Nelson et al v. Myrtle Beach Collegiate Summer Baseball Leauge, LLC et al

Filing 37

ORDER: Defendant's Motion 20 to Dismiss for Lack of Jurisdiction or to Transfer Venue is DENIED. Signed by Judge Janet Bond Arterton on 12/4/2013. (Bonneau, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DAVID NELSON and REID NELSON,
Plaintiffs,
v.
MYRTLE BEACH COLLEGIATE SUMMER
BASEBALL LEAGUE, LLC,
Defendant.

Civil No. 3:12cv1655 (JBA)

December 4, 2013

RULING ON MOTION TO DISMISS OR TO TRANSFER VENUE
Plaintiffs David and Reid Nelson bring this suit against Defendant Myrtle Beach
Collegiate Summer Baseball League LLC (“Myrtle Beach”) alleging violations of the
Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. Gen. Stat. § 42-110a et seq.
(Count One), breach of contract (Count Two), and fraud (Count Three) arising out of an
agreement for Plaintiff Reid Nelson to participate in Defendant’s summer 2012 baseball
league. (See Compl. [Doc. # 1] ¶ 6.) On May 1, 2013, Defendant moved [Doc. # 20] to
dismiss this action for lack of personal jurisdiction and improper venue, or, in the
alternative, to transfer the case to North Carolina.1 For the following reasons, the
Defendant’s motion to dismiss, and his alternative request to transfer venue, are denied.
I.

Background
Plaintiff David Nelson, and his son, Reid Nelson, are both residents of

Wallingford, Connecticut. (See Compl. ¶¶ 1–2.) Defendant is a limited liability company
organized pursuant to the laws of North Carolina, with its principal place of business in

1

Plaintiffs originally brought claims against Martin Radford, the owner of
Defendant Myrtle Beach, in addition to their claims against Defendant Myrtle Beach.
(See Compl.) However, when Mr. Radford moved to dismiss for lack of personal
jurisdiction, Plaintiffs withdrew their claims against Mr. Radford and voluntarily
dismissed him from this action. (See Not. of Voluntary Dismissal [Doc. # 28].)
1

Asheville, North Carolina. (See id. ¶ 3.) Defendant organizes summer baseball camps for
collegiate baseball players, marketing these programs nationwide and internationally, as
an opportunity for collegiate baseball players to enhance their level of play and gain
exposure in front of professional scouts. (See id. ¶¶ 8, 10.)
In 2012, as a part of its marketing efforts, Defendant sent contracts for its summer
baseball league to approximately 115 colleges in thirty-two states, including Connecticut.
(See id. ¶ 11.) In the spring of 2012, Defendant told players that the league would consist
of a six-week program capped at 220 players distributed on ten teams, and that
participants would get to play baseball daily. (See id. ¶ 12.). Shortly thereafter, Plaintiff
Reid Nelson signed up for Defendant’s summer 2012 league. (See id. ¶ 13.) As a part of
Plaintiff’s enrollment in the league, Defendant agreed to provide room and board for
Plaintiff in South Carolina near the playing fields where games were held. (See id. ¶ 14.)
Plaintiff David Nelson paid in full the fees and costs associated with the contract and
covered the cost of his son’s travel to and from South Carolina. (See id. ¶ 15.) Part of the
fee he paid to Defendant included access to a website run by Defendant where he could
watch his son play in league games. (See id.)
Despite its representations regarding the size of the program, Defendant enrolled
many more players than promised, and the league eventually consisted of 343 players
who were divided into the same ten teams. (See id. ¶ 16.) This increase in team size
resulted in a significantly reduced amount of playing time for each player enrolled in the
camp. (See id. ¶ 18.) Plaintiffs were not informed that Defendant had increased the
number of players in the league until Reid Nelson arrived in South Carolina. (See id.
¶ 17.) Further, the website Defendant agreed to provide for parents to watch the league’s

2

games did not function properly. (See id. ¶ 19.) As a result of these problems, Plaintiff
David Nelson requested a refund from Defendant. (See id. ¶ 20.) To date, however, no
such refund has been paid. (See id. ¶ 20.)
On June 14, 2012, David Nelson had a verbal argument with Defendant Myrtle
Beach’s owner, Martin Radford, regarding the increased size of the league and the
problems with Defendant’s website. (See id. ¶ 21.) After this argument, Mr. Radford
contacted the Myrtle Beach Police and requested that they remove Reid Nelson from the
baseball field where he was playing, claiming that he was trespassing. 2 (See id.)

