UNIVERSAL PRESERVACHEM, INC. v. DELLS CHERRIES, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNIVERSAL PRESERVACHEM, INC., )

)

Plaintiff, )

)

v. ) 1:24cv636

)

DELL’S CHERRIES, LLC, )

)

Defendant. )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge for a recommendation on Defendant’s “Motion to

Dismiss or, in the Alternative, to Transfer Venue for Forum Non

Conveniens” (Docket Entry 11 (all-cap font omitted)) (the “instant

Motion”). For the reasons that follow, the Court should grant in

part and should deny in part the instant Motion.

BACKGROUND

Universal Preservachem, Inc. (the “Plaintiff”) “is a North

Carolina corporation with its headquarters and principal place of

business in Mebane, North Carolina” (Docket Entry 1, ¶ 6) that

“imports, packages, distributes, and sells chemical ingredients

for, inter alia, food manufacturers” (id., ¶ 1 (italics omitted)).

Plaintiff has sued its former customer, Dell’s Cherries, LLC (the

“Defendant”), a “New York corporation with its headquarters and

principal place of business in Brooklyn, New York” (id., ¶ 7),

alleging breach of contract based on two purchase orders from June

and July, 2021. (See id., ¶¶ 12-15, 33-36.) As relevant to the

instant Motion, the record reflects the following:

Within the regular course of business between the parties,

Defendant submitted purchase orders to Plaintiff in June and July

2021 for delivery of goods to Defendant’s New York facility. (See

id., ¶¶ 12-15; Docket Entry 15-1, ¶¶ 5-6, 13.) Plaintiff

“acknowledged [each] [p]urchase [o]rder” (Docket Entry 1, ¶¶ 13,

15; see also Docket Entry 15-1, ¶ 8) and provided Defendant with an

estimated shipping date (see Docket Entry 1, ¶¶ 13, 15). The

acknowledgments “clearly indicate[d] that [Plaintiff] is located at

[a Mebane, North Carolina address]” (Docket Entry 15-1, ¶ 9) and

“were emailed to [Defendant] by [Plaintiff’s] Customer Service

Representative . . ., whose email signature included th[at] Mebane

address” (id.). The acknowledgments also stated that “the

designated Free on Board ([‘]FOB[’]) shipping point for the

products . . . [wa]s Mebane, North Carolina.” (Id., ¶ 12.)

Further, “[a]t all relevant times, the email signatures of

[Plaintiff’s] employees reflected that [Plaintiff] was based in

Mebane, North Carolina[, including the] employees who received and

accepted the purchase orders, as well as those involved in

facilitating the business relationship.” (Id., ¶ 15.)

Pursuant to Defendant’s foregoing purchase orders and

associated acknowledgments, Plaintiff timely packaged Defendant’s

orders in Mebane and shipped them to Defendant’s New York facility.

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(See Docket Entry 1, ¶¶ 17-18, 20; Docket Entry 15-1, ¶ 13.)

Following the shipment, Plaintiff sent Defendant an invoice for

$60,610.00 for the first order, due on August 28, 2021 (see Docket

Entry 1, ¶¶ 18-19; Docket Entry 12-1 at 2 (invoice)), and an

invoice for $57,375.00 for the second order, due on August 2, 2021

(see Docket Entry 1, ¶¶ 20-21; Docket Entry 12-1 at 3 (invoice)).

Defendant “claims that it remitted [the] payments . . . on

September 17, 2021, and September 24, 2021, respectively.” (Docket

Entry 1, ¶ 27; see also Docket Entry 12-3 at 2-5 (Defendant’s wire

transfer confirmations for invoices dated September 17, 2021 and

September 24, 2021).) Plaintiff, on the other hand, insists that

it “never received the payments [Defendant] purports to have

remitted” (Docket Entry 1, ¶ 27) and instead alleges that Defendant

“may have . . . engage[d] with a phishing email . . . and submitted

the purported payments to a third-party hacker” (id., ¶ 28).

