United States District Court, D. Maryland
L. Hollander United States District Judge
Restoration, LLC ("CVR"), plaintiff, filed suit
against defendant, Diversified Shafts Solutions, Inc.
("DSS"), on June 14, 2016. ECF 1. CVR alleges
breach of contract, unjust enrichment, and breach of
fiduciary duty, arising out of two written agreements that
plaintiff alleges the parties executed in August 2009.
Id. ¶¶ 26-41. Plaintiff seeks to recover,
among other things, $338, 310 and requests an accounting.
asserted counterclaims against CVR, alleging breach of
contract and requesting an accounting. ECF 15 ¶¶
66-78. It seeks, inter alia, $222, 157 in damages,
plus attorneys' fees. Id. ¶¶ 58, 65.
Memorandum resolves the motion filed by DSS to transfer the
case to the Northern District of Georgia. ECF 13 (the
"Motion"). The Motion is supported by several
exhibits (id. at 13-22). CVR opposes the Motion (ECF
20, the "Opposition"), and has submitted exhibits.
ECF 20-2, ECF 20-3. DSS replied. ECF 23 (the
Motion has been fully briefed and no hearing is needed to
resolve it. See Local Rule 105.6. For the reasons
that follow, I shall deny the Motion.
a limited liability company organized under Maryland law,
with its principal place of business in Maryland. ECF 1
¶ 1- CVR "develops, manufactures, markets and
distributes axles and their related components for
all-terrain vehicles . . . ." Id.¶ 3. DSS
is a corporation organized under Georgia law, with its
principal place of business in Alpharetta, Georgia.
Id. ¶ 2; ECF 15 (Amended Answer), ¶ 2. DSS
oversees the manufacture, marketing, and distribution of
axles for all-terrain vehicles, and their related components.
ECF 1 ¶ 4; ECF 15 II 4.
alleges (ECF 1 ¶¶ 6, 13) that on August 31, 2009,
CVR and DSS entered into two agreements: "Limited
Partnership Agreement for sales of ATV Axles"
(see ECF 1-2) and "Partnership Agreement for
Monster Axles." See ECF 1-3 (collectively, the
"Agreements"). According to plaintiff, "[t]he
Agreements are substantively identical, and provide that CVR
and DSS are forming a partnership for the manufacture and
sale of ATV axles." ECF 1 ¶ 14. CVR avers that the
gross profit from the "venture" was to be split
"equally between" CVR and DSS. Id. ¶
15. However, plaintiff asserts that "DSS has continually
and systemically breached the Agreements" by not
remitting its share. Id. ¶ 19.
Motion, DSS contends that the Agreements are neither valid
nor enforceable. ECF 13 at 2. Defendant states, id:
"Neither of the Agreements were signed by Plaintiff, and
to the extent the Agreements were signed by someone from DSS,
that person was not authorized to enter the Agreements on
behalf of DSS." Defendant also contends that, even if
the Agreements were valid and enforceable, "DSS has
fulfilled its obligations and is actually owed profits from
Plaintiff." ECF 13 at 2.
Opposition, CVR claims that representatives of both CVR and
DSS executed the Agreements, but that the parties
'"crossed wires' sending unilaterally executed
Contracts to one another." ECF 20 at 9 (quoting ECF 20-2
¶ 7, Affidavit of Danniel Walburn, sole member of CVR).
Plaintiff also states that the Agreements
"memorialize" the parties' oral agreement and
that "the agreement was formed orally prior to the
execution of the Agreements . . . over the telephone. . .
." ECF 20 at 9-10.
moved to transfer venue to the Northern District of Georgia,
pursuant to 28 U.S.C. § 1404(a), claiming "Maryland
has no connection with the matter in controversy." ECF
13 at 9. It contends that "all witnesses and relevant
documents" are located in Georgia, and that "many
of the underlying issues will be governed by Georgia
law." Id. at 1. CVR disagrees. ECF 20.
1404(a) states, in pertinent part: "For 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. . .
