Wright v Zacky & Sons Poultry, LLC

Filing 11

MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 5/15/2015. ORDERED that Defendant's motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule of 22 Civil Procedure 12(b)(2) (Doc. 2 ) is GRANTED and the case is TRANSFERRED to the Eastern District of California pursuant to 28 U.S.C. § 1406(a). (Butler, Carol) [Transferred from ncmd on 5/15/2015.]

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBERT ALLAN WRIGHT,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ZACKY & SONS POULTRY, LLC,
Defendant.

1:14cv570

MEMORANDUM OPINION AND ORDER
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

12(b)(3).

Federal

(Doc. 2.)

Rules

of

Civil

Procedure

Wright opposes the motion.

12(b)(2)

and

(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.
I.

BACKGROUND
Viewed

in

the

light

most

favorable

to

Wright,

the

allegations of the complaint and supporting affidavits show the
following: 1

1

The court may consider supporting affidavits when determining whether
a plaintiff has made a prima facie showing of personal jurisdiction.
Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir.
2014) (“When a district court considers a question of personal

Wright is a citizen and resident of Moore County, North
Carolina.

(Doc.

liability

company

Fresno,

1

¶ 5.)

with

California.

its
(Id.

Zacky

is

principal
¶ 6.)

a

California

place

Zacky

of

limited

business

primarily

in

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
On

(Id. ¶¶ 7–9, 11.)

August

20,

2013,

Zacky

contacted

Wright,

who

was

in

North Carolina at the time, concerning his possible employment
jurisdiction based on the contents of a complaint and supporting
affidavits, the plaintiff has the burden of making a prima facie
showing in support of its assertion of jurisdiction.”).
2

Wright makes several allegations about Zacky’s business, all of which
are irrelevant to the current motion.
For instance, Wright alleges
that Zacky receives products from a separate business which operates a
facility in North Carolina but makes no allegation that it even
received products from that other business’s North Carolina facility.
(Doc. 7 ¶ 15.) Another allegation notes that Zacky receives “some of
its eggs” from Virginia and Arkansas. (Id. ¶ 16.)

3

Wright alleges that, at some point prior to his employment with
Zacky, the company “sold products in North Carolina through Food
Lion.” (Doc. 7 ¶ 14.) He makes no claim, however, that his cause of
action in any way arises out of such prior alleged contacts.
Thus,
any alleged activity by Zacky prior to the events surrounding Wright’s
cause of action is irrelevant.
See Saudi v. Northrop Grumman Corp.,
427 F.3d 271, 276 (4th Cir. 2005) (noting that to establish specific
personal jurisdiction, a plaintiff’s cause of action must “arise[] out
of the defendant’s contacts with the forum”) (quoting Base Metal
Trading, Ltd. v. OJSC, 283 F.3d 208, 213 (4th Cir. 2002)); see also
CFA Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d 285,
292 n.15 (4th Cir. 2009) (concluding that specific jurisdiction
requires consideration of “relevant conduct” (emphasis added)).

2

as the company’s President.
¶ 3.)

(Doc. 1 ¶ 8; Doc. 5 ¶ 12; Doc. 7

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).)
term

as

The contract afforded Wright a two-year employment

Zacky’s

President

and

provided

that

terminate Wright’s employment only “for cause.”
12.)

Zacky

could

(Doc. 1 ¶¶ 10–

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).)
3

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

California on the Monday of most weeks to work for Zacky.
5 ¶ 17.)

to

(Doc.

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

Wright’s flights to North Carolina).)
California

to

North

Carolina

Zacky

for

Wright traveled back from

fifteen

second or third week of work.

by

times,

or

about

every

(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.”
¶ 9.)

He

business,”
Zacky,”

further

“sought

conducted

out

alleges

that

business

telephone

he

“routinely

prospects

conferences,

and
and

behalf of Zacky all while in North Carolina.

(Doc. 7
conducted

investment
sent

for

emails

on

(Id. ¶¶ 9–12.)

He

asserts that he acted “pursuant to the [employment] contract”
when traveling to and performing his job in North Carolina. 5

4

Generally, under North Carolina choice-of-law rules, a contract is
governed by the law of the state where the contract is made.
Volvo
Constr. Equip. N. Am., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581, 601
(4th Cir. 2004).
5

According to Zacky’s CEO, Lillian Zacky, “[t]he duties and
responsibilities contemplated in the [employment contract] were
intended to be performed in California.” (Doc. 5 ¶ 16.)

