TANYA WALTON PRATT, District Judge.
This matter is before the Court on the Motion to Dismiss or Transfer Venue (
Also pending before the Court is a Motion to Strike Plaintiffs' Sur-reply Brief. (
The facts of this case are highly contested by both sides. The following facts, taken from the Prefontaines' Complaint are accepted as true solely for purposes of the motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint."). Moreover, additional facts presented in the Prefontaines' briefs rather than in the Complaint, are addressed in detail to assist with evaluating the Fed. R. Civ. P. 12(b)(2) personal jurisdiction motion and Fed. R. Civ. P. 12(b)(3) venue arguments raised by Green. Where there are factual disputes, the Court has citied the opposing materials.
In August 2013, Green and Amanda Noble ("Noble") purchased patio furniture from the Prefontaines' place of business, Family Leisure, Inc., located on Pendleton Pike, in Indianapolis, Indiana. (
In September 2013, Green and Noble solicited the Prefontaines for their landscaping and in-ground pool construction business, Nobility Enterprises, Inc. (
In 2014, at one of the meetings between Green and the Prefontaines, Green offered to sell stocks of her company, Hollywall Entertainment, Inc., to the Prefontaines. (Id.) On July 11, 2014, the Prefontaines and Green entered into a stock agreement to purchase 25,000 shares of Hollywall Entertainment, Inc. for $87,500.00. (
The Prefontaines demanded their investment back in full and, in return, they promised Green that they would not file suit for fraud, misrepresentation, or any related securities fraud claim. (
Green first argues that this Court lacks personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). (
When the court determines personal jurisdiction based only on reference to submissions of written materials, rather than based on evidence submitted at a hearing, a plaintiff simply needs to make a prima facie case of personal jurisdiction. Purdue Research Found., 338 F.3d at 782; Wine & Canvas Dev., LLC, 886 F. Supp. 2d at 937. In determining whether the plaintiff has met the prima facie standard, the plaintiff is entitled to a favorable resolution of all disputed relevant facts. uBID, Inc. v. GoDaddy Grp., Inc., 623 F.3d 421, 423-24 (7th Cir. 2010); Wine & Canvas Dev., LLC, 886 F. Supp. 2d at 938. The court may consider affidavits and all other documentary evidence that have been filed, and any conflicts must be resolved in favor of the plaintiff as the non-moving party. Int'l Med. Grp., Inc. v. Am. Arbitration Ass'n, 149 F.Supp.2d 615, 623 (S.D. Ind. 2001).
A federal court's personal jurisdiction over a defendant in a diversity case is established when the defendant is subject to the jurisdiction of a court of general jurisdiction in the state where the court is located. Fed. R. Civ. P. 4(k)(1)(A); NEXTT Sols., LLC v. XOS Techs., Inc., 71 F.Supp.3d 857, 860 (N.D. Ind. 2014). Therefore, a district court must undertake and satisfy a two-step analysis in order to properly exercise personal jurisdiction over a non-resident defendant. Wine & Canvas Dev., LLC, 886 F. Supp. 2d at 938. First, the exercise of personal jurisdiction must comport with the state's long-arm statute; second, the exercise must comport with the due process clause of the Constitution. Purdue Research Found., 338 F.3d at 779. Because Indiana's longarm statute, Indiana Trial Rule 4.4(A), reduces the analysis of personal jurisdiction to the issue of whether the exercise of personal jurisdiction is consistent with the federal due process clause, the Court only needs to consider the second step of the analysis. NEXTT Sols., LLC, 71 F. Supp. 3d at 860; LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 967 (Ind. 2006).
Due process requires that a defendant have "certain minimum contacts with [the forum State] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); RAR, Inc., 107 F.3d at 1276. These minimum contacts must have a basis in "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). Such purposeful availment is required to ensure that defendants may reasonably anticipate what conduct will subject them to the jurisdiction of a foreign sovereign. Burger King, 471 U.S. at 474.
