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

> District Court, M.D. North Carolina · April 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10653596

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** April 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10653596

## How later opinions describe it (automated extraction)

- 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”
- finding transfer appropriate when parties who negotiated contract largely located in another forum
- finding this factor weighed in favor of transfer when central questions required access to parties in other forum
- noting that jurors do not often need to view premises, but, if they did, it would be more convenient in another forum

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653596. Public record. Not legal advice.