Based on the purported nonpayment, Plaintiff filed the

Complaint (Docket Entry 1) alleging that Defendant breached their

contract. (See id., ¶¶ 32-36.) In response, Defendant filed the

instant Motion, seeking dismissal of the Complaint for lack of

personal jurisdiction or improper venue pursuant to Federal Rules

of Civil Procedure 12(b)(2) and 12(b)(3) or, in the alternative,

transfer of this action to the United States District Court for the

Eastern District of New York pursuant to 28 U.S.C. § 1404(a). (See

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Docket Entry 11 at 1.)1 To support the instant Motion, Defendant

filed a declaration (Docket Entry 12), six exhibits (Docket Entries

12-1 - 12-6), and a memorandum (Docket Entry 13). In opposition,

Plaintiff filed a response (Docket Entry 15) and affidavit (Docket

Entry 15-1), to which Defendant replied (Docket Entry 18).

DISCUSSION

A. Personal Jurisdiction

Defendant first contends that “[t]he Court should dismiss

[Plaintiff’s] claims . . . pursuant to [Federal] Rule [of Civil

Procedure] 12(b)(2) because it lacks personal jurisdiction over

Defendant[].” (Docket Entry 13 at 16.) In response to a

defendant’s Rule 12(b)(2) challenge, the plaintiff must ultimately

prove the existence of personal jurisdiction by a preponderance of

the evidence. See Carefirst of Md., Inc. v. Carefirst Pregnancy

Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003). If a court

considers a pretrial personal jurisdiction challenge without

conducting an evidentiary hearing, though, the plaintiff need only

“mak[e] a prima facie showing in support of [the] assertion of

jurisdiction.” Universal Leather, LLC v. Koro AR, S.A., 773 F.3d

1 In addition to those jurisdiction- and venue-related

contentions, the instant Motion requests dismissal of the Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6). (See id.)

Because “the Court [should] grant the [instant] Motion as to

[Defendant’s] request to transfer the case, it need not and

[should] not address [that] argument[] for dismissal of the

Complaint,” Hunt v. Meta/Facebook, No. CV 23-3264, 2024 WL 1096758,

at *3 (D. Md. Mar. 13, 2024).

4

553, 558 (4th Cir. 2014). In such circumstances, the “[C]ourt must

construe all relevant pleading allegations in the light most

favorable to the plaintiff, assume credibility, and draw the most

favorable inferences for the existence of jurisdiction.” Id.

(internal quotation marks omitted). The Court must also construe

all “conflicting facts in the parties’ affidavits and declarations

in the light most favorable to [the plaintiff].” Id. at 560.

The Court may exercise jurisdiction over Defendant if (1)

North Carolina’s long-arm statute authorizes it and (2) the

exercise of jurisdiction comports with due process under the

Fourteenth Amendment. See Christian Sci. Bd. of Dirs. of First

Church of Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir.

2001). “A determination that the long-arm statute does not

authorize jurisdiction ends the inquiry.” Stanton Barrett

Motorsports, LLC v. Innovative Techs. Corp. of Am., No. COA 08-983,

195 N.C. App. 460, 673 S.E.2d 166 (table), 2009 WL 368577, at *2

(2009) (unpublished) (internal quotation marks omitted); see also

Vision Motor Cars, Inc. v. Valor Motor Co., 981 F. Supp. 2d 464,

472 (M.D.N.C. 2013) (Eagles, J.) (“Absent any evidence that any

defendant was engaged in solicitation or services activities at any

point in North Carolina, the plaintiff’s action is not authorized

by North Carolina’s long-arm statute. Therefore, the Court lacks

personal jurisdiction over the defendants and the action will be

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dismissed.”).2 As relevant here, North Carolina’s long-arm statute

provides that North Carolina courts possess jurisdiction over a

defendant in any action which, inter alia, “[r]elates to goods,

documents of title, or other things of value shipped from this

State by the plaintiff to the defendant on his order or

direction . . . .” N.C. Gen. Stat. § 1-75.4(5)(d).

When (as here)3 the long-arm statute authorizes jurisdiction,

the analysis turns to whether the exercise of jurisdiction comports

with due process. See IHFC Props., LLC v. APA Mktg., Inc., 850 F.