As a

result of Defendant’s request, the Myrtle Beach Police came to the field where Reid was
playing and removed him as a trespasser in front of the other players, coaches, umpires,
and scouts who were present. (See id. ¶ 22.) Mr. Radford then informed Plaintiffs that
Reid would be forcibly removed from the player housing if he did not voluntarily vacate
the premises. (See id. ¶ 23.) Consequently, Plaintiff David Nelson was forced to buy a
last-minute plane ticket to South Carolina to pick up his son and bring him back to
Connecticut. (See id. ¶ 24.)
II.

Discussion
Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(2) and

12(b)(3) to dismiss this action, arguing that this Court lacks personal jurisdiction and

2

Defendant claims that Plaintiff Reid Nelson was removed from the camp as a
result of his abusive, belligerent, and threatening conduct. (See Def.’s Mem. Supp. [Doc.
# 21] at 2.) However, Plaintiffs allege in their Complaint that Plaintiff Reid Nelson was
removed despite having done nothing wrong. (See Compl. ¶ 21.) For the purposes of this
motion to dismiss, the Court accepts the facts alleged in the Complaint as true. See
Thomas v. Ashcroft, 470 F.3d 491, 495 (2d Cir. 2006) (courts considering a motion to
dismiss under Rule 12(b) “accept[] as true the factual allegations in the complaint and
draw all inferences in the plaintiff’s favor”).
3

that venue for this dispute does not lie in the District of Connecticut. Alternatively,
Defendant requests that the Court transfer this action to the more convenient forum of
North Carolina.
A.

Personal Jurisdiction

When deciding a motion to dismiss for lack of personal jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(2), the Court conducts a two-part analysis. Bank
Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir. 2002). First,
the Court applies Connecticut’s long-arm statute. Id. If the Court finds that the longarm statute applies, the Court must then decide whether the exercise of jurisdiction over
the defendant comports with the constitutional requirements of due process. Id. “When
responding to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the
plaintiff bears the burden of establishing that the court has jurisdiction over the
defendant.” Id. at 784. When a court does not conduct a “full-blown evidentiary
hearing” on the motion, the plaintiff need only make out “a prima facie showing that the
court possesses personal jurisdiction over the defendant.” DiStefano v. Carozzi North
America, Inc., 286 F.3d 81, 84 (2d Cir. 2001) (quoting Marine Midland Bank, N.A. v.
Miller, 664 F.2d 899, 904 (2d Cir. 1981)). Such a showing must be made by alleging facts,
not simply conclusions, but the Court “construe[s] jurisdictional allegations liberally and
takes as true uncontroverted factual allegations.” Robinson v. Overseas Military Sales
Corp., 21 F.3d 502, 507 (2d Cir. 1994) (internal citations omitted).
1. Connecticut’s Long-Arm Statute

Connecticut’s long-arm statute provides, in pertinent part, that

a court may exercise personal jurisdiction over any nonresident individual,
foreign partnership or foreign voluntary association, . . . who in person or
4

through an agent: (1) Transacts any business within the state; (2) commits
a tortious act within the state . . .; (3) commits a tortious act outside the
state causing injury to person or property within the state . . . if such
person or agent (A) regularly does or solicits business, or engages in any
other persistent course of conduct, or derives substantial revenue from
goods used or consumed or services rendered, in the state, or (B) expects
or should reasonably expect the act to have consequences in the state and
derives substantial revenue from interstate or international commerce.
Conn. Gen. Stat. § 52-59b(a).3 Defendant argues that Plaintiffs have failed to establish
that its conduct satisfies the requirements of § 52-59b(a)(1), (a)(2), or (a)(3). 4
(a)

Transacts Business Within the State

Pursuant to § 52-59b(a)(1), a Connecticut court may exercise personal
jurisdiction over a defendant that transacts any business in this state. Although the
phrase “transacts any business” in § 52-59b(a)(1) is not defined, the Connecticut Supreme
Court has construed the term to embrace even “a single purposeful business transaction.”
Zartolas v. Nisenfeld, 184 Conn. 471, 474 (1981). “A purposeful business transaction is
one in which the defendant has engaged in some form of affirmative conduct allowing or
promoting the transaction of business within the forum state.” Nusbaum & Parrino, P.C.
v. Collazo De Colon, 618 F. Supp. 2d 156, 162 (D. Conn. 2009) (quoting Health
Communs., Inc. v. Chicken Soup for the Soul Publ’g, LLC, No. X06CV084014539S, 2009
WL 579227, *22 (Conn. Super. Ct. Feb. 9, 2009)). “Moreover, a nonresident individual
who has not entered this state physically nevertheless may be subject to jurisdiction in

