Opinion
Civ. No. 00-1295 (WGB)
December 29, 2000.
Adam Zoldessy, Esq., 1047 Avenue C, Bayonne, N.J. 07002, Attorney for Plaintiff.
K. Keith Facer, Esq., TRESSLER SODERSTOM MALONEY PRIESS, One Riverfront Plaza, Suite 500, Newark, N.J. 07102, Attorneys for Defendant Lumbermens Mutual Casualty Company, David M. Kupfer, Esq., O'BRIEN, LIOTTA MANDEL, LLP, Liberty Hall Corporate Center, 1085 Morris Avenue, Union, N.J. 07083-1980, Attorneys for Defendants Ezekiel Clark and Sympathy Clark.
OPINION
Defendant Lumbermens Mutual Casualty Company ("LMC") moves to dismiss for improper venue. Defendants Ezekiel Clark and Sympathy Clark (the "Clarks") move to dismiss the complaint for lack of personal jurisdiction, for insufficiency of service of process, or for failure to timely file a claim in the Florida probate action.
For the following reasons, although LMC did not formally move to transfer venue pursuant to 28 U.S.C. § 1404(a), the Court construes its motion as such and transfers this case to the Middle District Court of Florida . LMC's motion to dismiss for improper venue is dismissed as moot. The Clarks' motion to dismiss is also dismissed as moot.
I. BACKGROUND
A. Facts
The following facts are not disputed. On February 4, 1993, an automobile accident occurred in Largo, Pinellas County, Florida, which resulted in the death of Vincent Miller ("Mr. Miller"). Mr. Miller was survived by his spouse Georgia A. Miller ("Mrs. Miller") and her three minor children. On December 20, 1994, in Florida state court, Mrs. Miller, in her individual capacity and as guardian ad litem for her minor children, entered into a settlement agreement and release ("Settlement Agreement"), with LMC and its insureds to settle and release all claims arising out of the automobile accident and the death of her husband, Mr. Miller. (Settlement Agreement attached as Ex. A to Certification of K. Keith Facer, Esq. ("Facer Cert."); Ex. F to Affidavit of G. Penfield Jennings, Esq. ("Jennings Aff.")).
Under the Settlement Agreement, LMC was required to make an initial lump sum payment of $450,000 to Mrs. Miller and the remainder of the settlement amount was to be paid pursuant to a structured payment plan that required payments to Mrs. Miller of $2,000 per month for a minimum of twenty years. It also provided for payments to be made to the three minor children on their 18th, 20th, 22nd, and 25th birthdays. Moreover, the Settlement Agreement contained a clause prohibiting Mrs. Miller from selling, mortgaging, or encumbering any part of the payments to be made by LMC by assignment or otherwise. (See Settlement Agreement, "Plaintiffs' Rights to Payments".)
Prior to June 4, 1998, from its offices in Norcross, Georgia, Plaintiff Settlement Funding, L.L.C. d/b/a Peachtree Settlement Funding ("Peachtree") forwarded a purchase agreement ("First Purchase Agreement") to Mrs. Miller, which she signed from her residence in Mobile, Alabama. (Purchase Agreement attached as Ex. C to Facer Cert.; Ex. A to Jennings Aff.) The Purchase Agreement assigned to Peachtree Mrs. Miller's right to receive $250 of the monthly $2,000 payment under the Settlement Agreement in exchange for a lump sum payment of $10,809.00 to Mrs. Miller.
Subsequently, from its offices in Norcross, Georgia, Peachtree forwarded an additional purchase agreement ("Second Purchase Agreement") to Mrs. Miller, which Mrs. Miller signed on January 25, 1998. (Second Purchase Agreement attached as Ex. D to Facer Cert.; Ex. B to Jennings Aff.) That agreement assigned to Peachtree Mrs. Miller's right to receive an additional $300 of the monthly $2,000 payment in exchange for a lump sum payment of $8,909.00 to Mrs. Miller.
