# UNIVERSAL PRESERVACHEM, INC. v. DELLS CHERRIES, LLC

> District Court, M.D. North Carolina · August 11, 2025

URL: https://www.frixlaw.com/law-library/cases/11118295

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** August 11, 2025
- **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/11118295

## How later opinions describe it (automated extraction)

- holding that plaintiff’s work under contract at issue constituted a substantial part of events giving rise to claim

## Opinion text

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.
2
(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

3
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

5
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
10
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

11

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”).)
13
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
14
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
16
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
18
“‘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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11118295. Public record. Not legal advice.