3

Section 52-59b does not specifically address whether it applies to foreign limited
liability companies (“LLCs”), such as Defendant. However, the parties agree that § 5259b is the governing statute for the purposes of the jurisdictional analysis in this case.
See, e.g., Austen v. Catterton Partners V, LP, 729 F. Supp. 2d 548, 553–59 (D. Conn. 2010).
4
Because the Court finds that jurisdiction is proper under subsections (a)(1) and
(a)(2), it need not address the parties’ arguments regarding subsection (a)(3).
5

this state under § 52–59b(a)(1) if that individual has invoked the benefits and protection
of Connecticut’s laws by virtue of his or her ‘purposeful Connecticut related activity.’”
Ryan v. Cerullo, 282 Conn. 109, 120 (2007) (internal citations and quotation marks
omitted). Further, if a defendant is found to have transacted business in Connecticut, the
cause of action against the defendant must arise from its business activity in this state.
See id. at 121–22.
Plaintiffs argue that Defendant’s efforts to advertise in Connecticut, in addition to
its contract with Plaintiffs and its maintenance of an interactive website constitute
“transacting business” in Connecticut for the purpose of exercising personal jurisdiction
under § 52-59b(a)(1).

Plaintiffs allege that Defendant recruits baseball players in

Connecticut by sending out its advertising materials and contracts to colleges in the state.
(See Compl. ¶¶ 10–11.)

Typically, courts in Connecticut have held that merely

advertising services in the state alone is insufficient to subject a defendant to personal
jurisdiction under §52-59b(a)(1). See Gates v. Royal Palace Hotel, No. CV 9866595S,
1998 WL 951002, at *3 (Conn. Super. Ct. Dec. 30, 1998) (“The reported cases which deal
with advertising as forming the basis for the concept of transacting business all appear to
involve additional elements above and beyond mere minimal interstate advertising.”).
For example, in Gates, the court determined that when combined with the active booking
of reservations for Connecticut residents through Connecticut travel agencies and the
invitation to Connecticut citizens to make reservations via its website, the fact that the
defendant targeted its advertising to Connecticut residents constituted the transaction of
business in the state. See id. at *4. Similarly, in this case Defendant, rather than passively
advertising in the Connecticut media market, specifically targeted several Connecticut

6

organizations with its marketing materials (see Compl. ¶ 11), entered into a contractual
relationship with Connecticut residents, and ran a website through which Connecticut
residents could pay for its program and watch games via livestream (see Screenshot of
Def.’s Website, Ex. A to Pls.’ Opp’n).

Thus, Plaintiffs have alleged sufficient facts in

addition to Defendant’s interstate advertising in Connecticut to establish that Defendant
transacted business in the state.
Furthermore, Defendant’s website alone is sufficient to subject Defendant to
personal jurisdiction in this state pursuant to § 52-59b(a)(1). “[Courts] in this district
have adopted the Zippo test in determining whether the exercise of personal jurisdiction
is proper, both for purposes of the long-arm statute inquiry and the due process inquiry.”
Lis v. Delvecchio, No. 3:11cv00157 (AWT), 2012 WL 3309384, at *3 (D. Conn. Aug. 13,
2012). In Zippo Mfg. Co. v. Zippo Inc., 952 F. Supp. 1119 (W.D. PA 1997), the court
announced the “spectrum of internet activity” analysis for determining if a defendant’s
internet conduct is sufficient to support an exercise of personal jurisdiction:
At one end of the spectrum are situations where a defendant clearly does
business over the Internet. If the defendant enters into contracts with
residents of a foreign jurisdiction that involve the knowing and repeated
transmission of computer files over the Internet, personal jurisdiction is
proper. At the opposite end are situations where a defendant has simply
posted information on an Internet Web site which is accessible to users in
foreign jurisdictions. A passive Web site that does little more than make
information available to those who are interested in it is not grounds for
the exercise of personal jurisdiction. The middle ground is occupied by
interactive Web sites where a user can exchange information with the host
computer. In these cases, the exercise of jurisdiction is determined by
examining the level of interactivity and commercial nature of the exchange
of information that occurs on the Web site.

