Lewis v. Hill

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

STEVEN P. LEWIS, )

)

Plaintiff, )

)

) CIVIL ACTION NO.

v. ) 19-12500-DPW

)

MATTHEW A. HILL, MARGIE JOANNE )

HILL, DAVID ROBERT MOORE, JEFFREY )

STOLLER, AND CLOSEDRPLA HOLDINGS, )

INC., )

)

Defendants. )

MEMORANDUM AND ORDER

July 24, 2023

TABLE OF CONTENTS

I. BACKGROUND.................................................. 5

A. Facts ................................................... 5

1. The Parties ............................................. 6

2. Mr. Lewis’s Stock ....................................... 7

3. Sale Negotiations and Alleged Deception ................. 8

4. Sale of Assets and Leadership Changes .................. 11

5. Subsequent Events ...................................... 12

B. Travel of this Case to Date ............................ 13

II. RELEVANT STANDARDS OF REVIEW.............................. 14

A. FED. R. CIV. P. 12(b)(2) ................................. 14

B. FED. R. CIV. P. 12(b)(6) ................................. 15

C. Transfer Statutes: 28 U.S.C § 1404(a), § 1406(a), and .. 16

§ 1631 ...................................................... 16

1. Transfer under 28 U.S.C. § 1406(a) and § 1631 .......... 17

2. Transfer under 28 U.S.C. § 1404(a) ..................... 19

III. PERSONAL JURISDICTION.................................... 23

A. Legal Requirements ..................................... 24

1. Massachusetts Long-Arm Statute ......................... 24

2. Due Process Clause Generally ........................... 25

B. Application to Defendants .............................. 27

1. Dr. Hill and Mr. Moore ................................. 27

2. Mr. Stoller ............................................ 31

3. Mr. Hill and ClosedRPLA ................................ 33

C. Propriety of Transfer .................................. 35

1. Venue Availability ..................................... 36

2. Claims against Dr. Hill, Mr. Moore, and Mr. Stoller .... 40

3. Claims against Mr. Hill and ClosedRPLA ................. 44

IV. FORUM-SELECTION CLAUSE.................................... 46

A. Choice-of-Law .......................................... 46

B. The Clause at Issue .................................... 47

1. Is the forum-selection clause in effect? ............... 48

2. Is the forum-selection clause enforceable? ............. 50

3. Does the forum-selection clause exclude a federal forum? 54

C. Propriety of Transfer .................................. 58

V. MERITS ISSUES.............................................. 64

VI. FINAL CONSIDERATIONS...................................... 64

VII. CONCLUSION............................................... 65

Plaintiff Steven Lewis is the minority shareholder and a

former employee of OpenALPR Technology, Inc. (“OpenALPR”), a

software startup founded by Defendant Matthew Hill, who is the

company’s majority shareholder and board chair. Mr. Lewis

became an OpenALPR sales representative by an agreement with the

company, through Mr. Hill. By a separate stock purchase

agreement with the company, through Mr. Hill, Mr. Lewis acquired

shares in OpenALPR. Mr. Lewis originally brought this action in

Massachusetts state court alleging breach of fiduciary duty and

aiding and abetting breach of fiduciary duty against Mr. Hill

and several other affiliated parties. The defendants removed

the case to this court.

In this court, the defendants press motions to dismiss the

Complaint as a way to terminate further travel of the case. For

his part, Mr. Lewis has failed to take steps to recalibrate the

litigation to assure proper alignment of the parties in some

other jurisdiction in which personal jurisdiction could properly

be exercised and permit his case to proceed further in its

entirety.

Consequently, I raised sua sponte — after notice and an

opportunity to be heard by all parties — the question whether to

transfer this case in its entirety to the United States District

Court for the Middle District of Florida where it appears the

matter can be fully litigated against all parties now before

this court. The parties, however, have declined to move from

their formally stated positions or even make a docket submission

formally advising the court of that declination.

With full consideration of the implications of transfer for

the private interests of parties having disparate resources, I

have determined to transfer this poorly pled case, awkwardly

joining vaguely identified claims as to inadequately

differentiated defendants, to the Middle District of Florida.

This will not only serve the public interest in efficient

deployment of available judicial resources, it will also permit

Mr. Lewis an opportunity to pursue his several claims in a

single court appropriate to hear them. In this Memorandum and

Order, I provide my reasons for taking this initiative by

detailing at length my evaluation of the arguments presented by

the defendants, who — for their part — have carefully and

strategically avoided asking for transfer as an alternative to

dismissal, although both are manifestly available.

I. BACKGROUND

A. Facts

The alleged facts, as set forth in the Complaint and

developed further in underlying documents, the authenticity of

which is not disputed, cf. Rivera v. Centro Medico de Turabo,

Inc., 575 F.3d 10, 15-16 (1st Cir. 2009), are as follows.

1. The Parties

Plaintiff Steven Lewis, a Massachusetts resident, is a

minority shareholder and former officer and director of

OpenALPR, a software company incorporated in Florida. [Dkt. No.

1-3 ¶¶ 1, 8, 21; see Stock Purchase Agreement, Dkt. No. 9-4 at

introductory paragraph (identifying OpenALPR as Florida

corporation with address in Michigan); Sales Rep Agreement, Dkt.

No. 9-6 at Art. 14 (listing Michigan address for OpenALPR).]

Defendant Matthew Hill, an Alabama resident, is the

founder, majority shareholder, president, secretary, treasurer,

and chairman of the board of ClosedRPLA Holdings, Inc. –

formerly known as OpenALPR. [Dkt. No. 1-3 ¶¶ 2, 6, 20]

Defendant ClosedRPLA Holdings, Inc. is a Florida

corporation, with a principal place of business in Jacksonville,

Florida. [Id. ¶ 6]

Defendant Dr. Margie Joanne Hill is Defendant Matthew

Hill’s wife and an Alabama resident. [Id. ¶¶ 3, 19] Defendant

David Robert Moore is Defendant Matthew Hill’s father-in-law,

Dr. Hill’s father, and, as alleged in the Complaint, a South

Carolina resident. [Id. ¶¶ 4, 19; but see Declaration of David

Moore in Support of Rule 12(b)(2) Motion, Dkt. 9-9 ¶ 4

(attesting to legal residency in, and citizenship of,

Virginia).] These two defendants, together with Defendant

Matthew Hill, are the new directors of ClosedRPLA. [Dkt. No. 1-

3 ¶¶ 19-20, 23]

Defendant Jeffrey Stoller, a Florida resident, is an

attorney who was representing OpenALPR and ClosedRPLA during the

events at issue. [Id. ¶¶ 5, 19, 21-22]

2. Mr. Lewis’s Stock

In January 2016, Mr. Lewis joined OpenALPR, then owned

solely by Mr. Hill, as a sales representative and board

director. [Id. ¶ 7] Mr. Lewis entered into a “Sales Rep

Agreement” with OpenALPR, through Mr. Hill, defining the

compensation he was to receive. The Sales Rep Agreement, which

is undated, commenced on January 13, 2016. [Dkt. No. 9-6 at

Art. 11] The Sales Rep Agreement contains a “Governing Law”

provision that provided, “This Agreement shall be construed and

enforced according to the laws of the State Florida [sic] and

any dispute under this Agreement must be brought in this venue

and no other.” [Id. at Art. 17]

In April 2016, Mr. Lewis and Mr. Hill agreed on an equity

plan, which they reduced to writing in December 2017 as a “Stock

Purchase Agreement” between Mr. Lewis and OpenALPR, through Mr.

Hill. [Dkt. No. 1-3 ¶ 8; see Dkt. No. 9-4] According to the

equity plan, OpenALPR’s stock consisted of 1,000 shares, all of

which had previously been issued to Mr. Hill. [Dkt. No. 9-4 at

Art. 6.1] Under the plan, Mr. Lewis purchased 200 shares, for a

penny per share, [id. at Art. 2.1], to vest on the following

schedule: 1) 50 shares immediately; 2) 50 shares on the earlier

of January 1, 2018 or $700,000 in company revenue; 3) 50 shares

on the earlier of January 1, 2019 or $1.2 million in revenue;

and 4) 50 shares on the earlier of January 1, 2020 or $1.7

million in revenue. [Id. at Art. 5.3] The plan also provided a

repurchase right under which OpenALPR could repurchase, for the

price of a penny a share, any or all shares belonging to Mr.

Lewis that had not yet vested upon “his. . . cessation of

Service” to the company. [Id. at Art. 5.1.] Mr. Lewis and Mr.

Hill, on behalf of OpenALPR, agreed that “interpretation,

performance, and enforcement” of the Stock Purchase Agreement

would be “governed by the laws of the State [sic] of

Massachusetts without giving effect to that State’s choice of

law or conflict-of-laws rules.” [Id. at Art. 8.3]

By the end of the first quarter of 2018, of the 1,000

shares, 800 had been issued to Mr. Hill, 100 had been issued to

Mr. Lewis under the equity plan, and the final 100 had been

purchased by Mr. Lewis but not yet distributed, subject to the

equity plan’s vesting schedule. [Dkt. No. 1-3 ¶ 9]

3. Sale Negotiations and Alleged Deception

Mr. Hill started negotiations to sell OpenALPR near the end

of the first quarter of 2018 – presumably in late March or early

April 2018, although the Complaint does not specify a date or

month. [Id. ¶ 10] At that point, Mr. Hill is alleged to have

begun discussing a potential customer relationship with Brekford

Traffic Solutions, a subsidiary of Novume Solutions. [Id.]

Around the same time, things became rocky for Mr. Lewis at

work. In April 2018, Mr. Hill sought to reduce Mr. Lewis’s

commissions in a departure from the previously negotiated Sales

Rep Agreement. Although Mr. Lewis agreed reluctantly, this

change required Mr. Lewis to take on a second job for additional

income. [Id. ¶ 13] In June 2018, Mr. Lewis told Mr. Hill about

his need for the second job. [Id.] Mr. Hill then presented Mr.

Lewis with a “Redemption Agreement” for his 100 unvested equity

plan shares. [Id.] The Redemption Agreement provided that, “in

accordance with Article 5 of the Stock Purchase Agreement . . .

OpenALPR . . . has elected to redeem and repurchase on June 18,

2018 . . . all one hundred (100) of its issued and outstanding

shares of Common Stock which have not vested under the terms of

the Stock Purchase Agreement [the equity plan]. . . .” [Dkt.

No. 9-5 at 2] Mr. Hill told Mr. Lewis he was required to sign

this agreement under the terms of the equity plan and Mr. Lewis

did so. [Dkt. No. 1-3 ¶ 13] In July 2018, Mr. Hill fired Mr.

Lewis without cause and did not pay him his July commissions.

[Id. ¶ 14]

Mr. Lewis now says he was not properly required to sign the

Redemption Agreement, because, inter alia, he continued to

provide services for the company as a part-time sales

representative. [Id. ¶ 13] The text of the Stock Purchase

Agreement gives the company the right to purchase unvested

shares when the employee ceases “Service.” [Dkt. No. 9-4 at

Art. 5.1] “Service” is defined to include “performance of

services for the Company . . . in the capacity of an employee,

subject to the control and direction of the employer entity as

to both the work to be performed and the manner and method of

performance.” [Id. at Art. 1]

Meanwhile, negotiations with Novume involving Mr. Hill

apparently advanced. On or around August 30, 2018, on behalf of

OpenALPR, Mr. Hill signed a nondisclosure agreement with Novume

as part of Novume’s potential acquisition of OpenALPR. [Dkt.

