Hubbard v. Eitan Group North America

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

- WESTERN DIVISION

No. 5:22-CV-382-D

SCOTT HUBBARD, )

)

Plaintiff, -)

)

v. ) ORDER

)

EITAN GROUP NORTH AMERICA: )

d/b/a EITAN MEDICAL, and )

ROGER MASSENGALE, )

individually and in his official capacity, ) .

)

Defendants. )

On August 2, 2022, Scott Hubbard (“Hubbard” or “plaintiff”) filed this action in Wake

County Superior Court [D.E. 1-1]. On September 22, 2022, Eitan Group North America (“Eitan”)

and Robert Massengale (““Massengale”) (collectively “defendants”) timely removed the action to this

court [D.E. 1]. On September 29, 2022, defendants moved to dismiss for lack of personal

jurisdiction and improper venue and, alternatively, to transfer the action to the United States District

Court for the Central District of California [D.E. 6] and filed a declaration [D.E. 7] and

memorandum in support [D.E. 8]. On November 28, 2022, Hubbard responded in opposition [D.E.

13]. On December 15, 2022, defendants replied [D.E. 15]. As explained below, the court grants

defendants’ motion to transfer, transfers this action to the United States District Court for the Central

District of California, and denies as moot defendant’s motion to dismiss for lack of personal

jurisdiction and improper venue.

I. .

This employment action concerns defendants’ alleged non-payment of $1,800,000 in

commission wages to Hubbard. Eitan employed Hubbard from July 9, 2019, through June 16, 2021.

See [D.E. 1-1] 10. Hubbard lived and worked in Maryland from when Eitan hired him until he

moved to North Carolina. The parties dispute when Hubbard moved to North Carolina. The court

assumes without deciding that Hubbard moved to North Carolina for personal reasons on May 2,

2020. See [D.E. 1] ] 6; [D.E. 1-1] [D.E. 8] 2; [D.E. 7] 6; [D.E. 7-1]; but see [D.E. 7-1]; [D.E.

13] 6. Eitan knew from the outset of Hubbard’s employment that Hubbard would work remotely out

of his home. See [D.E. 7] J 6; [D.E. 7-1]; [D.E. 13-1] 723. Eitan is incorporated in Delaware and

maintains its principal place of business in Aliso Viejo, California. See [D.E. 1-1] 15; [D.E. 7] ]

3; [D.E. 8] 2. Eitan does not maintain any officers or facilities in North Carolina and does not

employ anyone in North Carolina. See [D.E. 7 43; [D.E. 8] 2. Eitan hired Massengale to start

Eitan’s North America operations. Massengale is Eitan’s Chief Commercial Officer and resides and

is domiciled in Mission Viejo, California. See [D.E. 7] J 4; [D.E. 8] 2.

Hubbard alleges wage claims against both defendants under the North Carolina Wage and

Hour Act and the Maryland Wage Paymient and Collection Law. Hubbard also alleges breach of

contract and unjust enrichment claims against Eitan. Essentially, Hubbard alleges that on March 2,

2020, Eitan provided him with its 2020 Sales Compensation Plan (“Plan”) which was effective from

January 1, 2020, through December 31, 2020. See [D.E. 1-1] 714. In March 2020, Hubbard met

his sales quota. See id. at J 18. On March 24, 2020, Hubbard secured two orders which, pursuant

_ tothe Plan, entitled him to $2,400,000 in commissions because Hubbard already met his sales quota.

See id. at {J 21, 28. On April 1, 2020, Eitan provided Hubbard an amendment to the 2020 Plan

reducing the commission on Hubbard’s March 24, 2020 sales from eight percent to two percent,

thereby reducing his commissions from $2,400,000 to $600,000. See id. at ]29. Hubbard lived in

Maryland when the sales occurred and when Eitan changed the Plan. See [D.E. 13] 6. In August

2020, Eitan paid Hubbard (who was then living in North Carolina) $600,000 in commissions. See

[D.E. 1-1} 931; [D.E. 13] 6. Hubbard alleges that defendants owe him an additional $1,800,000 and

that defendants breached the Plan when defendants changed the Plan and failed and refused to pay

the additional $1,800,000 in commissions. See [D.E. 1-1] J 38-67.

