TRIANGLE GRADING & PAVING, INC. v. RHINO SERVICES, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

TRIANGLE GRADING & PAVING, )

INC., )

)

Plaintiff, )

)

v. ) 1:19CV486

)

RHINO SERVICES, LLC, and LONNIE )

STEVEN BLACKSTONE, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before the court is the Motion to Dismiss under Rule

12(b)(2) for lack of personal jurisdiction or, alternatively, to

transfer this action pursuant to 28 U.S.C. § 1404(a) to the U.S.

District Court for the Northern District of Georgia, (Doc. 8),

filed by Defendants Rhino Services, LLC (“Rhino”) and Lonnie

Steven Blackstone (“Blackstone”). Rhino, through its sole member

and manager, Blackstone, approached Plaintiff Triangle Grading &

Paving, Inc.’s (“Triangle”) agent in Georgia to enter into an

ongoing, collaborative relationship. Triangle was the general

contractor for a road construction project in Georgia, and Rhino

was a Georgia-based subcontractor for Triangle. For the reasons

stated herein, the court finds it has personal jurisdiction and

that Defendants have not met their burden in showing that

transfer is appropriate.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from the parties’ affidavits,

complaint, and documents attached to pleadings and motions. See

Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016). Factual

disputes are noted and addressed where they exist. Neither party

has requested discovery or an evidentiary hearing for purposes

of the personal jurisdiction or venue issue. As will be

discussed more fully below, in deciding whether Plaintiff has

made a prima facie case of personal jurisdiction as to both

Defendants, “the court must take all disputed facts and

reasonable inferences in favor of the plaintiff.” Carefirst of

Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396

(4th Cir. 2003) (emphasis added). The facts are found below

pursuant to that standard.

A. The Parties

Triangle is a North Carolina corporation with its principal

place of business in North Carolina. (Complaint (“Compl.”) (Doc.

5) ¶ 2.) Triangle specializes in road construction projects.

(See id. ¶ 7.) Triangle manages road construction projects

throughout the southeast, to include in Georgia. (Pl.’s Resp. to

Defs.’ Mot. to Dismiss (“Pl.’s Resp.”) (Doc. 13), Attach. 2,

Affidavit of Ronald Gray Kirkpatrick, Jr. (“Kirkpatrick Aff.”)

(Doc. 13-2) ¶ 6.)

Rhino is a limited liability company organized under the

laws of Georgia; its sole member is Blackstone, who is also the

manager of the company. (Defs.’ Br. in Supp. of Mot. to Dismiss

(“Defs.’ Br.”) (Doc. 10), Ex. A, Affidavit of Lonnie Steven

Blackstone (“Blackstone Aff.”) (Doc. 10-1) ¶ 2.) Blackstone

himself is a resident of Georgia. (Id. ¶ 4.) Rhino specializes

in the application of high-friction surface treatment (“HFST”)1

in road projects. (Compl. (Doc. 5) ¶¶ 7, 11.) Rhino is not

registered to do business in North Carolina, nor does it have a

registered agent in North Carolina. (Blackstone Aff. (Doc. 10-1)

¶ 3.)

B. Rhino’s Subcontract with Triangle

In 2016, Triangle had been selected as the general

contractor for a Georgia Department of Transportation (“GDOT”)

Project (the “Project”) that involved applying HFST, lane

markings, and protective barriers on portions of Georgia state

highways. (Compl. (Doc. 5) ¶¶ 7, 8.) Industry standards at the

time had recently changed, and the Federal Highway

1 “[HFST] involves the application of aggregate to road

pavement using a binding agent to restore and/or maintain

pavement friction at existing or potentially high crash areas.”

(Compl. (Doc. 5) ¶ 7 n.1.)

Administration began recommending machine application of HFST

instead of hand application. (Pl.’s Resp. (Doc. 13) Attach. 1,

Affidavit of Richard J. Brockman, Jr. (“Brockman Aff.”) (Doc.

13-1) ¶¶ 6, 9.) Triangle did not have the HFST truck needed for

machine application. (Id. ¶ 9)

Blackstone says “Triangle . . . initiated contact with

Rhino, through me, in Georgia regarding the possibility of Rhino

being Triangle’s subcontractor . . . . I signed the Subcontract

on behalf of Rhino in Georgia. Mr. Brockman signed . . . on

behalf of Triangle . . . in Georgia.” (Blackstone Aff. (Doc.

10-1) ¶¶ 6, 8.)

Brockman’s affidavit, filed on behalf of Triangle, portrays

events differently. Brockman states that Blackstone approached

him about working for Rhino, and during that discussion the

Project was mentioned. (Brockman Aff. (Doc. 13-1) ¶¶ 8-9.)

Brockman notes that Blackstone was discussing other projects in

the Atlanta area that Rhino was considering bidding, but after

asking several questions about the Project, Blackstone asked

Brockman if Triangle would hire Rhino to do the HFST work. (Id.

¶¶ 8, 10.) Brockman contends he had not “asked for or solicited

Rhino’s work on the Project” when Blackstone asked if Plaintiff

would hire Rhino as a subcontractor on the Project. (Id. ¶ 10.)

Brockman states that he “asked Mr. Blackstone to provide

Triangle with a quote for the Project. Mr. Blackstone then sent

me a quote for the Project, which I reviewed with

Mr. Kirkpatrick when I was at Triangle’s headquarters in

Burlington, North Carolina.” (Id. ¶¶ 11–12.)

Triangle accepted the bid that Blackstone provided for

Rhino. (Id. ¶ 12.) The subcontract between Rhino and Triangle

was signed in July 2016. (Kirkpatrick Aff. (Doc. 13-2) ¶ 9.) It

is undisputed that Blackstone signed the contract in Georgia.

(Brockman Aff. (Doc. 13-1) ¶¶ 14–15; Blackstone Aff. (Doc. 10-1)

¶ 8.) There is a dispute about who signed for Triangle and

where.

Brockman claims he forwarded the contract to Triangle’s

headquarters in Burlington, North Carolina, for signature, and

that he did not sign it. (Brockman Aff. (Doc. 13-1) ¶¶ 14–15.)

Kirkpatrick, Triangle’s president, claims he signed on behalf of

Triangle in North Carolina, and that Blackstone had already

signed for Rhino in Georgia. (Kirkpatrick Aff. (Doc. 13-2) ¶ 9.)

Rebecca Pugh, Triangle’s Subcontracts & Accounts Payable

Manager, also averred that she witnessed Kirkpatrick sign the

subcontract at Triangle’s headquarters in Burlington, North

Carolina. (Pl.’s Resp. (Doc. 13) Attach. 4, Affidavit of Rebecca

K. Pugh (“Pugh Aff.”) (Doc. 13-4) ¶¶ 3, 6.) An executed copy has

an illegible signature above “Gray Kirkpatrick”; the witness on

the executed copy is “Becky Pugh.” (Compl. (Doc. 5), Ex. A,

Executed Subcontract (“Subcontract”) (Doc. 5-1) at 13.)

Blackstone avers that after he signed the subcontract in

Georgia, Brockman signed on behalf of Triangle and then took the

fully executed contract with him to Burlington, North Carolina.

(Blackstone Aff. (Doc. 10-1) ¶ 8.)2

Because “the court must take all disputed facts and

reasonable inferences in favor of the plaintiff,” Carefirst, 334

F.3d at 396, this court finds, for purposes of this motion, the

following facts. Blackstone initially approached Rhino about

acting as a subcontractor on the Project by inquiring of

Brockman whether Triangle would hire Rhino as a subcontractor.

Rhino later pursued the subcontract with Triangle by submitting

a quote to Triangle. While the quote was physically submitted to

Brockman in Georgia, it was intended as an offer to contract

(subcontract) with Triangle, a North Carolina corporation. Based

upon the quote, Triangle prepared a subcontract in North

Carolina for Rhino to submit. Blackstone, on behalf of Rhino,

signed the subcontract in Georgia and then sent that

2 During a motion hearing, defense counsel stated that

Blackstone was referring to another document that was part of

the business relationship, not the subcontract. This court did

not hold an evidentiary hearing to resolve this dispute of fact.

However, Defendants did not respond to Plaintiff’s affidavits

and, at argument, Defendants did not appear to rely upon

Blackstone’s recollection or dispute this fact.

subcontract, whether through Brockman or otherwise, to Triangle

in North Carolina. The contract was then executed by Kirkpatrick

in North Carolina. From these facts, this court concludes that

Rhino initiated the contractual relationship with Triangle in

North Carolina and, in so doing, directed its activities to

North Carolina in preparation to participate in road

construction in Georgia by and through a subcontract with a

North Carolina corporation. The court further finds, for the

purposes of this motion, that the subcontract was finalized and

formed at Triangle’s headquarters in North Carolina.3

C. The Project Begins and Stops

The subcontract was fully executed on or about July 18,

2016; Triangle and Rhino’s relationship ended when Rhino walked

off the Project in September 2017. (Kirkpatrick Aff. (Doc. 13-2)

¶ 9; Compl. (Doc. 5) ¶ 25.)

3 The parties have not briefed the question of whether

Georgia law governs the subcontract to the point where this

court can make a determination. The subcontract contains a

provision that states it will be governed by the law governing

the main contract. (Subcontract (Doc. 5-1) at 12, ¶ 29.)

However, the portions of the GDOT contract provided do not

contain choice-of-law provisions. (See generally Defs.’ Reply

(Doc. 14), Ex. A, GDOT Contract (“GDOT Contract”) (Doc. 14-1).)

The parties could have resolved this issue by providing the

relevant portions of the GDOT contract and/or other evidence.

Since they did not, the court cannot assume Georgia law governs

the subcontract, though that seems likely.

Blackstone visited Triangle’s headquarters at some point

before the Project began to coordinate with Triangle personnel.

(Compl. (Doc. 5) ¶ 9.) During the Project, Triangle encouraged

Blackstone to join a professional organization dedicated to

promoting safety and HFST. (Brockman Aff. (Doc. 13-1) ¶ 25.)

Blackstone attended national meetings to promote the machine

application of HFST. (Id.)