Paragraph 23 of both Purchase Agreements ("forum selection clause") provides in pertinent part:
23. Jurisdiction and Venue : Seller and Purchaser agree and consent to the exclusive jurisdiction of the State of New Jersey and federal courts sitting in New Jersey in any action or claim arising out of, under or in connection with this Agreement or the transactions contemplated in this Agreement.
"Seller" is identified on the signature page of both purchase agreements and defined in the "Terms Rider" attached to both purchase agreements as "Georgia A. Miller."
Paragraph 10 of both Purchase Agreements states in relevant part:
10. Binding Agreement and the Related Documents . . . . Without limiting the generality of the foregoing, each covenant, representation and warranty of the Seller herein and in the Related Documents and the Ancillary Documents shall be deemed made by and shall be binding upon the Seller's estate, heirs, executors, administrators, beneficiary(ies), and representatives upon Seller's death.
Both Purchase Agreements also contain a choice of law clause providing that the agreements and related documents are to be construed and governed by the law of New York. (Purchase Agreements, ¶ 13.)
Mrs. Miller, who resided in Florida and also maintained a residence in Alabama, (see Amended Compl., ¶ 2), died in a motor vehicle accident on May 4, 1999 in Missouri. On June 4, 1999, the Circuit Court, Probate Division, for Pinellas County, Florida, entered an order in a probate proceeding appointing the Clarks, both of whom are residents of Florida, the co-personal representatives of the Estate of Georgia A. Miller ("the Estate").
B. Procedural History
On February 18, 2000, Peachtree filed this action in the Superior Court of New Jersey alleging that LMC wrongfully paid the monthly annuity payment due under the Settlement Agreement to Mrs. Miller and/or her Estate instead of to Peachtree. (Amended Compl. ¶ 2, Fourth Count.) Peachtree contends that the Clarks breached the Purchase Agreements by (1) closing or causing to be insufficiently funded the designated account from which Peachtree was to debit the assigned payment; and (2) failing to forward to Peachtree all assigned assets. (Amended Compl. ¶ 15.)
On March 17, 2000, LMC removed this action to federal court. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Peachtree is a Georgia company.See footnote 1 The Clarks are citizens of the State of Florida. LMC is an Illinois corporation with its principal place of business in Illinois. Defendant Omaha Life Insurance CompanySee footnote 2 is a Nebraska corporation with its principal place of business in Nebraska.
Although the Amended Complaint states that Peachtree is authorized to do business in New Jersey and has an office in this state, there is no evidence in the record that its principal place of business is in New Jersey. See Petition for Removal Pursuant to 28 U.S.C. § 1441.
Omaha Life Insurance Company was voluntarily dismissed from this action on March 28, 2000.
II. DISCUSSION
A. Motion to Dismiss for Improper Venue
LMC contends that New Jersey is not the proper venue under 28 U.S.C. § 1391. Section 1391(a) specifically states
that venue is proper in any civil action wherein jurisdiction is founded only on diversity of citizenship, except as otherwise provided by law, only in: (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.28 U.S.C. § 1391(a).
New Jersey is not the proper venue pursuant to 28 U.S.C. § 1391 (a)(1) because none of the defendants reside in New Jersey. Venue is not proper under § 1391(a)(2) because none of the events or omissions giving rise to the claim occurred in New Jersey.See footnote 3 Finally, § 1391(a)(3) also does not serve as a basis for venue because this law suit could have been brought in federal district court in Florida pursuant to diversity jurisdiction.
The forum selection clause contained in the Purchase Agreements does not apply to LMC because it was not a party to those contracts.
In opposition, Peachtree does not dispute any of LMC's assertions; rather, it claims that § 1391 does not apply to actions that were originally brought in state court and subsequently removed to federal court. Peachtree is incorrect. The federal court's jurisdiction of a removed action is original; therefore, the suit proceeds as if it had been commenced in a federal court. Freeman v. Bee Machine Co., 319 U.S. 448 (1943); 5A Wright Miller, Federal Practice Procedure: Civil 2d § 1395 at 782-83 (1990) ("A party who removes an action from a state to a federal court does not thereby waive any of his Rule 12(b) defenses or objections." (footnote omitted)); 15 Wright Miller, Federal Practice Procedure: Jurisdiction 2d § 3843 at 323 (1986) (noting that § 1404(a) has been held applicable to removed cases).
