# RHH LLC v. INNISFREE HOTELS INC

> District Court, N.D. Florida · March 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10116658

## Case

- **Court:** District Court, N.D. Florida
- **Decided:** March 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RHH LLC, )
)
Plaintiff, )
)
v. ) 1:19cv1184
)
INNISFREE HOTELS, INC., )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
This case comes before the Court on “Defendant Innisfree
Hotels, Inc[.]’s Motion to Dismiss or in the Alternative to
Transfer Venue Pursuant to 28 U.S.C. § 1404(a)” (Docket Entry 7)
(“Defendant’s Motion”). For the reasons that follow, the Court
will deny Defendant’s request to dismiss this action but will grant
Defendant’s request to transfer this action to the Northern
District of Florida.1
BACKGROUND
RHH LLC (“Plaintiff”) initiated this action against Innisfree
Hotels, Inc. (“Defendant”), seeking a declaratory judgment
concerning Plaintiff’s obligations under a contract. (Docket Entry
1 (the “Original Complaint”), ¶¶ 21–26.) In particular, the
Original Complaint alleges:
1 The undersigned United States Magistrate Judge will enter
an order, rather than a recommendation, as to Defendant’s Motion
because the parties consented, pursuant to “28 U.S.C. § 636(c), to
the exercise by a United States Magistrate Judge of jurisdiction in
this case” (Docket Entry 12 at 1 (bracket omitted) (referring case
to undersigned “to conduct all proceedings including a jury or
nonjury trial, to order the entry of judgment, and to conduct all
post-judgment proceedings therein”)). (See also Docket Entries 12-
1, 12-2.)
“[Defendant] submitted an order to [Plaintiff] for, among
other items, 180 dresser units” (the “Units”). (Id., 1.)
“[Plaintiff] fulfilled the order, which was delivered for use at
the Hampton Inn Pensacola Beach, Florida.” (Id., I 2.)
Thereafter, a third party supplied refrigerators for the Units, and
the Units sustained water damage. (See id., 7 3.) Plaintiff and
Defendant have disputed the cause of the damage. According to
Plaintiff, “[t]he Units would have been damaged due to the leaking
refrigerators regardless of how the Units were constructed.” (Id.,
12.) In Defendant’s view, “the Units contained defects resulting
from [Plaintiff’s] use of inappropriate materials and a failure to
comply with product submittal specifications.” (Id., QF 13
(internal quotation marks omitted).) However, the “shop drawings
[did] not require [the use of] high pressure laminate .. . in the
[Unit’s] interior — only finish to match.” (Id., {7 14.)
Defendant’s designer approved such drawings, which mirrored ones
Plaintiff had submitted “for other Hampton projects in which
[Plaintiff and Defendant] engaged,” without objection from
Defendant. (See id., { 15.)
“In a letter dated October 28, 2019 (the ‘Demand Letter’),
[Defendant], through its legal counsel, demanded that [Plaintiff]
replace all of the defective Units and modify all of the other
Units.” (Id., 7 16.) According to the Demand Letter, [Plaintiff]
has failed to fulfill obligations that [Defendant] alleges
[Plaintiff] has under the agreement(s) between the parties and
applicable law.” (Id., {7 17.) The Demand Letter represented “that

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[Defendant] intend[ed] to pursue legal remedies if [Plaintiff]
d[id] not meet its demands.” (Id., ¶ 18.) Plaintiff has denied
that it supplied a defective product to Defendant. (Id., ¶ 19.)
In connection with the foregoing allegations, the Original
Complaint seeks “a judicial declaration that Plaintiff owes no
obligation to Defendant to replace all of the defective Units and
modify all of the other Units.” (Id., ¶ 26.)
Several weeks later, Plaintiff filed an amended complaint
(Docket Entry 3) (the “Amended Complaint”) as of right. See Fed.
R. Civ. P. 15(a)(1) (allowing one amendment “as a matter of course”
within 21 days of serving complaint or within 21 days of service of
responsive pleading). The Amended Complaint effectively mirrors
the Original Complaint except that it references another letter
from Defendant, which Plaintiff received after filing the Original
Complaint. (Compare Docket Entry 1, with Docket Entry 3.) In
particular, the Amended Complaint alleges that, “in further
correspondence dated January 21, 2020 (the ‘Final Demand Letter’),
[Defendant], through its legal counsel, . . . indicated that it
consider[ed Plaintiff] to be in default, and that it intend[ed] to
seek recoupment from [Plaintiff], including through legal means.”
(Docket Entry 3, ¶ 18.)
Instead of answering the Amended Complaint, Defendant filed a
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) (“Rule 12(b)(6)”), or, alternatively, “to transfer this
action to the United States District Court for the Northern
District of Florida pursuant to 28 U.S.C. § 1404(a)” (“Section
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(a)”). (Docket Entry 7 at 1; see also Docket Entry 8 (the
“Memorandum”) .) Along with the Memorandum, Defendant tendered a
sworn declaration from Kevin D. Warwick, one of Defendant’s
employees (Docket Entry 8-1 at 2-5), as well as copies of the
following documents, among other items: the purchase order from
Defendant to Plaintiff (id. at 7-26) (the “Purchase Order”); the
corresponding invoice from Plaintiff to Defendant (id. at 28-51);
the relevant shipment packing lists (id. at 56-65); a “notice sent
to [Plaintiff from Defendant] . . . detailing certain defects
manifesting in furniture items ordered pursuant to the Purchase
Order” (id. at 3, 91); the Demand Letter (id. at 93-95); “the
letter response received from [Plaintiff] addressing the [Demand
Letter]” (id. at 4, 97-98); and the Final Demand Letter (id. at
100-02).
Plaintiff responded in opposition to Defendant’s Motion,
asserting that (i) the Amended Complaint adequately states a claim
for a declaratory judgment (Docket Entry 9 (the “Response”) at
3-7), (ii) venue remains proper in the Middle District of North
Carolina (id. at 7-9), (iii) the Northern District of Florida lacks
personal jurisdiction over Plaintiff (id.), and (iv) “the weighing
of convenience factors favors [Plaintiff]’s choice of venue” (id.
at 9-12). As exhibits to the Response, Plaintiff attached a sworn
declaration from Michael Felsen, “the President and CEO of []
Plaintiff” (Docket Entry 9-1 (the “Felsen Declaration”), @FI 2), as
well as copies of the Demand Letter (id. at 5-7), Plaintiff’s
response to the Demand Letter (id. at 8-93), and the Final Demand