Personal jurisdiction may be either specific or general. Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1244 (7th Cir. 1990). Specific jurisdiction exists for controversies that arise out of or are related to the defendant's forum contacts. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984); RAR, Inc., 107 F.3d at 1277; Wine & Canvas Dev., LLC, 886 F. Supp. 2d at 939. In contrast, general jurisdiction exists for controversies neither arising out of nor related to the defendant's forum contacts, and it is permitted only where the defendant has "continuous and systematic" general business contacts with the forum. Helicopteros Nacionales de Colombia, S.A., 466 U.S. at 415-16; RAR, Inc., 107 F.3d at 1277.
Green argues that the Court does not have personal jurisdiction over her and, therefore, should dismiss the lawsuit. Specifically, Green alleges that at all times relevant to this litigation, she was a resident of either Florida or Georgia, and therefore does not have the requisite minimum contacts to justify personal jurisdiction. (
The Prefontaines argue that this Court has jurisdiction because Green has significant Indiana contacts. (
Specific jurisdiction is proper when the controversy arises or is related to the contacts with the forum state that the defendant has purposely engaged in. See Helicopteros Nacionales de Colombia, S.A, 466 U.S. at 414 n.8. The Court notes that merely contracting with an out of state party will not automatically establish sufficient minimum contacts for jurisdiction in the other party's home forum. See Burger King Corp., 471 U.S. at 478. Instead, the Seventh Circuit has stated that in order for a defendant to be submitted to the personal jurisdiction of a forum he or she must have exploited or targeted the forum purposefully. See Advanced Tactical Ordnance Sys., LLC v. Real Action Paintball, Inc., 751 F.3d 796, 802 (7th Cir. 2014). Further, this Court has stated that minimum contacts for purposes of specific jurisdiction are met when the defendant has purposefully directed his activities at the forum state or purposefully availed himself of the privilege of conducting business in the state, and the alleged injury arises out of the defendant's forum-related activities. See O'Neal v. Bumbo Intern. Trust, 16 F. Supp. 3d. 952, 954 (S.D. Ind. Apr. 14 2014.)
Green argues that she has not purposefully availed herself of the privilege to conduct business in Indiana. (
Green's arguments are well taken, however, the Court is not persuaded. Regardless of where Green actually resided, she purposefully availed herself to the privileges of doing business in Indiana. For instance, Green actively sought to do business with the Prefontaines when she entered into the pool-installation business with them in Indiana. That relationship led to Green's subsequent offer to sell stock to the Prefontaines in Hollywall Entertainment, Inc., as well as the execution of the stock agreement, both of which allegedly took place in Indiana. (
Further, Green's arguments in regard to the stock agreement are not particularly relevant because the Prefontaines are not suing for a breach of the stock agreement. Instead, the Prefontaines have made it clear that they are suing for a breach of contract related to Green's promise to repay the $87,500.00 in exchange for them not filing a lawsuit against her for fraud and misrepresentation. (
In addition, the exercise of jurisdiction over Green does not offend traditional notions of fair play and substantial justice. When considering whether the exercise of jurisdiction offends traditional notions of fair play and substantial justice, courts considers the following factors: "the burden on the defendant, the forum State's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies." Burger King, 471 U.S. at 477.
Indiana has a strong interest in providing a forum for its residents to seek redress for breach of contracts suffered within the state and breached by out-of-state actors. This is especially important when, as in the immediate case, the breach of contract arose out of the purposeful contacts that the out-of-state actor engaged in Indiana. In addition, the Prefontaines have a convenience and perhaps monetary interest to bring this action in Indiana. While Green will be somewhat burdened by having to litigate in Indiana, there is no suggestion that her hardship will be any greater than that routinely tolerated by courts exercising specific jurisdiction against non-residents. See Comm. Agents, Inc. v. Long, 143 F.Supp.3d 775, 795 (S.D. Ind. Oct. 29 2015).