No. 1-3 ¶ 10] Mr. Lewis was unaware of negotiations to sell

OpenALPR to Novume and was unaware that Mr. Hill had signed a

nondisclosure agreement in connection with the potential

acquisition. [Id. ¶¶ 10, 11]

In the days surrounding the signing of the nondisclosure

agreement – and leading up to the sale – Mr. Hill sought

multiple times to buy Mr. Lewis’s vested shares of stock. On or

around August 20, 2018, Mr. Hill offered to buy Mr. Lewis’s 100

shares for $90,000. [Id. ¶ 11] Mr. Lewis declined. [Id.] On

September 4, 2018, Mr. Hill again offered to buy Mr. Lewis’s 100

shares for $90,000, and Mr. Lewis again declined. [Id.]

Sometime after firing Mr. Lewis — although not on a date or

in a month specified in the Complaint1 — Mr. Hill bought, for

nominal consideration, the 100 unvested shares that the company

had redeemed from Mr. Lewis. [Id. ¶ 15] A board resolution

bearing the date of June 18, 2018 authorized the issuance of

treasury stock to Mr. Hill.2 [Id. ¶ 16]

4. Sale of Assets and Leadership Changes

Mr. Hill made Mr. Lewis aware of the potential sale on

September 16, 2018, when he sent him a letter drafted by Mr.

Stoller. [Id. ¶ 17] In the letter, Mr. Hill asked for Mr.

Lewis’s consent to sell OpenALPR for $4.5 million “or more.”

[Id.] The signed letter, which left blank the number of shares

Mr. Lewis owned, would have made Mr. Hill Mr. Lewis’s proxy to

vote Mr. Lewis’s shares. [Id.] Mr. Lewis did not consent.

[Id. ¶ 18.] Going it alone, Mr. Hill on September 17, 2018,

signed a letter of intent to sell the assets of OpenALPR to

Novume for $15,000,000. [Id. ¶ 18.]

Some six months later, on March 9, 2019, Mr. Hill scheduled

a shareholder meeting — at which Mr. Hill and Mr. Lewis, the two

shareholders, were apparently in attendance. [Id. ¶ 19] Mr.

1 In the narrative of his Opposition to the Motion to Dismiss,

but not in the Complaint at issue before me, Mr. Lewis asserts

this happened in September 2018. [Dkt. No. 12 at 7]

2 The document’s metadata, however, indicates this document was

actually created some three months later on September 14, 2018,

three days before the subsequent sale. [Dkt. No. 1-3 ¶ 16]

Stoller presided. [Id.] Mr. Lewis abstained from voting on the

proposed asset sale to Novume and voted against the proposed

slate of new directors consisting of Mr. Hill, Dr. Hill, and Mr.

Moore. [Id.] Both initiatives passed, however, on the basis of

Mr. Hill’s vote of the majority of shares. [Id.]

Immediately after the shareholder meeting, the new board of

directors met, during which time the proposed asset sale to

Novume was ratified; Mr. Hill was elected president, secretary,

and treasurer; Mr. Lewis was removed as vice-president; and the

name of the company was changed to ClosedRPLA Holdings, Inc.

[Id. at ¶ 20]

Before and after the shareholder meeting, Mr. Lewis says he

tried to get information about the proposed asset sale to Novume

and tried to resolve his dispute with Mr. Hill about his equity

interest in the company and his unpaid commissions from July.

[Id. ¶ 21] Mr. Stoller made unspecified “affirmative

misrepresentations” to Mr. Lewis about the terms of the proposed

asset sale to Novume. [Id.]

5. Subsequent Events

On July 5, 2019, Mr. Stoller sent Mr. Lewis an email

informing him that if he did not accept Mr. Hill’s settlement

proposal, Mr. Hill might put the sale proceeds in risky

investments. [Id. ¶ 22]

At some point unspecified in the Complaint, Mr. Lewis

learned that Mr. Hill used company funds for personal

expenditures, such as plane tickets and to invest in

cryptocurrency. [Id. ¶ 24] Mr. Hill is also alleged to have

taken distributions from the company and failed to make pro rata

distributions to Mr. Lewis as required. [Id.]

B. Travel of this Case to Date

On October 28, 2019, Mr. Lewis filed suit against the five

Defendants in Norfolk Superior Court in Massachusetts. [Dkt.

No. 1-3 at 2] Defendants removed [Dkt. No. 1] the case to

federal court on the basis of diversity jurisdiction, pursuant

to 28 U.S.C. § 1441, bringing it before me on December 12, 2019.

The Complaint identifies four Counts. Count I alleges

breach of fiduciary duty against not only Mr. Hill, but also Dr.

Hill and Mr. Moore, part of which apparently relates to Mr.

Lewis’s claim concerning his unpaid commissions [Dkt. No. 1-3

¶¶ 25-28] Count II, for aiding and abetting breach of fiduciary

duty, is against Dr. Hill, Mr. Moore, and Mr. Stoller. [Id.

¶¶ 29-30] Count III seeks “an accounting to determine the

extent to which corporate funds were misused by” Mr. Hill for

personal expenses. [Id. ¶¶ 31-32] Count IV seeks equitable

relief to enjoin ClosedRPLA from distributing or transferring

assets to risky investments. [Id. ¶¶ 33-36]

Defendants — who are all represented by the same counsel —

have moved to dismiss Mr. Lewis’s Complaint. Mr. Hill and

ClosedRPLA move to dismiss pursuant to FED. R. CIV. P. 12(b)(6)

for failure to state a claim within the jurisdiction of this

court. [Dkt. No. 9 at 1] Dr. Hill, Mr. Moore, and Mr. Stoller

join that Rule 12(b)(6) motion, and they also move separately to

dismiss pursuant to FED. R. CIV. P. 12(b)(2) for lack of personal

jurisdiction. [Id. at 1]

II. RELEVANT STANDARDS OF REVIEW

A. FED. R. CIV. P. 12(b)(2)

A FED. R. CIV. P. 12(b)(2) motion to dismiss challenges

whether a court has personal jurisdiction over at least one of

the defendants. Because the parties have not asked for an

evidentiary hearing, I apply the prima facie standard to

determine whether Mr. Lewis has met his burden of establishing

that this court has personal jurisdiction over Dr. Hill, Mr.

Moore, and Mr. Stoller. U.S. v. Swiss Am. Bank, Ltd., 274 F.3d

610, 618 (1st Cir. 2001). Under the prima facie standard, the

question is whether Mr. Lewis has “proffered evidence which, if

credited, is sufficient to support findings of all facts

essential to personal jurisdiction.” Phillips v. Prairie Eye

Ctr., 530 F.3d 22, 26 (1st Cir. 2008).

Mr. Lewis may not rest upon his pleadings but must “adduce

evidence of specific facts.” Foster-Miller, Inc. v. Babcock &

Wilcox Can., 46 F.3d 138, 145 (1st Cir. 1995). In this regard,

the standard is akin to the summary judgment standard, in that I

“must accept the plaintiff’s (properly documented) evidentiary

proffers as true for the purpose of determining the adequacy of

the prima facie jurisdictional showing,” a process that has the

benefit of “screening out cases in which personal jurisdiction

is obviously lacking, and those in which the jurisdictional

challenge is patently bogus.” Id.; see also Barrett v.

Lombardi, 239 F.3d 23, 27 (1st Cir. 2001) (“In order to defeat a

motion to dismiss for want of in personam jurisdiction, a

plaintiff must do more than simply surmise the existence of a

favorable factual scenario; he must verify the facts alleged

through materials of evidentiary quality.”)

B. FED. R. CIV. P. 12(b)(6)

Under FED. R. CIV. P. 12(b)(6), the question “is whether,

construing the well-pleaded facts of the complaint in the light

most favorable to the plaintiff[], the complaint states a claim

for which relief can be granted.” Ocasio-Hernandez v. Fortuno-

Burset, 640 F.3d 1, 7 (1st Cir. 2011). Factual allegations need

not be detailed but “must be enough to raise a right to relief

above the speculative level.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007). In making my evaluation, I “accept all

factual allegations in the complaint as true and draw all

reasonable inferences in the plaintiff’s favor.” Duke v.

Community Health Connections, Inc., 355 F. Supp. 3d 49, 54 (D.

Mass. 2019). However, I will not accept as true any legal

conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Finally, “without converting the motion into one for summary

judgment,” I may consider “matters incorporated by reference or

integral to the claim, items subject to judicial notice, matters

of public record, orders, items appearing in the record of the

case, and exhibits attached to the complaint whose authenticity

is unquestioned.” 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 1357, at 376 (3d ed. 2004); see Tellabs,

Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007);

Rivera, 575 F.3d at 15.

C. Transfer Statutes: 28 U.S.C § 1404(a), § 1406(a), and

§ 1631

Although none of the parties has formally moved to transfer

this case, I am obligated under certain circumstances to

consider whether transfer, rather than dismissal, is

appropriate. I may order transfer sua sponte, see Narragansett

Elec. Co. v. EPA, 407 F.3d 1, 8 (1st Cir. 2005)(under 28 U.S.C.

§ 1631); Desmond v. Nynex Corp., No. 94-1230, 37 F.3d 1484, 1994

WL 577479, at *3 (1st Cir. Oct. 20, 1994) (under 28 U.S.C §

1404(a) and § 1406(a)) (per curiam) (unpublished); however, best

practice is to “make that possibility known to the parties so

they may present their views about the desirability of transfer

and the possible transferee court,” see 15 CHARLES ALAN WRIGHT ET

AL., FEDERAL PRACTICE AND PROCEDURE § 3844, at 47, 50 (4th ed. 2013).

I, in fact, did so at the November 24, 2021 motion hearing

in this matter. While Plaintiff’s counsel observed, after I

raised the issue, that it “sound[ed] like [counsel for the

parties] should be talking to each other,” [Transcript of Motion

Hearing at 26:6-7, Lewis v. Hill et al., No. 1:19-cv-12500-DPW

(ECF No. 18) (D. Mass. Nov. 24, 2021)], the parties have made no

submissions on the docket since then regarding an alternative to

transfer. Because nothing further has been submitted formally

on the issues since the hearing, I will now resolve the issues —

including the question of transfer — implicated by the

outstanding motion without the prospect of further input by the

parties. From all that appears, the parties’ lack of input is

the result of indifference, passivity, indolence or benighted

strategic judgment. I, nevertheless, undertake resolution while

noting that there is some disagreement among courts about how

the relevant statutory transfer provisions — 28 U.S.C § 1404(a),

§ 1406(a), and § 1631 — fit together. See 15 CHARLES ALAN WRIGHT ET

AL., FEDERAL PRACTICE AND PROCEDURE § 3842, at 20-36 (4th ed. 2013). I

will take the approach I find most sensible in light of

governing case law but observe where other courts might diverge.

1. Transfer under 28 U.S.C. § 1406(a) and § 1631

Where personal jurisdiction is lacking, both 28 U.S.C

§ 1406(a) and § 1631 permit me to transfer a case if it could

have been brought in the transferee court and transfer is “in

the interest of justice.” See TargetSmart Holdings, LLC v. GHP

Advisors, LLC, 366 F. Supp. 3d 195, 213-14 (D. Mass. 2019).3

The Supreme Court has held that § 1406(a), which applies where

venue is improper, allows for transfer even if the transferor

court does not have personal jurisdiction. Goldlawr, Inc. v.