Work began on the Project in Georgia. Rhino was supervised

by several Triangle personnel, three of whom were based out of

Burlington. (Kirkpatrick Aff. (Doc. 13-2) ¶ 10.) The parties

dispute how Rhino communicated with Triangle. Triangle claims

that Blackstone regularly communicated with multiple Triangle

employees in North Carolina. (Brockman Aff. (Doc. 13-1)

¶¶ 26-27.) Triangle provided an email chain between Blackstone

and Joe Coleman, a Triangle project manager who was based in

North Carolina. (Kirkpatrick Aff. (Doc. 13-2) ¶ 10; id. at

4-13.) Rebecca Pugh also received at least one email from a

Rhino employee. (Pugh Aff. (Doc. 13-4), Ex. A at 6.) Rhino

regularly sent invoices for payment to personnel at Triangle’s

North Carolina headquarters. (Id. ¶ 8; Ex. A at 4–7.) More than

half-a-million dollars in payments were issued from Triangle’s

headquarters to Defendants. (Id. ¶ 9.)

For Defendants’ part, Blackstone claims he only

communicated with Brockman, Triangle’s manager in Georgia.

(Blackstone Aff. (Doc. 10-1) ¶ 9.) For purposes of this motion,

see Carefirst, 334 F.3d at 396, the court finds that Defendants

communicated throughout the Project with multiple Triangle

employees.

Eventually there were problems with the Project. Triangle

alleges that Rhino’s HFST truck broke down, Rhino improperly

applied HFST, improperly cleaned up excess residue, and failed

to properly test its work. (Compl. (Doc. 5) ¶¶ 18–22.) As a

result, the Project fell behind by seventy-four days, and

Triangle was assessed liquidated damages by GDOT.

(Id. ¶¶ 23-24.) Rhino also used some of Triangle’s equipment on

the Project, some of which it damaged. (Brockman Aff. (Doc.

13-1) ¶ 28.)

As problems mounted with the Project, GDOT stopped making

payments to Triangle, pending the correction of certain

deficiencies. (Pl.’s Resp. (Doc. 13), Attach. 3, Affidavit of

Adrian D. Bailey (“Bailey Aff.”) (Doc. 13-3) ¶¶ 10–12.) In turn,

Triangle stopped making payments to Rhino. (Id.)

Blackstone came to Triangle’s headquarters in Burlington,

North Carolina, in the fall of 2017 to discuss these issues;

this was his second visit to Triangle’s headquarters. (Bailey

Aff. (Doc. 13-3) ¶ 8.)4 Blackstone was demanding payment. (Id.

¶ 12.) Triangle management told Blackstone they would not pay

Rhino until Rhino complied with all GDOT requirements. (Id.

¶¶ 11–12.) Blackstone left Burlington, and the next day, on or

about September 8, 2017, Rhino walked off the job. (Id. ¶ 13;

Compl. (Doc. 5) ¶ 25.) Triangle had to cover the work by hiring

other subcontractors. (Compl. (Doc. 5) ¶¶ 26, 28.) As a result

of Rhino’s failure to complete the work, Triangle was damaged in

an amount exceeding $25,000. (Id.) Triangle’s bonding capacity

was affected by these damages, which in turn affected some of

its projects in North Carolina. (Brockman Aff. (Doc. 13-1)

¶ 30.)

D. Georgia Lawsuit

In addition to issues with the Project described above,

Rhino and Triangle were both named as defendants in a negligence

lawsuit after two people were injured on a Project road. The

lawsuit, filed in a Georgia court in November 2018, alleges that

a couple, the Nelsons, suffered injuries because Rhino

“misapplied the epoxy during the [HFST process], used too much

aggregate during the [HFST process], and failed to clean up

4 Blackstone claims he traveled to Burlington on

November 17, 2017. (Blackstone Aff. (Doc. 10-1) ¶ 10.) Triangle

claims Blackstone came in September of 2017. (See Compl. (Doc.

5) ¶ 25; Bailey Aff. (Doc. 13-3) ¶¶ 8-13.)

excess aggregate.” (Compl. (Doc. 5) ¶¶ 29–30.) The Georgia

lawsuit alleges that Rhino, Triangle, Brockman, and another

Triangle employee, were all negligent, and Triangle is strictly

liable. (Id. ¶ 29.) As part of the present proceeding, Triangle

seeks a declaratory judgment directing Rhino to indemnify and

defend Triangle in the Georgia lawsuit pursuant to the

subcontract. (Id. ¶¶ 33–36, 51.) As of April 2019, the Georgia

lawsuit was still pending. (Id. ¶¶ 1, 36.)

E. Procedural History

Triangle originally filed a state action for breach of

contract, enforcement of a personal guaranty given by

Blackstone, and declaratory judgment. (Compl. (Doc. 5) at 1,

6-9.) Defendants removed the Complaint to this court, invoking

the court’s diversity jurisdiction. (Petition for Removal (Doc.

1).) Defendants then filed a motion to dismiss for lack of

personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) or

alternatively for transfer under forum non conveniens.5 (Doc. 8.)

Defendants filed a supporting brief, (Doc. 10), Plaintiff

responded, (Doc. 13), and Defendants replied, (Doc. 14). The

5 “The forum non conveniens doctrine is a common law

doctrine now largely limited in federal court to cases where the

alternative forum for litigating the dispute is outside of the

United States.” Compania Naviera Joanna SA v. Koninklijke

Boskalis Westminster NV, 569 F.3d 189, 200 (4th Cir. 2009).

Though titled as a motion for transfer under that doctrine,

Defendants are requesting a transfer under 28 U.S.C. § 1404(a).

court held a hearing on Defendants’ motion, (Minute Entry

03/04/2020), after which the parties were given the opportunity

to file supplemental briefing addressing the Fourth Circuit’s

recent decision in Fidrych v. Marriott International, Inc., 952

F.3d 124 (4th Cir. 2020). Both parties filed supplemental

briefs. (Docs. 18, 19.) Plaintiffs also filed a suggestion of

subsequently decided authority, a North Carolina Supreme Court

decision. (Doc. 20.) Defendants responded to that suggestion.

(Doc. 22.)6 Finally, Plaintiffs filed notice of the fact that

Defendant Rhino filed suit against Triangle in a separate action

in the United States District Court for the Northern District of

Georgia. (Doc. 21.) Defendants responded to that notice. (Doc.

23.)

The issue is now ripe for ruling. For the reasons stated

herein, the court finds that it does have personal jurisdiction

and that Defendants have not met their burden in establishing

that transfer is appropriate.

II. LEGAL STANDARD OF REVIEW

“Under Rule 12(b)(2), a defendant must affirmatively raise

a personal jurisdiction challenge, but the plaintiff bears the

burden of demonstrating personal jurisdiction at every stage

6 The court’s analysis is not altered by the subsequently

suggested authority.

following such a challenge.” Grayson, 816 F.3d at 267; Combs v.

Bakker, 886 F.2d 673, 676 (4th Cir. 1989). Such a challenge may

be resolved by the court as a preliminary matter. Grayson, 816

F.3d. at 267. While this burden varies depending on the

procedural posture of the case, “when the court addresses the

personal jurisdiction question by reviewing only the parties’

motion papers, affidavits attached to the motion, supporting

legal memoranda, and the allegations in the complaint, a

plaintiff need only make a prima facie showing of personal

jurisdiction to survive the jurisdictional challenge.” Id. at

268 (citations omitted); Mitrano v. Hawes, 377 F.3d 402, 406

(4th Cir. 2004); Human Res. Certification Inst. v. Human Res.

Prof’l Ass’n, 453 F. App’x 349, 350 (4th Cir. 2011). “In

deciding whether the plaintiff has made the requisite showing,

the court must take all disputed facts and reasonable inferences

in favor of the plaintiff.” Carefirst, 334 F.3d at 396; Boykin

Anchor Co. v. AT&T Corp., No. 5:10-CV-591-FL, 2011 WL 1456388

(E.D.N.C. Apr. 14, 2011); see also Universal Leather, LLC v.

Koro AR, S.A., 773 F.3d 553, 560 (4th Cir. 2014) (refusing, at

the prima facie stage, to discredit plaintiff’s affidavits

because they were contradicted by defendant). “A plaintiff makes

a prima facie showing in this context when it ‘present[s]

evidence sufficient to defeat a motion for judgment as a matter

of law.’” Debbie’s Staffing Servs., Inc. v. Highpoint Risk

Servs., LLC, No. 1:17CV657, 2018 WL 1918603, at *2 (M.D.N.C.

Apr. 20, 2018) (citations omitted).

“‘Once a defendant presents evidence indicating that the

requisite minimum contacts do not exist, the plaintiff must come

forward with affidavits or other evidence in support of its

position.’” Pathfinder Software, LLC v. Core Cashless, LLC, 127

F. Supp. 3d 531, 538 (M.D.N.C. 2015) (quoting Vision Motor Cars,

Inc. v. Valor Motor Co., 981 F. Supp. 2d 464, 468 (M.D.N.C.

2013)); see also Wolf v. Richmond Cty. Hosp. Auth., 745 F.2d

904, 908 (4th Cir. 1984).

III. PERSONAL JURISDICTION ANALYSIS

A federal district court may only assert personal

jurisdiction over a nonresident defendant when two conditions

are satisfied: “First, the exercise of jurisdiction must be

authorized by the long-arm statute of the forum state, and,

second, the exercise of personal jurisdiction must also comport

with Fourteenth Amendment due process requirements.” Christian

Sci. Bd. of Dirs. of First Church of Christ, Scientist v. Nolan,

259 F.3d 209, 215 (4th Cir. 2001). North Carolina’s long-arm

statute, N.C. Gen. Stat. § 1-75.4(1)d, is construed “to extend

jurisdiction over nonresident defendants to the full extent

permitted by the Due Process Clause.” Id. (citing Century Data

Sys., Inc. v. McDonald, 109 N.C. App. 425, 427, 428 S.E.2d 190,

191 (1993)). “Thus, the dual jurisdictional requirements

collapse into a single inquiry as to whether the defendant has

such ‘minimal contacts’ with the forum state that ‘maintenance

of the suit does not offend traditional notions of fair play and

substantial justice.’” Id. (quoting Int’l Shoe Co. v. State of

Wash., Office of Unemp’t Comp. & Placement, 326 U.S. 310, 316

(1945)).