4

(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
7 ¶ 2.)
Wright

(Doc. 1 ¶ 15; Doc. 5 ¶ 21; Doc.

On June 30, 2014, Zacky’s counsel — David Elbaz — sent
a

letter

outlining

California

employment

providing several reasons for Wright’s termination.
Shortly

thereafter,

on

July

7,

2014,

present action alleging breach of contract.

law

and

(Doc. 5-2.)

Wright

filed

the

(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.

II.

ANALYSIS
Zacky

argues

both

that

6

this

court

lacks

personal

Wright’s complaint alleges that he was fired “on or about June 17,
2014.” (Doc. 1 ¶ 15.) Yet, in an affidavit attached to his response,
Wright states that Zacky fired him on June 30, 2014.
(Doc. 7 ¶ 2.)
The court need not resolve this factual discrepancy to decide the
present motion, and Wright does not dispute that he was first told of
his termination by Lillian Zacky while he was in California.

5

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

jurisdiction by a preponderance of the evidence.

personal

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.

1993);

Akzo,

N.V.,

2

F.3d

56,

Carefirst, 334 F.3d at 396.

60

(4th

Cir.

see

also

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
6

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. 1990) (“When
conflicting facts are contained in the affidavits, they are to
be resolved in the plaintiff’s favor.”).

Nevertheless, either

at trial or at a pretrial evidentiary hearing, the plaintiff
must eventually prove the existence of personal jurisdiction by
a preponderance of the evidence.

New Wellington Fin. Corp. v.

Flagship Resort Dev. Corp., 416 F.3d 290, 294 n.5 (4th Cir.
2005).
B.

Personal Jurisdiction

“Under
federal

Federal

court

may

Rule

of

exercise

Civil

Procedure

personal

4(k)(1)(A),

jurisdiction

defendant in the manner provided by state law.”

over

a
a

ALS Scan, Inc.

v. Digital Serv. Consultants, Inc., 293 F.3d 707, 710 (4th Cir.
2002); see also Daimler AG v. Bauman, 134 S. Ct. 746, 753 (2014)
(“Federal courts ordinarily follow state law in determining the
bounds

of

their

jurisdiction

over

persons.”).

To

determine

whether personal jurisdiction is proper, the court engages in a
two-part inquiry: first, North Carolina’s long-arm statute must
7

provide

a

statutory

basis

for

the

assertion

of

personal

jurisdiction, and, second, the exercise of personal jurisdiction
must comply with due process.

See Carefirst, 334 F.3d at 396;

Pan-Am. Prods. & Holdings, LLC v. R.T.G. Furniture Corp., 825 F.
Supp. 2d 664, 677 (M.D.N.C. 2011).
Although

not

citing

a

specific

provision

of

North

Carolina’s long-arm statute, both parties cite Christian Sci.
Bd. of Dirs. of the First Church of Christ, Scientist v. Nolan,
259 F.3d 209 (4th Cir. 2001), which held that N.C. Gen. Stat.
§ 1-75.4(1)(d)

runs

coextensive

with

the

federal

Due

Process

Clause, thereby collapsing the two-step process “into a single
inquiry”
“minimal

as

to

whether

contacts”

jurisdiction

over

the

with

the

non-resident
North

defendant

defendant

Carolina
does

not

that

offend

has

such

exercising
“traditional

notions of fair play and substantial justice.” Christian Sci.,
259 F.3d at 215 (quoting Int’l Shoe Co. v. Washington, 326 U.S.
310,

316

(1945));

see

also

Cambridge

Homes

of

N.C.,

LP

v.

Hyundai Const., Inc., 670 S.E.2d 290, 295 (N.C. Ct. App. 2008)
(“When personal jurisdiction is alleged to exist pursuant to the
long-arm statute, the question of statutory authority collapses
into one inquiry — whether defendant has the minimum contacts
necessary to meet the requirements of due process.” (quoting
Filmar Racing, Inc. v. Stewart, 541 S.E.2d 733, 736 (N.C. Ct.
App.