Heiman, 369 U.S. 463, 466 (1962). In Goldlawr, the Court

explained that § 1406(a) serves “the general purpose . . . of

removing whatever obstacles may impede an expeditious and

orderly adjudication of cases and controversies on their

merits.” Id. at 466-67.

As for § 1631, in the First Circuit the provision’s broad

reference to situations where a court “finds that there is a

want of jurisdiction” has been construed to include cases in

which personal jurisdiction is lacking. Fed. Home Loan Bank of

3 Other courts might also employ § 1404(a) where personal

jurisdiction is lacking. See 15 CHARLES ALAN WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE § 3844 at 62 n.17 & accompanying text (4th ed.

2013). However, I have interpreted § 1404(a) under First Circuit

precedent “to allow transfer of a case only if [the court where

it was filed] has jurisdiction over the case in the first

instance.” Ferris v. Darrell, No. 18-10204-DPW, 2020 WL 4431763

at *10 n.20 (D. Mass. July 31, 2020) (citing TargetSmart

Holdings, LLC v. GHP Advisors, LLC, 366 F. Supp. 3d 195, 217 (D.

Mass. 2019)). See also Albion v. YMCA Camp Letts, 171 F.3d 1, 2

(1st Cir. 1999) (“Given. . . the lack of personal jurisdiction

over the defendant. . ., transfer under § 1404(a) is clearly

inappropriate.”). I will do so here as well. After canvasing

the relevant transfer provisions, I focus specifically on §

1406(a) and § 1631 in considering transfer when Massachusetts,

as the potential transferor court, does not have personal

jurisdiction over certain of the parties. Id.

Boston v. Moody’s Corp., 821 F.3d 102, 111-20 (1st Cir. 2016)

(abrogated on other grounds, Lightfoot v. Cendant Mortg. Corp.,

580 U.S. 82 (2017)). Because § 1631 directs that a court

“shall” transfer a case if it is in the interest of justice,

there is a rebuttable presumption under § 1631 that a court

failing to find personal jurisdiction should transfer a case.

Britell v. U.S., 318 F.3d 70, 73 (1st Cir. 2003).

2. Transfer under 28 U.S.C. § 1404(a)

Where a court is properly authorized to adjudicate a case,

§ 1404(a) gives the court discretion nevertheless to transfer

the case to a court where it could have been brought “[f]or the

convenience of parties and witnesses, in the interest of

justice.” 28 U.S.C. § 1404(a). While this provision “leaves

much” to my discretion, “unless the balance is strongly in favor

of the defendant, the plaintiff’s choice of forum should rarely

be disturbed.” TargetSmart, 366 F. Supp. 3d at 217 (quoting

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). “In

evaluating whether transfer is appropriate under § 1404(a), I

consider the following factors:

(1) the convenience of the parties, (2) the convenience

of the witnesses, (3) the relative ease of access to

sources of proof, (4) the availability of process to

compel attendance of unwilling witnesses, (5) cost of

obtaining willing witnesses, and (6) any practical

problems associated with trying the case most

expeditiously and inexpensively.”

Id. at 218 (quoting F.A.I. Electronics Corp. v. Chambers, 944 F.

Supp. 77, 81 (D. Mass. 1996)); see also Gulf Oil Corp., 330 U.S.

at 508.

Although Defendants have used their FED. R. CIV. P. 12(b)(6)

motion to dismiss as a vehicle to enforce the forum-selection

clause in the Sales Rep Agreement [Dkt. No. 15 at 14-15], I

consider it appropriate to examine whether transfer under

§ 1404(a) is a better option than dismissal. In Atlantic Marine

Construction Co., Inc. v. United States District Court for the

Western District of Texas, the Supreme Court held that § 1404(a)

transfer is the appropriate mechanism where a party invokes

§ 1406(a) or a FED. R. CIV. P. 12(b)(3) motion to dismiss

asserting an improper forum (a dismissal grounds not expressly

invoked by Defendants here) to enforce a contractual forum-

selection clause that points to a different federal forum than

where the case is currently being heard.4 571 U.S. 49, 59

(2013). The court explicitly did not resolve whether a court

should transfer or dismiss a case in which a defendant has

invoked Rule 12(b)(6) to enforce a forum-selection clause. Id.

at 61. There is ongoing debate about what courts should do in

4 If the clause specifies adjudication in a state or foreign

forum, transfer is not possible under § 1404(a). Atlantic

Marine, 571 U.S. at 60. Instead, a court in this circumstance

should employ the doctrine of forum non conveniens and dismiss

the case. Id. As will appear below, I find that a federal

court is available under the clause at issue here.

this instance. See Stephen E. Sachs, Five Questions After

Atlantic Marine, 66 HASTINGS L.J. 761, 764-66 (2015).

In a post-Atlantic Marine case, as my colleague Judge

Gorton has observed, the First Circuit found that “a valid

forum-selection clause can be enforced through a Rule 12(b)(6)

motion.” Firemen’s Ins. Co. of Washington, D.C. v. ACE Am. Ins.

Co., 390 F. Supp. 3d 267, 274 (D. Mass. 2019) (Gorton, J.)

(citing Claudio-De Leon v. Sistema Universitario Ana G. Mendez,

775 F.3d 41, 46 (1st Cir. 2014)). I take Atlantic Marine and

the First Circuit’s application of Atlantic Marine to encourage

transfer, pursuant to any of the available statutory transfer

mechanisms. This is as an option when a forum-selection clause

is in play and permitting a federal forum transfer would be “in

the interest of justice.” See Reynoso v. LaserShip, Inc., 322

F. Supp. 3d 211, 215-17 (D. Mass. 2018) (Gorton, J.).

Section 1404(a) analysis, when the parties’ relationship is

augmented by a forum-selection clause, is different from the

general § 1404(a) standard described above. Atlantic Marine

makes clear that, when there is a valid forum-selection clause,

“the plaintiff’s choice of forum merits no weight,” and instead

“the plaintiff bears the burden of establishing that transfer to

the forum for which the parties bargained is unwarranted.” 571

U.S. at 63. Further, “a court evaluating a defendant’s

§ 1404(a) motion to transfer based on a forum-selection clause

should not consider arguments about the parties’ private

interests.” Id. at 64. In evaluating the transfer of a case in

which there exists a valid forum-selection clause, I am left

then to “consider arguments about public-interest factors only,”

which “rarely defeat a transfer motion.” Id. Thus, “the

practical result is that forum-selection clauses should control

except in unusual cases.” Id.

3. Interplay Among § 1404(a), § 1406(a), and § 1631

Overall, there is usually not much difference whether

transfer occurs under § 1404(a), § 1406(a), or § 1631. With

§ 1406(a) and § 1631, for parties over whom the transferor court

has no personal jurisdiction, only the governing law of the

transferee court, however, will apply.5 The governing law of the

transferor court does attach under § 1404(a), since the

5 The Second Circuit has synthesized the determination of

governing law as follows:

Federal courts sitting in diversity generally apply the

law of the state in which they sit. However, cases that

are transferred from one federal district to another

present an exception to this general rule. When an action

has been transferred, a federal court sitting in diversity

must determine whether to apply the law of the transferor

state, or the law of the transferee state in which it sits.

If a district court receives a case pursuant to a transfer

under 28 U.S.C. § 1406(a), for improper venue, or 28 U.S.C.

§ 1631, for want of jurisdiction, it logically applies the

law of the state in which it sits, since the original

venue, with its governing laws, was never a proper option.

Gerena v. Korb, 617 F.3d 197, 204 (2d Cir. 2010).

transferor court is by terms a fully proper forum under this

provision. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253

(citing Van Dusen v. Barrack, 376 U.S. 612 (1964)). However,

that fact often matters little if a combination of choice-of-law

principles and agreements between the parties means the law

applicable in the transferee court will apply in any event.

Atlantic Marine, 571 U.S. at 64.

III. PERSONAL JURISDICTION

It is Defendants Dr. Hill, Mr. Moore, and Mr. Stoller who

move to dismiss for lack of personal jurisdiction pursuant to

Rule 12(b)(2). Neither Mr. Hill nor ClosedRPLA has moved to

dismiss on this basis; consequently, those parties waive any

personal jurisdiction defense. Mass. R. Civ. P. 12(h)(1); FED.

R. CIV. P. 12(h)(1).6

Because “a federal court exercising diversity jurisdiction

is the functional equivalent of a state court sitting in the

forum state,” Ticketmaster-New York, Inc. v. Alioto, 26 F.3d

201, 204 (1st Cir. 1994), I examine whether personal

jurisdiction is permitted over Dr. Hill, Mr. Moore, and Mr.

Stoller under the Due Process Clause of the Fourteenth Amendment

6 I will nevertheless in the interest of completeness and as a

dimension of meaningful comparison address personal jurisdiction

over Mr. Hill and ClosedRPLA in the analysis for this

Memorandum.

to the U.S. Constitution and the Massachusetts Long-Arm Statute.

Personal jurisdiction must be allowed under both for Mr. Lewis’s

claims against these moving defendants to proceed in this court.

See Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir.

2015). I find personal jurisdiction has not been demonstrated

as to Dr. Hill, Mr. Moore, and Mr. Stoller under either the

Long-Arm Statute or the Due Process Clause.

A. Legal Requirements

1. Massachusetts Long-Arm Statute

The Massachusetts Long-Arm Statute, Mass. Gen. Laws ch.

223A, § 3, permits courts to exercise personal jurisdiction over

a person in a variety of circumstances. The statute’s

requirements are similar to but distinct from those under the

Due Process Clause, so I must analyze personal jurisdiction

under both provisions. See SCVNGR, Inc. v. Punchh, Inc., 85

N.E.3d 50, 54-55 (Mass. 2017); see also Cossart, 804 F.3d at 18.

Two scenarios under which the Long-Arm Statute extends personal

jurisdiction are relevant in this case.

First, the statute covers anyone “who acts directly or by

an agent, as to a cause of action in law or equity arising from

the person’s . . . transacting any business in this

commonwealth.” Mass. Gen. Laws ch. 223A, § 3(a) (emphasis

added). This “transacting any business” hook is interpreted “in

a generous manner” and requires me to “focus on ‘whether the

defendant[s] attempted to participate in the commonwealth’s

economic life.” Cossart, 804 F.3d at 18 (quoting United Elec.,

Radio & Mach. Workers of Am. v. 163 Pleasant St. Corp., 960 F.2d

1080, 1087 (1st Cir. 1992)).

Second, the statute covers anyone

who acts directly or by an agent, as to a cause of action

in law or equity arising from the person’s . . . causing

tortious injury by an act or omission outside this

commonwealth if he regularly does or solicits business,

or engages in any other persistent course of conduct, or

derives substantial revenue from goods used or consumed

or services rendered, in this commonwealth.

Mass. Gen. Laws ch. 223A, § 3(d) (emphasis added).

2. Due Process Clause Generally

The Supreme Court has outlined requirements for personal

jurisdiction under the Due Process Clause and the First Circuit

has applied them consistently. Starting with first principles,

a court may exercise general or specific jurisdiction.

Massachusetts Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142

F.3d 26, 34 (1st Cir. 1998). General jurisdiction is based on a

defendant’s “continuous and systematic activity, unrelated to

the suit, in the forum state,” while specific jurisdiction is

based on “a demonstrable nexus between a plaintiff’s claims and

a defendant’s forum-based activities.” Id. Mr. Lewis presents

no arguments in support of general jurisdiction; that is

understandable because it would plainly be a fruitless battle

when none of the moving Defendants targeted by the claims

relevant to them in the Complaint lives in Massachusetts or

apparently spends time in this state. Consequently, I turn my

attention to specific jurisdiction.

