 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). Section 1404(a) vests “discretion in the district court to adjudicate motions to transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). The moving party bears the burden of establishing that transfer under § 1404(a) is proper. Montgomery v. STG Int’l, Inc., 532 F.Supp.2d 29, 32 (D.D.C. 2008).

         Accordingly, the defendant must make two showings to justify transfer. First, the defendant must establish that the plaintiff originally could have brought the action in the proposed transferee district. Van Dusen, 376 U.S. at 616. Second, the defendant must demonstrate that considerations of convenience and the interest of justice weigh in favor of transfer to that district. Trout Unlimited v. Dep’t of Agric., 944 F.Supp. 13, 16 (D.D.C. 1996). In evaluating a motion to transfer, a court may weigh several private- and public-interest factors. Sheffer v. Novartis Pharm. Corp., 873 F.Supp.2d 371, 375 (D.D.C. 2012) (citing Trout Unlimited, 944 F.Supp. at 16). The private-interest considerations include: (1) the plaintiff’s choice of forum; (2) the defendant’s preferred forum; (3) the location where the claim arose; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) ease of access to sources of proof. Id.; Montgomery, 532 F.Supp.2d at 32. “Public interest considerations include: (1) the transferee’s familiarity with the governing law; (2) the relative congestion of the courts of the transferor and potential transferee; and (3) the local interest in deciding local controversies at home.” Onyeneho v. Allstate Ins. Co., 466 F.Supp.2d 1, 3 (D.D.C. 2006); see also Airport Working Grp. of Orange Cnty., Inc. v. U.S. Dep’t of Def., 226 F.Supp.2d 227, 229 (D.D.C. 2002). “If the balance of private and public interests favor a transfer of venue, then a court may order a transfer.” Sheffer, 873 F.Supp.2d at 375 (citing Montgomery, 532 F.Supp.2d at 32).

         2. Application

         Because Defendants focus on § 1412 and assume the existence of bankruptcy jurisdiction, they do not directly address the first showing under § 1404(a): whether the plaintiff originally could have brought the action in the proposed transferee district. Van Dusen, 376 U.S. at 616. That showing appears to be satisfied here, even if there is no “related to” bankruptcy jurisdiction over this action under 28 U.S.C. § 1334(b).[6] “To transfer a case, the transferor court must find that the intended transferee court has personal jurisdiction and is an appropriate venue.” Virts v. Prudential Life Ins. Co., 950 F.Supp.2d 101, 104 (D.D.C. 2013) (citing Relf v. Gasch, 511 F.2d 804, 807 (D.C. Cir. 1975)). As alleged in Intelect’s complaint, each of the Defendants are incorporated in Delaware, which would establish personal jurisdiction over the Defendants there. See Am. Compl. ¶¶ 4-8; Notice of Removal at 6 (citing the complaint); Daimler AG v. Bauman, 134 S.Ct. 746, 760 (2014). Because all of the defendants are citizens of Delaware, venue would also be proper there. A civil action may be brought in “a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located.” 28 U.S.C. § 1391(b)(1). Accordingly, Intelect could have originally brought this action in the District of Delaware.

         Despite clearing this first hurdle, the Court nevertheless concludes that neither the public nor the private considerations indicate that transferring this case would further the convenience of the parties and the witnesses or the interest of justice.

         Considering the private interests, Defendants posit that because the parties have all “actively participated in the Powerwave Bankruptcy case, ” and because Intelect “is headquartered in Baltimore, ” Delaware would be “nearly equally convenient for Plaintiff as is Washington, D.C.” Defs.’ Mot. to Transfer Venue at 5. Even if Delaware would be equally convenient, however, “a plaintiff’s choice of forum is ordinarily ‘a paramount consideration’ that is entitled to ‘great deference’ in the transfer inquiry.” F.T.C. v. Cephalon, Inc., 551 F.Supp.2d 21, 26 (D.D.C. 2008) (quoting Thayer/Patricof Educ. Funding LLC v. Pryor Res., 196 F.Supp.2d 21, 31 (D.D.C. 2002)). While “[d]eference to the plaintiff’s chosen forum is minimized . . . where that forum has no meaningful connection to the controversy, ” United States v. H &R Block, Inc., 789 F.Supp.2d 74, 79 (D.D.C. 2011), Intelect’s claims are related to the Defendants’ contract with WMATA, which is headquartered in D.C., providing the District of Columbia with a strong connection to this controversy. In addition, while Defendants’ transfer motion does not address the location where Intelect’s claims against the Carrier Consortium arose, they do not contend that those claims arose in Delaware.

         Defendants counter that this lawsuit presents “precisely the situation where Plaintiff’s original choice of venue should be disturbed” because it “assert[s] claims that duplicate [the Plaintiff’s] Proof of Claim.” Defs.’ Mot. to Transfer Venue at 4. But, as already explained, even though Intelect seeks to recover a value identical to the amount Powerwave owes to it, its claims are distinct and raise separate grounds for imposing liability on Defendants, not Powerwave. And if Defendants’ argument intends to invoke the “home court” presumption that many courts have applied when considering whether to transfer bankruptcy proceedings, the Court’s doubts that “related to” jurisdiction exists render that presumption largely inoperative here. See, e.g., Irwin v. Beloit Corp. (In re Harnischfeger Indus., Inc.), 246 B.R. 421, 439 (Bankr. N.D. Ala. 2000) (explaining that “[a] majority of the courts that have considered whether change of venue is appropriate have created a presumption that the bankruptcy court in which the debtor’s case is pending, the home court, is the proper venue for adjudicating all proceedings in the case”).