2001))).

The

Fourth

Circuit
8

recently

confirmed

its

interpretation

of

North

Carolina’s

long-arm

statute,

holding

that the issue of specific jurisdiction under N.C. Gen. Stat.
§ 1-75.4(1)(d)

“merges”

the

two-prong

test

“into

the

single

question” of whether a defendant has “sufficient contacts with
North

Carolina

to

satisfy

constitutional

Universal Leather, 773 F.3d at 558–59.

due

process.”

Thus, the single inquiry

here is whether the exercise of personal jurisdiction over Zacky
“is consonant with the strictures of due process.”

Tire Eng’g &

Distribution, LLC v. Shandong Linglong Rubber Co., 682 F.3d 292,
301 (4th Cir. 2012); see also Universal Leather, 773 F.3d at
558–59.
Under the Due Process Clause, personal jurisdiction over a
defendant

may

be

either

general

or

specific.

See

Goodyear

Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851
(2011); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 414 nn.8 & 9 (1984); Tire Eng’g & Distribution, 682
F.3d at 301 (“The Due Process Clause contemplates that a court
may

assert

jurisdiction

over

a

nonresident

either of two independent avenues.”).

defendant

through

The Supreme Court has

recently held that aside from the “exceptional case,” general
personal

jurisdiction

appropriate

in

the

over

a

corporation

corporation’s

principal place of business.

state

of

is

usually

only

incorporation

or

See Daimler, 134 S. Ct. at 761

9

n.19.

Perhaps for this reason, Wright only argues that specific

jurisdiction applies.

(See Doc. 6 at 5.)

Specific personal jurisdiction requires “that the relevant
conduct have such a connection with the forum state that it is
fair for the defendant to defend itself in that state.”

CFA

Inst. v. Inst. of Chartered Fin. Analysts of India, 551 F.3d
285, 292 n.15 (4th Cir. 2009).
jurisdiction

when

the

cause

A court may exercise specific
of

action

defendant’s contacts with the forum.”

“arises

out

of

the

Saudi v. Northrop Grumman

Corp., 427 F.3d 271, 276 (4th Cir. 2005).

The determination of

whether jurisdiction is appropriate depends on the facts and
circumstances of each case.

See Walden v. Fiore, 134 S. Ct.

1115,

that

1121

(2014)

(holding

the

specific

jurisdiction

inquiry necessitates a study of the interconnection between the
defendant, the forum, and the litigation); Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 485–86 (1985).
Specific

jurisdiction

requires

consideration

of

three

factors: “(1) the extent to which the defendant purposefully
availed itself of the privilege of conducting activities in the
forum state; (2) whether the plaintiff’s claims arise out of
those

activities;

jurisdiction

is

and

(3)

whether

constitutionally

the

exercise

reasonable.”

of
Tire

personal
Eng’g

&

Distribution, 682 F.3d at 301–02; see also Universal Leather,
773 F.3d at 559.

Each prong must be satisfied.
10

See Consulting

Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273, 278-79 (4th Cir.
2009).
The

“purposeful

availment”

requirement

ensures

that

“a

defendant will not be haled into a jurisdiction solely as a
result

of

‘random,’

‘fortuitous,’

Burger King, 471 U.S. at 475.
connection

to

the

forum

or

‘attenuated’

contacts.”

Rather, a defendant’s conduct and

must

be

“such

that

[it]

reasonably anticipate being haled into court there.”

should

Universal

Leather, 773 F.3d at 559 (quoting Fed. Ins. Co. v. Lake Shore
Inc., 886 F.2d 654, 658 (4th Cir. 1989)).

If a defendant has

created a “substantial connection” to the forum, then it has
purposefully
business

availed

there.

itself

See

of

Diamond

the

privilege

Healthcare

of

of

conducting

Ohio,

Inc.

v.

Humility of Mary Health Partners, 229 F.3d 448, 450 (4th Cir.
2000); ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625
(4th Cir. 1997) (holding that “contacts related to the cause of
action must create a ‘substantial connection’ with the forum
state, although this connection need not be as extensive as is
necessary

for

Importantly,

general

the

jurisdiction”

connection

the

defendant

to

the

(citation

forum

himself

“must

arise
the

of

that

State.”