If venue is improper, § 1406(a) provides that the court "shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Generally, however, dismissal is considered to be a harsh remedy in cases where the plaintiff filed suit in the wrong venue; therefore, transfer of venue to another district court in which the action could originally have been brought is the preferred remedy. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, (1962); see also NCR Credit Corp. v. Ye Seekers Horizon, Inc., 17 F. Supp.2d 317, 319 (D.N.J. 1998). Any transfer pursuant to 28 U.S.C. § 1406(a) would, however, necessarily only be with respect to the claims against LMC because the Clark Defendants have not raised any objections to venue. See Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976) (noting that courts cannot consider transfer pursuant to 28 U.S.C. § 1406(a) sua sponte except in rare circumstances);Concession Consultants, Inc. v. Mirisch, 355 F.2d 369 (2nd Cir. 1966) (same).
Because that would result in piecemeal litigation, the Court will consider transfer of the entire action pursuant to 28 U.S.C. § 1404(a), which authorizes transfer for the convenience of the parties and witnesses and in the interest of justice. Moreover, although LMC did not formally move for transfer in its moving papers, it requested transfer pursuant to 28 U.S.C. § 1404(a) in its reply brief. Unlike 28 U.S.C. § 1406(a), "[t]he broad language of the [§ 1404(a)] transfer statute seems to suggest that the court may order a transfer on its own motion."See footnote 4 5A Wright Miller, Fed. Pract. Proc.: Civil 2d § 1352 at 272 (citing Lead Indus. Ass'n v. OSHA, 610 F.2d 70, 79 n. 17 (2nd Cir. 1979)).
Some courts have determined that if a court is considering transfer on its own initiative, it should give the parties an opportunity to present their views about the transfer. See 15 Wright Miller, Federal Practice Procedure: Jurisdiction 2d § 3844 at 329-30 (1986). This Court, however, is unaware of any such mandate by the Third Circuit. Additionally, the Court is inclined to rule sua sponte in this case because of the utter lack of connection of any of the facts to this forum. See facts discussed infra .
As discussed below, because larger questions of judicial economy, convenience, and fairness involving all Defendants mandate a transfer by this Court to the Middle District of Florida pursuant to § 1404(a), both LMC's motion to dismiss for improper venue and the Clarks' motion to dismiss for lack of personal jurisdiction and on other grounds are dismissed as moot.
B. Transfer for Convenience
Section 1404(a) provides that "[f]or 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."See footnote 5 Section 1404(a) motions are considered procedural matters and therefore are governed by federal law. See Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995).
In LMC's moving brief, it argues that venue is entirely proper in Florida, where all Defendants reside and where a substantial portion of the events giving rise to Peachtree's claims against LMC occurred. LMC's Br. in Support of its Mot. to Dismiss, at 7. In opposing LMC's motion, Peachtree does not dispute that the action could not have been brought in a federal court in Florida. Therefore, the Court will not address this factor.
The purpose of § 1404(a) is "to prevent the waste of `time, energy and money' and to `protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26-27 (1960)). Section 1404(a) provides for a transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient. Id. at 646.
The party seeking transfer of venue bears the burden of proof when establishing that transfer is warranted, and must submit "adequate data of record" to facilitate the Court's analysis. In re Consol. Parlodel Litig., 22 F. Supp.2d 320, 322 (D.N.J. 1998); Ricoh Co. v. Honeywell, Inc., 817 F. Supp. 473, 480 (D.N.J. 1993).
1.Factors Guiding the Court's Transfer Determination
No rigid rule governs a transfer determination; a § 1404(a) analysis is flexible and turns on the unique facts of each case. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29-30 (1988). When "ruling on section 1404(a) motions, courts have not limited their consideration to the three enumerated factors in § 1404(a) (convenience of the parties, convenience of the witnesses, and interests of justice)."Jumara, 55 F.3d at 879.