There are three requirements to establish specific personal

jurisdiction: 1) relatedness, 2) purposeful availment, and 3)

reasonableness. A Corp. v. All Am. Plumbing, Inc., 812 F.3d 54,

59 (1st Cir. 2016).

First, as to relatedness, I “must ask whether the asserted

causes of action arise from or relate to the defendant’s

contacts with the forum.” Carreras v. PMG Collins, LLC, 660

F.3d 549, 554 (1st Cir. 2011).

Second, as to purposeful availment, I “must consider

whether the defendant purposefully availed [himself] of the

protections of [Massachusetts] laws by means of those contacts,

such that the defendant could reasonably foresee being haled

into [Massachusetts] courts.” Id. This inquiry is meant “to

assure that personal jurisdiction is not premised solely upon a

defendant’s ‘random, isolated, or fortuitous’ contacts with the

forum state.” A Corp., 812 F.3d at 60 (quoting Sawtelle v.

Farrell, 70 F.3d 1381, 1391 (1st Cir. 1995)). I “focus on the

defendant’s intentionality, and the cornerstones of purposeful

availment - voluntariness and foreseeability.” Id.

Third, as to reasonableness, I “must consider whether an

exercise of jurisdiction is consistent with principles of

justice and fair play.” Carreras, 660 F.3d at 554. This

analysis is based on at least five “gestalt” factors:

(1) the defendant’s burden of appearing, (2) the forum

state’s interest in adjudicating the dispute, (3) the

plaintiff’s interest in obtaining convenient and

effective relief, (4) the judicial system’s interest

in obtaining the most effective resolution of the

controversy, and (5) the common interests of all

sovereigns in promoting substantive social policies.

Ticketmaster-New York, Inc., 26 F.3d at 209.

B. Application to Defendants

1. Dr. Hill and Mr. Moore

Because Dr. Hill and Mr. Moore are said to be involved in

the same manner, I pair them together for this branch of my

analysis. To reiterate the pertinent facts, Dr. Hill is a

resident of Alabama [Dkt. No. 1-3 ¶ 3] and Mr. Moore is alleged

to be a resident of South Carolina [Id. ¶ 4] On March 9, 2019,

Mr. Hill proposed them both as directors and they were elected

to the board. [Id. ¶¶ 19-20] This was about a year after Mr.

Lewis signed the Redemption Agreement returning the unvested

equity plan shares to OpenALPR. [Id. ¶¶ 13, 19; see Dkt. No. 9-

5] After Dr. Hill and Mr. Moore became directors, the board

ratified the proposed asset sale to Novume.7 [Id. ¶ 20] Mr.

7 Mr. Lewis asserts in his briefing that communications made by

Mr. Stoller to Mr. Lewis can be attributed to Dr. Hill and Mr.

Moore because Mr. Stoller was an agent of the company and these

two became directors. [Dkt. No. 12 at 5] I am unwilling to

entertain this argument, since Defendants correctly point out

Lewis has not pled any additional contacts between these two

defendants and Massachusetts.

This pleading is insufficient to subject Dr. Hill and Mr.

Moore to jurisdiction in Massachusetts. Jurisdiction is not

permitted under the Massachusetts Long-Arm Statute, because Mr.

Lewis’s allegations do not show that the defendants “attempted

to participate in the commonwealth’s economic life,” Cossart,

804 F.3d at 18, and likewise the allegations do not show that

either defendant “regularly does or solicits business, or

engages in any other persistent course of conduct, or derives

substantial revenue from goods used or consumed or services

rendered” in Massachusetts. Mass. Gen. Laws ch. 223A § 3(d).

Returning to the constitutional analysis under the Due

Process Clause, while recognizing that failure under the

Massachusetts Long-Arm Statute effectively negates personal

jurisdiction for Dr. Hill and Mr. Moore, I proceed in the

interest of completeness to apply the prongs for specific

jurisdiction.

First, with respect to relatedness, Mr. Lewis has not

demonstrated any nexus between his claims and activities of Dr.

that Mr. Stoller is not shown in the Complaint before me to be

an agent for the individual members of the board. [Dkt. No. 15

at 10-11] Further, such a relationship would only be in effect

for purposes of the July 2019 email, because these defendants

were not board members when Mr. Stoller sent a letter to Mr.

Lewis in September 2018.

Hill or Mr. Moore in Massachusetts. The closest these

defendants came to acting in Massachusetts is their ratification

of the sale and their alleged failure to ensure Mr. Hill

returned to Mr. Lewis the redeemed shares or paid him his July

commissions, the effects of which Mr. Lewis may have felt in

Massachusetts. However, “in-forum effects of extra-forum

activities” do not generally “suffice to constitute minimum

contacts.” Mass. Sch. of Law at Andover, Inc., 142 F.3d at 36;

see also Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d

284, 289 (1st Cir. 1999) (“personal jurisdiction [in a tort

case] must probe the causal nexus between the defendant’s

contacts and the plaintiff’s cause of action.”).

Second, with respect to purposeful availment — though the

failure under the relatedness prong is fatal on its own as to

Mr. Lewis’s claims against Dr. Hill and Mr. Moore — in the

alternative I find no showing Dr. Hill and Mr. Moore have done

anything to avail themselves purposefully of Massachusetts laws.

The defendants are on solid ground to point to the unilateral

nature of Mr. Lewis’s Massachusetts residency. [Dkt. No. 15 at

10] The fact that Mr. Lewis happens to reside in Massachusetts

cannot mean Dr. Hill and Mr. Moore intended to avail themselves

of the laws of Massachusetts when they have taken minimal

actions elsewhere that impacted him in this state — and impacted

him in no way specifically relevant to his place of residency.

Thus, Mr. Lewis’s allegations fail the purposeful availment

prong as well.

Third, with respect to reasonableness, the gestalt factors

strongly disfavor haling Dr. Hill and Mr. Moore into a court in

Massachusetts. These defendants, as residents of Alabama and

South Carolina (or Virginia) respectively, face a burden in

appearing here. Additionally, Massachusetts has little interest

in adjudicating this dispute with respect to these defendants,

given that all of the individual parties but the plaintiff are

residents of other states and ClosedRPLA is a Florida

corporation. The fact that the choice of Massachusetts law to

govern the Stock Purchase Agreement appears to be a private

choice between Mr. Hill, acting on behalf of OpenALPR, and Mr.

Lewis and not a choice of the other defendants, and that none of

the events at issue transpired in Massachusetts — except perhaps

for communications with Mr. Lewis delivered from out of state —

stands against Massachusetts as the forum for adjudication.

While Mr. Lewis’s interest in obtaining convenient and

effective relief may superficially favor his ability to resolve

this case in Massachusetts because he is a local resident with a

Massachusetts lawyer, there are no obvious barriers, except

perhaps personal resources, keeping him from also litigating

this case elsewhere. Florida, by contrast seems a more

appropriate forum as the state in which ClosedRPLA is

incorporated, and given that jurisdiction as to the other

defendants would appear to be available there as well. In any

event, the general interest of the judicial system in obtaining

effective resolution of this controversy does not strongly favor

Massachusetts.

More broadly stated, the common interests of all relevant

sovereigns in promoting essentially the same substantive social

policies disfavor Massachusetts as a forum. There are no

special substantive Massachusetts social policies at issue, but

the case does implicate concerns regarding governance of

business entities under Florida law that would best be addressed

in a Florida forum.

Because Mr. Lewis’s claims against these two defendants

fail each of the requirements for specific jurisdiction, I find

jurisdiction lacking over Dr. Hill and Mr. Moore in

Massachusetts.

2. Mr. Stoller

Defendant Jeffrey Stoller, OpenALPR’s attorney, lives in

Miami, Florida. [Dkt. No. 1-3 ¶ 5] The Complaint alleges Mr.

Stoller presided over the March 9, 2019 shareholder meeting [id.

¶ 19]; that Mr. Stoller drafted the letter Mr. Hill sent to Mr.

Lewis on September 16, 2018, seeking Mr. Lewis’s consent to a

sale of OpenALPR for $4.5 million “or more” [id. ¶ 17]; and that

on information and belief, at the time he drafted that letter,

Mr. Stoller knew Mr. Hill had distributed the treasury stock to

himself. [Id.] The Complaint further alleges Mr. Stoller

purported to represent the interests of OpenALPR but instead

solely represented Mr. Hill’s interests, and that in this

connection, Mr. Stoller misrepresented the terms of the proposed

asset sale to Mr. Lewis. [Id. ¶ 21] Finally, the Complaint

alleges Mr. Stoller sent an email to Mr. Lewis on July 5, 2019,

telling him that if he did not accept Mr. Hill’s settlement

proposal, Mr. Hill might put the sale proceeds into risky

investments, thereby harming Mr. Lewis, who owned stock in the

company. [Id. ¶ 22]

As with Dr. Hill and Mr. Moore, this pleading is

insufficient to subject Mr. Stoller to jurisdiction in

Massachusetts. The analysis is similar to the analysis

regarding Dr. Hill and Mr. Moore; the only material factual

difference is that Mr. Lewis has alleged two communications that

Mr. Stoller made to Mr. Lewis while Mr. Lewis was presumably in

Massachusetts. Those two communications — a letter in September

2018 and an email in July 2019 — make no meaningful difference

for purposes of the Massachusetts Long-Arm Statute or the Due

Process Clause. The outcome as to Mr. Stoller is the same as

that with respect to Dr. Hill and Mr. Moore; I find no showing

that personal jurisdiction should be permitted at this stage

under either the Long-Arm Statute or the Due Process Clause.

Mr. Lewis has made only a conjectured showing to support

his claims regarding Mr. Stoller. Overcoming a Rule 12(b)(2)

motion requires “more than simply surmis[ing] the existence of a

favorable factual scenario; [a plaintiff] must verify the facts

alleged through materials of evidentiary quality.” Lombardi,

239 F.3d at 27. Mr. Lewis has not even provided copies of

communications he contends were received in Massachusetts.

I must conclude then that personal jurisdiction cannot be

extended to Mr. Stoller in Massachusetts. This conclusion is in

line with case law holding that a handful of contacts with a

Massachusetts resident in the course of business are

insufficient to establish personal jurisdiction. See, e.g.,

Phillips, 530 F.3d at 29 (“It stretches too far to say that

[defendant], by mailing a contract with full terms to

Massachusetts for signature and following up with three e-mails

concerning the logistics of signing the contract, should have

known that it was rendering itself liable to suit in

Massachusetts.”); Mass. Sch. of Law at Andover, Inc., 142 F.3d

at 36-37 (from phone call, mailing, and participation in Boston

meeting, defendant “could not reasonably have foreseen being

haled into a Massachusetts court to answer allegations of a

wide-ranging conspiracy.”).

3. Mr. Hill and ClosedRPLA

In contrast to my findings with respect to Dr. Hill, Mr.

Moore, and Mr. Stoller, I find Massachusetts does have personal

jurisdiction over both Mr. Hill and ClosedRPLA. I note that

neither Mr. Hill nor ClosedRPLA contest personal jurisdiction in

Massachusetts; it is only Defendants Dr. Hill, Mr. Moore, and

Mr. Stoller who have moved to dismiss under FED. R. CIV. P.

12(b)(2). However, I will still undertake a personal

jurisdiction analysis for Defendants Mr. Hill and ClosedRPLA

because the question of personal jurisdiction becomes important

later when I determine which statutory transfer mechanism is

available for the claims and parties in this case.