Walden, 134 S. Ct. at 1122 (quoting Burger King, 471

11

with

out

contacts

U.S. at 475) (quotation marks omitted).

creates

omitted)).

forum

This

purposeful

availment

inquiry

is

“flexible”

and

includes an evaluation of: (1) “whether the defendant maintains
offices

or

agents

in

the

forum

state”;

(2)

“whether

the

defendant owns property in the forum state”; (3) “whether the
defendant reached into the forum state to solicit or initiate
business”; (4) “whether the defendant deliberately engaged in
significant

or

long-term

business

activities

in

the

forum

state”; (5) “whether the parties contractually agreed that the
law of the forum state would govern disputes”; (6) “whether the
defendant made in-person contact with the resident of the forum
in the forum state regarding the business relationship”; (7)
“the nature, quality and extent of the parties’ communications
about

the

business

performance
forum.”

of

being

transacted”;

contractual

duties

was

and
to

(8)

“whether

occur

the

within

the

Consulting Eng’rs, 561 F.3d at 278 (citations omitted).

Here, this flexible inquiry militates against the exercise
of

personal

jurisdiction

over

Zacky.

Zacky

admits

that

it

initially contacted Wright about employment while he resided in
North

Carolina

(Doc.

5

¶ 12)

and

negotiated

the

terms

of

employment via email while Wright resided in the state (Doc. 7
¶ 6.). 7

While Wright worked for Zacky, some Zacky employees knew

7

Wright alleges that he “negotiated the terms of [his] employment via
email while being a resident of North Carolina.”
(Doc. 7 ¶ 6
(emphasis added).)
Drawing reasonable inferences in Wright’s favor,
the court assumes that those email negotiations occurred while he was
physically present in North Carolina.

12

Wright was still living in North Carolina, as Wright received
reimbursement for his flights back to North Carolina.

(Doc. 4-

1; see also Doc. 5 ¶ 17 (referring to North Carolina as Wright’s
“home”).)
Zacky

when

employment
Those

Finally, Wright alleges that he performed duties for
he

returned

contract.

duties

performed

to

North

(Doc.
in

1

Carolina

¶ 14;

North

Doc.

Carolina

“pursuant
4-1;
on

Doc.

behalf

to”

his

7

¶ 8.)

of

Zacky

included seeking business prospects and investment, conducting
telephone
via email.

conferences,

and

communicating

with

Zacky

employees

(Doc. 7 ¶¶ 9–12.)

Those allegations, however, fail to make out a prima facie
showing of personal jurisdiction.
regarding

Zacky’s

negotiations

First, Wright’s allegations

with

him

are

extend personal jurisdiction over the company.

insufficient

to

See Consulting

Eng’rs, 561 F.3d at 281–82 (holding that, even combined with a
contract’s choice-of-law provision selecting Virginia law, “four
brief

emails,

exchange

of

several
the

telephone

various

conversations

drafts”

was

. . .,

insufficient

and
to

the
show

purposeful availment of forum state); Foster v. Arletty 3 Sarl,
278 F.3d 409, 415 (4th Cir. 2002) (concluding that contacting a
resident of a state and “fleeting communication by telephone and
fax” are not sufficient to show purposeful availment of that
state’s laws); Kerry Steel, Inc. v. Paragon Indus., Inc., 106
F.3d 147, 151 (6th Cir. 1997) (finding that telephone calls and
13

faxes relating to a contract were insufficient to make a prima
facie

showing

for

the

exercise

of

personal

jurisdiction);

Houseman v. DPI Food Products, Inc., No. CIV.A. 2005-66, 2005 WL
2656123, at *4 (E.D. Ky. Oct. 18, 2005) (declining to exercise
personal

jurisdiction

although

defendant

contacted

and

held

numerous phone conversations with plaintiff while plaintiff was
in the forum state).
Moreover, Zacky never sent an employee to North Carolina at
any point during the parties’ negotiations.

(Doc. 5 ¶ 14.)

All

of Zacky’s communications with Wright in North Carolina occurred
via email.

(Doc. 7 ¶ 6.)