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Letter (id. at 10-12). Defendant replied, challenging Plaintiff’s
personal-jurisdiction argument. (See Docket Entry 10 (the “Reply”)
at 1-7.)
Thereafter, upon review of the Amended Complaint’s
jurisdictional allegations, the Court (per the undersigned United
States Magistrate Judge) directed Plaintiff to clarify whether
complete diversity existed between the parties, for purposes of
subject-matter jurisdiction. (See Docket Entry 13 at 2-3 (noting
Amended Complaint’s failure to address citizenship of Plaintiff’s
members).)° Plaintiff then moved for leave to amend the Amended
Complaint, attaching a proposed second amended complaint. (Docket
Entries 14 (the “Motion to Amend”), 14-1 (the “Proposed Second
Amended Complaint”.) The Proposed Second Amended Complaint
replicates the Amended Complaint in substance (compare Docket Entry
3, with Docket Entry 14-1) but clarifies that six members possess
an ownership interest in Plaintiff and that none qualifies as a
citizen of Florida, such that complete diversity of citizenship
exists (see Docket Entry 14-1, 421 7-10). Without an objection from
Defendant (see Docket Entry dated Mar. 15, 2021), the Court (per
the undersigned) granted the Motion to Amend (see Text Order dated
Mar. 16, 2021 (directing Plaintiff to file Second Amended

Because the Declaratory Judgment Act, 28 U.S.C.
§§ 2201-2202, does not create federal jurisdiction, see Aetna Life
Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937), it “allow[s] federal
courts to issue declaratory judgments only in cases
that . . . present a valid basis for subject[-]matter jurisdiction,
i.e., diversity or federal question jurisdiction,” Dunn Computer
Corp. v. Loudcloud, Inc., 133 F. Supp. 2d 823, 826 (E.D. Va. 2001).
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Complaint)). (See also Docket Entry 15 (the “Second Amended
Complaint”)
DISCUSSION
II. Defendant’s Motion
A. Dismissal
As a threshold matter, the parties appear to dispute the
source of law that governs the Court’s inquiry into whether the
Second Amended Complaint alleges a justiciable claim. In that
regard, the Memorandum asserts that the Court lacks jurisdiction to
render a declaratory judgment because Plaintiff has failed to
allege an actual controversy. (See Docket Entry 8 at 3-4 (citing
N.C. Gen. Stat. § 1-254 and Gaston Bd. of Realtors, Inc. v.
Harrison, 311 N.C. 230, 316 S.E.2d 59 (1984) (interpreting North
Carolina law)).) In contrast, the Response characterizes the
question as “a federal procedural issue” and therefore “focuses on