         For similar reasons, the Court finds Defendants’ arguments that Powerwave “will be a central party in this action, ” that it will be “most convenient for potential witnesses and the parties to adjudicate Plaintiff’s disputes with both Powerwave and Defendants only once, ” and that Powerwave “will be subject to third party discovery” all fail to weigh in favor of transfer. Defs.’ Mot. to Transfer Venue at 5. Powerwave is not a party to this dispute, nor does Intelect assert any claim against Powerwave. Although the Court cannot foreclose the possibility of third party discovery, presumably many of the contractual documents relevant to Intelect’s claims against Defendants, specifically the Carrier Consortium-WMATA contract documents and the Carrier Consortium-Powerwave contract, are likely already in Defendants’ possession. And the Defendants do not explain exactly what witnesses or documents they will be unable to obtain if this case is not tried in Delaware, or where those witnesses or documents are actually located. Having failed to address these points, Defendants have likewise failed to carry their burden to show that either the convenience of the witnesses or the ease of access to sources of proof weigh in favor of transfer. Thus, the Court concludes that the private factors weigh against transfer.

         The public interests also do not weigh in favor of transfer.[7] Defendants assert that they will “seek to have this matter referred to the Delaware Bankruptcy Court, ” and that the “Delaware Bankruptcy Court has an interest in adjudicating” Counts I through VI. Id. at 1, 4. Yet, again, the Court emphasizes that Intelect’s claims cover distinct theories of liability against Defendants, not Powerwave. Given the Court’s skepticism that the remaining counts even “relate to” the Powerwave bankruptcy proceedings in the legal sense, it is doubtful that judicial economy will be served through a transfer or that transferring this case will “reduce duplicative discovery and avoid the risk of inconsistent judgments.” Id. at 3. “Related to” cases are non-core proceedings under 28 U.S.C. § 157(c), which means that, absent the consent of the parties, the bankruptcy court may only submit proposed findings of fact and conclusions of law. See 28 U.S.C. § 157(c); United States v. Inslaw, Inc., 932 F.2d 1467, 1473 (D.C. Cir. 1991); Abbey, 305 B.R. at 601; Premium of Am., LLC v. Sanchez (In re Premium Escrow Servs., Inc.), 342 B.R. 390, 407 n.20 (Bankr. D.D.C. 2006). Moreover, Defendants do not claim that Count VII of the Amended Complaint, Intelect’s promissory estoppel claim-which does not involve Powerwave and is based on circumstances that arose only after Powerwave filed for bankruptcy-even “relates to” the Powerwave bankruptcy proceeding. It is likely that the Delaware bankruptcy court lacks jurisdiction to even consider that claim.[8] At least portions of this case therefore will inevitably be adjudicated by a district court. Judicial economy would not be served by substituting the District of Delaware for this Court. See Abbey, 305 B.R. at 604 (declining to transfer in similar circumstances where several of plaintiffs’ claims “could well be viewed as non-core, and thus, even though the Bankruptcy Court in Virginia is familiar with this matter, a district court judge in the Eastern District would [end] up having to adjudicate this matter”).

         Of course, it is possible that any favorable recovery Intelect obtains from Defendants on Counts I through VI will be offset by Intelect’s recovery, if any, on the proof of claim it has submitted in the Powerwave bankruptcy proceedings. The damages issues in this case may overlap in that respect. But the Court does not believe that the factual and legal questions pertinent to the liability issues concerning Intelect’s distinct claims against the Carrier Consortium are likely to overlap considerably with the Powerwave bankruptcy proceedings. And Intelect’s promissory estoppel claim based on representations Defendants allegedly made directly to Intelect after Powerwave defaulted on its contract obligations to Intelect bears no relation to the bankruptcy proceedings.

         Finally, Defendants have not addressed the remaining two public interest considerations: the “transferee’s familiarity with the governing law” and “the relative congestion of the courts of the transferor and potential transferee.” Onyeneho, 466 F.Supp.2d at 3. In any event, the Court believes that both of these factors weigh against transfer here. As explained below, the parties argue that either Maryland or District of Columbia law applies to Intelect’s claims. In either event, the federal courts in Delaware will not be particularly familiar with the governing law. In addition, the federal courts in the District of Delaware are considerably more congested than those in this district. As of June 30, 2015, the District of Delaware faced more than double the number of pending cases per judge than the judges in this district face. See Administrative Office of the U.S. Courts, U.S. District Courts - Combined Civil and Criminal Federal Court Management Statistics 2, 14 (June 30, 2015), available at: table/na/federal-court-management-statistics/2015/06/30-3 (noting that the District for the District of Columbia faced 218 pending cases per judgeship, while the District of Delaware faced 523). Thus, the relative congestion of the courts weighs strongly in favor of retaining this case in the District of Columbia.

         Absent a showing that the District of Delaware would prove more convenient to the parties or judicial economy would be substantially served by considering this case in tandem with the Powerwave bankruptcy proceedings, the Court believes that “[t]he deference owed to the plaintiffs’ choice of forum tips the scale against the transfer motion.” Sparshott v. Feld Entm’t, Inc., 89 F.Supp.2d 1, 4 (D.D.C. 2000) (declining to transfer a case to the “Eastern District of Virginia, where a ...

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