Il.

Defendants move to dismiss for lack of personal jurisdiction. See [D.E. 6]; Fed. R. Civ. P.

12(b)(2). Due process requires a defendant to have “certain minimum contacts with the forum such

that the maintenance of the suit does not offend traditional notions of fair play and substantial

justice.” Helicopteros Nacionales de Colom.., S.A. v. Hall, 466 U.S. 408, 414 (1984) (alteration and

quotations omitted). The minimum contacts analysis focuses on whether a defendant “purposefully

directed his activities at residents of the forum” and whether the causes of action arise out of or relate

to those activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985); see Ford Motor Co.

v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024-25 (2021). The minimum contacts analysis

ensures that a defendant is not haled into a jurisdiction’s court “solely as a result of random,

fortuitous, or attenuated contacts.” Burger King, 471 U.S. at 475 (quotations omitted); see Ford

Motor Co., 141 S. Ct. at 1025. The minimum contacts analysis focuses “on the relationship among

the defendant, the forum, and the litigation.” Walden v. Fiore, 571 U.S. 277, 284 (2014) (quotation

omitted); see Ford Motor Co., 141 S. Ct. at 1024-25; Bristol-Myers Squibb Co. v. Superior Ct., 137

S. Ct. 1773, 1781 (2017).

The extent of the contacts needed for personal jurisdiction turns on whether the claims

asserted against a defendant relate to or arise out of the defendant’s contacts with the forum state.

;

See Ford Motor Co., 141 S. Ct. at 1025; Bristol-Myers Squibb, 137 S. Ct. at 1780; ALS Scan, Inc.

v. Dig. Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002); Atlantic Corp. of Wilmington, Inc.

v. TBG Tech. Co., 565 F. Supp. 3d 748, 760 (E.D.N.C. 2021). If the defendant’s contacts with the

state are the basis for the suit, specific jurisdiction may exist. ALS Scan, 293 F.3d at 712. In

determining specific jurisdiction, the court considers: “(1) the extent to which the defendant

purposefully availed itself of the privilege of conducting activities in the State; (2) whether the

plaintiffs’ claims arise out of those activities directed at the State; and (3) whether the exercise of

personal jurisdiction would be constitutionally reasonable.” Id. (alteration and quotations omitted).

Thus, the “constitutional touchstone” of specific personal jurisdiction “remains whether the

defendant purposefully established minimum contacts in the forum State.” Burger King Corp., 471

U.S. at 474 (quotation omitted); see Bristol-Myers Squibb, 137 S. Ct. at 1781-82; Walden, 571 U.S.

at 284-91.) oo

First, in analyzing the extent to which a defendant purposefully availed itself of the privilege

of conducting activities within a State, a court examines “various non-exclusive factors” including:

(1) whether the defendant maintained offices or agents in the State; (2) whether the

defendant maintained property in the State; (3) whether the defendant reached into

the State to solicit or initiate business; (4) whether the defendant deliberately engaged

in significant or long-term business activities in the State; (5) whether a choice of law

clause selects the law of the State; (6) whether the defendant made in-person contact

with a resident of the State regarding the business relationship; (7) whether the

1 If a defendant’s contacts with the forum state are not the basis of the causes of action,

general jurisdiction may “arise from the defendant’s general, more persistent, but unrelated contacts _

with the State.” ALS Scan, 293 F.3d at712. To establish general jurisdiction, a defendant’s contacts

with the forum state must be both continuous and systematic. The general jurisdiction standard is

more demanding than the specific jurisdiction standard. See id.; BNSF Ry. Co. v. Tyrrell, 137 S.