° The Court construes Defendant’s Motion and the related
briefing to apply against the Second Amended Complaint. (See Text
Order dated Mar. 16, 2021 (explaining that parties need not refile
motion or briefs).) “As a general rule, an amended pleading
ordinarily supersedes the original and renders it of no legal
effect.” Young v. City of Mt. Rainier, 238 F.3d 567, 572 (4th Cir.
2001) (internal quotation marks omitted). “In such circumstances,
[a] motion to dismiss . . . directed at a pleading that is no
longer operative . . . is therefore moot.” Hairston v. North
Carolina Agric. & Tech. State Univ., No. 1:04CV1203, 2005 WL
2136923, at *1 (M.D.N.C. Aug. 5, 2005) (unpublished). “However,
‘[because] the defects raised in [Defendant’s M]otion remain in the
[Second Amended Complaint], the [C]lourt simply may consider
[Defendant’s M]otion as being addressed to the [Second A]mended
[Complaint]’ because to ‘hold otherwise would be to exalt form over
substance.’” Arteaga v. Ecofoam Insulation & Coating of
Charleston, LLC, No. 9:18-cv-2147, 2018 WL 4100034, at *1 (D.S.C.
Aug. 28, 2018) (unpublished) (quoting 6 Charles Alan Wright et al.,
Federal Practice and Procedure § 1476 (3d ed.)).
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federal law” but notes that the application of North Carolina law
would yield the same outcome. (See Docket Entry 9 at 4 n.2.)
The Second Amended Complaint cites neither federal nor North
Carolina law as the basis for the declaratory judgment. (See
Docket Entry 15, ¶¶ 1–30.) The Declaratory Judgment Act (the
“Act”) provides that, “[i]n a case of actual controversy within its
jurisdiction, . . . any court of the United States, upon the filing
of an appropriate pleading, may declare the rights and other legal
relations of any interested party seeking such declaration, whether
or not further relief is or could be sought.” 28 U.S.C.
§ 2201(a).4 “[T]he phrase ‘case of actual controversy’ in the Act
refers to the type of ‘Cases’ and ‘Controversies’ that are
justiciable under Article III.” MedImmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 127 (2007). “[W]hether [a] plaintiff has made
out a ‘case or controversy’ between himself and the defendant
within the meaning of Art[icle] III” constitutes “the threshold
question in every federal case, determining the power of the court
to entertain the suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975).
“[W]hether a plaintiff in federal court has standing to
maintain an action is a question of federal, not state law.”
Miller v. Augusta Mut. Ins. Co., 157 F. App’x 632, 636 (4th Cir.
2005). Consistent with that principle, “[f]ederal standards guide
the inquiry as to the propriety of declaratory relief in federal
4 North Carolina law similarly authorizes “[a]ny person
interested under a . . . written contract . . . [to] obtain a
declaration of rights, status, or other legal relations.” N.C.
Gen. Stat. § 1-254.
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courts, even when the case is under the court’s diversity
jurisdiction.” White v. National Union Fire Ins. Co., 913 F.2d
165, 167 (4th Cir. 1990). Accordingly, the Second Amended
Complaint must satisfy Article III standards in alleging an actual
controversy for purposes of this declaratory action, and the Court
applies federal standards to determine whether subject-matter
jurisdiction exists.
1. Relevant Standards
Although Defendant’s Motion and Memorandum invoke only Rule
12(b)(6), the Court construes Defendant’s Motion to seek dismissal
under Federal Rule of Civil Procedure 12(b)(1) (“Rule 12(b)(1)”)
because Defendant has raised a question about Plaintiff’s standing
(see Docket Entry 8 at 3–4). See Payne v. Chapel Hill N. Props.,
LLC, 947 F. Supp. 2d 567, 572 (M.D.N.C. 2013) (“Generally,
challenges to standing are addressed under Rule 12(b)(1) for lack
of subject matter jurisdiction.”). “In determining whether
jurisdiction exists, the district court is to regard the pleadings’
allegations as mere evidence on the issue, and may consider
evidence outside the pleadings without converting the proceeding to
one for summary judgment.” Richmond, Fredericksburg & Potomac R.R.
v. United States, 945 F.2d 765, 768 (4th Cir. 1991). “[T]he
plaintiff bears the burden of ‘clearly . . . alleg[ing] facts
demonstrating that he is a proper party to invoke judicial
resolution of the dispute.’” Payne, 947 F. Supp. 2d at 572
(quoting Warth, 422 U.S. at 518).
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In order to satisfy the Article III “case-or-controversy”
requirement, in the context of a declaratory judgment action,
the dispute [must] be “definite and concrete, touching
the legal relations of parties having adverse legal
interests”; and . . . be “real and substantial” and
“admi[t] of specific relief through a decree of a
conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical state
of facts.”
MedImmune, 549 U.S. at 127 (quoting Aetna Life Ins. Co. v. Haworth,
300 U.S. 227, 240–41 (1937)). Stated differently, “a federal court
may properly exercise jurisdiction in a declaratory judgment
proceeding when . . . the complaint alleges an ‘actual controversy’
between the parties ‘of sufficient immediacy and reality to warrant
issuance of a declaratory judgment . . . .’” Volvo Constr. Equip.
N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 592 (4th Cir.
2004) (quoting 28 U.S.C. § 2201 and North Jefferson Square Assocs.
v. Virginia Hous. Dev. Auth., 94 F. Supp. 2d 709, 714 (E.D. Va.
2000)).
Additionally, “[a] federal court has the discretion to decline
to entertain a declaratory judgment action, but, under the law of
th[e United States Court of Appeals for the Fourth] Circuit,
. . . must do so only for ‘good reason.’” Continental Cas. Co. v.
Fuscardo, 35 F.3d 963, 965 (4th Cir. 1994) (quoting Aetna Cas. &
Sur. Co. v. Quarles, 92 F.2d 321, 324 (4th Cir. 1937)). In
deciding whether to exercise such jurisdiction, once established,
a court should consider
(1) whether the judgment “will serve a useful purpose in
clarifying the legal relations in issue;” (2) whether the
judgment “will terminate and afford relief from the
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uncertainty, insecurity, and controversy giving rise to
the proceeding;” (3) considerations of federalism,
efficiency, and comity; [and] (4) “whether the
declaratory judgment action is being used merely as a
device for procedural fencing - that is, to provide
another forum in a race for res judicata or to achieve a
federal hearing in a case otherwise not removable.”
Norfolk Dredging Co. v. Phelps, 433 F. Supp. 2d 718, 721 (E.D. Va.
2006) (quoting Aetna Cas. & Sur. Co. v. Ind-Com Elec. Co., 139 F.3d
419, 422-23 (4th Cir. 1998)).
2. Analysis
According to Defendant’s Memorandum, the Second Amended
Complaint falls short because no actual controversy exists between
the parties. (See Docket Entry 8 at 3–5.) In particular, the
Memorandum asserts that “‘[a] mere threat to sue or apprehension of
a suit is not sufficient to establish an actual controversy.’”
(Id. at 4 (quoting Klingspor Abrasives, Inc. v. Woolsey, No.
5:08CV-152, 2009 WL 2397088, at *2 (W.D.N.C. July 31, 2009)
(unpublished)).) The Memorandum maintains that Plaintiff has “only
alleged that [Defendant] has threatened litigation in a letter.”
(Id. at 5.) As explained in the previous subsection, the
Memorandum argues that the lack of actual controversy deprives the
Court of subject-matter jurisdiction to render a declaratory
judgment. (See id. at 3–4.)
In this context, the Court may look to the correspondence
between the parties “without converting the proceeding to one for
summary judgment,” Richmond, Fredericksburg & Potomac R.R., 945
F.2d at 768. The Demand Letter, in relevant part, states:
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Please provide written assurance that [Plaintiff] will
timely fulfill its warranty obligations at no cost to
[Defendant], and provide a detailed schedule confirming
when the warranty work will commence and be completed.
It is imperative that all of the work be completed no
later than February 28, 2020. Should [Plaintiff] be
unwilling to satisfy its warranty obligations or fail to
provide written assurance, [Defendant] intend[s] on
pursuing any and all legal remedies available, including
but not limited to holding [Plaintiff] legally
responsible for all costs incurred by [Defendant] in
replacing and remedying [Plaintiff]’s defective work.
(Docket Entry 9-1 at 6–7.) In response to the Demand Letter,
Plaintiff offered to replace some of the damaged products and to
cover part of the cost, expressing “hope that [Plaintiff and
Defendant could] work this out amicably by themselves.” (Id. at
9.)
The following month, via the Final Demand Letter, Defendant
rejected Plaintiff’s offer. (Id. at 10.) The Final Demand Letter
maintains that Plaintiff violated its “implied warranty obligation
under the Florida Uniform Commercial Code (UCC)” and notifies
Plaintiff that Defendant had begun “documenting the defective
condition of the Units and collecting evidence as to the cause of
defects and extent of damage.” (Id. at 11.) The Final Demand
Letter further details Defendant’s plan for disposing of the Units
and invites Plaintiff, by February 28, 2020, “to send a
representative to inspect the [Units] and collect any evidence
[Plaintiff] believes will be necessary and relevant to future
proceedings.” (Id.) Moreover, the Final Demand Letter explains:
For failing to fulfill warranty obligations in accordance
with the Florida UCC and purchase order terms as detailed
in [the Demand Letter], [Defendant] notifies [Plaintiff’s
counsel] that [Plaintiff] is in breach. [Defendant]
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hereby holds [Plaintiff] in default. As of this date,
[Defendant] will proceed in covering [Plaintiff]’s breach
by procuring substitution goods. [Defendant] has
obtained estimates for goods conforming to the original
specifications and will proceed with purchasing and
installing those goods. [Defendant] is intent on
recouping the benefit for which [it] paid, and to that
end will pursue any and all available legal remedies to
recover those costs associated with covering
[Plaintiff]’s breach, including all oversight costs
incurred by [Defendant], attorney’s fees, and court and
other costs incurred in pursuing collection if necessary.
(Id.)
Depending on the circumstances, “[t]hreatened litigation can
be sufficient to establish the actual controversy requirement,”
Kettler Int’l, Inc. v. Starbucks Corp., 55 F. Supp. 3d 839, 847
(E.D. Va. 2014); but see Marx Indus., Inc. v. Chestnut Ridge Foam,
Inc., 903 F. Supp. 2d 358, 367 (W.D.N.C. 2012) (“The mere
apprehension or threat of litigation, by letter or otherwise, are
generally not found to establish an actual controversy.”).° For
example, a neighboring court found the actual controversy