Minimum contacts sufficient to establish personal

jurisdiction over a nonresident defendant may exist by virtue of

either specific jurisdiction or general jurisdiction. See

Carefirst, 334 F.3d at 397.7 Specific jurisdiction considers

instances where the nonresident defendant’s “contacts with the

forum also provide the basis for the suit” whereas general

jurisdiction considers instances where the defendant’s contacts

with the forum are so “continuous and systematic” as to provide

support for jurisdiction over any cause of action. Id.

When determining if a defendant may be subject to the

court’s specific personal jurisdiction, “[f]airness is the

touchstone of the jurisdictional inquiry,” Tire Eng’g &

Distribution, LLC v. Shandong Linglong Rubber Co., 682 F.3d 292,

7 Plaintiff does not contend Defendants are subject to

general jurisdiction in North Carolina. (Pl.’s Resp. (Doc 13) at

10 n.3.)

301 (4th Cir. 2012), and a three-part test is employed to

determine whether exercise of jurisdiction comports with due

process. This test requires analyzing: “(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.” ALS Scan, Inc. v. Dig. Serv.

Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002) (internal

quotation marks omitted). “For a [court] to exercise

jurisdiction consistent with due process, the defendant’s suit-

related conduct must create a substantial connection with the

forum State.” Walden v. Fiore, 571 U.S. 277, 284 (2014);

Universal Leather, 773 F.3d at 559 (“[Specific jurisdiction] may

be established if the defendant’s qualifying contacts with the

forum state also constitute the basis for the suit.”).

This court finds that it does have specific jurisdiction

over the nonresident Defendants in this case. The court begins

by finding that Defendants availed themselves of the protection

of North Carolina’s laws in initiating a relationship with a

North Carolina corporation.

A. Purposeful Availment

“[I]n determining whether a foreign defendant has

purposefully availed itself of the privilege of conducting

business in a forum state, we ask whether ‘the defendant’s

conduct and connection with the forum [s]tate are such that he

should reasonably anticipate being haled into court there.’”

Universal Leather, 773 F.3d at 559 (quoting Fed. Ins. Co. v.

Lake Shore Inc., 886 F.2d 654, 658 (4th Cir. 1989)). “The

analysis must focus on the nature, quality, and quantity of the

contacts, as well as their relation to the forum state.”

Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 279 n.5

(4th Cir. 2009).

The personal jurisdiction analysis is “flexible.” Universal

Leather, 773 F.3d at 560. To help determine the nature and

quality of the contacts, the Fourth Circuit has identified

several factors for jurisdictional analysis in the business

context.

Those factors include, but are not limited to, an

evaluation of: (1) “whether the defendant maintains

offices or agents in the forum state;” (2) “whether

the defendant owns property in the forum state;” (3)

“whether the defendant reached into the forum state to

solicit or initiate business;” (4) “whether the

defendant deliberately engaged in significant or long-

term business activities in the forum state;” (5)

“whether the parties contractually agreed that the law

of the forum state would govern disputes;” (6)

“whether the defendant made in-person contact with the

resident of the forum in the forum state regarding the

business relationship;” (7) “the nature, quality and

extent of the parties’ communications about the

business being transacted;” and (8) “whether the

performance of contractual duties was to occur within

the forum.”

Id. at 560 (quoting Consulting Eng’rs, 561 F.3d at 278). The

Fourth Circuit has identified some factors that “significantly

impact[]” a jurisdictional analysis, “including the fact that a

defendant ‘initiated contact’ with the plaintiff in the forum

state and ‘repeatedly reached’ into the forum state to transact

business during in-person visits there.” Id. at 562 (quoting CFA

Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d

285, 295 & n.17 (4th Cir. 2009)). The third factor, whether the

defendant reached into the forum state to initiate or solicit

business, is given “special weight” by the Fourth Circuit. CFA

Inst., 551 F.3d at 295 n.17.

The Fourth Circuit has generally “concluded that a foreign

defendant has purposefully availed itself of the privilege of

conducting business in the forum state when the defendant

‘substantially collaborated with a forum resident and that joint

enterprise constituted an integral element of the dispute.’”

Universal Leather, 773 F.3d at 560 (quoting Tire Eng’g, 682 F.3d

at 302). However, often “purposeful availment was lacking in

cases in which the locus of the parties’ interaction was

overwhelmingly abroad.” Tire Eng’g, 682 F.3d at 302. But even if

the locus is abroad, when the collaboration with a forum

resident is ongoing and significant, then personal jurisdiction

may still exist. See Burger King Corp. v. Rudzewicz, 471 U.S.

462, 465–66, 471 (1985); CFA Inst., 551 F.3d at 288; cf.

Consulting Eng’rs, 561 F.3d at 276 (noting personal jurisdiction

did not exist in case where business relationship never

progressed past negotiation phase); Ellicott Mach. Corp. v. John

Holland Party Ltd., 995 F.2d 474, 478 (4th Cir. 1993) (finding

no personal jurisdiction for short-term, one-time contract

between Maryland and Australian companies).

Taking the facts in a light most favorable to Plaintiff,

the basic outlines of this case are that an out-of-forum-

business, Rhino, initiated business negotiations with a North

Carolina corporation, Triangle, and sought to enter into an

ongoing relationship of more than a year. Rhino had been

considering other business opportunities before it approached

Triangle to work on the Project. Rhino conducted work outside

the forum but was supervised by and corresponded extensively

with Triangle in North Carolina.

Defendants’ lack of business in North Carolina makes cases

such as Universal Leather distinguishable, because, in Universal

Leather, the foreign defendant targeted the forum itself with

its tangible product. Universal Leather, 773 F.3d at 561. This

case is more like Burger King, CFA Institute, and Ellicott

Machine in that the foreign defendant collaborated with a forum

corporation, but the object of the collaboration, here a road

construction project, was outside the forum. The court finds

that a summary of those cases and others is the appropriate

starting point to the analysis.

1. Legal Background

Similar to the present case, Burger King involved an out-

of-state franchisee who entered a long-term relationship with a

forum corporation but did not do business in the forum. In

Burger King, the Court found a Michigan franchisee had

purposefully availed himself of the protections of Florida law

when he entered into a long-term contract with Florida-based

Burger King. Burger King, 471 U.S. at 465–66, 471. The Court

noted that “it is essential in each case that there be some act

by which the defendant purposefully avails itself of the

privilege of conducting activities within the forum State, thus

invoking the benefits and protections of its laws.” Id. at 475

(quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). If a

defendant creates “‘continuing obligations’ between himself and

residents of the forum, he manifestly has availed himself of the

privilege of conducting business there.” Id. at 475-76 (quoting

Travelers Health Ass’n v. Virginia ex rel. State Corp. Comm’n,

339 U.S. 643, 647 (1950)). Because a defendant’s “activities are

shielded by ‘the benefits and protections’ of the forum’s laws

it is presumptively not unreasonable to require him to submit to

the burdens of litigation in that forum as well.” Id. at 476. So

long as a “commercial actor’s efforts are ‘purposefully

directed’ toward residents of another State,” the absence of any

physical contacts between the forum and defendant does not

necessarily defeat personal jurisdiction. Id.

Applying those principles, the Burger King Court found

“substantial record evidence” supporting the conclusion that the

Michigan franchisee was subject to personal jurisdiction in

Florida. Id. at 478. The defendant never visited Florida, nor

did he have any offices there. The defendant’s business was

located in Michigan. Still, the Court held, the defendant had

“deliberately ‘reach[ed] out beyond’ Michigan and negotiated

with a Florida corporation for the purchase of a long-term

franchise and the manifold benefits that would derive from

affiliation with a nationwide organization.” Id. at 479–80

(quoting Travelers Health, 339 U.S. at 647). By doing so, the

defendant had

entered into a carefully structured 20-year

relationship that envisioned continuing and wide-

reaching contacts with Burger King in Florida. In

light of [the defendant’s] voluntary acceptance of the

long-term and exacting regulation of his business from

Burger King’s Miami headquarters, the “quality and

nature” of his relationship to the company in Florida

can in no sense be viewed as “random,” “fortuitous,”

or “attenuated.”

Id. at 480 (quoting Hanson, 357 U.S. at 253). The defendant had

a “substantial and continuing relationship” with a Florida

corporation. Id. at 487. Further, contract documents included a

choice-of-law provision selecting Florida law, a fact the Court

found the Court of Appeals had given “insufficient weight” in

its own analysis. Id. at 481, 487. These facts, when combined,

meant it was not “fundamentally unfair” to subject the Michigan

defendant to personal jurisdiction in Florida. Id. at 487.

The Fourth Circuit, in CFA Institute, held that a court in

Virginia had personal jurisdiction over a defendant from India.

There, an Indian corporation traveled to Virginia to seek

approval from a Virginia corporation to use its trademarks and

other intellectual property in India. CFA Inst., 551 F.3d at

288. Though negotiations began in Virginia, they were concluded

in India, where the license agreement was reached. Id. Later,

Indian representatives returned at least one other time to

Virginia as “guests of honour” of the Virginia corporation. Id.

at 289. The relationship lasted thirteen years and included

correspondence back and forth between the parties. Id. One piece

of correspondence included a request from India requesting

expanded permission to use the Virginia corporation’s

intellectual property. Id. The court held that “the quality and

nature of [the defendant’s] contacts with Virginia . . . support

the court’s exercise of personal jurisdiction over [the

defendant] in Virginia.” Id. at 294. These contacts included the

defendant initiating the relationship and then “repeatedly

reach[ing] into” the forum, actions manifesting the defendant’s

invocation of Virginia law and its protections. Id. at 295.

