United States District Court, E.D. North Carolina, Western Division
WILLIAM C. DILLON, Plaintiff,
BDI PHARMA INC., RICHARD J. GATON, and EDWARD STIEFEL, JR., Defendants.
W. FLANAGAN UNITED STATES DISTRICT JUDGE.
matter is before the court on defendants' motion to
dismiss for lack of personal jurisdiction and improper venue,
alternatively motion to transfer venue. (DE 10). The motion
has been fully briefed, and, in this posture, the issues
raised are ripe for adjudication. For reasons addressed
herein, defendants' alternative motion to transfer is
granted and their motion to dismiss for lack of personal
jurisdiction is denied as moot.
initiated this action August 7, 2017, in the General Court of
Justice, Superior Court Division, for Wake County, North
Carolina, asserting claims against defendants for violations
of North Carolina's Wage and Hour Act, N.C. Gen. Stat.
§§ 95-25, et seq., alternatively claims
for breach of contract. On September 18, 2017, defendants
removed the action to this court on the bases of diversity
jurisdiction. 28 U.S.C. § 1332.
October 16, 2017, defendants BDI Pharma, Inc.,
(“BDI”), Richard Gaton (“Gaton”), and
Edward Stiefel, Jr. (“Stiefel”), filed the
instant motion to dismiss for lack of personal jurisdiction
and improper venue, alternative motion to transfer. Plaintiff
filed response in opposition on December 16, 2017.
facts alleged in the complaint may be summarized as follows.
Plaintiff is a resident of Wake County, North Carolina.
Defendant BDI is a South Carolina corporation, with a
principal place of business in Richland County, South
Carolina. (DE 1-1, ¶ 2). Defendants Gaton and Stiefel
are the co-owners and founders of defendant BDI and are both
are citizens and residents of Richland County, South
Carolina. (Id. ¶ ¶ 4, 6, and 10). At all
relevant times herein, plaintiff was an employee of defendant
BDI, which employment was controlled by defendants Gaton and
Stiefel. (Id. ¶ ¶ 11).
around October 2014, plaintiff began working as the Chief
Commercial Officer of defendant BDI. (Id.
¶ 15). As relevant to the instant dispute,
pursuant to the terms of his employment agreement, plaintiff
was entitled to participate in defendant BDI's 2015 bonus
plan (the “plan”). (Id. ¶ 16).
Under the plan's terms, plaintiff's bonus was based
three factors: 1) defendant BDI's revenue; 2) defendant
BDI's net income; and 3) plaintiff's achievement of
his personal goals. (Id. ¶ 18).
about December 16, 2015, defendants terminated
plaintiff's employment with defendant BDI. (Id.
¶ 29). According to plaintiff, defendants failed to pay
him the bonus he was entitled to pursuant to the terms of the
plan. (Id. ¶ ¶ 31-33). More specifically,
plaintiff claims defendants failed to pay him a minimum bonus
of $346, 686.65. (Id. ¶ 34).
defendants seek dismissal for lack of personal jurisdiction,
this court can consider and resolve their alternative motion
to transfer without first resolving their jurisdictional
challenge. See e.g., Goldlawr, Inc. v.
Heiman, 369 U.S. 463, 466 (1962), The court does not
need personal jurisdiction over defendants to transfer this
matter pursuant to 28 U.S.C. § 1404. See id.
(holding personal jurisdiction is not required to transfer a
case pursuant to § 1406 transfers). Moreover, even were
the court to address and find it lacks personal jurisdiction
over defendants, it would not have to dismiss them as parties
if the possibility remained that the action could be
transferred to a district that has jurisdiction. See City
of Virginia Beach, Va. v. Roanoke River Basin Ass'n,
776 F.2d 484, 488 (4th Cir. 1985) (holding district court
lacked personal jurisdiction over certain defendant but
remanding to determine whether transfer or dismissal was
to § 28 U.S.C. § 1404(a), a court may, for the
convenience of the parties and in the interest of justice,
order the transfer of a case to any district where it might
otherwise have been brought. The question of transfer under
§ 1404 is one committed to the sound discretion of the
district court. Southern Rv. Co. v. Madden, 235 F.2d
198, 201 (4th Cir. 1956).
court previously has recognized that “[a] motion to
transfer demands a holistic analysis.” Memsys, Inc.
v. Act Tech. Seed Fund, L.L.C., No. 5:09-CV-516-FL, 2010
WL 2402846 *2 (E.D. N.C. June 14, 2010). “ ‘Much
necessarily must turn on the particular facts of each case,
and . . . the trial court must consider and balance all the
relevant factors to determine whether or not the litigation
would proceed more conveniently and the interests of justice
be better served by transfer to a different forum.'
” Id. (quoting Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, 15 Federal Practice &
Procedure Jurisdiction § 3847 (3d ed.)).
determining whether to transfer a case pursuant to 28 U.S.C.
§ 1404, courts consider the following factors: 1)
plaintiff's initial choice of forum; 2) the residence of
the parties; 3) the ease of access to the sources of proof;
4) the convenience of the parties and witnesses; 5) the cost
of obtaining the attendance of the witnesses; 6) the
availability of compulsory process; 7) the possibility of a
view by the jury; 8) the enforceability of a judgment; 9)
other practical problems that make trial expeditious and
inexpensive; 10) the interest in having local controversies
decided at home and at home with the state law that governs;
and 11) the interests of justice. See ...