." It enables the courts to "prevent plaintiffs
from abusing their privilege under [28 U.S.C] § 1391
[for diversity cases] by subjecting defendants to venues that
are inconvenient under the terms of § 1404(a)."
In re: Volkswagen of Am., Inc., 545 F.3d 304, 313
(5th Cir. 2008).
28 U.S.C. § 1404(a) "reflects an increased desire
to have federal civil suits tried in the federal system at
the place called for in the particular case by considerations
of convenience and justice." Van Dusen v.
Barrack, 376 U.S. 612, 616 (1964). To that end, it helps
"to prevent the waste 'of time, energy, and
money' and 'to protect litigants, witnesses, and the
public against unnecessary inconvenience and expense."
Id. (citation omitted).
motion to transfer venue pursuant to § 1404(a), the
moving party bears the burden of showing, by a preponderance
of the evidence, that transfer to another venue is proper.
See Gilbert v. Freshbikes, LLC, 32 F.Supp.3d 594,
607 (D. Md. 2014); CoStar Realty Info., Inc. v.
Meissner, 604 F.Supp.2d 757, 770 (D. Md. 2009);
Lynch v. Vanderhoef Builders, 237 F.Supp.2d 615, 617
(D. Md. 2002). "In order to carry this burden, the
movant should submit, for example, affidavits from witnesses
and parties explaining the hardships they would suffer if the
case were heard in the plaintiffs chosen forum." Dow
v. Jones, 232 F.Supp.2d 491, 499 (D. Md. 2002) (citing
Helsel v. Tishman Realty & Constr. Co., 198
F.Supp.2d 710, 712 (D. Md. 2002)). As Judge Blake observed in
Dow, 232 F.Supp.2d at 713, where the movant only
provides "[m]ere assertions of inconvenience or
hardship, " it will not adequately have met its burden.
addressing a motion to transfer under § 1404(a), the
district court must "weigh in the balance a number of
case-specific factors." Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29 (1988). These include: "(1)
the weight accorded to plaintiffs choice of venue; (2)
witness convenience and access; (3) convenience of the
parties; and (4) the interest of justice." Tr. of
the Plumbers and Pipefitters Nat. Pension Fund v. Plumbing
Servs., Inc., 791 F.3d 436, 444 (4th Cir. 2015);
see, e.g., Mamani v. Bustamante, 547 F.Supp.2d 465,
469 (D. Md. 2008); Cross v. Fleet Reserve Ass'n
Pension Plan, 383 F.Supp.2d 852, 856 (D. Md. 2005);
Lynch, 237 F.Supp.2d at 617. Other factors include
the "local interest in having localized controversies
settled at home" and the "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."
Stratagem v. Parsons Behle & Latimer, 315
F.Supp.2d 765, 771 (D. Md. 2004).
"[t]he decision whether to transfer is committed to the
sound discretion of the trial court." Mamani,
547 F.Supp.2d at 469; see Volkswagen, 545 F.3d at
312 ('"There can be no question but that the
district courts have 'broad discretion in deciding
whether to order a transfer.'"); see also
Plumbing Servs., Inc., 791 F.3d at 443; In re
Ralston Purina Co., 726 F.2d 1002, 1005 (4th Cir. 1984).
28 U.S.C. § 1404(a), the "preliminary" inquiry
focuses on whether the civil action "might have been
brought in the destination venue." Volkswagen,
545 F.3d at 312 (internal quotations omitted). In order to
satisfy that requirement, venue in the transferee court must
be proper, and that court must have personal jurisdiction
over the defendant. D2L Ltd. v. Blackboard, Inc.,
671 F.Supp.2d 768, 778 (D. Md. 2009).
a Georgia corporation with its principal place of business in
Alpharetta, Georgia. ECF 1 ¶ 2. Alpharetta is within the
Northern District of Georgia. See ECF 23 at 2.
Clearly, this suit could have been brought in the Northern
District of Georgia, the proposed transferee venue.