° After the Marx Industries court acknowledged the general
rule concerning threats of litigation, it nonetheless concluded
that an actual controversy existed in that case, in part because of
the “evidence of potential ongoing liability while the alleged
wrongdoer waited for suit.” Marx Indus., 903 F. Supp. 2d at 367
(distinguishing Gaston Bd. of Realtors, 311 N.C. at 234, 316 S.E.2d
at 62, Klingspor Abrasives, 2009 WL 2397088, at *3, and Nat’l
Travel Servs., Inc. v. State ex rel. Cooper, 153 N.C. App. 289, 569
S.E.2d 667, 669 (2002)). Here, in support of the jurisdiction-
based dismissal argument focused on the lack of an actual
controversy, Defendant cited all three of the cases that Marx
Industries distinguished. (See Docket Entry 8 at 3-4.) The Court
likewise deems those cases distinguishable from the circumstances
here, insofar as those cases involved neither the prospect of
inevitable litigation nor the potential for ongoing liability. See
Gaston Bd. of Realtors, 311 N.C. at 234-36, 316 S.E.2d at 61-62;
Nat’1 Travel Servs., 153 N.C. App. at 293-94, 569 S.E.2d at 669-70;
Klingspor Abrasives, 2009 WL 2397088, at *3-4.
-1?-

requirement satisfied when a defendant in a declaratory action had
notified the plaintiff of the breach, informed the plaintiff about
the extent of damages, communicated an intent to rescind the
contract, stated that the defendant’s counsel had received
instructions to initiate a lawsuit, and filed a related claim in
state court. see Kettler Int’l, 55 F. Supp. 3d at 847. In
contrast, another neighboring court concluded that no such
controversy existed when a defendant in a declaratory action had
retained counsel and expressed to the plaintiff both an intent to
pursue his legal rights and a desire “to resolve the issue without
litigation, if possible.” Klingspor Abrasives, 2009 WL 2397088, at
*3.°
Here, the circumstances resemble Kettler International more
closely than Klingspor Abrasives. The Final Demand Letter
memorializes a concrete dispute between the parties and includes
many specific details about Defendant’s future plans, to include
its intent to dispose of the Units and its receipt of estimates to
obtain replacement products. (See Docket Entry 9-1 at 10-11.)
Additionally, the Final Demand Letter imposes a deadline by which
Plaintiff must inspect and document the condition of the Units, to
preserve evidence for unspecified “future proceedings.” (Id. at

6 The Court views Kettler International and Klingspor
Abrasives as illustrative examples of the actual-controversy
analysis. As mentioned in the preceding footnote, Defendant cited
Klingspor Abrasives in its Memorandum, and independent research
confirmed that such cases conform to the generally accepted, case-
specific inguiry into the nature of a dispute for purposes of
establishing jurisdiction over a declaratory-judgment action.
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11-12.) Under those circumstances, the Second Amended Complaint
does not seek a declaration concerning “a hypothetical state of
facts,” MedImmune, 549 U.S. at 127 (quoting Haworth, 300 U.S. at
240-41). (See Docket Entry 15, WII 1-5.) Instead, the record
demonstrates an actual disagreement about what caused the damage to
the Units (leaking refrigerators, or some defect in the Units’
construction) and, correspondingly, about whether Plaintiff bears
any legal obligation to remedy the situation. (See id.; see also
Docket Entry 9-1 at 5-12.) Also, unlike in Klingspor Abrasives,
Defendant has expressed no interest in a negotiated resolution.
(See Docket Entry 9-1 at 10-12.) Defendant’s rejection of
Plaintiff’s settlement offer highlights that circumstance, as well
as the “immediacy and reality” of the dispute, Volvo Constr.
Equip., 386 F.3d at 592 (internal quotation marks omitted). (See
Docket Entry 9-1 at 10 (relating that Defendant’s counsel ™“[had]
discussed [Plaintiff’s] offer of settlement with [Defendant]” and
that “[Defendant found such] offer unacceptable”).) Accordingly,
the Complaint satisfies the Article III case-or-controversy
requirement such that the Court possesses subject-matter
jurisdiction.
As far as the Court’s “discretion to decline to entertain a
declaratory judgment action,” Fuscardo, 35 F.3d at 965, Defendant
has demonstrated no “good reason,” id. (quoting Quarles, 92 F.2d at
324), for refusing jurisdiction here. To the extent the Memorandum
raises efficiency concerns or suggests that Plaintiff has
“attempt[ed] to usurp [Defendant’s] inherent right to choose the