In contrast to those cases, the Fourth Circuit held in

Ellicott Machine that a Maryland court did not have personal

jurisdiction over an Australian defendant, despite the fact that

it was the defendant who traveled to Maryland to solicit

business. In Ellicott Machine, a Maryland company that designed

and sold barges, was approached by an Australian company8 to

complete work on a barge in Australia. Ellicott Mach., 995 F.2d

at 478. Despite the fact that it was the foreign defendant who

first reached into the forum, the court noted that the contract

would not be performed in Maryland, but Australia, and that the

parties had no previous longstanding business relationship. Id.

8 As noted in a later district court decision, courts

“should exercise some additional caution when forcing foreign

corporations to defend themselves in a foreign legal system in

the United States.” Frontline Test Equip., Inc. v. Greenleaf

Software, Inc., 10 F. Supp. 2d 583, 589 (W.D. Va. 1998); Asahi

Metal Indus. Co. v. Super. Ct. of Cal., 480 U.S. 102, 113

(1987)); Ellicott, 995 F.2d 474). This is not the case here,

where the parties are all North Carolina or Georgia residents.

The contract itself was for a discrete task that would last only

four months. Id. Distinguishing the facts from Burger King, the

Fourth Circuit noted that this case involved a private

corporation from a foreign country who performed a “single,

short-term contract” in a different country. Id. at 478–79.

Finally, the contract in Ellicott Machine did not include a

forum selection or choice-of-law clause. Id. at 478.

Despite “insubstantial” contacts with Maryland, the Fourth

Circuit did not rest its analysis on a minimum contacts

analysis. Id. at 479. Instead, the court noted that “a more

concerned focus” on another prong of the jurisdiction analysis

was needed to determine if, “in spite of minimum contacts, the

court’s exercise of personal jurisdiction would comport with

traditional notions of ‘fair play and substantial justice.’” Id.

The court ultimately concluded that “Maryland’s exercise of

personal jurisdiction over [the defendant] would not” comport

with traditional notions of fair play and substantial justice.

Id. In support of its conclusion, the court cited its due

process analysis as well as “fundamental substantive social

policies affecting international trade, business, and

sovereignty concerns.” Id. at 480.

District courts in the Fourth Circuit, applying these

cases, also support the conclusion that an out-of-forum

defendant who initiates an ongoing, collaborative relationship

with a forum plaintiff has purposefully availed themselves of

the protection of the forum’s laws. In Cortex Surveillance

Automation, Inc. v. Security Integrators & Consultants, Inc.,

No. 1:05CV562, 2006 WL 994951 (M.D.N.C. Apr. 12, 2006), a court

in this district found that it had personal jurisdiction over a

Texas corporation who approached a North Carolina corporation

about a licensing agreement. Id. at *1, *5.

The Texas corporation approached the Durham-based software

company and entered into a licensing agreement that lasted

roughly two years. Id. at *1, *3. At the end of the first two-

year term, the agreement would be automatically renewed for a

year unless notice of termination was given within thirty days.

Id. Numerous software orders were placed by the Texas

corporation, and payments totaling more than $100,000 were made

to the North Carolina corporation. The North Carolina

corporation also provided eighty man-hours of technical support

from its North Carolina office. Id. at *3. The court noted that

“[t]his type of agreement, which forecasts an ongoing

relationship between the parties comprised of numerous

transactions, strongly suggests personal jurisdiction.” Id. The

contract also contained a North Carolina choice-of-law

provision. Id. at *4. “Finally, the visits by [the defendant’s]

President to the Cortex facility in North Carolina distinguishes

this situation from those concerning a simple contract for

goods.” Id. The court concluded that “[i]n the aggregate

[defendant’s] initiation of the relationship with Cortex, the

visits by [the defendant’s] president to North Carolina, the

ongoing nature of the License Agreement, and the North Carolina

choice of law provision support personal jurisdiction over [the

defendant] in North Carolina.” Id. at *5.

By contrast, in Johansson Corp. v. Bowness Construction

Co., 304 F. Supp. 2d 701 (D. Md. 2004), a Maryland court found

it did not have personal jurisdiction over a North Carolina

contractor. Id. at 702. Johansson was a Maryland corporation

that manufactured and installed custom cabinets; Bowness was a

general contractor who built custom homes in North Carolina. Id.

A North Carolina couple contracted with Bowness to build them a

new home in North Carolina. Id. at 703. That couple, the

Granthams, had seen Johansson’s products and directed Bowness to

contract with them to provide the cabinets for their home. Id.

Discussing Burger King, the court noted that a contract

does not confer personal jurisdiction per se, but “[i]nstead,

the court must perform an individualized and pragmatic inquiry

into the surrounding facts such as prior negotiations, the terms

of the contract, the parties’ actual course of dealing, and

contemplated future consequences, in order to determine ‘whether

the defendant purposefully established minimum contacts within

the forum.’” Id. at 705 (quoting Burger King, 471 U.S. at 479.)

The court found that purposeful availment by Bowness was lacking

for a number of reasons. Crucially, Bowness did not approach

Johansson, but was directed to contract with them by another

party. Id. at 706. Additionally, no agent or employee of Bowness

ever physically traveled to Maryland to discuss the business

relationship, and final negotiations were conducted in North

Carolina, not Maryland. Id. at 705–06. Bowness had never

attempted to solicit any business in the state of Maryland. Id.

at 706. “Finally, the ‘contemplated future consequences’

stemming from the subcontract suggest that Bowness did not

contemplate any future links to Maryland. Under the subcontract,

the parties agreed to a one-time business relationship for a

relatively short duration of approximately six months.” Id. at

707 (citing Ellicott Mach., 995 F.2d at 478). The court

concluded by pointing out that:

In the instant case, a North Carolina corporation that

has never reached out beyond the state of North

Carolina reluctantly was drawn into a one-time, short-

term relationship with a Maryland corporation, on a

North Carolina project being constructed for a North

Carolina client, in a subcontract largely negotiated

in North Carolina which provided that North Carolina

law would govern any resulting legal disputes.

Id. at 708–09.

(a) Analysis of Purposeful Availment as to Rhino

and Blackstone

Turning back to the present case, the court finds the

facts, as they are at this stage, are controlled by Burger King,

Ellicott Machine, and CFA Institute. In this case, the court

“must perform an individualized and pragmatic inquiry into the

surrounding facts such as prior negotiations, the terms of the

contract, the parties’ actual course of dealing, and

contemplated future consequences, in order to determine ‘whether

the defendant purposefully established minimum contacts within

the forum.’” Johansson Corp., 304 F. Supp. 2d at 705 (quoting

Burger King, 471 U.S. at 479.)

Defendants approached Triangle about the Project,9 a

relationship that lasted more than a year and would have lasted

longer. Rhino had been considering other projects in the Atlanta

area before it availed itself of the chance to work with

Triangle. Defendants invested in new machinery to support the

Project and perhaps other projects with Triangle. Rhino’s

contacts with North Carolina “can in no sense be viewed as

‘random,’ ‘fortuitous,’ or ‘attenuated.’” Burger King, 471 U.S.

9 Even without accepting Triangle’s version of the facts, it

is clear that Defendants were well aware of what Triangle was,

where it was located, and that any subcontract with Triangle

would involve contacts with its home office in Burlington, North

Carolina.

at 480. Instead, Rhino purposefully availed itself of the

benefits of contracting with a North Carolina corporation as it

“‘substantially collaborated with a forum resident and that

joint enterprise constituted an integral element of the

dispute.’” Universal Leather, 773 F.3d at 560 (quoting Tire

Eng’g, 682 F.3d at 302). This court finds several facts

significant in reaching this conclusion.

First, taking Triangle’s averments as true, Defendants

initiated contact with Triangle’s representative in Georgia.10

Though Defendants did not travel to North Carolina to negotiate

the subcontract, they were clearly aware that Brockman was an

agent of a North Carolina corporation, and Defendants intended

to negotiate with that corporation. (Blackstone Aff. (Doc. 10-1)

¶ 7.) After Blackstone’s bid was accepted, he traveled to

Triangle’s headquarters in North Carolina to coordinate the

Project, (Compl. (Doc. 5) ¶ 9), an act that manifested Rhino and

Blackstone’s intent to avail themselves of doing business in

North Carolina with Triangle. Even if Blackstone had not

traveled to North Carolina, as noted in Burger King, there is no

requirement that a defendant physically enter a forum in order

10 The court notes again that it is not resolving factual

disputes but is taking the facts and their inferences in a light

most favorable to Plaintiff, as it is required to do at this

stage. Carefirst, 334 F.3d at 396.

to establish a long-term relationship with forum residents.

Burger King, 471 U.S. at 476.

Second, like the franchisee in Burger King, the Indian

company in CFA Institute, and the Texas corporation in Cortex

Surveillance, Rhino benefited from its contractual relationship

with Triangle. Blackstone told Brockman that Rhino was hoping to

be granted other work in the Atlanta area. By engaging with

Triangle, who had already been awarded the Project, Rhino

secured a significant road construction subcontract. During the

Project, Rhino also utilized some of Triangle’s equipment,

equipment they allegedly damaged. (Brockman Aff. (Doc. 13-1)

¶ 28.) At Triangle’s urging, Blackstone also joined a national

organization focused on the machine application of HFST and

traveled nationally promoting his trade, another example of the

benefit Defendants received from their relationship with

Triangle. (Id. ¶ 25.)

Third, like the franchisee in Burger King, Rhino was

subject to significant oversight by Triangle, a fact

demonstrated by the detailed provisions of the subcontract. (See

generally Subcontract (Doc. 5-1).) Triangle’s supervision of

Rhino personnel, conducted in large part from its North Carolina

office, (Kirkpatrick Aff. (Doc. 13-2) ¶ 10), is akin to the

technical support rendered by the Durham company in Cortex

Surveillance. The submission of invoices by Defendants to be

paid by Triangle is a significant series of transactions, much

like the software purchases in Cortex Surveillance. Rhino sent

invoices for payment to personnel at Triangle’s North Carolina

headquarters. (Pugh Aff. (Doc. 13-4) ¶ 8; Ex. A at 4–7.) More

than half-a-million dollars in payments were issued from

Triangle’s headquarters to Defendants. (Id. ¶ 9.) This

continuous stream of billing and coordination is an example of

Defendants “repeatedly reach[ing]’ into the forum state to

transact business” with Triangle. Universal Leather, 773 F.3d at

562; CFA Inst., 551 F.3d at 295.11

Fourth, unlike Ellicott Machine or Johansson Corporation,

Rhino sought a relationship with Triangle that was more

substantial than a single, short-term contract for independent

work. Rhino was subcontracting to work collaboratively with

Triangle over a period of more than a year. Though the length of

a relationship is not dispositive, the relationship here is more

substantial than in Ellicott Machine or Johansson Corporation.