Supp. 2d 604, 616 (M.D.N.C. 2012) (Schroeder, J.) (“In order for

the exercise of personal jurisdiction to be proper, two conditions

must be satisfied. First, the forum state’s long-arm statute must

2 Defendant argues that “because North Carolina’s long-arm

statute extends jurisdiction over nonresident defendants to the

full extent permitted by the Fourteenth Amendment, the two-step

inquiry is really ‘collapse[d] into a single inquiry as to whether

the defendant [h]as such minimal contacts with the forum state that

maintenance of the suit does not offend traditional notions of fair

play and substantial justice.’” (Docket Entry 18 at 7 (quoting

Christian Sci., 259 F.3d at 215 (some internal quotation marks

omitted)). However, since the decision cited by Defendant, the

North Carolina Supreme Court has “emphasized that the two-step

process is, in fact, a two-step process, and that jurisdiction

under North Carolina’s long-arm statute, N.C. Gen. Stat. § 1-75.4,

must first be determined.” IHFC Props., LLC v. APA Mktg., Inc.,

850 F. Supp. 2d 604, 616 (M.D.N.C. 2012) (Schroeder, J.) (citing

Brown v. Ellis, 363 N.C. 360, 363, 678 S.E.2d 222, 223 (2009) (per

curiam)).

3 The Complaint alleges that Plaintiff, a North Carolina

corporation, shipped products from North Carolina to Defendants

upon receiving Defendant’s purchase order. (See Docket Entry 1,

¶¶ 6-7, 12-20.) Such allegations sufficiently satisfy Section

1-75.4(5)(d) of North Carolina’s long-arm statute.

6

authorize the exercise of jurisdiction. Second, the exercise of

personal jurisdiction must comply with the Due Process Clause of

the United States Constitution.” (internal citation omitted)). As

to that second step, “[a] court’s exercise of jurisdiction over a

nonresident defendant comports with due process if the defendant

has ‘minimum contacts’ with the forum, such that to require the

defendant to defend its interests in that state ‘does not offend

traditional notions of fair play and substantial justice.’”

Carefirst, 334 F.3d at 397 (quoting International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945)). To satisfy the minimum

contacts test, the plaintiff must “show that the defendant

‘purposefully directed his activities at the residents of the

forum’ and that the plaintiff’s cause of action ‘arise[s] out of’

those activities.” Consulting Eng’rs Corp. v. Geometric Ltd., 561

F.3d 273, 277 (4th Cir. 2009) (brackets in original) (quoting

Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985)). This

test “ensure[s] that the defendant is not ‘haled into a

jurisdiction solely as a result of random, fortuitous, or

attenuated contacts,’” id. (quoting Burger King, 471 U.S. at 475),

and thus “protects a defendant from having to defend himself in a

forum where he should not have anticipated being sued,” id.

“In judging minimum contacts, a court properly focuses on the

relationship among the defendant, the forum, and the litigation.”

Calder v. Jones, 465 U.S. 783, 788 (1984) (internal quotation marks

7

omitted). Two methods for achieving personal jurisdiction exist:

(1) “specific jurisdiction,” in which the defendant’s qualifying

contacts with North Carolina constitute the basis for the

litigation, and (2) “general jurisdiction,” which occurs when a

defendant’s “affiliations with [North Carolina] are so ‘continuous

and systematic’ as to render [it] essentially at home in [North

Carolina].” Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 919 (2011).

For this action, Plaintiff relies on specific jurisdiction.

(See Docket Entry 15 at 8.) “In determining whether specific

jurisdiction exists, [courts] consider (1) the extent to which the

defendant has 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.’” Carefirst, 334 F.3d at 397. When

analyzing specific jurisdiction, a court must focus on the nature

and quality of the defendant’s contacts with the forum. See id.

Notably, however, a court “should not ‘merely . . . count the

contacts and quantitatively compare this case to other preceding

cases.’ Even a single contact may be sufficient to create

jurisdiction when the cause of action arises out of that single

contact, provided that the principle of ‘fair play and substantial

8

justice’ is not thereby offended.” Id. (ellipsis in original)

(citation omitted).

“The purposeful-availment test is flexible, and [the] analysis

proceeds on a case-by-case basis.” Tire Eng’g & Distrib., LLC v.

Shandong Linglong Rubber Co., 682 F.3d 292, 302 (4th Cir. 2012).

In the contractual context, purposeful availment occurs if “the

contract has a substantial connection with the forum state. The

parties’ negotiations, contemplated future consequences, the terms

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

considered in determining whether the defendant purposefully

established minimum contacts in the forum state.” Tubular Textile

Mach. & Compax Corp. v. Formosa Dyeing & Finishing, Inc., No.