In finalizing the negotiations, Zacky

alone drafted the contract, and Wright makes no allegation that
they

exchanged

Carolina.
*4–5

any

drafts

while

he

was

in

North

(Doc. 1 ¶ 10); see also Houseman, 2005 WL 2656123, at

(declining

defendant

contract

to

emailing

extend

personal

employment

contract

jurisdiction
to

despite

plaintiff

plaintiff signing the contract in the forum state).

and

Zacky had

Wright travel to California to execute the employment contract.
(Doc. 5 ¶ 13); see also Conti v. Pneumatic Prods. Corp., 977
F.2d

978,

982

(6th

Cir.

1992)

(concluding

that

personal

jurisdiction did not exist although defendants “paid for and
mailed

airline

tickets

to

[employee

in

forum

state],

mailed

other materials directly to [employee in forum state], conducted
extensive contract negotiations with [employee in forum state]
14

through [a third party], and mailed an employment contract offer
letter

[employee

in

forum

state]”);

U.S.

ex

rel.

Hadid

v.

Johnson Controls, Inc., No. 04-60146, 2005 WL 1630098, at *3
(E.D.

Mich.

July

7,

2005)

(refusing

to

exercise

personal

jurisdiction over employer in part because employee entered into
employment contract outside of forum state); cf. Tire Eng’g &
Distribution,

682

F.3d

at

304

(finding

purposeful

availment

where parties “forged an agreement in the forum state”).
parties

then

California.
Zacky

executed

the

contract

when

Wright

The

was

in

(Doc. 1 ¶ 10; Doc. 5 ¶¶ 13–15.)
also

maintained

no

consistent

contact

with

North

Carolina, suggesting the lack of a substantial connection with
the state.

Zacky has no offices in North Carolina, and Wright

makes no allegation that Zacky provided him with an office while
in North Carolina.

(Doc. 5 ¶ 6); cf. Tire Eng’g & Distribution,

682 F.3d at 303–04 (finding purposeful availment where defendant
met and employed individual with office in Virginia).

Zacky is

not registered to do business in North Carolina, ships no goods
to North Carolina, and holds no bank accounts in North Carolina.
(Doc. 5 ¶¶ 7–9.)
employment

And, outside of Wright’s contention that his

contract

authorized

him

to

“conduct

business”

in

North Carolina, Zacky conducted no business operations in North
Carolina and has no employees in the state.

(Id. ¶¶ 5–9); see

also Burger

that

King,

471

U.S.

at
15

476

(noting

“territorial

presence

frequently

will

enhance

a

potential

defendant’s

affiliation with a State”); Foster, 278 F.3d at 415 (noting the
lack of defendants’ offices, agents, or employees in state as
evidence of no purposeful availment).
Further evidencing its intent to avoid contact with North
Carolina, Zacky required that Wright move to California within
the year and envisioned no long-term relationship subjecting it
to jurisdiction in North Carolina.
479

(upholding

defendant

extension

“entered

into

of
a

Cf. Burger King, 471 U.S. at
personal

carefully

jurisdiction
structured

where
20-year

relationship” through “the purchase of a long-term franchise” in
forum state); Demirs v. Plexicraft, Inc., 754 F. Supp. 250, 253
(D.R.I.

1990)

(exercising

personal

jurisdiction

over

employer

who provided employee with office in forum state and permitted
the employee to conduct business for corporation in forum state
for twenty years).

Zacky even provided Wright with a $20,000

stipend specifically to relocate to California (Doc. 4-1), where
Wright spent the vast majority of his time (Doc. 5 ¶ 17).

And,

rather than relocate to California as contemplated, Wright spent
most of his $20,000 relocation package - $14,373.06 - on fifteen
flights back to North Carolina on weekends over the nine-month
period

of

employment.

(Doc.

9

(expense reports filed by Wright).)

16

¶ 8;

see

also

id.

at

4–14

And while Wright performed duties under his contract in
North Carolina, neither Zacky nor the contract required him to
be in North Carolina while performing those duties.

(See Doc.