No deadline appears in the subcontract, but the parties’

relationship lasted at least fourteen months before Rhino

11 Though Triangle was paying for work done in Georgia, it

was Defendants who sought the relationship so they could perform

their services and then avail themselves of guaranteed payment

from a North Carolina corporation.

allegedly walked off the job, (Compl. (Doc. 5) ¶¶ 8, 25), a

period of time similar to the initial licensing agreement in

Cortex Surveillance. Also, unlike Ellicott Machine and Johansson

Corporation, where companies were contracted to perform

discrete, independent tasks, Triangle supervised and directed

Rhino’s work throughout the Project. Three of Defendants’ four

Triangle supervisors were based in North Carolina. (Kirkpatrick

Aff. (Doc. 13-2) ¶ 10.) Along with the supervision, Rhino also

communicated regularly with Triangle’s headquarters about other

matters related to the Project. Rhino sent invoices, updates,

and other communications back to Triangle’s home office in North

Carolina. (Brockman Aff. (Doc. 13-1) ¶¶ 26–27; Kirkpatrick Aff.

(Doc. 13-2) ¶ 12, Exs. A, B at 4–13; Pugh Aff. (Doc. 13-4), Ex.

A at 6.)

The subcontract in this case is distinguishable from the

relationships in some other cases, see, e.g., CFA Inst., 551

F.3d at 288 (13 years), in that it lasted a shorter period of

time. That distinction, however, is not dispositive. As

demonstrated by Cortex Surveillance, an agreement of only a

couple of years is sufficient if it evinces the parties’ desire

to engage in an even longer relationship and there is

significant collaboration between the parties. In this case,

there was an ongoing, collaborative relationship to complete the

Project.12 Brockman also noted that Rhino purchased an HFST truck

after Blackstone and Brockman spoke about the Project. (Brockman

Aff. (Doc. 13-1) ¶¶ 9–12.) Triangle did not want to buy its own

HFST truck, and the genesis of the parties’ relationship was

Rhino filling Triangle’s HFST requirements by investing in an

HFST truck. (Id. ¶ 9.) As stated by the Burger King Court, “a

‘contract’ is ‘ordinarily but an intermediate step serving to

tie up prior business negotiations with future consequences

which themselves are the real object of the business

transaction.’” Burger King, 471 U.S. at 479 (quoting Hoopeston

Canning Co. v. Cullen, 318 U.S. 313, 316–17 (1943)). Though the

subcontract was more limited in time than some other agreements,

12 The court does not consider the parties’ dealing and

conduct outside the Project for purposes of this specific

jurisdiction analysis. Brockman’s “impression” is that Rhino saw

its relationship as a way to expand its regional footprint.

(Brockman Aff. (Doc. 13-1) ¶ 23.) As an example, Brockman cites

Rhino’s collaboration with Triangle in bidding on a road project

in South Carolina. (Id.) Rhino actually did do work with

Triangle on a project in Virginia. (Kirkpatrick Aff. (Doc. 13-2)

¶ 7; Pugh Aff. (Doc. 13-4) ¶ 11.) Rhino also submitted estimates

for Triangle bids on projects in North Carolina, though Triangle

was not awarded those contracts. (Brockman Aff. (Doc. 13-1)

¶ 24.) Though these contacts could be seen as part of the

Project’s “contemplated future consequences, along with the

terms of the contract and the parties’ actual course of

dealing,” Burger King, 471 U.S. at 479, the court ultimately

concludes that Defendants’ conduct outside the Project is not

“suit-related” for specific jurisdiction purposes, see, e.g.,

Walden, 571 U.S. at 284; Tire Eng’g, 682 F.3d at 301. Though the

court does not factor these allegations into its analysis, it

does note that they do not undercut the court’s conclusion.

Defendants’ decision to invest in new machinery is suggestive of

an “intermediate step” to a longer relationship involving future

projects. See Ellicott Mach., 995 F.2d at 478 (noting that,

unlike the defendant in Burger King, the defendant there

“completed the assembly contract in four months, and there is no

indication that any future contracts were planned between the

parties”).

Fifth, unlike Johansson Corporation or Burger King, but

like Cortex Surveillance, Blackstone traveled to Triangle’s

headquarters on two separate occasions, first to finalize

details about the Project, and second to demand payment. (Compl.

(Doc. 5) ¶ 9; Bailey Aff. (Doc. 13-3) ¶ 8.) These two trips

demonstrate Defendants’ willingness to avail themselves of doing

business in North Carolina, which carries a corresponding duty

to defend in this state should the need arise. See CFA Inst.,

551 F.3d at 294 (noting that defendants were only known to have

traveled to forum twice in thirteen years); Triad Motorsports,

LLC v. Pharbco Mktg. Grp., Inc., 104 F. Supp. 2d 590, 598

(M.D.N.C. 2000).

In contrast to the analysis above, Defendants contend

personal jurisdiction is not present since they never

purposefully availed themselves of the protection of North

Carolina’s laws. Defendants argue that when analyzing the facts

under the eight factors enumerated in Universal Leather,

personal jurisdiction is found lacking. See Universal Leather,

773 F.3d at 560. Defendants argue that they “do not maintain

offices or agents in North Carolina; they do not own property in

North Carolina; they have not reached into North Carolina to

solicit or initiate business; and they have not deliberately

engaged in significant or long-term business activities in North

Carolina.” (Defs.’ Br. (Doc. 10) at 10.) They further argue that

the subcontract does not specify that North Carolina law governs

disputes and that the performance under the subcontract was to

occur in Georgia. (Id. at 9-10.)

This court agrees that the subcontract does not provide

that North Carolina law governs,13 and the actual construction

work under the subcontract was to occur in Georgia.

Nevertheless, this court weighs the Universal Leather factors

differently.

The personal jurisdiction analysis is “flexible” and must

look at the nature and quality of the contacts. See Universal

Leather, 773 F.3d at 560. As noted, the third Universal factor,

13 The absence of a choice-of-law clause is not dispositive.

“The Supreme Court has held that forum-selection clauses are

relevant, though not dispositive, of the question whether a

defendant has purposefully availed himself of a particular

forum.” Shider v. Bridgeport Music, Inc., Civil Action No. 8:13-

cv-00527-AW, 2013 WL 5487868, at *5 (D. Md. Sept. 30, 2013)

(citing Burger King, 471 U.S. at 481–82).

which party initiated contact, is given “special weight.” Id. at

562. This court has found, on the record before it, that Rhino

initiated the contractual relationship with Triangle in North

Carolina and, in so doing, directed its activities to North

Carolina in preparation to participate in road construction in

Georgia.

Further, though Rhino never performed any HFST work in

North Carolina, it did work to create a collaborative

relationship with Triangle in the form of the subcontract, a

fact that supports the fourth factor, whether the defendant

deliberately engaged in long-term business activities in the

forum state. Blackstone came to Triangle’s office twice, a fact

relevant under the sixth factor, whether defendant came to the

forum in person. Finally, the seventh factor, “the nature,

quality and extent of the parties’ communications about the

business being transacted,” is supported by the parties’

communications.14 Rhino regularly sent invoices for payment to

personnel at Triangle’s North Carolina headquarters. (Pugh Aff.

(Doc. 13-4) ¶ 8; Ex. A at 4–7.) More than half-a-million dollars

14 Defendants argue that communications sent to Brockman,

Triangle’s agent in Georgia, were not targeted at the forum

since Brockman was in Georgia. (Defs.’ Reply (Doc. 14) at 3

n.2.) Even if that were true for every communication, which it

is not, Defendants were aware that Brockman forwarded requests

and communications to Triangle’s office in North Carolina. (See

id.)

in payments were issued from Triangle’s headquarters to

Defendants. (Id. ¶ 9.) Supervision of the project was conducted

by four supervisors, three of whom supervised from Triangle’s

North Carolina headquarters. (Kirkpatrick Aff. (Doc. 13-2)

¶ 10.) Several Universal Leather factors, including the one

given “special weight,” support a finding of personal

jurisdiction.

Defendants also cite several cases that they contend

support the conclusion that this court does not have personal

jurisdiction. Those cases, however, all contain one critical

distinction from the facts presently before this court: in those

cases, it was the plaintiffs who reached beyond their states and

initiated contact. See Diamond Healthcare of Ohio, Inc. v.

Humility of Mary Health Partners, 229 F.3d 448, 451 (4th Cir.

2000); Pan-Am. Prods. & Holdings, LLC v. R.T.G. Furniture Corp.,

825 F. Supp. 2d 664, 682 (M.D.N.C. 2011); Worldwide Ins.

Network, Inc. v. Trustway Ins. Agencies, LLC, No. 1:04CV00906,

2006 WL 288422, at *1 (M.D.N.C. Feb. 6, 2006); Sea-Roy Corp. v.

Parts R Parts, Inc., No. 1:94CV00059, 1996 WL 557857, at *5

(M.D.N.C. July 30, 1996).

As counsel pointed out during oral argument, the facts in

Diamond Healthcare are similar to the facts in this case. In

Diamond Healthcare, the Fourth Circuit affirmed a Virginia

district court’s conclusion that it did not have personal

jurisdiction over an Ohio defendant. Diamond Healthcare, 229

F.3d at 449. Diamond, a Virginia corporation, entered into a

contract with an Ohio corporation to provide services to be

performed almost exclusively in Ohio. The contract was signed in

Virginia, and Diamond exercised some management from Virginia,

although the extent of that appears to have been limited to its

own employees in Ohio and not with the defendant.15

However, certain facts distinguish Diamond Healthcare from

this case. First, unlike this case, Diamond initiated contact

with “HMH Partners in Ohio to solicit HMH Partners’ purchase of

15 The Diamond opinion outlines a number of apparent

management responsibilities of Diamond, such as employing

directors, furnishing staff, and recruiting, orienting, and

training staff. Diamond Healthcare of Ohio, Inc. v. Humility of

Mary Health Partners, 229 F.3d 448, 451 (4th Cir. 2000).