Ct. 1549, 1558-59 (2017); Daimler AG v. Bauman, 571 U.S. 117, 131—33 (2014); Goodyear Dunlop

Tires Operations, S.A. v. Brown, 564 U.S. 915, 926-29 (2011); Helicopteros, 466 U.S. at 414-16;

World-Wide Volkswagon Corp. v. Woodson, 444 U.S. 286, 291-99 (1980). Here, the parties agree

that general jurisdiction does not exist. See [D.E. 13] 4.

relevant contracts required performance of duties in the State; and (8) the nature,

quality, and extent of the parties’ communications about the business being

transacted.

UMG Recordings, Inc. v. Kurbanov, 963 F.3d 344, 352 (4th Cir. 2020) (quotation omitted); see

Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 278 (4th Cir. 2009); Atlantic Corp. of

Wilmington, Inc., 565 F. Supp. 3d at 760.

_ Second, the plaintiff's claims must have arisen out of or relate to those activities that the

defendant directed at the State. See Ford Motor Co., 141 S. Ct. at 1026-32; UMG Recordings, 963

354-55; Atlantic Corp. of Wilmington, Inc., 565 F. Supp. 3d at 760.

Third, the court must analyze whether the exercise of personal jurisdiction is constitutionally

- reasonable. See Ford Motor Co., 141 S. Ct. at 1030; Bristol-Myers Squibb, 137 S. Ct. at 1780-81;

Burger King, 461 US. at 476-78; World-Wide Volkswagon, 444 U.S. at 292; Consulting Eng’rs,

561 F.3d at 279; Atlantic Corp. of Wilmington, Inc., 565 F. Supp. 3d at 760-61. This analysis

“permits a court to consider additional factors to ensure the appropriateness of the forum once it has

determined that a defendant has purposefully availed itself of the privilege of doing business there.”

Consulting Eng’rs, 561 F.3d at 279. Such factors include:

(1) the burden on the defendant of litigating in the forum; (2) the interest of the forum

state in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient

and effective relief; (4) the shared interest of the states in obtaining efficient

resolution of disputes; and (5) the interests of the states in furthering substantive _

social polices.

Id, .

Defendants argue that they have not purposefully availed themselves of the privilege of

conducting business in North Carolina and, therefore, do not have the minimum contacts with North

Carolina necessary to justify this court exercising personal jurisdiction over them. See [D.E. 8] 3-6;

[D.E. 15] 1-7. Hubbard responds that this court has specific personal jurisdiction over defendants

because defendants directed activities to North Carolina, Hubbard’s alleged injuries arose in North

Carolina, and the exercise of personal jurisdiction would be constitutionally reasonable. See [D.E.

13] 4-10.

Hubbard has failed to establish that defendants had the minimum contacts with North

Carolina necessary to justify this court exercising specific personal jurisdiction over the defendants.

As mentioned, the court considers a non-exclusive list of eight factors to decide whether defendants

purposefully availed themselves of the privilege of doing business in North Carolina. See UMG

Recordings, 963 F.3d at 352; Consulting Eng’rs, 561 F.3d at 278; Atlantic Corp. of Wilmington,

Inc., 565 F. Supp. 3d at 761-65. The court focuses on “the quality and nature of the defendant’s

connections, not merely the number of contacts between the defendant and the forum state.” UMG

Recordings, 963 F.3d at 352 (emphasis omitted). The inquiry is “defendant-focused,” and “the

plaintiff cannot be the only link between the defendant and the forum.” Walden, 571 U.S. at284-85;

see Fidrych v. Marriott Int’], Inc., 952 F.3d 124, 138-44 (4th Cir. 2020); Perdue Foods, LLC v. BRF

S.A., 814 F.3d 185, 189-92 (4th Cir. 2016); Atlantic Corp. of Wilmington, Inc., 565 F. Supp. 3d at

761-65.

First, defendants do not maintain offices or have employees in North Carolina. See [D.E. 1-

1] 15; [D_E. 7] 9 3, 4; [D.E. 8] 2. Second, defendants do not maintain offices or property in North

Carolina. See [D.E. 1-1] 75; [D.E. 7] Tf 3, 4; [D.E. 8] 2.