4:96cv391, 1997 WL 33150812, at *4 (M.D.N.C. Jan. 29, 1997) (Beaty,

J.) (citation omitted) (first citing McGee v. Int’l Life Ins. Co.,

355 U.S. 220, 223 (1957); then citing Burger King, 471 U.S. at

479). In particular, “[t]he [United States Court of Appeals for

the] Fourth Circuit has emphasized the importance of the connection

between the alleged wrongdoing and the conduct with the forum

state,” Protocol, LLC v. Henderson, 18 F. Supp. 3d 689, 702

(M.D.N.C. 2014) (Osteen, J.), as amended (May 15, 2014) (citing CEM

Corp. v. Personal Chemistry, AB, 55 F. App’x. 621, 624-25 (4th Cir.

2003) and Vishay Intertech., Inc. v. Delta Int’l Corp., 696 F.2d

1062, 1069 (4th Cir. 1982)), and “has given great weight to the

question of who has initiated the contact between the parties,”

Hanes Cos., Inc. v. Contractor’s Source, Inc., No. 1:08CV334, 2008

WL 4533989, at *11 (M.D.N.C. Oct. 6, 2008) (Sharp, M.J.) (citing

Diamond Healthcare of Ohio, Inc. v. Humility of Mary Health

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

adopted, slip op. (M.D.N.C. Dec. 15, 2008) (Schroeder, J.).

Defendant contests personal jurisdiction on the second step of

the inquiry. Specifically, Defendant asserts that it did not

purposefully avail itself of the privilege of conducting business

in North Carolina because, inter alia, “the parties’ relationship

consisted of purchasing materials in bulk at various times and

[Defendant] did so only through limited email exchanges with

representatives that may have resided in North Carolina.” (Docket

Entry 18 at 8.) Defendant further contends that its “only

unsolicited contacts with North Carolina include the address on the

[p]urchase [o]rders and certain communications with [Plaintiff’s]

accounts receivable department” (Docket Entry 13 at 20), and that

“[p]urchase [o]rders and certain communications with a North

Carolina[-]based representative will not confer personal

jurisdiction” (id.).

As this Court (per Judge Osteen) has noted, “[a] common theme

unifying [cases involving purchase orders where courts found

personal jurisdiction] is that each claim arose from a breach of a

purchase order sent into a forum state,” Protocol, 18 F. Supp. 3d

at 702 (discussing McCoy Lumber Indus., Inc. v. Niedermeyer-Martin

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Co., 356 F. Supp. 1221, 1224-26 (M.D.N.C. 1973) (Gordon, C.J.);

Blue Ribbon Commodity Traders, Inc. v. Supermercados Mr. Special,

Inc., Civ. Action No. 07-4036, 2008 WL 2468381, at *5 (E.D. Pa.

June 18, 2008); and Lantor, Inc. v. Nicassio Corp., No. CAQ6 46S,

2007 WL 204015, at *7-9 (D.R.I. Jan. 24, 2007)), which highlights

“the importance of the connection between the alleged wrongdoing

and the conduct with the forum state,” id. Additionally, in cases

where courts found no personal jurisdiction based on the defendant

sending purchase orders into the forum state, the courts emphasized

the fact that those defendants only connected with the forum state

due to the plaintiffs’ unilateral actions. See, e.g., Amiad U.S.A,

Inc. v. Advanced Water Techs., Inc., No. 1:18CV520, 2019 WL

1359240, at *5 (M.D.N.C. Mar. 26, 2019) (Biggs, J.) (finding that

the defendant did not reach into forum state when placing purchase

orders pursuant to contractual relationship formed in another

state); Protocol, 18 F. Supp. 3d at 700-01 (same); Hanes, 2008 WL

4533989 at *11 (finding fact that third party outside forum state

initiated contact between the plaintiff and the defendant mitigated

against finding personal jurisdiction based on one purchase order).