Mr. Hill and ClosedRPLA’s knowledge that they were

transacting business in Massachusetts is evidenced by the

inclusion of Mr. Lewis’s Massachusetts address in the Stock

Purchase Agreement.8 [Dkt. No. 9-4 at 2] The Stock Purchase

Agreement’s creation of a multi-year business relationship with

a Massachusetts resident satisfies the Massachusetts Long-Arm

8 Having failed to contest personal jurisdiction, Mr. Hill and

ClosedRPLA also do not contest that the former acted on behalf

of the latter (then OpenALPR) in executing the Stock Purchase

Agreement [Dkt. No. 9-4 at 2, 11] or that the former’s knowledge

can be imputed to the latter for these purposes. See Sunrise

Properties, Inc. v. Bacon, Wilson, Ratner, Cohen, Salvage,

Fialky & Fitzgerald, P.C., 679 N.E.2d 540, 543 (Mass. 1997)

(“notice to a corporation’s agent is notice to the

corporation”); Dinco v. Dylex Ltd., 111 F.3d 964, 972 (1st Cir.

1997) (director’s knowledge can be imputed to company); see also

Sealcell Corp. v. Berry, 150 So. 634, 634 (Fla. 1933) (“The

change in the name of a corporation has no more effect upon its

identity, as a corporation, than the change in the name of a

natural person has upon his identity”).

Statute that asks whether a party has engaged in a “persistent

course of conduct” to participate in the economic life of the

commonwealth.

Second, this court’s personal jurisdiction over Mr. Hill

and ClosedRPLA satisfies the Due Process Clause because the (1)

relatedness, (2) purposeful availment, and (3) reasonableness

prongs are all satisfied. The Stock Purchase Agreement, in

which Mr. Hill and ClosedRPLA acknowledge Mr. Lewis’s residence,

is a central issue in the present dispute. That Mr. Hill and

ClosedRPLA entered into a contract with an individual who lives

in Massachusetts counsels in favor of finding that it was

reasonably foreseeable that Mr. Hill and ClosedRPLA would be

haled into Massachusetts courts. Finally, while the five

gestalt factors cut in different directions for and against

personal jurisdiction, I conclude that requiring Mr. Lewis and

ClosedRPLA to appear in Massachusetts is still reasonable. For

those reasons, briefly stated, I find, quite apart from reasons

of FED. R. CIV. P. 12(h)(1) waiver, that Massachusetts would have

personal jurisdiction over Defendants Mr. Hill and ClosedRPLA.

C. Propriety of Transfer

Having found personal jurisdiction lacking for Dr. Hill,

Mr. Moore, and Mr. Stoller, I turn to whether transfer of this

case would be appropriate. I first examine the propriety of

venue, a key issue in the transfer analysis that the colloquy

during the November 24, 2021 motion hearing made clear, but the

Defendants chose not to address in their briefing. [See

Transcript of Motion Hearing at 15-16, Lewis v. Hill et al., No.

1:19-cv-12500-DPW (ECF No. 18) (D. Mass. Nov. 24, 2021)] While

I find that venue in Massachusetts is appropriate as to Mr.

Stoller, Mr. Hill, and ClosedRPLA, I find Massachusetts would

not be an appropriate venue for Dr. Hill and Mr. Moore. This

finding becomes relevant to the decision whether to transfer

this case to the Middle District of Florida because the question

of personal jurisdiction and venue can determine the statutory

mechanism by which I can transfer the case.

Next, I evaluate whether transfer is appropriate for claims

against Dr. Hill, Mr. Moore, and Mr. Stoller under either or

both § 1406(a) and § 1631, which I have identified as avenues

for transfer where there is a want of personal jurisdiction. I

then evaluate whether transfer is appropriate for the remaining

claims — against Mr. Hill and ClosedRPLA — separately or under

some combination of § 1404(a), § 1406(a), and § 1631.

1. Venue Availability

Although Defendants did not bring a Rule 12(b)(3) motion,

and therefore have waived any argument that venue in

Massachusetts is improper, FED. R. CIV. P. 12(h)(1), I

nevertheless address this issue in order to explain thoroughly

the potential premises for transfer of this case, see Day v.

City of Galveston, 480 Fed. App’x. 119, 120-21 (3d Cir. 2012)

(noting authority of a district court to consider propriety of

venue sua sponte) (per curiam) (unpublished); Gomez v. USAA

Federal Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999) (same) (per

curiam).

The federal requirements for venue are laid out in 28

U.S.C. § 1391. After finding that I lack personal jurisdiction

over Dr. Hill, Mr. Moore, and Mr. Stoller, the only hook that

would apparently allow for venue to be proper with respect to

these three defendants is in § 1391(b)(2), which says, in part,

that a civil action may be brought in “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)(2) (emphasis

added). The First Circuit construes this phrase liberally,

looking “not to a single ‘triggering event’ prompting the

action, but to the entire sequence of events underlying the

claim” and taking a “holistic view of the acts underlying the

claim,” rather than focusing on the actions of one party.

Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 12 (1st

Cir. 2009) (quoting Uffner v. La Reunion Francaise, S.A., 244

F.3d 38, 42, 43 n.6 (1st Cir. 2001)). This approach recognizes

that “when the events underlying a claim have taken place in

different places, venue may be proper in any number of

districts.” Uffner, 244 F.3d at 42.

In Uffner, which involved an insurance claim, the sinking

of a boat in Puerto Rico made Puerto Rico a proper venue because

“the event [was] connected to the claim inasmuch as [the]

requested damages include[d] recovery for the loss” of the boat.

Id. at 43. The panel further noted the defendants had not

alleged “that continuing the suit in the district of Puerto Rico

would confer a tactical advantage to [the plaintiff] or

prejudice their own case in any way.” Id. The panel observed

that there was an “absence of a forum-selection clause in the

insurance policy indicating [defendants’] preferred forum for

litigation.” Id.

In ScanSoft, Inc. v. Smart, which concerned the stock

options belonging to the former director of a company, Judge

O’Toole found venue proper in Massachusetts based on

negotiations that occurred between the individual, Smart, who

was in England and California, and the company’s CEO, who was in

Massachusetts. No. Civ.A. 03-10456-GAO, 2003 WL 23142188, at

*1, *3 (D. Mass. Nov. 17, 2003). A key aspect of the dispute

was whether the individual and the CEO “entered into a

consulting agreement which would have allowed for the continued

vesting of Smart’s [stock] option” and given him an option on

additional stock shares. Id. at *3. The negotiations were over

the alleged consulting agreement and Smart’s decision not to

seek re-election to the board of directors. Id.

Uffner and ScanSoft, Inc. are helpful here by standing for

the proposition that we are not looking for the single, best

judicial district to determine venue, Uffner, 244 F.3d at 42,

but rather for a location in which substantial activities giving

rise to Lewis’s claims occurred, ScanSoft, Inc., 2003 WL

23142188 at *3. In applying these lessons to the present case,

it is evident to me that Massachusetts would provide a venue in

this case to only a fraction of the named Defendants, while a

judicial district in Florida could provide a venue for all five

Defendants.

I start with venue as to Dr. Hill, Mr. Moore, and Mr.

Stoller. As discussed in my analysis of personal jurisdiction,

the events in this case as relates to these three defendants

only tangentially involve the Commonwealth. Neither Dr. Hill

nor Mr. Moore had any communication with Mr. Lewis in

Massachusetts. I find that for Dr. Hill and Mr. Moore, there is

nothing to support proper venue in Massachusetts.

For Mr. Stoller, the facts alleged are closer to supporting

Massachusetts as a proper venue and I find them sufficient. On

September 16, 2018, Mr. Lewis apparently received a letter in

Massachusetts that Mr. Stoller drafted and concerned the

proposed asset sale. [Dkt. No. 1-3 ¶ 17] And on July 5, 2019,

Mr. Lewis apparently received an email from Mr. Stoller in

Massachusetts threatening to put proceeds of the sale into risky

investments if Mr. Lewis did not accept Mr. Hill’s settlement

proposal. [Id. ¶ 22] These facts approximate certain facts in

Uffner and ScanSoft, in that the communications were not only

made at key moments in the course of events but also are

directly part of issues in dispute.

The facts alleged most strongly support the propriety of

venue in Massachusetts as to Mr. Hill and ClosedRPLA. Mr. Lewis

was seemingly a Massachusetts resident for the duration of his

time with OpenALPR and his communications with Mr. Hill – who,

as president and chairman of the board, acted as an agent for

OpenALPR and then ClosedRPLA – would have taken place between

Massachusetts and wherever Mr. Hill was located. [See Dkt. No.

1-3 ¶¶ 11, 13, 17] These communications include those Mr. Lewis

alleges were misleading. [Id.] And the facts are similar to

Uffner and ScanSoft in the same way as with respect to Mr.

Stoller, taking the holistic view of the facts that the First

Circuit directed in Astro-Med, Inc., 591 F.3d at 12. In the

final analysis, I find venue is appropriate in Massachusetts as

to the claims against Mr. Hill, Mr. Stoller, and ClosedRPLA but

not appropriate for the claims against Dr. Hill and Mr. Moore.

2. Claims against Dr. Hill, Mr. Moore, and Mr. Stoller

At this point, after finding that I lack personal

jurisdiction over three defendants in this case, I consider

whether transfer is appropriate under either § 1406(a) or § 1631

for claims against Dr. Hill, Mr. Moore, and Mr. Stoller.

Both provisions require me to transfer the case to a court

where the suit “could have been brought,” § 1406(a); § 1631, so

I start with an exploration of whether there is such a court for

the Defendants the Plaintiff passively persists in keeping

conjoined in this litigation. In particular, I ask if the

potential transferee court would have subject matter

jurisdiction and personal jurisdiction over the pending matter

and defendants. See TargetSmart, 366 F. Supp. 3d at 213. The

Middle District of Florida9 satisfies both criteria. There is no

question about subject matter jurisdiction, this matter being a

diversity action properly brought in federal court. See 28

U.S.C. § 1332. As for personal jurisdiction, Mr. Stoller is a

Florida resident, so there is no dispute about whether he may be

haled into court in that state. [Dkt. No. 1-3 ¶ 5] Dr. Hill

and Mr. Moore apparently participated in the board meeting at

which they were made directors of ClosedRPLA, a Florida

corporation, and the claims against them grow out of this event;

9 I consider the Middle District of Florida specifically because

ClosedRPLA is incorporated in Florida and has a principal

business address in Jacksonville. Jacksonville is a statutory

place of holding court in the Middle District of Florida. 28

U.S.C. § 29(c). My conclusions about an appropriate United

States District Court extend to the Northern District and

Southern District of Florida, both of which, of course, are also

Florida-based courts.

thus personal jurisdiction would be satisfied as to them as

well. [Id. ¶¶ 19-20]

The various and disparate claims Mr. Lewis is alleging against

Defendants make it difficult to determine if there is a single

judicial district in which a “substantial part of the events or

omissions giving rise to the claim occurred.” 28 U.S.C.

§ 1391(b)(2). The defendants’ actions that allegedly harmed Mr.

Lewis might have arisen from the different states in which the

individual defendants reside or from the location in which the

March 9, 2019 shareholder meeting and subsequent board meeting

occurred. There remains considerable uncertainty as to the

location of these meetings or, for example, the locations from

which communications were sent to Mr. Lewis.