Third, the court considers whether the defendants “reached into” North Carolina “to solicit

or initiate business.” UMG Recordings, 963 F.3d at 352 (quotation omitted); see Consulting Eng’rs,

561 F.3d at 278; Atlantic Corp. of Wilmington, Inc., 565 F. Supp. 3d at 762. Defendants did not

reach into North Carolina to solicit or initiate any business. Rather, Hubbard initiated the only

contacts with North Carolina. Although Hubbard argues that Eitan recruited him to sell in North

. 6

Carolina and knew that he moved to North Carolina during his employment, there is no evidence

besides Hubbard’s declaration that Eitan intended to target North Carolina. [D.E. 13-1] ff 22, 23.

Moreover, Hubbard lived in Maryland, not North Carolina, when Eitan first employed him. Hubbard

moved to North Carolina for his own convenience after Hubbard began his employment with Eitan.

“See (DE. 1] 76; [D.E. 1-1] 3; [D.E. 8] 2; IDE. 7] 1 6; but see [D.E. 13] 6; [D.E. 1-1] 4] 33, 35.

Furthermore, paying commissions in North Carolina for work done and pay allegedly earned in

Maryland does not suffice to establish specific jurisdiction in North Carolina. See [D.E. 13] 6; cf.

Perry v. Nat. Assoc. of Home Builders of U.S., No. 20-0454, 2020 WL 5759766, at *5 (D. Md. Sept.

28, 2020) (unpublished) (collecting cases); Fields v. Sickle Cell Disease Assoc. of Am., Inc., 376

F. Supp. 3d 647, 650-53 (E.D.N.C. 2018), aff'd, 770 F. App’x 77 (4th Cir. 2019) (per curiam)

(unpublished).

Fourth, defendants have not “deliberately engaged in significant or long-term business

activities in” North Carolina. UMG Recordings, 963 F.3d at352 (quotation omitted); seeConsulting

Eng’rs, 561 F.3d at 278; Atlantic Corp. of Wilmington, Inc., 565 F. Supp. 3d at 762. Defendants

have never intentionally had significant or long-term business activities in North Carolina. See [D.E.

7-1, 8, 15]. And besides Hubbard’s allegations in this case, Hubbard has not identified any business

activities of defendants in North Carolina, much less significant or long-term business activities.

Fifth, the only choice of law provision in this case is Eitan’s Plan, which provides that “it

shall be governed by and construed in accordance with the laws of California.” [D.E. 7] 7. Sixth,

defendants did not make “in-person contact with a resident” of North Carolina “regarding the

business relationship.” UMG Recordings, 963 F.3d at 352 (quotation omitted); see Consulting

Eng’rs, 561 F.3d at 278; Atlantic Corp. of Wilmington, Inc., 565 F. Supp. 3d at 762-63. Although

the parties had significant online communications once Hubbard moved to North Carolina, they had

no in-person contact with each other in North Carolina. See [D.E. 7-1] Jf 3, 4; [D.E. 13] 3-5, 9.

Seventh, the parties’ arrangements did not require Eitan to perform its contractual duties in

North Carolina. See UMG Recordings, 963 F.3d at 352; Consulting Eng’rs, 561 F.3d at 278. Eitan

hired Hubbard when he lived in Maryland, and he moved to North Carolina to work remotely for his

own convenience on May 2, 2020. Cf. Fields, 376 F. Supp. 3d at 653 (holding that a company

accommodating an employee’s desire to move and supplying materials to the employee necessary

to work from home in the new location did not purposefully avail the company to the state where the

employee moved).