Although Defendant’s contacts with North Carolina may not have

extended beyond emailed purchase orders and related email

correspondence, the instant case arises from a breach of those very

purchase orders. (See Docket Entry 1, 97 33-36.) As Plaintiff also

notes, Defendant “understood . . . that the products [it ordered

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from Plaintiff] would be packaged, prepared for distribution, and

shipped from Mebane, North Carolina” (Docket Entry 15-1, ¶ 13). In

addition, Defendant initiated contact with North Carolina by

sending purchase orders to Plaintiff, the status of which, as a

North Carolina corporation operating out of North Carolina,

Defendant must have known based on the parties’ previous dealings,

Plaintiff’s payment address, and Defendant’s acceptance of

liability for the goods upon their shipment from North Carolina.

(See Docket Entry 15-1, ¶¶ 7-9 (stating that Defendant submitted

purchase orders to Plaintiff’s employee “based in Mebane, North

Carolina, as indicated by his email signature,” Plaintiff issued

corresponding acknowledgments “from a[n ] employee based in Mebane,

North Carolina,” and those acknowledgments “clearly indicate[d]

that [Plaintiff] is located at [a Mebane, North Carolina

address]”), 12 (“[T]he designated Free on Board (FOB) shipping

point for the products ordered by [Defendant] under [the purchase

orders at issue wa]s Mebane, North Carolina”).)

Given the “importance of the connection between the alleged

wrongdoing and the conduct with the forum state,” Protocol, 18 F.

Supp. 3d at 702, and “who [] initiated the contact between the

parties,” Hanes, 2008 WL 4533989 at *11, Plaintiff has made a prima

facie showing that Defendant purposefully availed itself of the

privilege of conducting business in North Carolina for the purpose

12

of the transactions at issue. Thus, this Court possesses personal

jurisdiction over Defendant.4

B. Venue

Alternatively, Defendant argues that, pursuant to Federal Rule

of Civil Procedure 12(b)(3), “the [C]ourt should dismiss this case

for improper venue” (Docket Entry 13 at 25). To survive a motion

to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3),

Plaintiff need only make a prima facie showing of proper venue.

See Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 366 (4th Cir.

2012). “In assessing whether there has been a prima facie venue

showing, [the court] view[s] the facts in the light most favorable

to the plaintiff.” Id.

To begin, venue exists in:

(1) a judicial district in which any defendant resides,

if all defendants are residents of the State in which the

district is located;

(2) a judicial district in which a substantial part of

the events or omissions giving rise to the claim

occurred . . .; or

(3) if there is no district in which an action may

otherwise be brought . . ., any judicial district in

which any defendant is subject to the court’s personal

jurisdiction with respect to such action.

4 Defendant does not contest the additional due process

requirements for personal jurisdiction, namely, that Plaintiff’s

claim arose out of Defendant’s activities directed at the forum

state or that exercise of personal jurisdiction otherwise satisfies

constitutional reasonableness. (See Docket Entry 13 at 19-20

(arguing only that “[Plaintiff] fails to establish that [Defendant]

has engaged in . . . purposeful availment”).)

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28 U.S.C. § 1391(b). In the absence of proper venue, the Court

“shall dismiss, or if it be in the interest of justice, transfer

such case to any district or division in which it could have been

brought.” 28 U.S.C. § 1406(a).

Plaintiff maintains that “venue is proper in this Court

pursuant to 28 U.S.C. [Section] 1391(b)(2)” (Docket Entry 15 at

17), which provides for venue where “a substantial part of the

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

§ 1391(b)(2). In determining whether a substantial part of the

events or omissions giving rise to Plaintiff’s claim occurred in

this district, Defendant contends that the Court should consider

only the location of Defendant’s alleged nonpayment because “the

purported breach had nothing to do with [Plaintiff’s] performance”

(Docket Entry 18 at 15) and “a substantial part of the contract’s

performance does not equate to a substantial part of the events or

omissions giving rise to the breach of contract claim” (id. at 14).

To the contrary, “in determining whether events or omissions are

sufficiently substantial to support venue . . ., a court should not

focus only on those matters that are in dispute or that directly

led to the filing of the action.” Mitrano v. Hawes, 377 F.3d 402,

405 (4th Cir. 2004). “Rather, it should review the entire sequence

of events underlying the claim.” Id. (internal quotation marks

omitted). As relevant here, “[v]enue is appropriate in the forum

where work for which payment is sought was completed.” Orbita

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Telecom SAC v. Juvare LLC, 606 F. Supp. 3d 240, 246-47 n.2 (D. Md.