4-1.)

of

To

the

contrary,

Zacky

Carolina and in California.
return

trips

wanted

to

North

Carolina

on

make

a

facie

jurisdiction.
“[p]etitioner’s

out

North

Zacky’s acquiescence to Wright’s

to

insufficient

Wright

prima

the

fifteen
showing

weekends
of

is

personal

See Walden, 134 S. Ct. at 1125 (observing that
actions

in

Georgia

did

not

create

sufficient

contacts with Nevada simply because he allegedly directed his
conduct

at

plaintiffs

whom

he

knew

had

Nevada

connections”

(emphasis added)); Kulko v. Superior Court of Cal. In & For City
& Cnty. of San Francisco, 436 U.S. 84, 94 (1978) (holding that
defendant’s “acquiescence” is not enough to confer jurisdiction
over him); File Image Servs., LLC v. Klein, No. 09-C-484, 2009
WL 2412443, at *2 (E.D. Wis. Aug. 5, 2009) (“The defendants had
a contract with the plaintiff.

There is no suggestion that the

contract specified where the work was to be performed.

Even

assuming that the defendants were fully aware that the plaintiff
had relocated to Wisconsin, this is insufficient to cause the
defendants
courts.

to

be

subject

to

the

jurisdiction

of

Wisconsin

The defendants did not purposefully avail themselves of

doing business in the forum state, and the Wisconsin courts lack
personal

jurisdiction

over

the
17

defendants.”);

Rosenberg

v.

Deutsche Bank AG, No. 11-CV-02200, 2012 WL 3744632, at *5 (D.
Colo. May 22, 2012) (finding a deficient showing of personal
jurisdiction over employer where, after granting employee leave
to work from home, it knew employee had decided to relocate to
and work in forum state), report and recommendation adopted sub
nom. Rosenberg v. Deutsche Bank A.G., No. 11-CV-02200, 2012 WL
3744631 (D. Colo. Aug. 28, 2012).
Finally, the alleged breach of the contract arises out of
conduct occurring while all parties were in California.
that

Wright

was

also

in

California,

Zacky

CEO

Knowing

Lillian

informed him that Zacky was terminating his employment.

Zacky

(Doc. 5

¶ 21); see also Walden, 134 S. Ct. at 1125 (“[M]ere injury to a
forum resident is not a sufficient connection to the forum.”);
Consulting

Eng’rs,

561

F.3d

at

279–80

(finding

no

personal

jurisdiction where activity complained of occurred outside the
forum state); cf. Tire Eng’g & Distribution, 682 F.3d at 303–04
(observing that the “critical part of” the allegations related
to plaintiff’s complaint occurred in forum state when finding
purposeful availment of that state).
Under

these

circumstances,

the

exercise

over Zacky would violate due process.
contact

with

avoided

contact

Wright.

North
with

Carolina
the

and,

state

of

jurisdiction

Zacky did much to avoid

if

anything,

while

hiring

purposefully
and

employing

It was not reasonably foreseeable to Zacky that the
18

execution and alleged breach of a contract in California might
cause it to be haled into court in North Carolina.

See Foster,

278 F.3d at 415 (holding that defendants’ contacts were “not
such that [they] should reasonably anticipate being haled into
court in [the forum state]”).
Even

assuming

that

Zacky’s

limited

contact

with

North

Carolina amounts to purposeful availment, Wright also fails to
make

a

prima

facie

showing

that

the

exercise

of

personal

jurisdiction would be constitutionally reasonable in this case.
Tire Eng’g & Distribution, 682 F.3d at 301–02.
constitutional
jurisdiction

reasonableness

requires

the

of

the

Determining the

extension

consideration

personal

numerous

of

of

factors,

including “(1) the burden on the defendant of litigating in the
forum; (2) the interest of the forum state in adjudicating the
dispute; (3) the plaintiff’s interest in obtaining convenient
and effective relief; (4) the shared interest of the states in
obtaining

efficient

interests

of

policies.”
First,

the

resolution
states

in

of

disputes;

furthering

and

(5)

substantive

the

social

Consulting Eng’rs, 561 F.3d at 279.
Zacky

is

domiciled

in

California

and

primarily

conducts its business in the western part of the United States.
Most of the potential witnesses (i.e., Zacky employees) would
likely be required to travel from California to North Carolina.
Second,

North

Carolina

has

little
19

interest

in

a

contract

executed

in

California,

performed

almost

entirely

North Carolina, and terminated in California.

outside

of

Third, Wright

admittedly has an interest in obtaining convenient and effective
relief.