Finally, the court considers “the nature, quality, and extent of the parties’ communications

about the business being transacted.” UMG Recordings, 963 F.3d at 352 (quotation omitted); see

Consulting Eng’rs, 561 F.3d at 278. According to Hubbard, Eitan communicated with him

frequently while he was in North Carolina. See [D.E. 13] 3, 5, 9, 11. However, “mere

communications sent from outside the forum do[ ] not establish presence in that jurisdiction.” Szulik

v. TAG V.L, Inc., 783 F. Supp. 2d 792, 796 (EDN. 2011); see Stover v. O’Connell Assocs., Inc.,

84 F.3d 132, 137 (4th Cir. 1996); Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1198-1200 (4th Cir.

1993); Chung v. NANA Dev. Corp., 783 F.2d 1124, 1126-30 (4th Cir. 1986); Erlanger Mills, Inc.

v. Cohoes Fibre Mills, Inc., 239 F.2d 502, 504—08 (4th Cir. 1956); Atlantic Corp. of Wilmington,

Inc., 565 F. Supp. 3d at 763-65. Stated differently, “although many contacts between the two parties

occurred via email, telephone, or instant messaging, such communications do not provide sufficient

contacts to justify exercising personal jurisdiction” over the defendants in North Carolina in this

case. Cricket Grp., Ltd. v. Highmark, Inc., 198 F. Supp. 3d 540, 544 (D. Md. 2016); see

Pharmabiodevice Consulting, LLC v. Evans, No. 14-00732, 2014 WL 3741692, at *4 (D. Md. July

28, 2014) (unpublished); Springs v. Ally Fin., Inc., No. 3:10-CV-311, 2010 WL 4818669, at *9-10

(W.D.N.C. Oct. 14, 2010) (unpublished), report and recommendation adopted, 2010 WL 4823242

(W.D.N.C. Nov. 19, 2010) (unpublished); Johansson Corp. v. Bowness Constr. Co., 304 F. Supp.

2d 701, 706 (D. Md. 2004). Accordingly, the parties’ communications alone do not justify this court

exercising personal jurisdiction over the defendants, especially when all seven other factors weigh

against the exercise of personal jurisdiction. See Atlantic Corp. of Wilmington, Inc., 565 F. Supp.

3d at 765-66.

In opposition, Hubbard argues that Stuart v. Churn, LLC, No. 1:19-CV-369, 2019 WL

2342354, at *5 (M.D.N.C. June 3, 2019) (unpublished), and Winner v. Tryko Partners, LLC, 333 F.

Supp. 3d 250, 256, 264 (W.D.N.Y. 2018), support his argument that this court has specific personal

jurisdiction over defendants. See [D.E. 13] 7-9. However, in Stuart, the plaintiff lived and worked

in North Carolina from the time his employers hired him until the time he filed suit, his employers

provided him an allowance to support office expenses in North Carolina, and his employers knew

that he was working with specific contacts in North Carolina to expand the employers’ business in

North Carolina. These facts established that the plaintiffs claims for breach of an employment

agreement, fraud, unjust enrichment, breach of fiduciary duty, and unfair and deceptive trade

practices arose “out of [the employers’] North Carolina contact with Mr. Stuart related to his

employment.” Stuart, 2019 WL 2342354, at *5. Assuming without deciding that Hubbard moved

to North Carolina on May 2, 2020, Hubbard lived in Maryland when Eitan hired him, when he

allegedly earned the disputed commissions, and when defendants changed the Plan. The only

possible event related to his claims that occurred after Hubbard moved to North Carolina was

Hubbard receiving the $600,000 payment from Eitan. Hubbard’s mere presence in North Carolina

when he collected the $600,000 (but not the disputed $1,800,000) does not suffice to establish

personal jurisdiction.

As for Winner, the case is distinguishable. Unlike in this case, Winner’s employer employed

him to work from home in a particular state, Winner had his employer’s approval to live and work

in the state, and Winner’s employer directed him to attend multiple business meetings in the state.

See Winner, 333 F. Supp. 3d at 256, 264.

Defendants do not have the requisite minimum contacts with North Carolina to warrant this

court exercising personal jurisdiction. Although Hubbard’s claims arise from and relate to

defendants’ conduct, the claims do not arise from or relate to conduct that the defendants directed

at North Carolina. See Ford Motor Co., 141 S. Ct. at 1026-32; UMG Recordings, 963 F.3d at

354-55; Fidrych, 952 F.3d at 138-44; Perdue Foods, 814 F.3d at 188-92; Consulting Eng’rs, 561

F.3d at 278-82; Atlantic Corp. of Wilmington, Inc., 565 F. Supp. 3d at 759-66; see also Perry, 2020

WL 5759766, at *5; Fields, 376 F. Supp. 3d at 650-53. Thus, this court lacks personal jurisdiction

over the defendants.