However, the opinion later states that

Diamond Healthcare emphasizes the frequent

communications and management activities between its

Virginia office and Project NuStart in Boardman, Ohio.

But these communications and management activities

were principally between Diamond Healthcare’s

employees in Richmond and its own employees at Project

NuStart . . . . Diamond Healthcare provides no

authority for the proposition that interactions

between its headquarters and its own employees in the

field, across state lines, may form a “sufficiently

substantial” connection with an out-of-state entity

. . . .

Id. at 452. In this case, by contrast, Rhino communicated

directly with Triangle on a number of different issues as

described herein.

Diamond Healthcare’s capacity for managing a partial-

hospitalization program. . . . Formed in these circumstances,

the contract represents the product of HMH Partners’ favorable

response to Diamond Healthcare’s unsolicited invitation for

performance in Ohio . . . .” Id. at 451. Here, the subcontract

represents the product of Rhino’s solicitation of Triangle and

subsequent quote and offer to subcontract with a North Carolina

corporation. The fact that Rhino directed the contract

negotiations toward North Carolina, and the fact that a foreign

corporation directed its offer to contract and resulting

contractual obligations to a forum corporation, are both facts

given “special weight” by the Fourth Circuit. Universal Leather,

773 F.3d at 562. The fact that in Diamond Healthcare it was the

plaintiff Virginia corporation who initiated contact in a

foreign state, Ohio, is a point courts have relied upon in

distinguishing other cases. See Manley v. Air Canada, 753 F.

Supp. 2d 551, 560 n.3 (E.D.N.C. 2010); Cambata Aviation, Inc. v.

Kansas City Aviation Ctr., Inc., No. 5:01CV00062, 2001 WL

1274426, at *2 (W.D. Va. Oct. 22, 2001); see also Rio Grande

Games, Inc. v. Hans IM Glück Verlags GmbH, No. CIV 13-985

JAP/KBM, 2014 WL 12594214, at *10 (D.N.M. Mar. 20, 2014).

“Due process requires that a defendant be haled into court

in a forum State based on his own affiliation with the State,

not based on the ‘random, fortuitous, or attenuated’ contacts he

makes by interacting with other persons affiliated with the

State.” Walden, 571 U.S. at 286 (quoting Burger King, 471 U.S.

at 475). The defendants in Diamond Healthcare were approached by

a corporation who happened to be based in Virginia; however, in

this case, Defendants approached Triangle, a North Carolina

corporation.

Second, in Diamond Healthcare, “the principal part of

Diamond Healthcare’s performance was required in Boardman, Ohio,

virtually all of HMH Partners’ performance was required there.”

Diamond Healthcare, 229 F.3d at 451. While the Project in this

case was performed in large part in Georgia, Plaintiff has come

forward with evidence that a substantial part of the contractual

work and oversight between Triangle and Rhino was performed in

North Carolina. (Compl. (Doc. 5) ¶ 9; Kirkpatrick Aff. (Doc.

13-2) ¶¶ 9–10; Pugh Aff. (Doc. 13-4) ¶¶ 8–9, Ex. A at 4–7.)

Defendants have not provided facts which might suggest the work

in North Carolina was more limited than that described by

Plaintiff, nor have Defendants provided facts which might

require the court to find the work in Georgia was more

substantial than that of execution of the subcontract and

instruction from North Carolina. The court therefore finds that

Diamond Healthcare is distinguishable from the facts at issue

here.

In conclusion, the court finds that Defendants purposefully

availed themselves of the protection of North Carolina’s laws

when they initiated an extended, collaborative relationship by

virtue of a subcontract with a North Carolina corporation. See

Cortex Surveillance, 2006 WL 994951, at *5; see also Dynamic

Educ. Sys. Inc. v. Heritage Servs. Corp., No. CV-19-04690-PHX-

SRB, 2019 WL 7841827, at *6 (D. Ariz. Nov. 18, 2019) (“Even

taken on their own, the subcontracts evince an intent to sustain

a long-term relationship: the Jacksonville Subcontract was to

run for a period of nearly two years, and the Bamberg

Subcontract was to run for over two years.”); cf. O’Brien

Constr., Inc. v. Miller, Case No. 1:19cv1451, 2020 WL 1187259,

at *7 (N.D. Ohio Mar. 12, 2020). On the facts before the court,

Defendants sought and entered a contractual relationship with a

North Carolina corporation. “Fairness is the touchstone of the

jurisdictional inquiry,” Tire Eng’g, 682 F.3d at 301, and the

“key issue in a specific jurisdiction case [is] whether ‘the

defendant purposefully directed [its] activities at residents of

the forum,’” Fidrych v. Marriott Int’l, Inc., 952 F.3d 124, 142

(4th Cir. 2020) (quoting Burger King, 471 U.S. at 472). The

first prong of the specific jurisdiction test is satisfied.

B. Claims Arising out of Activity in the State

To satisfy the second prong in the specific jurisdiction

analysis, the plaintiffs must allege facts showing that their

claim arose out of the defendant’s activities directed at the

forum state. Tire Eng’g, 682 F.3d at 303. If the activity in the

forum state is the “genesis of the dispute,” then the prong is

met. Id. The appropriate question, however, “is not where the

plaintiff experienced a particular injury or effect but whether

the defendant’s conduct connects him to the forum in a

meaningful way.” Walden, 571 U.S. at 290. “The Supreme Court has

also characterized the arising-out-of prong as akin to proximate

causation.” Broadus v. Delta Air Lines, Inc., 101 F. Supp. 3d

554, 560−61 (M.D.N.C. 2015) (citing Burger King, 471 U.S. at

475). “A plaintiff’s claims similarly arise out of activities

directed at the forum state if substantial correspondence and

collaboration between the parties, one of which is based in the

forum state, forms an important part of the claim.” Tire Eng’g,

682 F.3d at 303. If a visit by the defendant to the forum led to

the dispute, that fact is sufficient to satisfy the second

prong. See CFA Inst., 551 F.3d at 295 (noting that the

defendant’s visit to the plaintiff’s office in Virginia was the

“genesis of [this] dispute”).

Here, Defendants corresponded extensively with Triangle in

North Carolina, correspondence that gave rise to the

relationship between the parties. (Brockman Aff. (Doc. 13-1)

¶¶ 12–15, 26–27.) This communication included the transmission

of the original quote and resulting subcontract to Triangle’s

offices in North Carolina for final signature. (Pugh Aff. (Doc.

13-4) ¶ 6; Subcontract (Doc. 5-1) at 13.) Further, Blackstone’s

visit to Triangle in Fall 2017 led directly to Rhino’s decision

to leave the job prematurely. (Bailey Aff. (Doc. 13-3) ¶¶ 12–13;

Blackstone Aff. (Doc. 10-1) ¶ 10.) Both of these facts satisfy

the second prong of the jurisdictional inquiry.16

C. Constitutional Reasonableness

Finally, regarding the third prong of the specific

jurisdiction test, “[o]nce it has been decided that a defendant

purposefully established minimum contacts within the forum

State, these contacts may be considered in light of other

factors to determine whether the assertion of personal

16 After considering the parties’ supplemental briefing,

(Docs. 18, 19), the court finds that its conclusion regarding

the second prong of the jurisdictional inquiry is not altered by

the Fourth Circuit’s recent decision in Fidrych v. Marriott

International, Inc., 952 F.3d 124 (4th Cir. 2020). In that case,

the Fourth Circuit noted it was a “difficult question” to

determine if a plaintiff’s injury incurred at a Marriott hotel

in Italy arose from Marriott’s use of website booking and

advertising in South Carolina, the plaintiff’s home. Id. at 139.

The court did not resolve the issue. Id. at 140.

jurisdiction would comport with ‘fair play and substantial

justice.’” Burger King, 471 U.S. at 476 (quoting Int’l Shoe Co.,

326 U.S. at 320). The “Constitutional Reasonableness” prong “of

the analysis ‘ensures that litigation is not so gravely

difficult and inconvenient as to place the defendant at a severe

disadvantage in comparison to his opponent.’” Tire Eng’g, 682

F.3d at 303 (citation omitted). In making this determination,

the court should consider:

(1) the burden on the defendant of litigating in the

forum; (2) the interest of the forum state in

adjudicating the dispute; (3) the plaintiff’s interest

in obtaining convenient and effective relief; (4) the

shared interest of the states in obtaining efficient

resolution of disputes; and (5) the interests of the

states in furthering substantive social policies.”

Consulting Eng’rs, 561 F.3d at 279.

In this case, almost all the factors point to the

constitutional reasonableness of North Carolina serving as the

forum. Defendants would undoubtedly face some burden in

litigating in North Carolina, but that burden has not been shown

to be so great as to be constitutionally unfair. See Ellicott

Mach., 995 F.2d at 479. Defendants traveled to North Carolina,

and beyond to Virginia, in support of their business

relationship with Triangle, (see Brockman Aff. (Doc. 13-1) ¶ 20;

Bailey Aff. (Doc. 13-3) ¶ 8), a fact suggesting that the burden

on Defendants in traveling to North Carolina is not unreasonable

nor unconstitutional. Further, North Carolina has an interest in

protecting its corporations from harm allegedly caused by

foreign entities. Triangle has an interest in obtaining relief

close to its home office. The last two factors support

jurisdiction in both North Carolina and Georgia, and therefore

do not clearly advocate either way. The factors support the

conclusion that requiring Defendants to litigate in North

Carolina would not make the process “so gravely difficult and

inconvenient as to place the defendant at a severe disadvantage

in comparison to his opponent.” Tire Eng’g, 682 F.3d at 303.

