Jon Campisi Dec. 31, 2013, 7:49am


A Philadelphia trial judge has ordered that a lawsuit initiated by a federal

jurist and his wife against an attorney be transferred to Common Pleas Court in neighboring Montgomery County.

In a ruling filed in late November, but only recently made public by the courts, Philadelphia Common Pleas Court Judge Frederica A. Massiah-Jackson ruled that a case initiated by Frances Ruth Batzer Baylson and her husband, U.S. District Judge Michael M. Baylson, against Fairfax Cryobank, lawyer Mark C. Clemm and Clemm’s law firm, Morris and Clemm, P.C., must play out at the Montgomery County Court of Common Pleas.

Massiah-Jackson’s decision in favor of a venue transfer came after oral arguments in the matter were held on Nov. 26.

The defendants petitioned to have the litigation sent to Montgomery County with the costs for the transfer to be incurred by the plaintiffs.

A Montgomery County judge will be tasked with ruling on the actual preliminary objections lodged by the defendants, according to Massiah-Jackson’s ruling.

Michael Baylson, a federal judge who sits in the Eastern District of Pennsylvania, and his wife, a medical doctor, filed suit this past August in state court over allegations that Morris and Clemm, P.C. made false allegations about Frances Ruth Batzer Baylson in a contractual dispute involving a since-shuttered sperm bank, according to an article in Law360.

The couple claims in their lawsuit that the law firm wrongly used the civil process when it sued the judge’s wife on behalf of Genetics and IVF Institute Inc. over costs relating to the storing of reproductive material, according to the Aug. 13 news article.

Frances Ruth Batzer Baylson is an obstetrician and gynecologist specializing in fertility issues.

The woman was named as a defendant in a September 2011 lawsuit along with Pennsylvania Reproductive Associates, Philadelphia Fertility Institute Inc. and Fertility Testing Laboratories Inc.

In an amended complaint, new defendant Genetics and IVF Institute, which does business as Fairfax Cryobank, alleged that it entered into leases with the three aforementioned companies to store tanks containing reproductive material at a location in Philadelphia, and that Fairfax got stuck with storage costs and exposure to potential litigation regarding the storage of the reproductive material after the leases with the companies expired, according to the story on Law360.

The record shows that a Montgomery County judge initially sustained defense preliminary objections and dismissed the underlying case with prejudice.

The August lawsuit filed by the Baylsons claims that attorney Clemm did not have grounds to bring about the complaint because Batzer Baylson was not a party to the contested lease agreements.

The judge and his wife also take issue with the fact that the suit was brought in Pennsylvania, and not in Virginia, since the lease agreement stated that it would be subject to the laws of that state, which is where Fairfax Cryobank is headquartered.

Baylson and his wife appear to be representing themselves in the litigation.

In last month’s ruling granting the defendants change of venue request, Philadelphia Judge Massiah-Jackson wrote that it is “undisputed that the underlying action against Dr. Baylson was initiated in Montgomery County.

“Even assuming arguendo that Dr. Baylson’s theory is correct that the underlying proceedings actually terminated in her favor, those proceedings terminated in Montgomery County and pursuant to Montgomery County Court rulings,” Massiah-Jackson wrote. “Accordingly, venue is proper only in Montgomery County. Venue is not proper in Philadelphia and this Court has no jurisdiction to hear the case.”

Massiah-Jackson wrote that under Pennsylvania appellate case law, litigation claims based on wrongful use of civil proceedings are guide by “refined applications of the venue and jurisdiction Rules of Civil Procedure.”

The Pennsylvania Superior Court has held that in a Dragonetti action, the appropriate consideration when determining venue is the location of the underlying litigation.

“The Rules relating to forum non conveniens, plaintiff’s residence and/or choice of forum, location of business offices, etc., are neither relevant nor determinative when a lawsuit has been filed pursuant to the Dragonetti Act,” Massiah-Jackson wrote.

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