In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), the Supreme Court articulated various factors to guide a court's analysis under § 1404(a). Although Gulf Oil involved a motion to dismiss for forum non conveniens, courts routinely apply the Gulf Oil factors to a § 1404(a) determination. E.g., Honeywell, 817 F. Supp at 479-88. The factors listed in Gulf Oil and subsequently developed by the Third Circuit fall into two categories: the private interests of the litigants, and the public's interest in a fair and efficient administration of justice. See Jumara, 55 F.3d at 879 (citations omitted).
The private interests include plaintiff's forum preference, the defendant's preference, the convenience of the parties as indicated by their relative physical and financial condition, the relative ease of access to the sources of proof, the availability of compulsory process for the attendance of unwilling witnesses, whether the claims arose elsewhere, and "practical considerations that could make the trial easy, expeditious, or inexpensive". Id. (citations omitted).
The public interests include the trial judge's familiarity with the applicable state law, the local interest in adjudicating disputes at home, the relative backlog and other administrative difficulties flowing from court congestion in the two fora, and the fairness of placing the burdens of jury duty on the citizens of the state with the greater interest in the dispute. Id. (citations omitted).
Neither list of factors is exhaustive, and certain factors may be more or less relevant in particular cases. Van Cauwenberghe v. Biard, 486 U.S. 517, 528-29 (1988). Because of the extensive nature of the factors to be balanced, a written opinion setting forth the reasons for transfer is highly desirable. Jumara, 55 F.3d at 880. Cognizant of these guiding principles, the Court finds that after balancing the pertinent private and public interests, the Middle District of Florida would be a more appropriate forum to adjudicate Plaintiffs' claims.
2. Private Interest Factors
i. Plaintiff's Choice of Forum
"A plaintiff's choice of forum should rarely be disturbed, unless the balance of the factors is strongly in favor of the defendant." Lacey v. Cessna Aircraft Co., 862 F.3d 38, 43 (3d Cir. 1988). See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981) (recognizing there is a "strong presumption in favor of plaintiff's choice of forum.") The Third Circuit has stated that "[i]t is black letter law that a plaintiff's choice of a proper forum is a paramount consideration in any determination of a transfer request." Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970), cert. denied, 401 U.S. 910 (1971). See also Park Inn Int'l v. Mody Enter., 105 F. Supp.2d 370, 377 (D.N.J. 2000).
Courts accord a greater deference to a plaintiff's choice of forum if the plaintiff is a resident of the chosen forum, See Lawrence v. Xerox Corp., 56 F. Supp.2d 442, 452 (D.N.J. 1999), but accord less weight when the central facts of a lawsuit occur outside of the chosen forum. NCR Credit Corp., 17 F. Supp.2d. at 321; Ricoh, 817 F. Supp. at 481; cf.S.C. Johnson Son v. Gillette Co., 571 F. Supp. 1185, 1188 (N.D.Ill. 1983) ("as a general rule, the preferred forum is that which is the center of gravity of the accused activity.") These standards are based on the premise that a plaintiff's home forum is inherently more convenient (for the plaintiff) than the transferee forum. NCR, 17 F. Supp.2d at 321; Lony v. E.I. DuPont de Nemours Co., 886 F.2d 628, 633-34 (3d Cir. 1989).
Here, although Peachtree has a registered office in New Jersey, it is a Georgia company. Therefore, it is not necessarily entitled to the greatly enhanced deference due to a plaintiff suing in its home forum. See American Tel. Tel. Co. v. MCI Communications Corp., 736 F. Supp. 1294, 1306 (D.N.J. 1990). The only nexus to New Jersey is that Peachtree is authorized to do business in this State and ¶ 23 of the Purchase Agreements provides for exclusive jurisdiction in New Jersey. Although the presence of a forum-selection clause figures centrally in the calculus, the forum-selection clause is not dispositive. Stewart Org., Inc., 487 U.S. at 29-31. Because New Jersey has no obvious connection to this case and because Defendant LMC is not bound by the forum selection clause, the Court will accord less weight to Peachtree's choice of forum and to the forum selection clause than would otherwise be due those factors. Moreover, because a majority of the other factors before the Court either point towards transfer, the mere fact that Peachtree has chosen to bring its action in New Jersey is not sufficient to prevent the transfer of its action to the Middle District of Florida.