Given the impossibility of determining whether there is a

single judicial district from which the events or omissions giving

rise to the claim occurred, I rely on the § 1391(b)(3) catchall

provision that allows “any judicial district in which any defendant

is subject to the court’s personal jurisdiction” to provide a venue

if “there is no district in which an action may otherwise be

brought.” 28 U.S.C. § 1391(b)(3). Having previously determined

that the state of Florida has personal jurisdiction over Dr. Hill,

Mr. Moore, and Mr. Stoller, I conclude that § 1391(b)(3) allows

any judicial district in Florida to provide a venue. Given this,

I now consider whether transfer would be in the “interest of

justice” pursuant to § 1406(a) and § 1631.

I start with § 1631. Section 1631 presents a presumption

in favor of transfer that “may be rebutted if the record, taken

as a whole, indicates that ‘the administration of justice would

be better served by dismissal.’” TargetSmart, 366 F. Supp. 3d

at 214 (quoting Britell, 318 F.3d at 73). I see nothing to

suggest that is true here. Mr. Lewis has brought cognizable

claims against Dr. Hill, Mr. Moore, and Mr. Stoller. The

defendants also, by their own admission during the November 24,

2021 motion hearing in this case, chose not to brief the issue

of transfer as an alternative to dismissal, well knowing that

transfer was an available alternative. [See Transcript of

Motion Hearing at 15-16, Lewis v. Hill, No. 1:19-cv-12500-DPW

(ECF No. 18) (D. Mass. Nov. 24, 2021)]

I also find transfer pursuant to § 1406(a) to be

appropriate. Section 1406(a) applies when venue is improper,

which I found to be the case for the claims against Dr. Hill and

Mr. Moore. Unlike § 1631, § 1406(a) does not on its face have a

presumption in favor of transfer because it does not contain the

same “shall” language. However, the Supreme Court has made

clear that with § 1406(a), as with § 1631, the Congressional

purpose was to “remov[e] whatever obstacles may impede an

expeditious and orderly adjudication of cases and controversies

on their merits.” Goldlawr, Inc., 369 U.S. at 466-467. Given

that purpose behind both § 1406(a) and § 1631, I find transfer,

as opposed to dismissal, appropriate under the statutes. I will

transfer the claims against Dr. Hill and Mr. Moore pursuant to

§ 1406(a) and the claims against Mr. Stoller pursuant to § 1631.

3. Claims against Mr. Hill and ClosedRPLA

Since I am inclined to transfer the claims against Dr.

Hill, Mr. Moore, and Mr. Stoller to the Middle District of

Florida, I also consider whether to transfer the claims against

Mr. Hill and ClosedRPLA to that District - although I have

personal jurisdiction over both defendants and have determined

that venue in Massachusetts is appropriate - in order that all

claims may be adjudicated together. I note that Mr. Lewis’s

claims could have been brought at the outset in the Middle

District of Florida against Mr. Hill and ClosedRPLA, because the

company is a Florida corporation with a Jacksonville principal

business address, and Mr. Hill was apparently in attendance at

the March 9, 2019 shareholder and board meetings that are part

of Mr. Lewis’s claim. [Dkt. No. 1-3 ¶¶ 19-20] See generally 28

U.S.C. § 1404(a) (requiring the transferee court be an

appropriate forum in order to transfer). Because I have found

that venue is proper, § 1404(a) presents a mechanism for

transfer of parties over whom I have personal jurisdiction;

otherwise, if venue is improper, the claims against Mr. Hill and

ClosedRPLA could be transferred under § 1406(a).10

My inquiry under § 1404(a) is focused on whether transfer

of the remaining claims would serve “the convenience of parties

and witnesses, in the interest of justice,” § 1404(a), and I

look to the factors outlined above drawn from Gulf Oil, see

TargetSmart, 366 F. Supp. 3d at 218; see also Gulf Oil, 330 U.S.

at 508. The first five factors are a wash. For the first

factor, the Middle District of Florida is less convenient for

Mr. Lewis than Massachusetts, though not insurmountably so.

ClosedRPLA is a Florida corporation, and Florida might be

marginally more convenient for Mr. Hill, an Alabama resident in

charge of a Florida corporation. For factors two through five,

proof and witnesses seem equally accessible in Florida and

Massachusetts. However, the sixth factor speaks strongly in

favor of transfer. I have already concluded for purposes of

this analysis that I would transfer the claims against Dr. Hill,

Mr. Moore, and Mr. Stoller to the Middle District of Florida.

Thus, it would be much more practical, expeditious, and

inexpensive to adjudicate all claims together in that forum.

Though “the plaintiff’s choice of forum should rarely be

disturbed,” id. at 217 (quoting Gulf Oil, 330 U.S. at 508),

10 Section 1631 is not available for transfer of claims against

Mr. Hill and ClosedRPLA because neither subject matter nor

personal jurisdiction is lacking in Massachusetts for these

defendants.

given these practicalities and no reasons against transfer

except for Mr. Lewis’s status as a Massachusetts resident, “the

balance is strongly in favor” of transfer for claims against Mr.

Hill and ClosedRPLA. See id. (quoting Gulf Oil, 330 U.S. at

508).

In the alternative, if venue in Massachusetts for Mr. Hill

and ClosedRPLA is improper, while I would not be able to rely on

§ 1404(a), Ferris, 2020 WL 4431763 at *10 n.20, I could invoke

§ 1406(a). My analysis would be much the same as for my §

1406(a) analysis above regarding the other defendants, except

transfer would be even more suitable as to these remaining

claims – especially against Mr. Hill – because they are at the

heart of Mr. Lewis’s suit.

IV. FORUM-SELECTION CLAUSE

Although I have at this point found bases for transferring

all claims in this suit to the Middle District of Florida, I

will also address a further basis for transfer that arises when

analyzing the merits of Mr. Lewis’s Complaint. This is the

forum-selection clause in Mr. Lewis’s employment contract, the

Sales Rep Agreement, which weighs heavily in favor of transfer.

A. Choice-of-Law

I apply the choice-of-law rules of the forum state,

Massachusetts, to determine which state’s laws to apply to the

merits. Levin v. Dalva Bros., Inc., 459 F.3d 68, 73 (1st Cir.

2006) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.

487, 496 (1941)). However, as a general matter, if I find no

conflict between the law of Massachusetts and another state’s

laws that may apply, I need not decide the choice-of-law issue,

thus avoiding the need to wade into murky legal waters.

B. The Clause at Issue

At the outset of my merits survey, while considering the

Rule 12(b)(6) dimension to the motion to dismiss brought by the

defendants, I took note of a forum-selection clause in the Sales

Rep Agreement. This agreement is closely related to Mr. Lewis’s

claim that the company has failed to pay him his July

commissions, a claim Mr. Lewis makes in service of his larger

claim that Mr. Hill has breached a fiduciary duty he owes Mr.

Lewis. The pertinent clause in the Sales Rep Agreement says:

“This Agreement shall be construed and enforced according to the

laws of the State Florida [sic] and any dispute under this

Agreement must be brought in this venue and no other.”11 [Dkt.

No. 9-6 at 6] The clause appears to counsel strongly in favor

of transfer or dismissal. See Atlantic Marine, 571 U.S. at 63.

11 Although this contract is not attached to the Complaint

itself, it is integral and included in associated submissions

regarding Defendants’ motion to dismiss. Consequently, I may

consider it where, as here, its authenticity is unquestioned.

Rivera, 575 F.3d at 15.

1. Is the forum-selection clause in effect?

Before interpreting or enforcing the forum-selection

clause, I must resolve a dispute about whether the clause is in

effect. See Lambert v. Kysar, 983 F.2d 1110, 1114-16 (1st Cir.

1993) (using state law to resolve whether a forum-selection

clause was in effect before enforcing the clause). Mr. Hill

cites only Florida law on this issue [Dkt. No. 15 at 14-15], and

Mr. Lewis does not cite the law of either Florida or

Massachusetts [Dkt. No. 12 at 11-12] Because I independently

find that the outcome would be the same under Massachusetts or

Florida law, I need not decide which should apply.

Mr. Lewis disputes that the original Sales Rep Agreement is

still in effect, arguing that when he and Mr. Hill orally agreed

to a new compensation arrangement in April 2018 [Dkt. No. 1-3 ¶

13], the oral agreement effectively terminated the original

contract and replaced it, because the Sales Rep Agreement says

it can only be modified in writing. [Dkt. No. 12 at 11; see

Dkt. 9-6 at Art. 16]

Under Florida law, when a contract requires that changes be

made in writing, “any alleged oral modification is generally

disposed of as a matter of law, and the court should enforce the

contract as written.” Perera v. Diolife LLC, 274 So.3d 1119,

1122–23 (Fla. Dist. Ct. App. 2019). However, “[a] written

contract or agreement may be altered or modified by an oral

agreement if the latter has been accepted and acted upon by the

parties in such manner as would work a fraud on either party to

refuse to enforce it.” Id. at 1123 (quoting Professional

Insurance Corp. v. Cahill, 90 So.2d 916, 918 (Fla. 1956)). This

exception requires the proponent to show:

(a) that the parties agreed upon and accepted the oral

modification (i.e., mutual assent); and (b) that both

parties (or at least the party seeking to enforce the

amendment) performed consistent with the terms of the

alleged oral modification (not merely consistent with

their obligations under the original contract); and (c)

that due to plaintiff’s performance under the contract

as amended the defendant received and accepted a benefit

that it otherwise was not entitled to under the original

contract (i.e., independent consideration).

Okeechobee Resorts, L.L.C. v. E Z Cash Pawn, Inc., 145 So.3d

989, 995 (Fla. Dist. Ct. App. 2014) (emphasis omitted).

It seems likely this exception applies, because both Mr.

Lewis and Mr. Hill apparently followed the oral agreement, but

the forum-selection clause would be in effect either way. If

the exception does apply, the new oral agreement would merely

modify the existing contract, not entirely replace it, and so

the forum-selection clause would remain in effect. See Perera,

274 So.3d 1119 at 1123 (existing contract “may be altered or

modified” (quoting Professional Insurance Corp., 90 So.2d at

918)). Alternatively, if the exception fails to apply, then the

default under Florida law is to disregard the purported oral

modification and rely on the original contract, which contains

the forum-selection clause. See id. at 1122-23.

The same outcome is reached under Massachusetts law. As in

Florida, a clause that allows modification “only by a written

instrument does not necessarily bar oral modification of [a]

contract.” Cambridgeport Sav. Bank v. Boersner, 597 N.E.2d

1017, 1022 (Mass. 1992). But whether or not the parties orally

updated the Sales Rep Agreement, the original forum-selection

clause would remain in effect. Even when construing the facts

of the Complaint in the light most favorable to Mr. Lewis, there

is not enough evidence to support a novation. A novation in

Massachusetts requires “the agreement of the parties to an

extinguishment of the prior contract and to a substitution of

the new contract.” Pagounis v. Pendleton, 753 N.E.2d 808, 811

(Mass. App. Ct. 2001).

Although ‘a substituted contract or novation may be

inferred despite a lack of express language to that

effect,’ and may be based solely on the circumstances

and conduct of the parties, a finding of an intent to

discharge the preexisting indebtedness should rest on

a ‘clear and definite indication’ of such intent.

Id. (internal citations omitted) (quoting Lipson v. Adelson, 456

N.E.2d 470, 472 (Mass. App. Ct. 1983)). Mr. Lewis has shown

nothing to this effect in his Complaint.