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time and place of litigation” or “[ha]s engag[ed] in improper
procedural fencing” (Docket Entry 8 at 5), Defendant has failed to
develop those arguments, and bald assertions cannot qualify as good
reasons. To the contrary, a declaration of Plaintiff’s obligations
under the contract would “serve a useful purpose in clarifying the
legal relations in issue,” Phelps, 433 F. Supp. 2d at 721 (quoting
Aetna Cas. & Sur., 139 F.3d at 422-23), insofar as both parties
deny financial responsibility for replacing or otherwise remedying
the damaged Units.
Additionally, as of the date of the Final Demand Letter,
January 21, 2020, Defendant planned to incur additional expenses to
“cover[ Plaintiff]’s breach” and intended to “recover those costs”
from Plaintiff. (Docket Entry 9-1 at 11.) The Final Demand Letter
further alludes to continuing damages, i.e., “the ongoing effect
that [Plaintiff]’s breach has had on [Defendant]’s business.”
(Id.; see also id. at 6 (“[T]he continued inability to use the[]
Units for their intended purpose inconveniences hotel patrons and
has a damaging effect on [Defendant]’s business.”).) As a result,
a declaratory judgment “will terminate and afford relief from the
uncertainty, insecurity, and controversy giving rise to the
proceeding,” Phelps, 433 F. Supp. 2d at 721 (quoting Aetna Cas. &
Sur., 139 F.3d at 422-23), i.e., whether Plaintiff must pay for the
damages that evidently continued to accrue. See also Marx Indus.,
903 F. Supp. 2d at 367 (finding that, in a case of “potential
ongoing liability . . . a declaratory judgment would serve to
-15-
clarify the parties’ rights and afford relief from uncertainty in
what appears to be unavoidable litigation”).
Finally, the Court need not decline jurisdiction on the
grounds of “federalism, efficiency, [or] comity,” Phelps, 433 F.
Supp. 2d at 721 (quoting Aetna Cas. & Sur., 139 F.3d at 422-23), as
those concerns bear no particular significance under the
circumstances. Although Defendant has mentioned inefficiency as
grounds for dismissing this action (Docket Entry 8 at 5), the
Memorandum fails to explain how a declaratory judgment would fail
to resolve the entire dispute between the parties. As to
federalism and comity, the record reflects neither the pendency of
a separate suit in state court, nor support for the notion that
Plaintiff initiated this action “in a race for res judicata or to
achieve a federal hearing in a case otherwise not removable,”
Phelps, 433 F. Supp. 2d at 721 (quoting Aetna Cas. & Sur., 139 F.3d
at 422-23). For those reasons, the Court will exercise its
discretion to accept jurisdiction.
B. Transfer
1. Relevant Standards
Under Section 1404(a), “[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 . . . .” 28 U.S.C. § 1404(a). “Upon
consideration of [a] motion to transfer venue, th[e] Court must
make two inquiries: (1) whether [the plaintiff’s] claims might have
been brought in the [transferee court], and (2) whether the
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interest of justice and the convenience of the parties justify
transfer to [such district].” LG Elecs. v. Advance Creative
Comput. Corp., 131 F. Supp. 2d 804, 809 (E.D. Va. 2001). “The
phrase ‘where it might have been brought’ in [S]ection 1404(a)
refers to a forum where venue originally would have been proper for
the claim and where a defendant originally would have been subject
to personal jurisdiction.” Kotsonis v. Superior Motor Express, 539
F. Supp. 642, 645 (M.D.N.C. 1982); see also Harman v. Pauley, 522
F. Supp. 1130, 1133 (S.D.W. Va. 1981) (“The transferee court must
have or be able to obtain personal jurisdiction over the defendant;
otherwise, the Court must find the transfer improper.”).
In turn, the personal-jurisdiction analysis involves a
two-part inquiry. “When a federal court sits in diversity, it ‘has
personal jurisdiction over a non-resident defendant if (1) an
applicable state long-arm statute confers jurisdiction and (2) the
assertion of that jurisdiction is consistent with constitutional
due process.’” Perdue Foods LLC v. BRF S.A., 814 F.3d 185, 188
(4th Cir. 2016) (quoting Nichols v. G.D. Searle & Co., 991 F.2d
1195, 1199 (4th Cir. 1993)). As to the latter requirement,
[t]he Due Process Clause contemplates that a court may
assert jurisdiction over a nonresident defendant through
either of two independent avenues. First, a court may
find specific jurisdiction based on conduct connected to
the suit. If the defendant’s contacts with the State are
also the basis for the suit, those contacts may establish
specific jurisdiction. Second, a court may exercise
personal jurisdiction under the theory of general
jurisdiction, which requires a more demanding showing of
“continuous and systematic” activities in the forum
state.
-17-
Tire Eng’g & Distrib., LLC v. Shandong Linglong Rubber Co., 682
F.3d 292, 302 (4th Cir. 2012) (internal citation and quotation
marks omitted).
As concerns convenience and the interest of justice, the Court
considers the following discretionary factors:
(1) the plaintiff’s initial choice of forum; (2) relative
ease of access to sources of proof; (3) availability of
compulsory process for attendance of unwilling witnesses,
and the cost of obtaining attendance of willing and
unwilling witnesses; (4) possibility of a view of the
premises, if appropriate; (5) enforceability of a
judgment, if one is obtained; (6) relative advantage and
obstacles to a fair trial; (7) other practical problems
that make a trial easy, expeditious, and inexpensive;
(8) administrative difficulties of court congestion;
(9 local interest in having localized controversies
settled at home; (10) appropriateness in having a trial
of a diversity case in a forum that is at home with the
state law that must govern the action; and (11) avoidance
of unnecessary problems with conflicts of law.
Speed Trac Techs., Inc. v. Estes Express Lines, Inc., 567 F. Supp.
2d 799, 802 (M.D.N.C. 2008) (quoting Plant Genetic Sys., N.V. v.
Ciba Seeds, 933 F. Supp. 519, 527 (M.D.N.C. 1996)); see also Lynch
v. Vanderhoef Builders, 237 F. Supp. 2d 615, 617 (D. Md. 2002)
(grouping factors to include “witness convenience and
access, . . . convenience of the parties, and . . . the interest of
justice”). The movant bears the burden of proving that the balance
of factors favors transfer. See Speed Trac Techs., 567 F. Supp. 2d
at 803.
2. Analysis
a. Personal Jurisdiction
In support of Defendant’s request to transfer this action to
the Northern District of Florida, the Memorandum fails to address
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whether the Northern District of Florida would possess personal
jurisdiction (general or specific) over Plaintiff. (See Docket
Entry 8 at 1-11.) The Response asserts that “[Plaintiff] is not
subject to personal jurisdiction in Florida, and transfer to
Florida is improper as a matter of law.” (Docket Entry 9 at 8.)’
However, the Reply maintains that bases exist for both general and
specific personal jurisdiction, such that transfer remains
appropriate. (See Docket Entry 10 at 1-7.)
To decide the personal-jurisdiction question, the Court first
considers whether the “applicable state long-arm statute,” Perdue
Foods, 814 F.3d at 188 (quoting Nichols, 991 F.2d at 1199),
authorizes the exercise of jurisdiction by the Northern District of
Florida. Under Florida’s long-arm statute, a person submits “to
the [specific personal] jurisdiction of the courts of [Florida]”
by, among other things, “[b]reaching a contract in [Florida] by
failing to perform acts required by the contract to be performed in
[Florida].” Fla. Stat. § 48.193(1) (a) (7). “Since the extent of
the long-arm statute is governed by Florida law, federal courts are
required to construe it as would the Florida Supreme Court. Absent
some indication that the Florida Supreme Court would hold
otherwise, [federal courts] are bound to adhere to decisions of

The Response explicitly contests the existence of general
personal jurisdiction without addressing the standard for specific
personal jurisdiction. (See Docket Entry 9 at 8 (“In order for
Plaintiff to be subject to general jurisdiction in Florida,
[Defendant] must demonstrate that Plaintiff’s contacts with Florida
are ‘continuous and systematic.’” (quoting Helicopteros Nacionales
de Colombia, S.A. v. Hall, 466 U.S. 408, 415 (1984))).)
-19-

[Florida’s] intermediate courts.” Sculptchair, Inc. v. Century
Arts, Ltd., 94 F.3d 623, 627 (llth Cir. 1996) (internal citation
and quotation marks omitted); see also Assicurazioni Generali,
S.p.A. v. Neil, 160 F.3d 997, 1003 (4th Cir. 1998) (“A federal
court can depart from an intermediate court’s fully reasoned
holding as to state law only if ‘convinced’ that the state’s
highest court would not follow that holding.”). “Under [Florida
law], [a non-resident] company [remains] subject to personal
jurisdiction in Florida to defend a complaint alleging breach of
contract, where the parties’ agreement obligated the defendant
[company] to provide equipment to the plaintiff in Florida and the
plaintiff alleged . . . that [the equipment] did not conform to
contract specifications.” Intego Software, LLC v. Concept Dev.,
Inc., 198 So. 3d 887, 894 (Fla. Dist. Ct. App. 2016).
Here, the Second Amended Complaint and associated exhibits
indicate that Defendant claimed a breach of contract in its
correspondence with Plaintiff. (See Docket Entry 15, II 21-22; see
also Docket Entry 9-1 at 5-7; Docket Entry 9-1 at 10-12.) More
specifically, Defendant has asserted that “[the Units] did not
conform to contract specifications,” Intego Software, 198 So. 3d □□
894. (See Docket Entry 9-1 at 5-7; Docket Entry 9-1 at 10-12.)
Although Plaintiff disputes the facts underlying that claim (Docket
Entry 15, @ 26), the record fairly supports the notion that
Plaintiff’s conduct, as alleged by Defendants, would subject
Plaintiff to specific personal jurisdiction in the Northern
District of Florida (see, e.g., Docket Entry 8-1 at 7 (Purchase