D. Personal Jurisdiction Conclusion

“In the aggregate [Defendants’] initiation of the

relationship with [Triangle], the visits by [Blackstone] to

North Carolina, [and] the ongoing nature of the [the Project]

. . . support personal jurisdiction over [Defendants] in North

Carolina.” Cortex Surveillance, 2006 WL 994951, at *5. “Where a

defendant . . . has created continuing obligations between

himself and residents of that state, jurisdiction is reasonable

because the defendants have manifestly availed themselves of the

privilege of conducting business within that jurisdiction.”

Delta-T Corp. v. Pac. Ethanol, Inc., Civil Action No. 3:08CV524,

2009 WL 77869, at *6 (E.D. Va. Jan. 7, 2009) (citing Burger

King, 471 U.S. at 471–76). Defendants’ Motion to Dismiss under

Rule 12(b)(2) will therefore be denied.

IV. TRANSFER ANALYSIS

Defendants alternatively move for transfer under 28 U.S.C.

§ 1404(a) to the United States District Court for the Northern

District of Georgia. (Defs.’ Br. (Doc. 10) at 1.) For the

reasons stated herein, the motion to transfer to the Northern

District of Georgia will be denied without prejudice.

“‘The moving party bears the burden of establishing that

transfer to another venue is proper.’” IHFC Properties, LLC v.

APA Mktg., Inc., 850 F. Supp. 2d 604, 622 (M.D.N.C. 2012)

(quoting AAI Corp. v. Applied Geo Techs., Inc., Civil No. JKB–

11–608, 2011 WL 3678903, at *2 (D. Md. Aug. 22, 2011)). When a

district court weighs the transfer factors, “unless the balance

is strongly in favor of the defendant, the plaintiff’s choice of

forum should rarely be disturbed.” Collins v. Straight, Inc.,

748 F.2d 916, 921 (4th Cir. 1984) (emphasis added) (quoting Gulf

Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). When a court is

considering whether to transfer to another venue, it should

consider the following factors:

(1) the plaintiff’s initial choice of forum; (2)

relative ease of access to sources of proof; (3)

availability of compulsory process for attendance of

unwilling witnesses, and the cost of obtaining

attendance of willing and unwilling witnesses; (4)

possibility of a view of the premises, if appropriate;

(5) enforceability of a judgment, if one is obtained;

(6) relative advantage and obstacles to a fair trial;

(7) other practical problems that make a trial easy,

expeditious, and inexpensive; (8) administrative

difficulties of court congestion; (9) local interest

in having localized controversies settled at home;

(10) appropriateness in having a trial of a diversity

case in a forum that is at home with the state law

that must govern the action; and (11) avoidance of

unnecessary problems with conflicts of laws.17

Pet Specialties, LLC v. Navisiontech, Inc., No. 1:18-CV-00985,

2019 WL 4773623, at *9 (M.D.N.C. Sept. 30, 2019) (quoting Plant

Genetic Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519, 527

(M.D.N.C. 1996)); see also Atl. Marine Const. Co. v. U.S. Dist.

Ct. for W. Dist. of Tex., 571 U.S. 49, 63 n.6 (2013); IHFC

Properties, 850 F. Supp. 2d at 622. Some courts in this circuit

have included “the pendency of a related action” as a factor to

17 The Fourth Circuit has enunciated a similar, but shorter

test listing the following four factors: “(1) the weight

accorded to plaintiff’s choice of venue; (2) witness convenience

and access; (3) convenience of the parties; and (4) the interest

of justice.” Trs. of the Plumbers & Pipefitters Nat’l Pension

Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4th Cir.

2015). In an earlier case, the Fourth Circuit offered a more

expansive test. See Landers v. Dawson Constr. Plant, Ltd., Nos.

98-2709, 98-2763, 1999 WL 991419, at *2 (4th Cir. Nov. 2, 1999)

(listing several additional factors).

In either test, each of the factors is inherently or

expressly incorporated into the longer test that is regularly

used by district courts in this circuit. See Charles v. Bradley,

No. 5:08-CV-124-F, 2009 WL 1076771, at *2 (E.D.N.C. Apr. 21,

2009); OptimumPath, LLC v. Belkin Int’l, Inc., Civil Action No.

4:08-cv-317-TLW-TER, 2009 WL 10697106, at *2 (D.S.C. Mar. 30,

2009); Culp v. Bridge Terminal Transp., Inc., No. 3:07-cv-00354,

2008 WL 2568148, at *1 (W.D.N.C. June 24, 2008); B&G Equip. Co.

v. J.T. Eaton & Co., Civil Action No. WMN 06-1363, 2006 WL

2813886, at *2 (D. Md. Sept. 27, 2006).

consider in the transfer analysis. Ion Beam Applications, S.A.

v. Titan Corp., 156 F. Supp. 2d 552, 560 (E.D. Va. 2000); see

also Nat’l Union Fire Ins. Co. of Pittsburgh v. Chua, No. 90

Civ. 7491 (LLS), 1991 WL 60385, at *2 (S.D.N.Y. Apr. 4, 1991)

(“Transfer is particularly appropriate where there is a pending

lawsuit in the transferee district involving the same facts,

transactions, or occurrences.”).

District courts should “weigh the relevant factors and

decide whether, on balance, a transfer would serve ‘the

convenience of parties and witnesses’ and otherwise promote ‘the

interest of justice.’” Atl. Marine, 571 U.S. at 62–63 (quoting

28 U.S.C. § 1404(a)). “When deciding a motion to transfer, it is

important to bear in mind that such a motion should not be

granted if it simply shifts the inconvenience from the defendant

to the plaintiff.” Plant Genetic Sys., 933 F. Supp. at 527.

A. Plaintiff’s Choice of Forum

The court begins with an analysis of the first factor,

Plaintiff’s choice of forum.

As noted above, “‘unless the balance is strongly in favor

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

be disturbed.” Collins, 748 F.2d at 921 (4th Cir. 1984)

(emphasis added) (quoting Gulf Oil, 330 U.S. at 508). “[C]ourts

afford less weight to a plaintiff’s choice if none of the

conduct creating the cause of action occurred in the forum, and

the forum has no connection with the cause of action.” Sweeney

v. Pa. Nat’l Mut. Cas. Ins. Co., No. 1:05CV00931, 2007 WL

496699, at *2 (M.D.N.C. Feb. 13, 2007), as amended (Feb. 27,

2007); Dicken v. United States, 862 F. Supp. 91, 92–93 (D. Md.

1994). However, “[t]he cases where a plaintiff’s choice of forum

becomes neutral typically involve a plaintiff choosing a state

in which none of the operative events took place and where none

of the parties reside and often involve great distances between

the fora.” WPB Partners, LLC v. Old Republic Nat’l Title Ins.

Co., No. 5:12-CV-132-F, 2013 WL 395112, at *5 (E.D.N.C. Jan. 31,

2013) (collecting cases).

The Middle District of North Carolina has a connection to

this case. Triangle’s home offices are located in Alamance

County, North Carolina. (Compl. (Doc. 5) ¶ 2.) The subcontract

was signed and finalized at Triangle’s home headquarters in

North Carolina. (Kirkpatrick Aff. (Doc. 13-2) ¶ 9; Pugh Aff.

(Doc. 13-4) ¶ 6; Subcontract (Doc. 5-1) at 13.) Supervision of

Rhino was conducted by Triangle employees located in North

Carolina. (Kirkpatrick Aff. (Doc. 13-2) ¶ 10.) Checks were

issued from Triangle’s headquarters in North Carolina to pay for

Rhino’s services. (Pugh Aff. (Doc. 13-4) ¶¶ 8–9.) When Rhino

walked off the job, it affected Triangle’s bonding capacity in

North Carolina.

Of course, there are significant connections to Georgia as

well. The Project, a GDOT project, took place in Georgia.

(Compl. (Doc. 5) ¶ 7; GDOT Contract (Doc. 14-1).) Both

Triangle’s and Rhino’s performance under the GDOT contract and

the subcontract took place in Georgia. (Compl. (Doc. 5.) ¶¶ 7,

11.) Rhino’s alleged deficiencies all took place in Georgia, to

include negligent application of HFST, Rhino equipment breaking

down, and Rhino employees damaging Triangle equipment. (Id.

¶¶ 18–24.) Invoices were generated by Rhino for work in Georgia,

sent to Triangle’s headquarters in North Carolina, and then

checks were issued by Triangle and sent back to Georgia for the

work done by Rhino’s employees in Georgia. (Brockman Aff. (Doc.

13-1) ¶ 26.) Though it might have been precipitated by

Blackstone’s visit to Triangle’s headquarters in North Carolina,

Rhino’s act of “walking away” from the Project also occurred in

Georgia. (Id. ¶ 25; Bailey Aff. (Doc. 13-3) ¶¶ 8–13.)

Despite these connections to Georgia, however, the present

case is not one where a plaintiff has chosen a foreign forum

where “none of the operative events took place.” WPB Partners,

2013 WL 395112, at *5. Plaintiff’s initial choice of forum

should, therefore, be given significant weight.

B. Other Factors

The court now addresses the other factors, finding that

though some factors might support transfer, Defendants have

failed to show that they “strongly” support transfer when

compared to Plaintiff’s initial choice of forum.

1. Local Interest

Factor nine, local interest in having localized

controversies settled at home, is the factor that most strongly

supports transfer, so the court begins there.

“Courts have determined that litigation should take place

in the federal judicial district or division with the closest

relationship to the operative events.” Speed Trac Techs., Inc.

v. Estes Express Lines, Inc., 567 F. Supp. 2d 799, 804 (M.D.N.C.

2008); Weishaupt v. Boston Coll., No. 1:11-cv-1122, 2012 WL

1439030, at *5 (M.D.N.C. Apr. 24, 2012). If a case involves a

contract or business relationship that primarily concerns one

forum, that forum should resolve the suit. See La Casa Real

Estate & Inv., LLC v. KB Home of S.C., Inc., No. 1:09CV895, 2010

WL 2649867, at *4 (M.D.N.C. June 30, 2010); IHFC Properties, 850

F. Supp. 2d at 624; Piedmont Hawthorne Aviation, Inc. v. TriTech

Envtl. Health & Safety, Inc., 402 F. Supp. 2d 609, 616 (M.D.N.C.