2022) (citing Mitrano, 377 F.3d at 405-06); see also, e.g.,

Mitrano, 377 F.3d. at 405-06 (holding that plaintiff’s work under

contract at issue constituted a substantial part of events giving

rise to claim).

Based on the entire sequence of events underlying Plaintiff’s

claim, Plaintiff correctly contends that “a substantial part of the

performance under the relevant contracts occurred in Mebane, North

Carolina.” (Docket Entry 15 at 17.) First, as Plaintiff notes,

the “relevant contracts - giving rise to this lawsuit - w[ere]

created in Mebane, North Carolina” (id.), and, further, Plaintiff

completed the work for which it seeks payment - namely, the

“packag[ing], distribut[ion], and shipp[ing of the purchased

products]” (id.) - in Mebane, North Carolina (see id.). Finally,

Defendant “was to remit its payments to Mebane, North Carolina

and . . . assumed the risks and liability of the purchased products

upon shipment at Mebane, North Carolina.” (Id.) Given that many

of the events underlying the claim, and in particular Plaintiff’s

performance under the contracts at issue, occurred in this

district, venue arises here and the Court should deny Defendant’s

motion to dismiss for improper venue.

C. Transfer

Defendant lastly requests that, “[i]n the event that venue is

satisfied, venue . . . be transferred to the United States District

15

Court for the Eastern District of New York pursuant to 28 U.S.C.

[Section] 1404(a)” (Docket Entry 13 at 26). That statutory

subsection provides that, “[f]or the convenience of parties and

witnesses, in the interest of justice, a district court may

transfer any civil action to any other district or division where

it might have been brought . . . .” 28 U.S.C. § 1404(a). “Upon

consideration of [a] motion to transfer venue, th[e] Court must

make two inquiries: (1) whether [the plaintiff’s] claims might have

been brought in the [transferee court], and (2) whether the

interest of justice and the convenience of the parties justify

transfer to [such district].” LG Elecs., Inc. v. Advance Creative

Comput. Corp., 131 F. Supp. 2d 804, 809 (E.D. Va. 2001). “The

phrase ‘where it might have been brought’ in [S]ection 1404(a)

refers to a forum where venue originally would have been proper for

the claim and where a defendant originally would have been subject

to personal jurisdiction.” Kotsonis v. Superior Motor Express, 539

F. Supp. 642, 645 (M.D.N.C. 1982) (Ward, J.); see also Harman v.

Pauley, 522 F. Supp. 1130, 1133 (S.D.W. Va. 1981) (“The transferee

court must have or be able to obtain personal jurisdiction over the

defendant; otherwise, the [c]ourt must find the transfer

improper.”).

As previously discussed, venue exists, inter alia, in “a

judicial district in which any defendant resides, if all defendants

are residents of the State in which the district is located,” 28

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U.S.C. § 1391(b)(1), and “a judicial district in which a

substantial part of the events or omissions giving rise to the

claim occurred . . .,” id., § 1391(b)(2). For venue purposes, a

corporation resides “in any judicial district in which [it] is

subject to the court’s personal jurisdiction . . . .” Id.,

§ 1391(c)(2). Regarding personal jurisdiction, “[w]ith respect to

a corporation, the place of incorporation and principal place of

business are paradigm bases for general jurisdiction.” Daimler AG

v. Bauman, 571 U.S. 117, 137 (2014) (internal quotation marks,

brackets, and ellipses removed).

Plaintiff disputes the propriety of venue in the Eastern

District of New York pursuant to Section 1391(b)(2), contending

that “[Defendant] wrongly asserts that a substantial part of the

events giving rise to [Plaintiff’s] claims occurred in New York”

(Docket Entry 15 at 18-19). However, the Court need not determine

whether venue arises under Section 1391(b)(2). As discussed,

Section 1391(b)(1) provides for venue in “a judicial district in

which any defendant resides,” 28 U.S.C. § 1391(b)(1). Defendant

notes that its “principal place of business is in Brooklyn, and

[it] is otherwise subject to personal jurisdiction in New York.”