-~20-

Order indicating shipment to Pensacola, Florida); Docket Entry 9-1
at 6 (Demand Letter referencing “[Plaintiff’s] contractual and
implied warranty obligations”); Docket Entry 9-1 at 11 (Final
Demand Letter “notif[ying Plaintiff]” of breach based on its
“fail[ure] to fulfill warranty obligations in accordance with the
Florida UCC and [P]urchase [O]rder terms”)).8 Because the
foregoing circumstances fit within at least one provision of
Florida’s long-arm statute, Defendant has satisfied the first
element of the specific personal-jurisdiction analysis.9
Continuing to the second element of that inquiry:
[The Fourth Circuit] ha[s] synthesized the due[-]process
requirements for asserting specific personal jurisdiction
into a three-prong test: “(1) the extent to which the
defendant purposefully availed itself of the privilege of
conducting activities in the State; (2) whether the
plaintiff[’]s[] claims arise out of those activities
directed at the State; and (3) whether the exercise of
personal jurisdiction would be constitutionally
reasonable.”
UMG Recordings, Inc. v. Kurbanov, 963 F.3d 344, 351–52 (4th Cir.
2020) (quoting Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d
273, 278 (4th Cir. 2009)). “The first prong articulates the
8 The Northern District of Florida encompasses Escambia
County, 28 U.S.C. § 89(a), the location of Defendant’s Pensacola
warehouse (see Docket Entry 8-1 at 7).
9 Florida’s long-arm statute also provides for general
personal jurisdiction over “[a] defendant who is engaged in
substantial and not isolated activity within [Florida], whether
such activity is wholly interstate, intrastate, or
otherwise . . . .” Fla. Stat. § 48.193(2). Because that statute
separately authorizes Florida courts to exercise specific personal
jurisdiction over Plaintiff for purposes of this action, the Court
declines to consider issues relating to general personal
jurisdiction.
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minimum contacts requirement of constitutional due process that the
defendant purposefully avail himself of the privilege of conducting
business under the laws of the forum state.” Consulting Eng’rs,
561 F.3d at 278. As concerns “purposeful availment,” the Court
weighs the following factors:
(1) whether the defendant maintained offices or agents in
the State; (2) whether the defendant maintained property
in the State; (3) whether the defendant reached into the
State to solicit or initiate business; (4) whether the
defendant deliberately engaged in significant or
long-term business activities in the State; (5) whether
a choice of law clause selects the law of the State;
(6) whether the defendant made in-person contact with a
resident of the State regarding the business
relationship; (7) whether the relevant contracts required
performance of duties in the State; and (8) the nature,
quality, and extent of the parties’ communications about
the business being transacted.
UMG Recordings, Inc., 963 F.3d at 352 (quoting Sneha Media & Ent.,
LLC v. Associated Broad. Co. P. Ltd., 911 F.3d 192, 198-99 (4th
Cir. 2018)). Under the second prong, “the defendant’s contacts
with the forum state [must] form the basis of the suit.”
Consulting Eng’rs, 561 F.3d at 278–79. Finally, factors relevant
to the third prong
include: (1) the burden on the defendant of litigating in
the forum; (2) the interest of the forum state in
adjudicating the dispute; (3) the plaintiff’s interest in
obtaining convenient and effective relief; (4) the shared
interest of the states in obtaining efficient resolution
of disputes; and (5) the interests of the states in
furthering substantive social policies.
Id. at 279.
Here, the application of those factors satisfies due-process
requirements such that a Florida court may exercise specific
personal jurisdiction over Plaintiff. As for Plaintiff’s
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“purposeful availment,” the Felsen Declaration establishes that
“[Plaintiff] has no offices, employees, business records, property,
bank accounts or other presence in Florida.” (Docket Entry 9-1,
¶ 5.) At the same time, however, the Felsen Declaration
acknowledges an unspecified number of communications “by telephone,
facsimile, mail, or electronic mail” (id., ¶ 10) relating to
contract negotiations, to arrangements for the delivery of
furniture, including the Units (id.), “for a hotel in Pensacola,
Florida” (id., ¶ 6), and to “discussions regarding [Defendant]’s
warranty claims” (id., ¶ 11). Moreover, the verified copies of the
correspondence between Plaintiff and Defendant establish that their
business relationship began before August 2017, when Defendant sent
the at-issue Purchase Order. In that regard, Plaintiff’s response
to the Demand Letter mentions “other Hampton projects in which
[Plaintiff] engaged with [Defendant]” (Docket Entry 9-1 at 8
(emphasis added)) and offers to cover certain costs related to
Defendant’s complaints about the Units “because [Plaintiff] values
[Defendant] as a customer” (id. at 9). The response further
conditions one aspect of that offer on “[Plaintiff] receiv[ing]
another order for a full renovation of the goods at another
property” (id.). Such evidence suggests an “ongoing business
relationship with a resident of [Florida, which] indicates that
[Plaintiff] has purposefully directed activities at [that] forum.”
Taltwell, LLC v. Zonet USA Corp., No. 3:07cv543, 2007 WL 4562874,
at *8 (E.D. Va. Dec. 20, 2007) (unpublished).
-23-
The nature of this action plainly satisfies the second prong,
as the foregoing “contacts with the forum state form the basis of
[Plaintiff’s] suit,” Consulting Eng’rs, 561 F.3d at 278-79. “Where
activity in the forum state is ‘the genesis of [the] dispute,’ this
prong is easily satisfied.” Tire Eng’g & Distrib., 682 F.3d at 303
(quoting CFA Inst. v. Institute of Chartered Fin. Analysts of
India, 551 F.3d 285, 295 (4th Cir. 2009).
Turning to the third-prong factors, “such an analysis ensures
that litigation is not so gravely difficult and inconvenient as to
place the defendant at a severe disadvantage in comparison to his
opponent.” CFA Inst., 551 F.3d at 296 (internal quotation marks
omitted). No such disadvantage appears here, given Plaintiff’s
reasonably accessible headquarters in North Carolina (Docket Entry
9-1, 97 4). See Fallon Luminous Prods. Corp. v. Multi Media Elecs.,
Inc., 343 F. Supp. 2d 502, 508 (D.S.C. 2004) (deeming exercise of
personal jurisdiction consistent with due process when plaintiff
initiated lawsuit in South Carolina against defendant based in New
York). As far as Florida’s interests in this action, Defendant (a
Florida citizen) has expressed an intent to litigate a claim under
the Florida UCC (see Docket Entry 9-1 at 11), and “[Florida] has a
paternal interest in the recovery by one of its citizens of
appropriate compensation,” Lee v. Walworth Valve Co., 482 F.2d 297,
299 (4th Cir. 1973). None of the other reasonableness factors
carries decisive weight; indeed, the Response fails to address any
such factor (see Docket Entry 9 at 7-9). As summarized by
Defendant, under the circumstances, “[Plaintiff] cannot reasonably