ii. Convenience and Financial Condition of Parties
"If the transfer would merely switch the inconvenience from the defendant to plaintiff, the transfer should not be allowed." Market Transition Facility v. Twena, 941 F. Supp. 462, 467 (D.N.J. 1996). See Van Dusen, 376 U.S. at 645-646 ("Section 1404(a) provides for a transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient.")
Peachtree is a company that is financially large enough to make lump sum payments of close to and over $10,000. LMC is an insurance company. The Court is convinced that proceeding with this action in either Florida or New Jersey will not impose an undue financial hardship on either of those parties. There is no evidence that litigation in New Jersey would be impose an undue financial hardship on the Clarks, who are Florida residents. Therefore, this factor does not weigh either in favor of or against transfer.
iii. Access to Proof — Witnesses and Documents
The Court may consider the amenability of potential witnesses to compulsory process in a § 1404(a) analysis. See National Prop. Investors VIII v. Shell Oil Co., 917 F. Supp. 324, 328 (D.N.J. 1995) (citing Solomon v. Cont'l Am. Life Ins. Co., 472 F.2d 1043, 1047 (3d Cir. 1973)).
Fed.R.Civ.P. 45(e) provides that a non-party may not be held in contempt for failure to obey subpoena requiring non-party to travel to a place more than 100 miles from the place he/she resides.
Because all the events underlying this litigation occurred in Florida, Georgia, or Alabama, any non-party witnesses necessary for trial in New Jersey will be beyond the subpoena power of this Court. For example, fact witnesses that could be called to testify regarding the Settlement Agreement include Florida residents such as LMC's attorney, Cody Davis, Esq., Mrs. Miller's attorney, Edward Carlson, Esq., and the notary, Cynthia Hashem. As for fact witnesses regarding the Purchase Agreement, which would probably include employees at Peachtree's Norcross Georgia office, those employees are presumably in Peachtree's control and can be required by Peachtree to testify in Florida. Failing to transfer the case to Florida may adversely affect Defendants' ability to call non-party witnesses who may be instrumental in disproving Peachtree's arguments, as those witnesses cannot be compelled to testify before this Court. See In re Consolidated Parlodel Litig., 22 F. Supp.2d 320, 325 (D.N.J. 1998) ("some courts consider the convenience of non-party witnesses the most powerful factor in the transfer analysis.") (citations omitted).
Accordingly, this factor weighs in favor of transfer.
iv. Other Factors Relating to the Expeditious and Efficient Adjudication of the Dispute
It is not entirely clear that this Court has personal jurisdiction over the Clark Defendants for all claims against them. See Clark Defendants' Motion to Dismiss, at 8-12 and Reply Letter Br., at 1-6. Furthermore, because New Jersey is an improper venue for an action by Peachtree against LMC, see discussion supra, allowing this action to proceed in the District of New Jersey would result in piecemeal litigation, which courts should avoid. As this Court has previously remarked, "the interests of the parties and of the court system are served by transferring venue to a forum in which all potential claims could be adjudicated at once."National Property, 917 F. Supp. at 329. In contrast, Florida would clearly have personal jurisdiction over all Defendants. The Clarks are Florida residents. LMC entered into the Settlement Agreement with Mrs. Miller in Florida. LMC Statement of Undisputed Facts, ¶ 4.
Hence, this factor clearly supports transfer of this entire action to the Middle District of Florida.