Accordingly, since the alleged breach of contract was purposefully directed at Indiana, the Prefontaines' injuries arose out of Green's sufficient minimum contacts with Indiana; and exercising personal jurisdiction over Green does not offend traditional notions of fair play and substantial justice, the Court concludes that it has specific personal jurisdiction over Green. Consequently, Green's Fed. R. Civ. P. 12(b)(2) motion is
Green argues that that venue is not proper because the stock agreement entered into by the parties included a forum selection clause. (
A motion seeking dismissal based on a forum selection clause is properly treated as an objection to venue and is properly raised under Fed. R. Civ. P. 12(b)(3). See Muzumdar v. Wellness Int'l Network, Ltd., 438 F.3d 759, 760 (7th Cir. 2006). The Seventh Circuit has held that the plaintiff bears the burden of establishing that venue is proper. Carroll v. CMH Homes, Inc., 4:12-CV-23-SEB-WGH, 2013 WL 960408, *2 (S.D. Ind. Mar. 12, 2013). When deciding a Rule 12(b)(3) motion to dismiss, the court accepts the complaint's allegations as true unless contradicted by the defendant's affidavits. Nagel v. ADM Inv'r Servs., Inc., 995 F.Supp. 837, 843 (N.D. Ill. 1998). Further, the court resolves any factual conflicts in the plaintiff's favor. Carroll, 2013 WL 960408 at *2. Finally, the court is not obligated to limit its consideration to the pleadings when deciding a motion to dismiss under Rule 12(b)(3). Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 809-10 (7th Cir. 2011).
Green argues that the Complaint must be dismissed under Fed. R. Civ. P. 12(b)(3) pursuant to the stock agreement's forum clause. The relevant language of that clause states as follows:
(
In particular, the Court reiterates that the Prefontaines' breach of contract claim seeks to enforce Green's promise to refund the $87,500.00 to avoid a suit for fraud against her. (See
Green next argues that the Complaint should be dismissed due to lack of sufficient service pursuant to Fed. R. Civ. P. 12(b)(5). (
It is the plaintiff's burden to demonstrate that the district court has jurisdiction over each defendant through effective service. See Cardenas v. City of Chi., 646 F.3d 1001, 1005 (7th Cir. 2011). However, the court also views the facts in the most favorable light for the non-moving party. Auld v. Ripco, Ltd., 3:16-cv-00063-RLY-MPB, 2016 WL 3615715, *2 (S.D. Ind. July 6, 2016); Kimbrell v. Brown, No. 09-cv-511-JPG, 2009 WL 5064384, *1 (S.D. Ill. Dec. 17, 2009).
Pursuant to Fed. R. Civ. P. 4(e), service is sufficient if it is achieved by:
Green cites Ind. Trial R. 4.1(A) in support of her argument for insufficient service. (
Ind. Trial R. 4.1(A).
Green notes that the summons was delivered to 5545 W. Highland Hills Dr., Edinburg, Indiana 46124, and contends that was never her residence. (
As mentioned earlier, factual disputes for the purpose of a Rule 12(b)(5) challenge must favor the non-moving party. See Auld, 2016 WL 3615715 at *2; Kimbrell, 2009 WL 5064384 at *1. Therefore, assuming the Prefontaines' version of facts, the Court concludes that the Prefontaines have shown that the service at the address in question was sufficient.
Green also argues that service was insufficient because the person named "Charles H.", who received the service and informed Green, was not authorized to receive service on her behalf. (
Service of process by the Prefontaines was proper under both the Federal Rules of Civil Procedure and the Indiana Trial Rules. Thus, Green's motion to dismiss for improper service under Fed. R. Civ. P. 12(b)(5) is also denied.
Finally, Green argues that the Complaint should be dismissed because the Prefontaines have not stated a valid claim pursuant to Fed. R. Civ. P. 12(b)(6). (
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal if the complaint fails to set forth a claim upon which relief can be granted. "The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide the merits." Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). Accordingly, when analyzing a Rule 12(b)(6) motion to dismiss, a court construes the complaint in the light most favorable to the plaintiff, accepts all factual allegations as true, and draws all reasonable inferences in favor of the plaintiff. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
At a minimum, the complaint must give the defendant fair notice of what the claim is and the grounds upon which it rests; and the factual allegations must raise a right to relief above the speculative level. See Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009); Tamayo, 526 F.3d at 1081, 1083. While a complaint need not include detailed factual allegations, a plaintiff has the obligation to provide the factual grounds supporting his entitlement to relief; and neither bare legal conclusions nor a formulaic recitation of the elements of a cause of action will suffice in meeting this obligation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("the pleading standard Rule 8 . . . demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation" and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice").
