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Wright v. Zacky & Sons Poultry, LLC

United States District Court, M.D. North Carolina

May 15, 2015



THOMAS D. SCHROEDER, District Judge.

Plaintiff Robert Allan Wright brings suit against Defendant Zacky & Sons Poultry, LLC ("Zacky") for breach of an employment contract. Before the court is Zacky's motion to dismiss or transfer for lack of personal jurisdiction and improper venue pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(3). (Doc. 2.) Wright opposes the motion. (Doc. 6.) For the reasons stated below, the motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) will be granted, and the case will be transferred.


Viewed in the light most favorable to Wright, the allegations of the complaint and supporting affidavits show the following:[1]

Wright is a citizen and resident of Moore County, North Carolina. (Doc. 1 ¶ 5.) Zacky is a California limited liability company with its principal place of business in Fresno, California. (Id. ¶ 6.) Zacky primarily conducts business in California, Nevada, and Arizona and has no offices in North Carolina.[2] (Doc. 5 ¶¶ 5-6.) Zacky also is not registered to do business in North Carolina, ships no goods to North Carolina, holds no bank accounts in North Carolina, and has no employees in North Carolina (outside of Wright's alleged activity).[3] (Id. ¶¶ 7-9, 11.)

On August 20, 2013, Zacky contacted Wright, who was in North Carolina at the time, concerning his possible employment as the company's President. (Doc. 1 ¶ 8; Doc. 5 ¶ 12; Doc. 7 ¶ 3.) Wright had made no solicitation of an employment offer to Zacky prior to that contact. (Doc. 7 ¶ 3.) Wright negotiated the terms of employment with Zacky via email "while being a North Carolina resident, " but Zacky had Wright visit the company in California to finalize and execute the employment contract it drafted in California. (Id. ¶ 6; Doc. 1 ¶ 10; Doc. 4 ¶¶ 5-8; Doc. 4-3 (showing expense reports submitted by Wright for travel to and his stay in California); Doc. 5 ¶ 13.) No Zacky representative went to North Carolina to meet with Wright during the hiring process. (Doc. 5 ¶ 14.)

Wright executed his employment contract with Zacky's human resources director, Ward Scheitrum, in California on September 30, 2013. (Doc. 1 ¶ 10; Doc. 4 ¶¶ 4-5; Doc. 4-1 (the employment agreement).) The contract afforded Wright a two-year employment term as Zacky's President and provided that Zacky could terminate Wright's employment only "for cause." (Doc. 1 ¶¶ 10-12.) It also included a monthly allowance for Wright to use an automobile. (Doc. 4-1.) Finally, the contract provided Wright a $20, 000 relocation stipend, and Wright agreed to relocate from North Carolina to California "within the [first] 12 months of employment, per Company relocation policy." (Id.; see also Doc. 5 ¶ 17 (acknowledging that Wright's "home" at the time of his employment was in North Carolina).) The contract contained no choice-of-law or forum-selection provisions selecting North Carolina as the applicable law or forum.[4]

During his employment with Zacky, Wright would fly to California on the Monday of most weeks to work for Zacky. (Doc. 5 ¶ 17.) Rather than putting his $20, 000 relocation package towards moving to California, Wright instead spent the bulk of his stipend on flights back to North Carolina on the weekends. (Doc. 9 ¶ 8; Doc. 9-1 (noting reimbursement by Zacky for Wright's flights to North Carolina).) Wright traveled back from California to North Carolina fifteen times, or about every second or third week of work. (Doc. 5 ¶ 17; Doc. 9 ¶¶ 6-7.) Wright alleges that, "[a]s a high level executive, I was on call' twenty-four hours per day, seven days per week." (Doc. 7 ¶ 9.) He further alleges that he "routinely conducted business, " "sought out business prospects and investment for Zacky, " conducted telephone conferences, and sent emails on behalf of Zacky all while in North Carolina. (Id. ¶¶ 9-12.) He asserts that he acted "pursuant to the [employment] contract" when traveling to and performing his job in North Carolina.[5] (Doc. 1 ¶ 14; see also Doc. 7 ¶ 8 (stating that, "[a]s part of [his] duties for Zacky, " Wright both traveled between California and North Carolina and performed work in both states).) Finally, Zacky issued Wright's payroll check in California and electronically deposited the check into Wright's Regions Bank account in North Carolina. (Doc. 5 ¶ 18; Doc. 7 ¶ 13.)

In June 2014, while Wright was in California, Zacky's CEO - Lillian Zacky - called Wright and informed him that Zacky had terminated Wright's employment.[6] (Doc. 1 ¶ 15; Doc. 5 ¶ 21; Doc. 7 ¶ 2.) On June 30, 2014, Zacky's counsel - David Elbaz - sent Wright a letter outlining California employment law and providing several reasons for Wright's termination. (Doc. 5-2.)

Shortly thereafter, on July 7, 2014, Wright filed the present action alleging breach of contract. (Doc. 1 ¶¶ 16-21.) Zacky responded with the current motion to dismiss or transfer, filing two affidavits from current employees. (Docs. 2, 4-5.) Wright responded (Doc. 6) and included his own affidavit (Doc. 7). Zacky replied (Doc. 8) and included another affidavit (Doc. 9). The motion is now ready for resolution.


Zacky argues both that this court lacks personal jurisdiction over it under Rule 12(b)(2) and that venue in this district is improper under Rule 12(b)(3). Because this court finds that it lacks personal jurisdiction over Zacky, it need not reach Zacky's argument regarding the propriety of venue.

A. Standard of Review

Wright bears the burden of establishing personal jurisdiction by a preponderance of the evidence. See Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014); Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003); Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). "When, however, as here, a district court decides a pretrial personal jurisdiction motion without conducting an evidentiary hearing, the plaintiff need only make a prima facie showing of personal jurisdiction." Carefirst, 334 F.3d at 396; see also Combs, 886 F.2d at 676. "In deciding whether the plaintiff has proved a prima facie case of personal jurisdiction, the district court must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiff's favor." Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993); see also Carefirst, 334 F.3d at 396. If the existence of jurisdiction turns on disputed factual questions, the court may resolve the challenge on the basis of an evidentiary hearing or, when a prima facie demonstration of personal jurisdiction has been made, it can proceed "as if it has personal jurisdiction over th[e] matter, although factual determinations to the contrary may be made at trial." Pinpoint IT Servs., L.L.C. v. Atlas IT Exp. Corp., 812 F.Supp.2d 710, 717 (E.D. Va. 2011) (citing 2 James Wm. Moore et al., Moore's Federal Practice ¶ 12.31 (3d ed. 2011)); see also Indus. Carbon Corp. v. Equity Auto & Equip. Leasing Corp., 737 F.Supp. 925, 926 (W.D. Va. ...

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