Fourth, the shared interests of states in efficient

resolution

of

jurisdiction,
Wright’s

this
as

controversy

the

basis

of

performance

under

the

elsewhere, not in North Carolina.

cut

against

the

suit

—

employment

the
the

exercise
dispute

contract

—

of

over
lies

Finally, Wright points to no

substantive policy furthered by litigating this case in North
Carolina,

and

the

court

cannot

find

any

policy

furthered

by

forcing a California company into court in North Carolina over
the

alleged

breach

of

an

employee

contract

that

the

parties

executed in California, contemplated performance in California,
required and paid the employee to live in California, and was
terminated in California.
C.

Transfer

When personal jurisdiction is lacking, 28 U.S.C. § 1406(a)
authorizes the court to transfer the case, regardless of the
propriety of venue.

Porter v. Groat, 840 F.2d 255, 257–58 (4th

Cir. 1988); Convergence Technologies (USA), LLC v. Microloops
Corp., 711 F. Supp. 2d 626, 640 (E.D. Va. 2010); Estate of Bank
v. Swiss Valley Farms Co., 286 F. Supp. 2d 514, 522 (D. Md.
2003) (“Transfer had [sic] been deemed proper under section 1406
when there is an obstacle — either incorrect venue, absence of
20

personal jurisdiction, or both — to a prompt adjudication on the
merits in the forum where originally brought.” (quoting Dubin v.
United States, 380 F.2d 813, 816 (5th Cir. 1967)) (quotation
marks omitted)).

Section 1406 states that a district court may

transfer a case to any district in which the case could have
been brought if transfer is “in the interest of justice.”
Zacky argues that this court should dismiss the case for
lack of personal jurisdiction or venue but alternatively argues
for

a

transfer

California.

under

§ 1406(a)

to

the

Eastern

District

of

(Doc. 3 at 11.)

To be sure, the case could have been brought in the Eastern
District of California.
company,

and

its

Zacky is a California limited liability

principal

place

of

business

is

in

Fresno,

California (Doc. 5 ¶ 4), which lies in the Eastern District of
California.

That

court

venue is proper there.
Civ.

Proc.

§ 401.10

(“A

thus

has

personal

jurisdiction,

and

See Fed. R. Civ. P. 4(k)(1)(A); Cal.
court

of

this

state

may

exercise

jurisdiction on any basis not inconsistent with the Constitution
of this state or of the United States.”); 28 U.S.C. § 1391(d)
(stating

that

venue

is

proper

when

“a

defendant

that

is

a

corporation . . . reside[s] in any judicial district in which it
is subject to personal jurisdiction at the time the action is
commenced”).

Thus,

the

Eastern

21

District

of

California

is

a

forum in which the action properly “could have been brought” to
obtain personal jurisdiction over Zacky.
Moreover, a transfer to the Eastern District of California
is

in

the

interest

of

justice.

Section

1406(a)

favors

“adjudications on the merits over dismissals” because of defects
in personal jurisdiction.

Porter, 840 F.2d at 257 (authorizing

transfer “for any reason which constitutes an impediment to a
decision on the merits in the transferor district but would not
be an impediment in the transferee district”); see also Estate
of Bank, 286 F. Supp. 2d at 522 (authorizing transfer following
court’s

finding

Charles

Alan

Wright

§ 3827

(4th

ed.

§ 1406(a)]

also

that

it
et

2013)
are

lacked
al.,

personal

Federal

(“District

likely

to

jurisdiction);

Practice
courts

order

and

[when

transfer

14D

Procedure
analyzing

rather

dismissal if it would be more efficient or economical.”).

than
There

also appears to be no “obvious error” suggesting that this court
should deny a transfer and instead dismiss the case.

Nichols v.

G.D. Searle & Co., 991 F.2d 1195, 1201–02 & n.6 (4th Cir. 1993)
(noting that transfer can properly be denied when plaintiff made
an “obvious error”).
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Defendant’s motion to dismiss
for lack of personal jurisdiction pursuant to Federal Rule of
22

Civil Procedure 12(b)(2) (Doc. 2) is GRANTED and the case is
TRANSFERRED to the Eastern District of California pursuant to 28
U.S.C. § 1406(a).

/s/
Thomas D. Schroeder
United States District Judge
May 15, 2015

23