Although this does not require heightened fact pleading of specifics, it does require the complaint to contain enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp., 550 U.S. at 570; Tamayo, 526 F.3d at 1083 ("[a] plaintiff still must provide only enough detail to give the defendant fair notice of what the claim is and the grounds upon which it rests, and, through his allegations, show that it is plausible rather than merely speculative, that he is entitled to relief").
In the Complaint, the Prefontaines allege a breach of contract claim. (
In sum, Green has failed to demonstrate that dismissal of the Prefontaines' Complaint is warranted under Fed. R. Civ. P. 12(b)(2); 12(b)(3); 12(b)(5) or 12(b)(6). Accordingly, the Court
In the alternative to dismissal, Green argues that the Court should transfer this case to the Northern District of Georgia, pursuant to 28 U.S.C. § 1404(a). (
Green asserts that she was a resident of Georgia during the events alleged in the Complaint. (
When deciding whether to transfer an action based on convenience, courts consider several factors, including the convenience of the parties; the convenience of the witnesses; the location of material events and material evidence; and the interests of justice. Collins v. City of Seymour, No. 1:13-cv-1838-TWP, 2014 WL 279865, at *2 (S.D. Ind. Jan. 24, 2014); Brotherhood Mut. Ins. Co. v. GuideOne Mut. Ins. Co., No. 1:10-CV-462, 2011 WL 1627114, at *2 (N.D. Ind. Apr. 28, 2011). This analysis requires an individualized, case-by-case consideration of convenience and fairness. RCA Trademark Mgmt. S.A.S., 2014 WL 3818289, at *2; Bussell, 939 F. Supp. at 651.
The relative weight afforded to each factor is not specified in § 1404(a). Bussell, 939 F. Supp. at 651. Instead, courts have broad discretion when weighing the factors and deciding whether to grant or deny a motion to transfer under § 1404(a). Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986) ("[t]he weighing of factors for and against transfer necessarily involves a large degree of subtlety and latitude, and, therefore, is committed to the sound discretion of the trial judge"); RCA Trademark Mgmt. S.A.S., 2014 WL 3818289, at *2. Nevertheless, courts are to remain mindful of the purpose of § 1404(a) which is "to prevent the waste of time, energy and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense." RCA Trademark Mgmt. S.A.S., 2014 WL 3818289, at *2; Hunter v. Big Rock Transp., Inc., No. 1:07-CV-1062-SEB, 2008 WL 1957775, at *1 (S.D. Ind. May 2, 2008).
The party moving for transfer has the burden to establish, by reference to particular circumstances, that the transferee forum is clearly more convenient than the transferor forum. Coffey, 796 F.2d at 219-20 (emphasis added); Overton & Sons Tool and Die Co. v. Precision Tool, Die & Machine Co., No. 1:13-cv-1302-TWP, 2014 WL 1669863, at *5 (S.D. Ind. Apr. 28, 2014) (J. Pratt). Further, transfer is not justified when doing so would merely shift the inconvenience of the litigation from one party to the other. GT Performance Group, LLC v. Koyo USA, Corp., No. 4:12-cv-83-TWP, 2013 WL 4787329, at *4 (S.D. Ind. Sept. 6, 2013); Brotherhood Mut. Ins. Co., 2011 WL 1627114, at *2.
In the immediate case, Green has failed to clearly demonstrate that the Northern District of Georgia is a more convenient forum. To begin, Green claims that the Northern District of Georgia is better equipped to handle the matter because of its familiarity with Georgia law. (
In contrast, the Prefontaines are Indiana residents and this forum will clearly provide the most convenient forum for them. Although the Court notes that Green will be somewhat inconvenienced by having to defend this matter in Indiana, the Court does not consider such inconvenience to be unduly burdensome. Further, a transfer of venue would merely shift the burden from one party to the other.
Accordingly, because Green has failed to demonstrate that the Northern District of Georgia is clearly the more convenient forum, Green's alternative request to transfer pursuant to 28 U.S.C § 1404(a) is
For the reasons stated above, Green's Motion to Dismiss or Transfer Venue (