- I

Alternatively, defendants move to dismiss under Federal Rule of Civil Procedure 12(b)(3)

for improper venue. Venue is proper in

(1) a judicial district in which any defendant resides, if all defendants are residents

of the State in which the district is located;

(2) judicial district in which a substantial part of the events or omissions giving rise

to the claim occurred, . . .; or

(3) if there is no district in which an action may otherwise be brought as provided in

this section, any judicial district in which any defendant is subject to the court’s

personal jurisdiction with respect to such action.

10

28 U.S.C. § 1391(b). A natural person resides where he is domiciled. Id. § 1391(c)(1). A corporate

entity defendant resides in any judicial district where it is subject to the court’s personal jurisdiction

with respect to the case. Id. § 1391(c)(2).

Under 28 U.S.C. § 1391(b)(2), courts must focus on “the entire sequence of events

underlying the claim” and “should not focus only on those matters that are in dispute or that directly

led to the filing of the action.” Mitrano v. Hawes, 377 F.3d 402, 405 (4th Cir. 2004); see Uffner v.

La Reunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir. 2001). Although an event need not be in

dispute to be considered substantial, it must “give rise to the claim.” Mitrano, 377 F.3d at 405.

Defendants reside in the California. Therefore, venue is proper in California under section

1391(b)(1). See [D.E. 1-1] 15; [D.E. 7] 193, 4; [D.E. 8] 2. As for section 1391(b)(2), a substantial

part of the events or omissions giving rise to the claims occurred in the Central District of California.

See [D.E. 1-1]. None of the events giving rise to the claims occurred in North Carolina, besides the

payment of Hubbard’s $600,000 commission.

In opposition to this conclusion, Hubbard argues that substantial events giving rise to his

claims occurred in North Carolina because he lived in North Carolina when defendants allegedly did

not properly pay his wages. See [D.E. 13] 10-13. Hubbard’s residence in North Carolina, however,

does not suffice to conclude that a substantial part of the events or omissions giving rise to his claims

occurred in North Carolina. Compare [D.E. 8] 2 and [D.E. 7] § 6 and [D.E.7-1] with [D.E. 13] 6 and

[D.E. 1-1] 33, 35. The venue statute protects “the defendant against the risk that a plaintiff will

select an unfair or inconvenient place of trial.” Leroy v. Great W. United Corp., 443 U.S. 173, 184

(1979). In seeking to litigate this dispute in the Eastern District of North Carolina, Hubbard seeks

_ to force defendants to litigate in an inconvenient place.

11

Because venue is proper in California under section 1391(b)(1) and (2), venue cannot be

proper under subsection (3). Therefore, venue is not proper in the Eastern District of North Carolina.

VV.

A court need not have personal jurisdiction over a defendant to transfer a case pursuant to

28 U.S.C. §§ 1404(a) or 1406(a). See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962); O’Neal

v. Hicks Brokerage Co., 537 F.2d 1266, 1268 (4th Cir. 1976). Questions regarding transfer under

section 1404(a) are committed to the sound discretion of the district court. See, e.g, Stewart Org.,

Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); Brock v. Entre Comput. Ctrs., Inc., 933 F.2d 1253, 1257

(4th Cir. 1991). Under 28 U.S.C. § 1404(a), a district court may transfer acase for the convenience

of the parties and witnesses, in the interest of justice, to any other district where the action might

have been brought, or to any district to which all parties consent. Additionally, a district court may

dismiss an action, or if it is in the interest of justice, transfer an action if venue is improper in the

transferor court. See 28 U.S.C. § 1406(a). Even if venue is proper in the transferor court, transfer

may be made under section 1406(a) for any reason which constitutes an impediment to a decision

on the merits. See, e.g., Porter v. Groat, 840 F.2d 255, 257-58 (4th Cir. 1988); Jenkins v.