7

Id. at 1124. Based on the record before the Court, Defendant’s website occupies the
middle ground of an “interactive website.”

The website permits the exchange of

information in that it includes a Twitter feed where people communicate with each other
and with Defendant regarding the league. (See Screenshot of Def.’s Website.)5

The

website also provides for the transmission of video files by hosting a live stream of league
games. (See id. (showing link to “Beach League TV”).) Further, Defendant’s website
permits users to pay league fees online. (See id. (showing link to “Pay League Fees”).)
Thus, Defendant’s website contemplates interactivity on several levels, including through
commercial transactions.

When considered in the context of Defendant’s targeted

advertising in Connecticut, and its contractual relationship with Plaintiffs, such a website
supports a finding of personal jurisdiction pursuant to § 52-59b(a)(1).
(b) Tortious Acts Within Connecticut
This Court also has personal jurisdiction over Defendant pursuant to § 5259b(a)(2), which provides that a Connecticut court may exercise jurisdiction over a
defendant that commits a tortious act within the state. The gravamen of Plaintiff’s
CUTPA and fraud claims is that Defendant solicited business in this state by circulating
false advertising that misled potential customers regarding the size of the league and the
playing time each participant would receive. Defendant argues that because the alleged
misrepresentations were made outside of Connecticut, even though they were directed at
people inside Connecticut, they are insufficient to establish personal jurisdiction under §

5

Plaintiffs have also submitted screen shots of a later version of Defendant’s
website that allowed players to register online and purchase league merchandise.
However, because these exhibits post-date the Complaint, the Court will not consider
them in its jurisdictional analysis.
8

52-59b(a)(2). Although the Connecticut Supreme Court has not yet spoken on the issue
of whether a defendant must be physically present in Connecticut for a tort to be
“committed” in Connecticut for the purposes of § 52-59b(a)(2), the majority of courts to
consider this question have recognized that tortious communications that enter the state
are sufficient to support a finding of personal jurisdiction under § 52-59b(a)(2). See Rios
v. Fergusan, 51 Conn. Supp. 212, 218 n.6, 219 (2008); see also id. at 218 (“Several
Connecticut courts have held that a nonresident commits a tortious act within the state
for purposes of § 52-59b(a)(2) by sending a communication whose content may be
considered tortious directly into Connecticut.” (internal citations and quotation marks
omitted)).
In Vertrue Inc. v. Meshkin, 429 F. Supp. 2d 479 (D. Conn. 2006), for example, the
district court held that “[i]t is well-established that false or fraudulent misrepresentations
transmitted to Connecticut by mail, wire[,] or telephone constitute ‘tortious conduct in
Connecticut sufficient to establish personal jurisdiction under Connecticut’s long-arm
statute.’” Id. at 492 (internal citations omitted).

The court further recognized that

“Connecticut federal district courts have consistently held that it is proper to assert
personal jurisdiction pursuant to § 52-59b(a)(2) over a nonresident defendant who
transmits fraudulent representations to a Connecticut resident for the purpose of
inducing that resident to act.” Id. (collecting cases). Here, Plaintiffs contend that the
Defendant targeted Connecticut residents with false marketing and advertisements
regarding the size of the league to induce them to enroll in its programs. Based on the
weight of the authority in this district, such actions constitute tortious conduct within the
state for the purposes of establishing personal jurisdiction under § 52-59b(a)(2).

9

Therefore, Plaintiffs have asserted sufficient facts to show that this Court has
personal jurisdiction over Defendant under both § 52-59b(a)(1) and § 52-59b(a)(2).
2.

Due Process

Having established that personal jurisdiction exists over Defendant pursuant to
the long-arm statute, the Court must next determine whether the exercise of jurisdiction
satisfies with the requisites of due process. The due process analysis consists of two
elements: (1) whether Defendant has sufficient “minimum contacts” with Connecticut,
and if so, (2) whether the exercise of jurisdiction comports with “traditional notions of
fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475
(1985).
(a)

