In re Simon II Litigation , 212 F. Supp. 2d 57 ( 2002 )

MEMORANDUM AND ORDER (BERGERON)

WEINSTEIN, Senior District Judge.

Plaintiff, a Massachusetts employees benefit fund, brought suit based on sections 349 and 350 of New York General Business Law. In doubt was whether New York law applied. See Bergeron v. Philip Morris, Inc., 100 F.Supp.2d 164 (E.D.N.Y. 2000). The New York Court of Appeals has now ruled that sections 349 and 350 of the New York Business Law do not apply to a consumer injured in a transaction outside the state; the consumer must be deceived in New York. Goshen v. The Mutual Life Insurance Company of New York, 2002 WL 1418408 (2002).

The plaintiff may wish to amend the complaint to plead Massachusetts law. If so, the case should be transferred to the district court of Massachusetts for the convenience of parties and witnesses, in the interest of justice, where amendment may be sought. See 28 U.S.C. § 1404. If the plaintiff wishes the case transferred, it should submit an order of transfer within 10 days. Otherwise the complaint will be dismissed for failure to state a cause of action on an order to be submitted by defendants.

So ordered.