Albuquerque Lonestar Freightliner, LLC, 464 F. Supp. 2d 491, 494 (E.D.N.C. 2006).

This court lacks personal jurisdiction over defendants, and venue is not proper in the Eastern

District of North Carolina, Venue, however, is proper in the Central District of California, and the

court must decide whether to transfer this case to the Central District of California “in the interests

of justice.” 28 U.S.C. § 1406(a); see Szulik, 858 F. Supp. 2d at 548; Dacar v. Saybolt, LP, No.

7:10-CV-12, 2011 WL 223877, at *2 (E.D.N.C. Jan. 24, 201 1) (unpublished); Blue Mako, Inc. v.

Minidis, 472 F. Supp. 2d 690, 703 (M.D.N.C. 2007). A district court must “consider four factors

when deciding whether to transfer venue: (1) the weight accorded to plaintiffs choice of venue; (2)

12

witness convenience and access; (3) convenience of the parties; and (4) the interest of justice.” Trs.

of the Plumbers & Pipefitters Nat’] Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4th

Cir. 2015). In balancing these factors, a district courts has substantial discretion to decide whether

to transfer venue. See Stewart Org., Inc., 487 U.S. at 29; Brock, 933 F.2d at 1257; Jenkins, 464 F.

Supp. 2d at 493. The court considers each factor in turn.

As for plaintiff's choice of forum, Hubbard filed this action in the Eastern District of North

Carolina. See [D.E. 1]. Thus, this first factor does not weigh in favor of transfer.

As for the convenience of the witnesses and the ease of access to evidence, all documents

regarding Hubbard’s sales and compensation are maintained in California, and defendants’ witnesses

are located in either California or Israel. See [D.E. 8] 9; [D.E. 7] J 7. Moreover, this court lacks

personal jurisdiction over Eitan and Massengale. Thus, this second factor weighs in favor of

transfer.

As for the convenience of the parties, Hubbard resides and is domiciled in the Eastern

District of North Carolina but resided in Maryland at the start of his employment with Eitan and

when the events concerning Hubbard’s claims initially arose. See [D.E. 1] 6; [D.E. 1-1]93;(D.E.

8] 2; [D.E. 7] J 6; [D.E. 7-1]; [D.E. 13] 6. Defendants reside and are domiciled in the Central

District of California. See [D.E. 1-1] 7 5; [D.E. 7] 3, 4; [D.E. 8] 2. Eitan is incorporated in

Delaware and maintains its principal place of business in Aliso Viejo, California. See [D.E. □□□□

[DE. 7] 73; [D.E. 8] 2. Eitan does not maintain any officers or facilities in North Carolina and

does not employ anyone in North Carolina. See [D.E. 7] 3; [D.E. 8] 2. Massengale resides and

is domiciled in Mission Viejo, California. See [D.E. 7] § 4; [D.E. 8] 2. Thus, this third factor

weighs in favor of transfer.

As for the interests of justice, this factor implicates many considerations. One such

consideration is the particular interest a forum may have in deciding a case, and the local interest in

having localized controversies settled at home. The alleged wrongful acts occurred primarily in the

Central District of California. Moreover, the Plan upon which Hubbard relies in this action provides

that “it shall be governed by and construed in accordance with the laws of California.” [D.E. 7] ]

7. The Central District of California has a particular in deciding cases involving California

law, particularly when those cases are brought against a California corporation and one of its

employees. Thus, this fourth factor strongly weighs in favor of transfer. Having reviewed the record

and the interests of justice, the court transfers this action to the Central District of California.

V.

In sum, the court GRANTS defendants’ motion to transfer [D.E. 6] and TRANSFERS this

action to the United States District Court for the Central District of California. The court DENIES

as moot defendants’ motion to dismiss for lack of personal jurisdiction and improper venue.

SO ORDERED. This _!4- day of April, 2023.

<. aN

J S C. DEVER II

United States District Judge

14