Minimum Contacts

To establish the requisite “minimum contacts” to satisfy the dictates of due
process, “a defendant’s conduct and connection with the forum State [must be] such that
[it] should reasonably anticipate being haled into court there.” Id. at 474. “[I]t is essential
in each case that there be some act by which the defendant purposefully avails itself of the
privilege of conducting activities within the forum State, thus invoking the benefits and
protections of the laws.” Bensmiller v. E.I. Dupont de Nemours & Co., 47 F.3d 79, 84–85
(2d Cir. 1995) (emphasis in original) (quoting Hanson v. Denckla, 357 U.S. 235, 254
(1958)). “This purposeful availment requirement ensures that a defendant will not be
haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts, or
of the unilateral activity of another party or a third person.” Burger King Corp., 471 U.S.
at 475 (internal citations and quotation marks omitted). “Jurisdiction is proper, however,

10

where the contacts proximately result from actions by the defendant [itself] that create a
‘substantial connection’ with the forum State.” Id.
Defendant argues that Plaintiffs failed to allege that it has any contacts with
Connecticut, “other than unsupported allegations” that it contracts with colleges in
thirty-two states, including Connecticut. (Def.’s Mem. Supp. at 6–7). Defendant further
asserts that it does not maintain an office in Connecticut, does not have any physical
presence in Connecticut, is not registered to do business in Connecticut, and does not
actively solicit business from Connecticut. (See id. at 7.) As such, Defendant claims that
it has not “purposefully availed” itself of the privilege of conducting activities in
Connecticut such that it could foresee being haled into court in this state.6
However, contrary to Defendant’s characterization of the allegations in the
Complaint, Plaintiffs have alleged that Defendant actively markets its summer program to
Connecticut organizations and residents. These contacts are not the kind of “random,
fortuitous, or attenuated contacts” or “unilateral activity . . . of a third person” that the
purposeful availment requirement was designed to prevent. See Bank Brussels Lambert v.
Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 128 (2d Cir. 2002). Defendant sought to be
known in the Connecticut college baseball market, and made efforts to promote and
maintain a client base there. Under these circumstances, there is nothing fundamentally
unfair about requiring the Defendant to defend itself in Connecticut when the dispute
arises from contractual obligations “which developed in a market that it deliberately

6

Defendant has not supported these claims, made in its memorandum of law,
with affidavits or other sworn testimony. Plaintiff’s claim that Defendant contracts with
colleges in thirty-two states is taken from Defendant’s own website. (See Ex. A to Pls.’s
Opp’n.)
11

cultivated and . . . voluntarily undertook.” Id. at 129 (holding that because a Puerto Rico
law firm made efforts to promote and maintain a client base in the New York legal
market, it purposefully availed itself of the jurisdiction of New York courts). Here, the
Complaint alleges that Defendant specifically marketed its summer program to college
students in Connecticut and established channels for exchanging information to
customers in Connecticut through its website. Such conduct “indicates an intent or
purpose to serve the market in the forum state” that is sufficient to support the
conclusion that Defendant had the requisite minimum contacts with Connecticut.
Divincino v. Polaris Industries, 129 F. Supp. 2d 425, 433 (D. Conn. 2001) (internal
citations omitted).
Furthermore, Defendant’s website alone may satisfy the minimum contacts
requirement. As the court reasoned in Divincino, a defendant’s website may serve as the
basis for establishing minimum contacts in a state:
Creating a [web] site, like placing a product into the stream of commerce,
may be felt nationwide-or even worldwide-but, without more, it is not an
act purposefully directed toward the forum state. . . . [T]here must be
additional evidence of purposeful availment, such as evidence showing
that Connecticut users accessed the site, that they purchased products
based on the web site advertisement, or that the web site advertisement
was directed at Connecticut more so than any place else in the nation.
Id. The Complaint alleges that Plaintiffs accessed the site, and the Court can infer that
the site targeted other Connecticut residents who had children in the league by hosting
videos of their children’s games. As the Divincino court noted, “[a]lone, each form of
advertising may not be sufficient to evidence purposeful availment . . . [but] when the
advertisements and websites are considered in their totality, they demonstrate that [the

12

defendant] was reaching out to customers” in Connecticut. Id. at 433–34.7 Finally, as
discussed above, the Zippo test, which also applies to the due process analysis, supports
the exercise of jurisdiction on the basis of Defendant’s interactive website. Therefore, the
combination of Defendant’s advertising efforts in Connecticut and the operation of its
interactive website is sufficient to establish “minimum contacts” with Connecticut.
(b)

Reasonableness

The second part of the jurisdictional analysis asks “whether the assertion of
personal jurisdiction comports with ‘traditional notions of fair play and substantial
justice’—that is, whether it is reasonable under the circumstances of the particular case.”
Bank Brussels Lambert, 305 F.3d at 129. Courts consider five factors when evaluating
reasonableness: (1) the burden that the exercise of jurisdiction will impose on the
defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff’s
interest in obtaining convenient and effective relief; (4) the interstate judicial system’s