2. Is the forum-selection clause enforceable?

Having concluded that the forum-selection clause is in

effect, I now address the question of whether the clause is

enforceable. Atlas Glass & Mirror, Inc. v. Tri-North Builders,

Inc., 997 F.3d 367, 374 (1st Cir. 2021) (citing Rafael Rodriguez

Barril, Inc. v. Conbraco Indus., Inc., 619 F.3d 90, 92 (1st Cir.

2010)). I find that the forum-selection provision in the Sales

Rep Agreement is enforceable. Although there is debate about

whether this is a question for state law or federal law, see

Stephen E. Sachs, Five Questions After Atlantic Marine, 66

HASTINGS L.J. 761, 766-68 (2015), I need not decide that question

because forum-selection clauses are enforceable under Florida

law, Producers Supply v. Harz, 6 So.2d 375, 376 (Fla. 1942),

Massachusetts law, Jacobson v. Mailboxes Etc. U.S.A., Inc., 646

N.E.2d 741, 743 (Mass. 1995), and federal law, M/S Bremen v.

Zapata Off-Shore Co., 407 U.S. 1, 10 (1972); see also Rivera,

575 F.3d at 16-17 (concluding it was unnecessary to reach

unsettled issue of whether forum-selection clauses are to be

treated as substantive or procedural for Erie purposes because

federal common law and Puerto Rico law agreed as to

enforceability (quoting Lambert, 983 F.2d at 1116 & n.10)).

Mr. Lewis argues that, at least under Massachusetts law,

the clause is still unenforceable because enforcement must be

“fair and reasonable” and the one before me is not. See

Jacobson, 646 N.E.2d at 743; see also M/S Bremen, 407 U.S. at 10

(holding that forum-selection clauses are “prima facie valid and

should be enforced unless enforcement is shown by the resisting

party to be ‘unreasonable’ under the circumstances.”). [Dkt.

No. 12 at 11-12] He says a clause requiring adjudication in

Florida is unreasonable because the only ties to Florida are

OpenALPR being incorporated there and Mr. Stoller’s residency.

[Id.] This argument is not enough when forum-selection clauses

“enjoy presumptive validity and can be challenged only in

limited circumstances,” reflecting “the core principle in the

law of contracts that courts generally should respect the

intentions of contracting parties.” Boland v. George S. May

Intern. Co., 969 N.E.2d 166, 170 (Mass. App. Ct. 2012). Indeed,

the fact that Mr. Lewis’s former employer is incorporated in

Florida strongly supports the reasonableness of adjudication in

that state.

I also find the forum-selection clause enforceable as a

matter of federal law. As the First Circuit has observed, the

Supreme Court has identified four possible grounds for finding a

forum-selection clause of a contract unenforceable:

(1) the clause was the product of “fraud or

overreaching,”;

(2) “enforcement would be unreasonable and unjust”;

(3) proceedings “in the contractual forum will be so

gravely difficult and inconvenient that [the party

challenging the clause] will for all practical purposes

be deprived of his day in court,”; or

(4) “enforcement would contravene a strong public policy

of the forum in which suit is brought, whether declared

by statute or by judicial decision”

Rafael Rodriguez Barril, Inc. v. Conbraco Indus., Inc., 619 F.3d

at 93 (quoting Bremen, 407 U.S. at 15, 18) (internal citations

omitted). It is not categorically unreasonable to require Mr.

Lewis to litigate in Florida given that he contracted with a

company based in Florida and agreed in the Sales Rep Agreement —

signed at the beginning of his professional relationship with

the company — to bring any dispute to a Florida venue. Further,

Mr. Lewis has not claimed that the Sales Rep Agreement, itself,

was the product of fraud or overreaching nor can he support an

argument that Florida is so gravely difficult and inconvenient a

forum that he would effectively be deprived of his day in court.

Finally, there is no public policy that weighs in favor of

allowing Mr. Lewis to bring a case in Massachusetts. In fact,

policy supports enforcing the bargained-for clause and

transferring the case to a forum both parties agreed upon prior

to the dispute.

After determining that a contractual forum-selection clause

is enforceable, the next question to address is whether the

clause is mandatory or permissive. Atlas Glass 997 F.3d at 374

(citing Rivera, 575 F.3d at 17). The use of the words “shall”

and “must” in the provision both point to interpreting this

clause as mandatory, requiring exercise of jurisdiction and

venue in Florida rather than merely allowing for it. [Dkt. No.

9-6 at Art. 17] Additionally, the clause specifies that “no

other” venue than Florida may construe and enforce the Sales Rep

Agreement, making abundantly clear that this provision is a

mandatory forum-selection clause. [Id.]

Finally, under the Atlas Glass analysis, I must ask whether

the claims at issue in the present case fall within the scope of

the forum-selection clause, Atlas Glass, 997 F.3d at 374. The

clause covers “any dispute under [the Sales Rep Agreement].”

[Dkt. 9-6 at Art. 17] While only one aspect of Mr. Lewis’s

Complaint can be said to pertain to Mr. Lewis’s work and

compensation as a sales representative for OpenALPR, I find that

the Complaint does partially fall within the ambit of the Sales

Rep Agreement and therefore, within the scope of the forum-

selection clause of the contract. See Solomon Law Group, P.A.

v. Dovenmuehle Mortgage, Inc., 332 So.3d 56 (Fla. Dist. Ct. App.

2021) (finding that contractual forum-selection clause applies

despite claim sounding in tort rather than breach of contract).

3. Does the forum-selection clause exclude a federal

forum?

With the forum-selection clause in effect and enforceable,

the question becomes what the clause means. Again, the clause

says: “This Agreement shall be construed and enforced according

to the laws of the State Florida [sic] and any dispute under

this Agreement must be brought in this venue and no other.”

[Dkt. No. 9-6 at Art. 17] As defense counsel put it at the

November 24, 2021 motion hearing, albeit understating the

contested question significantly, this language is “not as clear

as it could be.” [Transcript of Motion Hearing at 17, Lewis v.

Hill et al., No. 1:19-cv-12500-DPW (ECF No. 18) (D. Mass. Nov.

24, 2021)] If the clause refers only to the state courts of

Florida, then I cannot transfer the case directly; instead, I

must dismiss pursuant to the doctrine of forum non conveniens.

See supra n.4. If, however, the clause includes federal courts

in Florida, then direct transfer to those courts is possible.

See Atlantic Marine, 571 U.S. at 60.

Courts addressing similar interpretation issues have boiled

the question down to whether a clause refers to sovereignty or

geography.12 American Soda, LLP v. U.S. Filter Wastewater Group,

Inc., 428 F.3d 921, 925 (10th Cir. 2005). If contract language

specifies “state courts to the exclusion of the federal courts,

it is a term of sovereignty,” whereas if the language

encompasses state courts “and the federal court sitting in” the

state, it is a term of geography. Id. Thus, the First Circuit

found a clause requiring resolution “in accordance with the law,

and in the courts, of the Commonwealth of Massachusetts” to

12 I note that there may be an embedded choice-of-law question

here, similar to the debate I discussed briefly when I addressed

the enforceability of forum-selection clauses under Florida,

Massachusetts, and federal law. See supra at Section IV.B.2.

However, courts generally have not called out any Erie issue;

rather, they have followed federal common law standards.

refer to sovereignty because the construction specified courts

“of” the Commonwealth rather than “in” it. LFC Lessors, Inc. v.

Pac. Sewer Maint. Corp., 739 F.2d 4, 6-7 (1st Cir. 1984); see

also New Jersey v. Merrill Lynch & Co., Inc., 640 F.3d 545, 548-

49 (3d Cir. 2011) (confronting similar construction and

concluding likewise); American Soda, 428 F.3d at 926 (same);

FindWhere Holdings, Inc. v. Sys. Env’t Optimization, LLC, 626

F.3d 752, 755 (4th Cir. 2010) (same); Dixon v. TSE Int’l Inc.,

330 F.3d 396, 398 (5th Cir. 2003) (per curiam) (same).

Where language is more complicated than simply the

difference between “in” and “of,” interpretation becomes more

difficult. For example, courts have reached different

conclusions about forum-selection clauses that use the name of a

state directly in front of the word “courts,” such as saying

“Florida courts.” Compare Regis Assocs. v. Rank Hotels (Mgmt.)

Ltd., 894 F.2d 193, 195 (6th Cir. 1990) (finding “Michigan

Courts” included federal courts) with Smart Comms. Collier Inc.

v. Pope Cty. Sheriff’s Office, 5 F.4th 895, 898 (8th Cir. 2021)

(finding “Arkansas courts” referred only to state courts).

A federal court in Michigan confronted a forum-selection

clause quite similar to the one here. Intelligent Business

Innovations, LLC v. Alliance Computing, Inc., No. 16-cv-11862,

2016 WL 4524722 at *4 (E.D. Mich. Aug. 29, 2016)(Rosen, J.).

That clause said: “This agreement shall be construed and

enforced according to the laws of the state of Florida, Orange

County, Orlando and any dispute under this Agreement must be

brought in this venue and no other.” Id. The only differences

between that clause and the one before me in this matter is the

specification of a county and city after “Florida,” as well as

the word “of” after the word “state.” In Intelligent Business

Innovations, Judge Rosen found the clause too vague to require a

transfer. Id. He reasoned that “the clause does not actually

specify a venue at all,” since “‘[t]he laws of the state of

Florida, Orange County, Orlando’ is not a venue,” and “[t]o the

extent that an Orange County, Florida venue is specified, the

clause does not give any direction as to the appropriate court

or level of court.” Id.

Using this framework and these cases for guidance, I find

the forum-selection clause in the Sales Rep Agreement to be

geographic in nature and to allow for venue in any court in

Florida, including a federal court. Despite the awkward

construction, the clause uses the word “in” to refer to the

“State Florida [sic].”13 The use of the preposition “in” in

13 I take Judge Rosen’s point in construing similar language in

Intelligent Business Innovations that the reference to a venue

could be read to refer to the full phrase “laws of the State

Florida [sic].” However, as he seems to concede in the same

paragraph, the reference can also be read to refer exclusively

to “State Florida [sic]”, which seems the most natural reading,

given “Florida” is a venue while “laws of the State Florida

[sic]” are not.

forum-selection clauses has heavily favored the conclusion that

a clause refers to geography and not sovereignty. See New

Jersey, 640 F.3d at 548-49.

Further, I do not find the phrasing unduly vague. While

the phrasing could more clearly specify its reach beyond state

court to federal court, the reference to Florida is plain, and I

do not see a need to specify the type of court, see, e.g., LFC

Lessors, Inc., 739 F.2d at 6 (not raising any vagueness issue in

addressing clause that required adjudication “in accordance with

the law, and in the courts, of the Commonwealth of

Massachusetts”).

The word “venue” itself is typically understood as a

geographic term. See 28 U.S.C. § 1390(a) (defining venue as

referring to “the geographic specification of the proper court

or courts” for a civil action); CHARLES ALAN WRIGHT ET AL., FEDERAL

PRACTICE AND PROCEDURE § 3801 at 2 (4th ed. 2013) (“‘Venue’ refers to

locality, the place within the relevant judicial system where a

lawsuit should be heard according to the applicable statutes or

rules.”). And the clause itself is labeled in the agreement as

a “Governing Law” clause, focusing on the law to be applied

rather than the court to be applying the law.

