United States District Court, D. Maryland
NORMAN WILLIAMS, As Legal Representative of J .H., DIANE HOWE, As Legal Representative of J .H., KEVIN ATTAWAY and JAMELBLAKELY, Plaintiffs,
ROMARM, S.A., Defendant.
THEODORE D. CHUANG United States District Judge.
before the Court is Plaintiffs' Motion to Transfer under
28 U.S.C. § 1406, filed on October 13, 2016. ECF No. 62.
On September 30, 2016, the Court granted a Motion to Dismiss
based on the lack of personal jurisdiction over Defendant
Romarm, S.A. ("Romarm"). Plaintiffs now request
that the Court transfer the case to the United States
District Court for the District of Vermont, which, they
assert, will be able to exercise personal jurisdiction over
courts have discretion to transfer any case filed in the
wrong venue to "any district or division in which it
could have been brought" if such transfer would be
"in the interest of justice." 28 U.S.C. §
1406(a) (2012); see Nichols v. G.D. Searle &
Co., 991 F.2d 1195, 1200-01 (4th Cir. 1993). The United
States Court of Appeals for the Fourth Circuit construes
§ 1406(a) broadly to "authorize broad remedial
relief where there are impediments to an adjudication on the
merits, " including lack of personal jurisdiction.
See Porter v. Groat, 840 marketing, or anything
else, " that would indicate a "specific
effort" by the defendant to sell in the forum state.
See J. McIntyre Mack Ltd. v.
Nicastro, 564 U.S. 873, 889 (2011) (Breyer, J.,
concurring). See also Bank Brussels Lambert v. Fiddler
Gonzalez & Rodriguez, 305 F.3d 120, 128-29 (2d Cir.
2002) (finding specific jurisdiction where the defendant
"deliberately cultivated" a presence in the forum
state by making "efforts to promote and maintain a
client base there" and profited
"substantially" from its business there).
their Motion, Plaintiffs assert that Romarm has an exclusive
sales agreement with a Vermont-based business, Century Arms,
Inc. ("Century") and ships its firearms to
Century's facility in Georgia, Vermont, where they are
modified and warehoused before being resold by Century. These
sales into Vermont have generated over $55 million in revenue
for Romarm. As established in earlier proceeding,, the
specific firearm used in the shootings at issue in this case
was shipped to Vermont before Century sold it a firearms
dealer in Ohio and it eventually reached Maryland and the
District of Columbia. "These contacts are not the kind
of 'random, fortuitous, or attenuated contacts' or
'unilateral activity of another party or third
person' that the purposeful availment requirement is
designed to eliminate as a basis for jurisdiction""
Bank Brussels Lamber,, 305 F.3d at 128 (quoting
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 455
(1985)). The Court is thus satisfied that Plaintiffs have
made aprima facie showing of both a regular course
of sales into Vermont and a specific effort to target the
state of Vermont.
Romarm does not contest these facts. Instead, Romarm argues
that "the conduct and/or activities of Century or other
entities cannot be utilized to establish personal
jurisdiction over Romarm." Opp'n at 11. But it is
not the conduct of Century, which allegedly modifies
Romarm's products to comply with federal regulations and
resells them to firearms dealers nationwide, that establishes
whether a Vermont court could exercise personal jurisdiction
over Romarm. Rather, it is Romarm's own purposeful
availment of the laws and protections of Vermont as it
regularly sells and ships firearms directly into Vermont that
subjects it to a Vermont court's jurisdiction.
have also demonstrated that the District of Vermontss
exercise of jurisdiction over Romarm would not offend
"traditional notions of fair play and substantial
justice." Asahi Metal Indus. Co. v. Sup. Ct. of Cal,
Solano Cty., 480 U.S. 102, 113-14 (1987). The
five-factor test articulated in Asahi requires the
court to assess the "reasonablen's"" of
the exercise of personal jurisdiction in this case based on:
(1) the burden on the defendant, (2) the interests of the
forum, (3) the interests of the plaintiff in obtaining
relief, (4) the judicial system's interest in efficient
resolution of controversies, and (5) the common interests of
the states in furthering "fundamental substantive social
policies." See id; Metro. Life Ins. Co., 84
F.3d at 573-75. Where a plaintiff makes the threshold showing
of the minimum contacts required, the defendant must present
"a compelling case that the presence of some other
considerations would render jurisdiction unreasonable."
Bank Brussels Lamber,, 305 F.3d at 129. Romarm has
not made such a showing.
the first factor, litigating in a foreign country is
burdensome to any defendant, and under the fourth factor,
adjudication in Vermont may not be particularly efficient
because the underlying events, the witnesses, and the
evidence generally derive from outside that state. The second
and third factors, however, weigh in favor of Plaintiffs.
Vermont has an interest in maintaining a lawsuit involving a
corporation doing substantial business in the state.
Plaintiffs likewise have a clear interest in obtaining relief
which otherwise may be unavailable in any other district in
the United States. As for the fifth factor, substantive
social policies, the Court finds that where a foreign
manufacturer has purposefully availed itself of the United
States market, as Romarm has through its extensive
distribution of firearms nationwide, the states have a common
interest in ensuring that the manufacturer cannot evade
jurisdiction altogether. Because Romarm has targeted Vermont
specifically by funneling its products through an exclusive
distributor located there, it is manifestly reasonable, and
does not offend traditional notions of fair play and
substantial justice, to subject Romarm to the jurisdiction of
its courts. The Court therefore concludes that this case
could be brought in the District of Vermont. See 28
U.S.C. § 1391(b)(3).
same reasons, the Court also finds that transfer to the
District of Vermont is "in the interest of
justice." 28 U.S.C. § 1406(a). Where the Court
"perceive(s] it to be in the interest of justice for
plaintiffs to have their day in court, " and there
appears to be no other district in which this case may
proceed, transfer is warranted. Porter, 840 F.2d at
258. The Court does not agree that Plaintiffs demonstrated a
lack of diligence by filing this case first in the District
of Columbia, then in Maryland, or that the decisions to file
in those jurisdictions were made in bad faith. Where the
shootings underlying this case occurred in Washington, D.C.,
the initial filing in the District of Columbia was entirely
sensible. When the case was dismissed for lack of personal
jurisdiction, the filing in Maryland was understandable
because of its proximity to Plaintiffs and, as Romarm has
acknowledged, because the firearm at issue was actually sold
in Maryland. The fact that Plaintiffs were ultimately unable
to establish personal jurisdiction over Romarm in these
districts, particularly where Romarm vigorously opposed such
a finding and refused to provide jurisdictional discovery,
does not provide a basis to conclude that Plaintiffs acted in
bad faith. In any event, the Fourth Circuit has never adopted
the rule that even an obviously wrong choice of forum bars
the district court from exercising its discretion to transfer
the case to a proper forum. See Nichols, 991 F.2d at
1202 n.6 ("We do not imply that a district court would
necessarily err by granting a plaintiffs motion to transfer
an action that the plaintiffs attorney filed in the wrong
court because of an obvious error.")- The Court
therefore will not deny transfer on the basis of bad faith,
nor will it grant Romarm's request for attorney's
fees and costs.
because this Court does not have jurisdiction over this case,
it would be inappropriate to address Romarm's argument
that Plaintiffs have not adequately stated a claim, its
assertion that service of process was insufficient, and its
affirmative defense based on the statute of limitations. The
Court leaves those matters to the District of Vermont.
for the foregoing reasons, it is ORDERED that:
Plaintiffs' Motion to Transfer, ECF No. 62, is GRANTED.
Clerk is directed to transfer this case to the ...