7

Defendant also argues that it did not engage in the type of “continuous and
systematic” contacts required for the exercise of general jurisdiction. (Def.’s Mem. Supp.
at 6–7). However, this argument fails because Plaintiffs are not attempting to assert
general jurisdiction over Defendant. Since Plaintiffs’ claims arise directly out of
Defendant’s contacts that gave rise to this suit, this is a case of specific jurisdiction and
“continuous and systematic” contacts are not needed in order for the Court to exercise
personal jurisdiction in this case. See Bank Brussels Lambert, 305 F.3d 120 at 127
(“Where the claim arises out of, or relates to, the defendant's contacts with the forum—
i.e., specific jurisdiction—minimum contacts exist where the defendant ‘purposefully
availed’ itself of the privilege of doing business in the forum and could foresee being
‘haled into court’ there. A state may assert ‘general jurisdiction’—i.e., jurisdiction
irrespective of whether the claim arises from or relates to the defendant's forum
contacts—only where these contacts are ‘continuous and systematic.’” (internal citations
and quotation marks omitted)). Furthermore, to exercise specific jurisdiction, the
contacts do not have to directly give rise to the Plaintiffs’ cause of action, it is enough that
they simply relate to it. Id. at 128.
13

interest in obtaining the most efficient resolution of the controversy; and (5) the shared
interest of the states in furthering substantive social policies. MacDermid, Inc. v. Deiter,
702 F.3d 725, 730–31 (2d Cir. 2012). “While the exercise of jurisdiction is favored where
the plaintiff has made a threshold showing of minimum contacts at the first stage of the
inquiry, it may be defeated where the defendant presents a compelling case that the
presence of some other considerations would render jurisdiction unreasonable.”
Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 568 (2d Cir. 2005)
(internal citations and quotation marks omitted).
Defendant argues that litigating this case in Connecticut would constitute a
significant burden because it has no contacts in Connecticut and the majority of witnesses
are located outside of Connecticut. (See Def.’s Mem. Supp.at 7.) Plaintiffs counter that
imposing jurisdiction will not burden Defendant because it services clients from all fifty
states and foreign countries. (See Pls.’ Opp’n at 14.) Although Defendant’s records and
some of its witnesses are located in North and South Carolina, “the conveniences of
modern communication and transportation ease what [otherwise] would have been a
serious burden [years ago].” Metropolitan Life Ins. Co., 84 F.3d at 573–74. Thus, this
factor cuts only slightly in favor of Defendant. Taken alone, it falls short of overcoming
Plaintiffs’ threshold showing of minimum contacts. See id. at 574.
Plaintiffs argue that Connecticut has an interest in adjudicating this action
because their primary claim is a CUTPA violation. Because this action is governed by
Connecticut statutory and common law, Connecticut has a strong interest in adjudicating
this dispute. See Inset, 937 F. Supp. at 165; Divincino, 129 F. Supp. 2d at 435; see also
Hardy, 20 F. Supp. 2d at 342–43 (holding that the forum state has an interest in insuring a

14

remedy for its citizens for injury caused by foreign tortfeasors). Plaintiffs also argue that
because they are individuals, they will have substantial difficulty litigating this matter in
another venue, and the majority of their witnesses may be college-aged Connecticut
residents who participated in the Defendant’s summer baseball programs. (See Pls.’
Opp’n at 14–15.) As Connecticut residents, Plaintiffs have an interest in obtaining
convenient and effective relief in this state. As to the fourth and fifth factors, Plaintiffs
argue that Connecticut’s exercise of personal jurisdiction over Defendant does not create
inefficiencies in obtaining a resolution of the matter, and that Connecticut has an interest
in ensuring that social policies like combatting unfair trade practices are achieved. Since
this action concerns issues of Connecticut statutory and common law, adjudication in
Connecticut would likely dispose of this matter efficiently. See Inset, 937 F. Supp. at 165.
Thus, Defendant has not established the “exceptional situation” where the exercise
of jurisdiction is unreasonable even though minimum contacts are present. See Bank
Brussels Lambert, 305 F.3d at 130. The exercise of personal jurisdiction over Defendant
therefore comports with notions of fair play and substantial justice.