C. Propriety of Transfer

Given my conclusions about the forum-selection clause, it

is clear that either a transfer to the Middle District of

Florida or dismissal of issues arising under the Sales Rep

Agreement could be appropriate. See Atlantic Marine, 571 U.S.

at 64 (“[F]orum-selection clauses should control except in

unusual cases.”); id. at 61 (leaving open the question whether

dismissal is an appropriate response to a Rule 12(b)(6) motion

based on a forum-selection clause). I am left then with three

questions. First, should I transfer or dismiss the relevant

issue or issues? Second, how do my conclusions about the forum-

selection clause bear on the various claims in this case?

Third, how does my reasoning with respect to the forum-selection

clause affect my reasoning about transfer elsewhere in this

memorandum?

Starting with the first question, as I have outlined, see

supra Part II.C, the decision to transfer pursuant to § 1404(a)

or dismiss pursuant to Rule 12(b)(6) in these circumstances is

left to my discretion. Nevertheless, I take Atlantic Marine

generally to encourage transfer. In light of Mr. Lewis’s claim

concerning unpaid commissions and the fact that his initial

choice to sue in Massachusetts does not appear to have been an

attempt to gain an unfair advantage, I see no reason to dismiss

and will instead transfer pursuant to the available transfer

statutes.

Second, while I initially focused on the forum-selection

clause in relation to Mr. Lewis’s claim concerning unpaid

commissions, I must consider how this claim and the clause fit

into the context of Mr. Lewis’s collection of claims as a whole.

In his Complaint, Mr. Lewis does not present the claim for

unpaid commissions as its own independent matter; rather, he

presents it as part of his larger claim that Mr. Hill, Dr. Hill,

and Mr. Moore breached the fiduciary duty owed Mr. Lewis.

Arguably, I might transfer only the matter of the unpaid

commissions, because that is the sole issue in Mr. Lewis’s

Complaint that arises directly under the Sales Rep Agreement,

and thus also the only issue clearly subject to the transfer

preference evident in Atlantic Marine.

However, I have broad discretion to transfer a matter or

matters to another court “in the interest of justice.” To the

extent I would be performing a § 1404(a) transfer on issues

adjacent to the claim about unpaid commissions, I consider

whether transfer is appropriate under the general

§ 1404(a) standard, rather than the standard specific to a

forum-selection clause in the Atlantic Marine sense. This broad

§ 1404(a) transfer would be specifically for the claims against

Mr. Hill and ClosedRPLA, because, as previously explained, the

claims against Dr. Hill, Mr. Moore, and Mr. Stoller are not

subject to transfer under § 1404(a).14 See supra Part III.C.2.

I have examined the same factors drawn from Gulf Oil in my

previous § 1404(a) analysis. See supra Part III.C.3. The only

factor I find compelling is the sixth: “any practical problems

associated with trying the case most expeditiously and

inexpensively.” TargetSmart, 366 F. Supp. 3d at 218 (quoting

F.A.I. Electronics Corp. v. Chambers, 944 F. Supp. at 81).

Since I am transferring the unpaid commissions issue to the

Middle District of Florida, it would be substantially more

practical, expeditious, and inexpensive to have the other claims

against Mr. Hill and ClosedRPLA heard there as well.

Lastly, I address how my reasoning here affects my

reasoning elsewhere in this Memorandum. Briefly summarized, my

finding that a valid and enforceable forum-selection clause

makes consideration of a key issue only possible in Florida

enhances the advisability of transfer of the claims against Dr.

Hill, Mr. Moore, and Mr. Stoller under § 1406(a) and § 1631. It

is all the more “in the interest of justice” to transfer these

claims to the Middle District of Florida if there is a

convincing reason why another claim in the case must be decided

in Florida.

14 Nonetheless, as I also address below, the fact of my decision

to transfer these issues bears on my § 1406(a) and § 1631

analyses.

Mr. Lewis’s poorly pleaded Complaint presents difficulties

in determining whether to transfer the case, in its entirety, to

a venue in Florida. This difficulty is compounded by

Defendants’ unhelpful response in which they ask the Court to

dismiss the case outright, rather than engage the question I

raised to the parties sua sponte — whether to transfer the case

to a Florida venue for adjudication on the merits. This failure

of engagement is a transparently strategic attempt to amplify

litigation costs for Mr. Lewis, whose own counseled confusion

regarding the issues is manifest. Although I gave Plaintiff’s

counsel an opportunity to amend and reframe the lawsuit to

address my concerns, Mr. Lewis — through the inaction of his

counsel — continues to rely on the originally filed Complaint in

which all of his substantive allegations are embedded in Counts

I and II and some of his proposed remedies (an accounting and

equitable relief) are contained in separate Counts III and IV.

The core of Mr. Lewis’s Complaint centers around the unpaid

commissions he believes he is owed; this is an alleged breach of

the Sales Rep Agreement. The forum-selection clause and the

choice-of-law clause of the Sales Rep Agreement both weigh in

favor of transferring the unpaid commissions portions of Counts

I and II to a Florida venue.

The other allegations contained in Counts I and II of Mr.

Lewis’s Complaint concern, “among other things, engaging in

self-dealing, failing to disclose all of the material facts

relating to the proposed transaction, [and] depriving Mr. Lewis

of equity to which he was entitled.” [Dkt. No. 1-3 ¶ 27] As I

told the parties at the November 24, 2021 motion hearing, I can

discern potential corporate law-based claims that would best be

addressed through a derivative suit against ClosedRPLA. See

Transcript of Motion Hearing at 9-10, Lewis v. Hill et al., No.

1:19-cv-12500-DPW (ECF No. 18) (D. Mass. Nov. 24, 2021). In

Counts III and IV, Mr. Lewis asks for an accounting of corporate

funds and an injunction against ClosedRPLA from making risky

investments, respectively, equitable remedies that should be

pursued through a derivative action. Yet in the face of my

raising the question of the appropriateness of a shareholder

derivative suit at the November 24, 2021 motion hearing, Mr.

Lewis, by inaction, apparently maintains that his allegations

are best pursued as they are currently conceived, as a breach of

fiduciary duty suit against the Defendants. Although

allegations in Mr. Lewis’s complaint only partially arise out of

the Sales Rep Agreement containing the forum-selection clause, I

determine that it is in the interest of justice, not to mention

most practicable, to transfer the entire case to Florida, rather

than retaining any portion of it for adjudication in

Massachusetts.

V. MERITS ISSUES

Because 1) I lack personal jurisdiction over three of the

defendants sued in this Complaint, 2) I may not adjudicate a key

issue due to a forum-selection clause, and 3) I have found it

proper to transfer the entirety of this case to the Middle

District of Florida, I do not resolve any of Mr. Lewis’s claims

on the merits.

VI. FINAL CONSIDERATIONS

I have found it proper to transfer the entirety of this

case to Middle District of Florida relying on multiple bases and

a combination of § 1404(a), § 1406(a), and § 1631. I aim here

to synthesize my reasoning across this case and address issues

that arise in pulling this reasoning together.

Transfer is proper under § 1406(a) as to the claims against

Dr. Hill and Mr. Moore because I do not have personal

jurisdiction over them and because venue in Massachusetts is not

appropriate for the claims against them.

As to Mr. Stoller, for whom I lack personal jurisdiction

but have found that Massachusetts would provide an appropriate

venue, I transfer the claims against him pursuant to § 1631.

In turn, transfer is proper under § 1406(a) as to claims

against Mr. Hill and ClosedRPLA, because, as is the case with

the other defendants, it is “in the interest of justice” to

transfer. Moreover, transfer is especially appropriate under

§ 1404(a) as to the unpaid commissions claim – a claim that is

part of the larger breach-of-fiduciary-duty claim against Mr.

Hill – due to a forum-selection clause that makes adjudication

of this issue only possible in Florida. Consequently, transfer

of all other issues to Florida serves “the interest of justice.”

While three different transfer provisions are in play in

this case, and there are numerous bases for transfer, it is

important to note that which rules are used in this case makes

no difference for purposes of the law that applies or for the

appellate rights available. For appellate purposes, there is no

difference among § 1404(a), § 1406(a), and § 1631 in the First

Circuit. Subsalve USA Corp. v. Watson Manuf., Inc., 462 F.3d

41, 47 (1st Cir. 2006).

VII. CONCLUSION

For the reasons set forth more fully above, I GRANT the FED.

R. CIV. P. 12(b)(2) dimension to Defendants’ motion to dismiss

[Dkt No. 9] to the extent that I direct the Clerk to TRANSFER

this matter to the United States District Court for the Middle

District of Florida for full adjudication in that forum and I

correspondingly DENY the FED. R. CIV. P. 12(b)(2) dimension to

Defendants’ motion to dismiss as to Dr. Margie Hill, David

Moore, and Jeffrey Stoller. Having determined to transfer this

case because I lack jurisdiction over all parties, I do not

resolve Defendants’ collective FED. R. CIV. P. 12(b)(6) dimension

to their motion to dismiss, which is reserved for disposition in

the transferee court.15

15 As is evident from certain citations in the text of this

Memorandum, when presented with reluctant and recalcitrant

parties in the recent past, I have transferred two reported

cases using the protocol deployed in this case. The subsequent

history of those cases provides insight into the practical

impact of those decisions.

In TargetSmart, a 2019 case decided prior to the onset of the

Covid pandemic, I transferred to the United States District

Court for the District of Columbia a matter in which the

District of Massachusetts did not have personal jurisdiction

over all parties and, in doing so, I declined to address the

merits as raised by the motions to dismiss. 366 F. Supp. 3d at

219. The District of Columbia District Court then addressed

certain of those claims, dismissing counts against one of the

defendants. TargetSmart Holdings, LLC v. GHP Advisors, LLC, No.

19-cv-312-RMC, 2019 WL 4540543 (D.D.C. Sept. 19, 2019).

Following additional motion to dismiss practice and confronting

a discovery deadline of August 12, 2020, the parties on July 24,

2020 filed a joint stipulation of dismissal with prejudice. No.

19-cv-RMC, Docket Entry No. 117 (D.D.C. July 24, 2020).

In Ferris, I transferred to the United States District Court

for the Southern District of New York, a matter in which, even

after afforded the opportunity to file a Second Amended

Complaint, Plaintiff was unable to establish personal

jurisdiction as to one of the defendants. In doing so, I sought

to assure that “the transferee judge [would be provided] with a

clean slate on which to set out an appropriate scheduling order

in that Court.” 2020 WL 4431763, at *1. I noted as well the

demonstrated capacity of the courts to address “the challenges

of the [then -] current pandemic is an increased willingness and

competence in conducting virtual hearings” so that “the

difficulties attendant upon inconvenient [] travel outside of

Massachusetts can be minimized.” Id. at *10 n.21. Ferris,

which involved a minor child, was reported settled as to the

child and the defendant over which there was no jurisdiction in

Massachusetts, and as to all parties thereafter. No. 20-cv-

06021-NRB, Docket Entry No. 93 (S.D.N.Y. Jan. 19, 2021), Docket

Entry No. 94 (S.D.N.Y. June 9, 2021), Docket Entry No. 95

(S.D.N.Y. July 9, 2021). Settlement was memorialized in a July

12, 2021 Order providing $2,500 to the child from the defendant

over which there was no jurisdiction in Massachusetts and,

/s/ Douglas P. Woodlock_______

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

$40,000 to the child from other defendants. Plaintiff’s counsel

was simultaneously awarded $14,166.66 in attorney’s fees and

$6,320.30 in costs. No. 20-cv-06021-NRB, Docket Entry No. 96

(S.D.N.Y. July 12, 2021).