2005); cf. Universal Furniture Int’l, Inc. v. Frankel, No.

1:08CV395, 2009 WL 2853695, at *5 (M.D.N.C. Aug. 27, 2009)

(noting that North Carolina had a substantial economic interest

in the suit and the allegedly improper acts occurred in North

Carolina, meaning transfer was not appropriate); Xpress

Motorsports, Inc. v. Sundance Motorsports, LLC, No. 1:05CV143,

2006 WL 267183, at *2 (M.D.N.C. Jan. 30, 2006) (finding transfer

not appropriate since business relationship between North

Carolina plaintiff and out-of-state defendant resulted in a

significant amount of business being done in North Carolina).

Likewise, if acts or omissions primarily occurred in one state,

that forum should resolve the dispute, even if the accident

occurred elsewhere. See Weishaupt, 2012 WL 1439030, at *5.

(“Although the accident occurred in this district, the theory of

liability rests almost exclusively on alleged acts and omissions

in Massachusetts.”). The fact that a plaintiff corporation’s

home office is located in the forum sometimes does not overcome

the local interest in having local harms resolved by local

courts. See Akers v. Norfolk & W. Ry. Co., 378 F.2d 78, 79 (4th

Cir. 1967) (finding court abused its discretion in not

transferring to forum where injuries occurred, despite fact that

plaintiff corporation’s home office was located in transferor

forum).

The dispute in this case arose out of a GDOT project to

upgrade Georgia roads that involved at least one Georgia

subcontractor. Though the subcontract was finalized in North

Carolina, it is connected to a larger contract in which the

state of Georgia has a significant interest. (Compl. (Doc. 5)

¶ 7; GDOT Contract (Doc. 14-1).) Furthermore, Triangle seeks

indemnity and defense against a Georgia negligence lawsuit that

was still pending at the time of this present action was filed.

(Compl. (Doc. 5) ¶¶ 29–30.)

North Carolina has a significant interest in its

corporations, business was transacted in North Carolina, and the

Project was supervised from North Carolina. Still, the Project

was physically located in Georgia, it was governed by a GDOT

prime contract, and the Nelson’s lawsuit was pending in a

Georgia court for Georgia injuries. But see Netalog, Inc. v.

Tekkeon, Inc., No. 1:05CV00980, 2007 WL 534551, at *6 (M.D.N.C.

Feb. 15, 2007) (noting that a North Carolina plaintiff should be

able to sue in its home forum when the defendant directed its

activities at North Carolina). As Justice Jackson said, “[t]here

is a local interest in having localized controversies decided at

home.” Ferens v. John Deere Co., 494 U.S. 516, 530 (1990)

(quoting Gulf Oil, 330 U.S. at 508-09). Despite North Carolina’s

own substantial interest, factor nine favors transfer.

2 Ease of Access to Sources of Proof

The second factor, relative ease of sources of proof,

slightly supports transfer. “In weighing this factor, courts

consider the relative ease of access to witnesses and other

evidence for trial. Courts also examine the number and

materiality of witnesses.” Speed Trac Techs., 567 F. Supp. 2d at

804 (internal citations omitted). A breach of contract action

between two parties inherently involves evidence on both sides,

but the central issue of who breached the contract and when

favors one forum over the other. IHFC Properties, 850 F. Supp.

2d at 623 (finding this factor weighed in favor of transfer when

central questions required access to parties in other forum);

Piedmont Hawthorne Aviation, 402 F. Supp. 2d at 616 (finding

transfer appropriate when parties who negotiated contract

largely located in another forum).

Triangle points out that its records are located in North

Carolina. (Pl.’s Resp. (Doc. 13) at 23.) Even assuming the

documents are all in North Carolina, the site of the underlying

lawsuit and the location where HFST was applied, by Rhino, is in

Georgia. Still, Plaintiff’s claims are all contract-based,

making physical evidence less central to the claims. GDOT

records, and possibly personnel, would be involved, though

Defendants have not pointed to any specific records or personnel

that would be needed. The second factor, ease of access to

sources of proof, slightly favors transfer.

3. Availability of Compulsory Process and Witnesses

The third factor, availability of compulsory process, does

not favor transfer at this point, because Defendants have not

met their burden on this issue. Presumably the majority of

workers who were on the Project reside in or close to the

Northern District of Georgia. However, Defendants have not named

a witness who cannot or is not willing to travel to this

district. “To carry its burden ‘the moving party must

demonstrate whether its witnesses are willing to travel to a

foreign jurisdiction.’” IHFC Properties, 850 F. Supp. 2d at 623

(alterations in original) (quoting Samsung Elecs. Co., Ltd. v.

Rambus, Inc., 386 F. Supp. 2d 708, 719 (E.D. Va. 2005)). Though

Defendants contend, not unreasonably, that more witnesses are

located in Georgia, they do not offer the court a specific

example of any Georgia witness who is unwilling to travel to

North Carolina. The third factor, therefore, weighs in favor of

denying the motion.

4. Possible View of Premises

The fourth factor, a possible view of the premises by

jurors, does not favor transfer. As noted, if a view of the

place where Rhino allegedly negligently applied HFST is

necessary, that will take place in the Northern District of

Georgia. See Speed Trac Techs., 567 F. Supp. 2d at 805 (noting

that jurors do not often need to view premises, but, if they

did, it would be more convenient in another forum). Still,

Defendants have not suggested why a jury in a contract action

would need to view the Project site. This factor does not favor

transfer.

5. Enforceability of a Judgment

Factor five, enforceability of a judgment, if one is

obtained, does not support transfer. “In deciding transfers

between two federal districts, this factor has little relevance

because a federal judgment rendered in one district is likely

enforceable in another.” Triad Int’l Maint. Corp. v. Aim

Aviation, Inc., 473 F. Supp. 2d 666, 671 (M.D.N.C. 2006).

6. Factors Six, Seven, and Eight

Factors six, seven, and eight do not support transfer.

Factor six, the relative advantage and obstacles to a fair

trial, does not support transfer; all parties would receive a

fair trial in either district. Defendants have not suggested

otherwise. Factor seven, any other practical problems that make

a trial easy, slightly favors transfer. Plaintiff will be

required to travel to another district, a factor courts

consider. Speed Trac Techs., 567 F. Supp. 2d at 805. However,

this Georgia dispute involves a large number of Georgia actors,

to include nonparties, such as GDOT personnel. The Northern

District of Georgia is more convenient for them. Finally, factor

eight, difficulties in court congestion, does not support

transfer. Defendants have not offered any evidence of a more

strained docket in this district as compared to the Northern

District of Georgia. See Triad Int’l Maint., 473 F. Supp. 2d at

671 (noting evidence of differences in dockets presented by

moving party).

7. Factors Ten and Eleven

Factor ten, appropriateness in having a trial of a

diversity case in a forum that is at home with the state law

that must govern the action, slightly supports transfer. The

subcontract does not contain a choice-of-law provision, per se,

but it does state that, “[a]ll matters relating to the validity,

performance or interpretation of this Subcontract shall be

governed by the law applicable to the validity, performance or

interpretation, as the case may be, of the Contract.”

(Subcontract (Doc. 5-1) at 12 ¶ 29.) “The Contract” is

Triangle’s overarching contract with the Georgia Department of

Transportation. (GDOT Contract (Doc. 14-1).) The portions of

that contract that were provided do not contain a choice-of-law

provision. There are, of course, prodigious references to

Georgia statutes and regulations, but that does not answer the

question. The only copy of the GDOT contract provided to the

court is also not signed, nor are there any allegations about

where the contract was formed. The court cannot make a

determination about factor ten on the record before it, but it

seems likely that Georgia law would apply.18

For the same reasons the court cannot accurately assess

factor ten, the court also cannot assess factor eleven, the

potential conflict of state laws.

8. Pending Suit

Finally, the court notes that some other courts have

included the pendency of a related lawsuit in another district

as a factor that supports transfer. Ion Beam, 156 F. Supp. 2d at

560; Chua, 1991 WL 60385, at *2. Though the Georgia lawsuit

filed by the Nelsons was pending when this present action was

filed in April 2019, (Compl. (Doc. 5) ¶ 36), Defendants provided

no update to this court about whether that case was still

pending. The Nelsons first filed their suit in November 2018,

(id. ¶ 29); it is possible that matter has been resolved, and it

18 The court notes that, had Defendants provided the full,

executed GDOT contract, the court could have better resolved the

choice-of-law issues. That analysis would have likely supported

transfer since it seems likely Georgia law applies.

is Defendants’ burden to show that the pendency of that action

supports transfer.

C. Transfer Analysis Summary

Defendants bear the burden of showing that the factors are

“strongly in favor of the defendant, the plaintiff’s choice of

forum should rarely be disturbed.” Collins, 748 F.2d at 921

(quoting Gulf Oil, 330 U.S. at 508). Defendants have failed to

carry that burden at this stage of the proceedings. “The Court

has . . . weighed the relevant factors in considering

Defendant’s § 1404(a) Motion to Transfer, and has undertaken an

‘individualized, case by case consideration of convenience and

fairness’ as it relates to the facts of this case.” La Casa Real

Estate, 2010 WL 2649867, at *4. The court finds that transfer is

not appropriate.

V. CONCLUSION

For the foregoing reasons, the court finds that Defendants’

Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(2)

for lack of personal jurisdiction, (Doc. 8), should be denied.

The court also finds that Defendants’ Alternative Motion to

Transfer, (Doc. 8), should be denied. The Alternative Motion

will be denied without prejudice; as this case proceeds,

particularly considering the relationship to Georgia, facts may

be developed which alter the venue analysis herein.

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss

under Rule 12(b) (2) for lack of personal jurisdiction, (Doc. 8),

is DENIED WITH PREJUDICE and that Defendants’ Alternative Motion

to Transfer, (Doc. 8), is DENIED WITHOUT PREJUDICE.

This the 30th day of April, 2020.

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