3. Public Interest Factors
i. Forum's Familiarity with the Applicable Law
"Justice requires that, whenever possible, a diversity case should be decided by the court most familiar with the applicable state law." NCR Credit, 17 F. Supp.2d at 323 (quoting Heller Fin., Inc. v. Shop-A-Lot, Inc., 680 F. Supp. 292, 296 (N.D.Ill. 1988). Florida law would probably apply to the Settlement Agreement because that agreement was negotiated, signed, and notarized in Florida. See Doyle v. Northrop Corp., 455 F. Supp. 1318, 1325 (D.N.J. 1978) ("the validity of a contract is governed by the law of the place where it is made.") A federal court in Florida is better suited to apply Florida state law than this Court is.
With respect to the Purchase Agreements, Section 13 of the agreements provide that New York law governs. If that choice of law provision controls, a federal court in New Jersey is no more better suited to apply New York law than a federal court in Florida.
Accordingly, this factor weighs in favor of transfer.
ii. Relative Court Congestion
In 1999, the Middle District of Florida had an average caseload of 637 civil filings and 606 pending civil cases per judge while the District of New Jersey had an average caseload of 376 civil filings and 363 pending cases per judge. Administrative Office of the United States Courts,1999 Federal Court Management Statistics 56, 101 (2000). The clearance rate of cases was correspondingly higher in the Middle District of Florida, with 764 cases termed per judge per year, versus 407 cases in the District of New Jersey. Id. Despite the disparity in the average actions per judge, the overall amount of pending cases is comparable. In 1999, New Jersey had 6,174 while the Middle District of Florida had 6,662. The significantly higher averages in the Middle District of Florida is explained by the fewer number of judges. Nevertheless, the higher average caseload in the Middle District of Florida renders "relative court congestion" a factor against transfer.
iii. Local Interest and Nexus to the Controversy
While Florida has an significant interest in this litigation, New Jersey has none. Florida has a notable interest because the underlying automobile accident occurred in Florida, the resulting Settlement Agreement was negotiated and entered into in Florida, two of the Defendants are Florida citizens, the property or rights to payment at issue were held, at least initially, by a deceased Florida citizen, and the parties that may be affected by Peachtree's challenge of the validity of the non-assignment language in the Settlement Agreement, namely the minor children of Mrs. Miller, are all Florida residents. In contrast, aside from a forum selection clause contained in the Purchase Agreements, to which all Defendants are not bound, New Jersey has no interest in this litigation.
The burden of jury duty should not be placed on citizens with remote connection to a lawsuit. Gulf Oil, 330 U.S. at 508-09. This action stems from conduct which clearly did not originate or have any relationship to New Jersey. The mere fact that Peachtree has a New Jersey office should not subject the people of New Jersey to this litigation. While the actions of Defendants can arguably be linked to other states, the nexus in this case is undeniably the Middle District of Florida, where the facts underlying this litigation are based. As such, it is the people of that District who have the greatest interest in adjudicating this dispute.
This factor, and most of the other private and public interests considered by the Court pursuant to § 1404(a), support transfer to the Middle District of Florida.
III. Conclusion
Because it is both in the interest of convenience and justice, venue of this entire action shall be transferred to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). Defendant LMC's motion to dismiss for improper venue is dismissed as moot. The Clark Defendants' motion to dismiss is also dismissed as moot.
An appropriate Order follows.
ORDER
This matter having come before the Court on Defendant Lumbermens Mutual Casualty Company's motion to dismiss for improper venue; and Defendant Ezekiel Clark and Sympathy Clark's motion to dismiss for lack of personal jurisdiction and on other grounds; and
The Court having considered the submissions of the parties; and
The Court having decided this matter without oral argument pursuant to Fed.R.Civ.P. 78; and
For the reasons set forth in the Court's Opinion issued this day; and
For good cause shown;
It is on this 29th day of December, 2000 ORDERED that pursuant to 28 U.S.C. § 1404(a), this action shall hereby be transferred to the United States District Court for the Middle District of Florida; and
IT IS FURTHER ORDERED that Defendant Lumbermens Mutual Casualty Company's motion to dismiss for improper venue is dismissed as moot; and
IT IS FURTHER ORDERED that Defendant Ezekiel Clark and Sympathy Clark's motion to dismiss for lack of personal jurisdiction and on other grounds for convenience is dismissed as moot.