-24-

be surprised or prejudiced by being subject to [specific] personal
jurisdiction in Florida.” (Docket Entry 10 at 6.)
In sum, the Northern District of Florida possesses specific
personal jurisdiction over Plaintiff, and the exercise of such
jurisdiction comports with due-process principles.
b. Interest of Justice and Convenience of the Parties
The Memorandum contends that the applicable factors favor
transfer under Section 1404(a). (See Docket Entry 8 at 7-11.) In
that regard, the Memorandum emphasizes that Plaintiff’s choice of
forum merits less weight in the context of a declaratory action.
(See id. at 10.)*° The Memorandum further states that Florida law
should govern the dispute (see id. at 8-10; see also id. at 5-7
(arguing for application of Florida law in support of request to
dismiss action)), that transfer would facilitate “access to sources
of proof” (id. at 11), that “the availability of compulsory process
for attendance of unwilling witnesses weighs in favor of Florida”
(id.), and that the Units “remain in Florida today” (id. at 10).
Finally, the Memorandum concludes that transfer would involve fewer
“conflicts of law and relative obstacles to a fair trial.” (Id. at
11.)

© In particular, the Memorandum asserts that, “while there
is ordinarily a strong presumption in favor of a plaintiff’s choice
of forum, that presumption is lessened where a plaintiff files a
preemptive declaratory judgment action in order to deprive the
‘natural plaintiff’ — the one who wishes to present a grievance for
resolution by a court,’ of its choice of forum.” (Docket Entry 8
at 8 (quoting Piedmont Hawthorne Aviation, Inc. v. TriTech Env’t
Health & Safety, Inc., 402 F. Supp. 2d 609, 616 (M.D.N.C. 2005)).)
~25-

For its part, Plaintiff emphasizes the presumption favoring
its own choice of forum (Docket Entry 9 at 10), the ease of
electronic document transfer (id.), the location of likely
witnesses outside Florida (id. at 10–11), the fact that Defendant
owns property in North Carolina (for purposes of enforcing a
judgment) (id. at 11), and North Carolina’s interest in settling
controversies concerning resident businesses (like Plaintiff) (id.
at 12).
Based on the below assessment of the pertinent factors, the
Court concludes that Defendant has carried its burden to show that
the circumstances warrant transfer.
i. Plaintiff’s Initial Choice of Forum
“Generally, a plaintiff’s choice of forum is entitled to
substantial weight.” Acterna, L.L.C. v. Adtech, Inc., 129 F. Supp.
2d 936, 938 (E.D. Va. 2001). However, “[t]he weight given [to] the
plaintiff’s choice varies in proportion to the connection between
the forum and the cause of action. Thus, a plaintiff’s choice of
its home forum is given more weight than its choice of a foreign
forum.” GTE Wireless, Inc. v. Qualcomm, Inc., 71 F. Supp. 2d 517,
519 (E.D. Va. 2001). Courts also look to whether the “operative
facts have [a] material connection with the chosen forum.”
Acterna, 129 F. Supp. 2d at 938.
Here, such factor merits less than “substantial weight,” id.,
because the record reflects no significant connection between the
Middle District of North Carolina and the parties’ dispute.
Although Plaintiff filed suit in its home forum (see Docket Entry
-26-
9-1, FT 4), the events leading up to this action occurred in the
Northern District of Florida, where Plaintiff delivered the
supposedly defective products (see Docket Entry 8-1 at 7) and where
Defendant discovered the alleged defects (id. at 91 (notice from
Defendant advising Plaintiff about problems with Units at “Hampton
Inn Pensacola Beach . .. [in] Pensacola Beach, [Florida]”))."
ii. Witness Convenience and Access to Proof
“When considering the ease of access to sources of proof,
courts consider the availability of witnesses and other evidence
for trial.” JIHFC Props., LLC v. APA Mktg., 850 F. Supp. 2d 604,
623 (M.D.N.C. 2012). “The party asserting witness inconvenience
has the burden to proffer, by affidavit or otherwise, sufficient
details respecting the witnesses and their potential testimony to
enable the court to assess the materiality of evidence and the

‘lt As concerns the nature of this action, the Court notes that
Defendant likely qualifies as “the natural plaintiff,” Piedmont
Hawthorne Aviation, 402 F. Supp. 2d at 616, which normally enjoys
the privilege of litigating in its home forum. Courts have
afforded less weight to the initial choice of forum when a litigant
files “a suit for declaratory judgment aimed solely at wresting the
choice of forum from the ‘natural plaintiff,’” Hyatt Int’l Corp. v.
Coco, 302 F.3d 707, 718 (7th Cir. 2002) (internal quotation marks
omitted). See also Piedmont Hawthorne Aviation, 402 F. Supp. 2d at
616 (citing Hyatt Int’l, 302 F.3d at 718). However, because the
Court found no procedural impropriety in Plaintiff’s decision to
initiate a declaratory action, see Phelps, 433 F. Supp. 2d at 721,
the Court declines to fully discount the first discretionary factor
for purposes of Section 1404(a), Plaintiff’s initial choice of
forum.