(Docket Entry 13 at 27.) Plaintiff does not contest this point;

nor could it, as the Complaint alleges that “Defendant . . . is a

New York corporation with its headquarters and principal place of

business in Brooklyn, New York” (Docket Entry 1, ¶ 7). Such

17

allegations sufficiently establish both that the United States

District Court for the Eastern District of New York possesses

personal jurisdiction over Defendant, and that Defendant resides in

that district for venue purposes. Accordingly, the instant case

“might have been brought,” 28 U.S.C. § 1404(a), in the Eastern

District of New York.

In light of that determination, the Court must determine

“whether the interest of justice and the convenience of the parties

justify transfer to [the Eastern District of New York],” LG Elecs.,

131 F. Supp. 2d at 809. In making such a determination, courts

weigh the following discretionary factors:

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

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

compulsory process for attendance of unwilling witnesses,

and the cost of obtaining attendance of willing and

unwilling witnesses; (4) possibility of a view of the

premises, if appropriate; (5) enforceability of a

judgment, if one is obtained; (6) relative advantage and

obstacles to a fair trial; (7) other practical problems

that make a trial easy, expeditious, and inexpensive; (8)

administrative difficulties of court congestion; (9)

local interest in having localized controversies settled

at home; (10) appropriateness in having a trial of a

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

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

unnecessary problems with conflicts of laws.

Speed Trac Techs., Inc. v. Estes Express Lines, Inc., 567 F. Supp.

2d 799, 802 (M.D.N.C. 2008) (Schroeder, J.) (quoting Plant Genetic

Sys., N.V. v. Ciba Seeds, 933 F. Supp. 519, 527 (M.D.N.C. 1996)

(Osteen, Sr., J.)). The movant bears the burden of proving that

the balance of factors favors transfer, see id. at 803, and

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“‘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) (brackets

omitted) (quoting Gulf Oil v. Gilbert, 330 U.S. 501, 508 (1946)).

Defendant argues that “[t]he relevant discretionary

factors . . . favor transfer” (Docket Entry 13 at 27), for the

following reasons:

[Defendant’s] financial accounts, as a source of proof of

payment, are located in New York; upon information and

belief, all witnesses relevant to this dispute either

reside in New York or New Jersey; judgment, if obtained,

would be enforced in New York; North Carolina has no

local interest since the conduct giving rise to the

action did not occur in North Carolina; [and] there is no

interest in applying substantive North Carolina law to

[Plaintiff’s] claim since the purported breach happened

in New York.

(Id. at 27-28.) Plaintiff, in contrast, fails to address the

discretionary factors or argue why North Carolina would constitute

a more convenient forum beyond its vague statement that

“transferring venue would not serve the interest of justice”

(Docket Entry 15 at 19). (See id. at 18-19 (arguing only that

proper venue does not exist in the Eastern District of New York).)

Given Defendant’s uncontested contentions regarding, inter alia,

ease of access to sources of proof and potential witnesses, as well

as the absence of any showing from Plaintiff that any relevant

factors weigh against transfer, the Court should conclude that the

balance of factors favors transfer. See Hill v. Carvana, LLC, No.

1:22CV37, 2022 WL 1625020, at *5 (M.D.N.C. May 23, 2022) (Eagles,

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J.) (“It is not the Court’s job to undertake the analysis and legal

research needed to support a perfunctory argument, nor should a

party expect [the C]ourt to do the work that [the party] elected

not to do.” (internal citation and quotation marks omitted)).

Accordingly, the Court should transfer this action to the Eastern

District of New York.

CONCLUSION

Plaintiff made a prima facie showing that Defendant

purposefully availed itself of the privilege of conducting business

in North Carolina, thus establishing that this Court possesses

personal jurisdiction over Defendant. Additionally, Plaintiff

sufficiently demonstrated that a substantial part of the events

giving rise to its claim occurred in this district, making this

Court a proper venue for the action. Finally, because the Eastern

District of New York also possesses personal jurisdiction over

Defendant and serves as a proper venue, and because Plaintiff

failed to contest Defendant’s showing as to the interest of justice

and the convenience of the parties, the Court should transfer this

action to the Eastern District of New York.

IT IS THEREFORE RECOMMENDED that the instant Motion (Docket

Entry 11) be granted in part and denied in part as follows: the

Motion should be denied as to Defendant’s Rule 12(b)(2) and

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12(b)(3) requests and should be granted as to Defendant’s request

to transfer this action to the Eastern District of New York.

This 11th day of August, 2025.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

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