—?27-

degree of inconvenience.” Koh v. Microtek Int’l, Inc., 250 F.
Supp. 2d 627, 636 (E.D. Va. 2003).12
Here, access to proof slightly favors transfer to the Northern
District of Florida. As far as “employees or contractors having
personal knowledge of the facts underlying this dispute” (Docket
Entry 9-1, ¶ 13), Plaintiff has averred that such individuals live
“outside the State of Florida” (id.). The Felsen Declaration
identifies one potential third-party witness, “Adrian Caradine
Contract Design, Inc., who . . . resides in Tennessee” (id., ¶ 9).
In similar fashion, Defendant has sworn that its “employees having
personal knowledge of the facts underlying this dispute are located
in Florida and would be substantially inconvenienced should
[Defendant] have to litigate this claim in North Carolina.”
(Docket Entry 8-1, ¶ 16.) Neither affidavit offers particular
details about the materiality of such witness testimony or the
degree of inconvenience. (See id.; Docket Entry 9-1, ¶¶ 9, 13.)
To the extent the resolution of the parties’ dispute will require
review of business records, Plaintiff has represented that such
records reside in North Carolina (Docket Entry 9-1, ¶ 12), whereas
Defendant stores its records in Florida (Docket Entry 8-1, ¶ 17).
As far as other kinds of potential proof, Defendant has sworn that
the Units remain in Florida. (Id., ¶ 15.) Despite the Response’s
12 “Although the moving party bears the ultimate burden of
establishing the propriety of transfer, courts have imposed the
burden of proffering details about witnesses and potential
testimony to non-moving parties who oppose transfer on the ground
of witness inconvenience.” D2L Ltd. v. Blackboard, Inc., 671 F.
Supp. 2d 768, 780 n.17 (D. Md. 2009).
-28-
contrary contention (see Docket Entry 9 at 11), the Court declines
to deem the Units’ physical condition wholly irrelevant at this
stage. Given that at least one of Plaintiff’s potential witnesses
may need to travel across state lines regardless of forum and given
that Defendant has housed the supposedly defective Units in
Florida, the second factor provides some support for transfer.
iii. Convenience of Parties
“A mere shifting of the burden neither weighs in favor of
retaining nor of transferring venue.” Intranexus, Inc. v. Siemens
Med. Sols. Health Servs. Corp., 227 F. Supp. 2d 581, 585 (E.D. Va.
2002). In general, “when plaintiffs file suit in their home forum,
convenience to parties rarely, if ever, operates to justify
transfer.” Board of Trs. v. Baylor Heating & Air Conditioning,
Inc., 702 F. Supp. 1253, 1259 (E.D. Va. 1988).
Here, party inconvenience merits little weight, as transfer
would merely shift the burden between the parties.
iv. Interest of Justice
The “interest of justice” inquiry “encompass[es] those factors
unrelated to witness and party convenience.” Acterna, 129 F. Supp.
2d at 939–40. Two factors, in particular, warrant consideration
under the circumstances: “local interest in having localized
controversies settled at home,” Plant Genetic Sys., 933 F. Supp. at
527, and “appropriateness in having a trial of a diversity case in
a forum that is at home with the state law that must govern the
action,” id.
-29-
Turning first to the question of governing law, “federal
courts in diversity of citizenship cases are governed by the
conflict of laws rules of the courts of the states in which they
sit.” Griffin v. McCoach, 313 U.S. 498, 503 (1948). In the
context of a transfer under Section 1404(a), “the transferor
court’s choice-of-law rules apply.” Pender v. Bank of Am. Corp.,
788 F.3d 354, 369 (4th Cir. 2015). Accordingly, in this diversity
action, the Court applies North Carolina’s choice-of-law rules.
“[U]nder North Carolina law, substantive guestions of contract
construction and interpretation are governed by the law of the
state where the contract was made.” Piedmont Hawthorne Aviation,
Inc. v. Tritech Env’t Health & Safety, Inc., 402 F. Supp. 2d 609,
617 (M.D.N.C. 2005). “However, . . . when ‘a contract is to be
performed wholly outside the state in which the contract was
made[,]’ . . . the law of the place of performance governs.”
Rizoti v. Plemmons, 91 F. App’x 793, 796 (4th Cir. 2003) (quoting
Cocke v. Duke Univ., 260 N.C. 1, 8, 131 S.E. 2d 909, 913 (1963)).
Consistent with those principles, Florida law governs
“contract construction and interpretation,” Piedmont Hawthorne
Aviation, 402 F. Supp. 2d at 617, in this case. Some uncertainty
remains about where the parties “made” the contract (see Docket
Entry 9-1, 97 10 (averring that parties communicated by electronic
means)), but performance undoubtedly occurred upon delivery of the
Units (among other items) to Defendant’s warehouse in Pensacola,
Florida. (See Docket Entry 8-1 at 7 (listing Defendant’s address) □□
Defendant has advocated for the application of Florida law (see

-~30-

Docket Entry 8 at 5–11), whereas Plaintiff has characterized the
choice-of-law issue as “premature” (Docket Entry 9 at 4 n.2).
Because the choice of governing law informs the transfer inquiry,
the Court reaches the issue and concludes that such factor favors
transfer to the Northern District of Florida.
As far as whether this controversy qualifies as “localized,”
Plant Genetic Sys., 933 F. Supp. at 527, the applicability of
Florida law to a claim concerning a Florida citizen indicates that
Florida courts possess an interest in resolving the controversy.
See BHP Int’l Inv., Inc. v. Online Exch., Inc., 105 F. Supp. 2d
493, 499 (E.D. Va. 2000) (“Although this court could familiarize
itself with [another state’s] law for the purposes of the case at
bar, the court finds that [the other state’s] courts have a strong
interest in having local controversies decided at home.”). As a
result, such factor favors transfer.
For the foregoing reasons, in order to facilitate access to
potential proof and in the interest of justice, the Northern
District of Florida constitutes a more appropriate forum.13
13 No party has addressed whether the Northern District of
Florida qualifies as a proper venue where this action “might have
been brought,” Kotsonis, 539 F. Supp. at 645 (quoting 28 U.S.C.
§ 1404(a)). (See Docket Entry 8 at 1–11; Docket Entry 9 at 1–12;
Docket Entry 10 at 1–7.) The applicable statute provides, in
relevant part, that “[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; [or]
a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred . . . .” 28 U.S.C.
§ 1391(b)(1), (2). Additionally, for venue purposes, an entity
qualifies as a resident of “any judicial district in which such
defendant is subject to the court’s personal jurisdiction with
(continued...)
-31-
CONCLUSION
At this stage, Plaintiff adequately has alleged an actual
controversy, such that the Court possesses subject-matter
jurisdiction to render a declaratory judgment, and Defendant has
shown no “good reason,” Quarles, 92 F.2d at 324, for the Court to
decline to exercise such jurisdiction. Additionally, the Northern
District of Florida may exercise specific personal jurisdiction
over Plaintiff consistent with Florida’s long-arm statute and due-
process principles. Finally, the balance of factors under Section
1404(a) weighs in favor of transfer, given the location of the
Units in Florida, the applicability of Florida law, and the
interest of Florida courts in resolving such controversy.
IT IS THEREFORE ORDERED that Defendant’s Motion (Docket Entry
7) is DENIED IN PART and GRANTED IN PART, such that the Court will
deny Defendant’s request to dismiss this action but will transfer
this action to the Northern District of Florida.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
March 25, 2021

13(...continued)
respect to the civil action in question.” Id. § 1391(c). Here,
the Northern District of Florida constitutes a proper venue under
Section 1391 because (i) Defendant resides in that district (with
its principal place of business in Gulf Breeze, Florida (Docket
Entry 8-1, ¶ 18)), (ii) Plaintiff remains subject to personal
jurisdiction in that district, and (iii) “a substantial part of the
events or omissions giving rise to the claim occurred,” id.
§ 1391(b)(2), in that district.
-32-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10116658. Public record. Not legal advice.