Because the

requirements of the Connecticut long-arm statute and due process are satisfied,
Defendant’s motion to dismiss for lack of personal jurisdiction is denied.
B.

Improper Venue

Defendant also moves pursuant to Rule 12(b)(3) to dismiss for improper venue.8
Pursuant to 28 U.S.C. § 1391(b)(2) “[a] civil action may be brought in . . . a judicial

8

“The same standard [] is applied to a motion to dismiss for improper venue
under Fed. R. Civ. P. 12(b)(3) as is applied to dismissals for lack of personal jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(2).” Marcus v. American Contract Bridge League, 562 F.
15

district in which a substantial part of the events or omissions giving rise to the claim
occurred.” Defendant argues that since it is not a resident of Connecticut, its summer
baseball league is located in North Carolina, and the alleged wrongdoing occurred in
North Carolina, venue properly lies in North Carolina.9 (Def.’s Mem. Supp. at 8–9.)
Plaintiffs concede that Defendant’s wrongful conduct was not limited to Connecticut, but
argue that a substantial portion of the wrongdoing took place in Connecticut because
Defendant’s false advertising campaign was conducted in this state.

“Venue may

properly exist in more than one district, and thus the plaintiff is not required to establish
that his chosen venue has the most substantial contacts to the dispute; rather, it is
sufficient that a substantial part of the events occurred [in the venue where suit was
brought], even if a greater part of the events occurred elsewhere.” Indymac Mortgage
Holdings, Inc. v. Reyad, 167 F. Supp. 2d 222, 237 (D. Conn. 2001) (internal citations
omitted). Here, while the summer baseball league is physically located in South Carolina,
the marketing and contracting took place in Connecticut. Thus, venue is proper in the
District of Connecticut, and the Court denies Defendant’s motion to dismiss for
improper venue.

Supp. 2d 360, 362–63 (D. Conn. 2008) (citing Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353,
356 (2d Cir. 2005)).
9
While Defendant’s principal place of business is located in North Carolina, the
baseball camp and player housing—the only places where Reid Nelson traveled in
connection with this dispute—were both located in South Carolina.
16

C.

Venue Transfer

Finally, Defendant moves in the alternative pursuant to 28 U.S.C. § 1404(a) to
transfer this action to North Carolina.10 “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 or to any district or division to which all
parties have consented.” 28 U.S.C. § 1404(a). “In determining whether a transfer of
venue pursuant to 28 U.S.C. § 1404(a) is appropriate, district courts engage in a two-part
inquiry, asking: (1) whether [the] action might have been brought in the proposed
transferee forum, and, if so, (2) whether the transfer promotes convenience and justice.”
Costello v. Home Depot U.S.A., Inc., 888 F. Supp. 2d 258, 266 (D. Conn. 2012) (internal
citations and quotation marks omitted).11 Defendant bears the burden of establishing by
clear and convincing evidence that transfer would be proper. N.Y. Marine & General Ins.
Co. v. Lafarge North America, Inc., 599 F.3d 102, 114 (2d Cir. 2010). When considering
whether a transfer promotes convenience and fairness, district courts consider, inter alia:
(1) the plaintiff’s choice of forum, (2) the convenience of witnesses, (3) the location of
relevant documents and relative ease of access to sources of proof, (4) the convenience of
parties, (5) the locus of operative facts, (6) the availability of process to compel the
attendance of unwilling witnesses, (7) the relative means of the parties, (8) the forum’s
familiarity with the governing law, and (9) the efficiency and the interests of justice, based

10

Defendant does not specify in his briefing whether he seeks transfer to the
Eastern, Middle, or Western District of North Carolina.
11
The parties agree that this suit could have been brought in North Carolina on
the basis of Defendant’s residency in that state.
17

on the totality of the circumstances. See D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106–
07 (2d Cir. 2006).
1.

Plaintiff’s Choice of Forum

“In considering a motion to transfer, a district court ordinarily affords the
plaintiff’s choice of forum substantial weight.” Costello, 888 F. Supp. 2d at 267; see also
Indymac, 167 F. Supp. 2d at 240.
2.

The Convenience of Witnesses

Defendant argues that all of its anticipated witnesses are located in North
Carolina, and that given the travel time and costs associated with air travel, requiring
Defendant to produce its witnesses in Connecticut would be burdensome for Defendant
and its witnesses. Plaintiffs counter that the Defendant has not asserted how many of its
witnesses are located in North Carolina or how material those witnesses are to this
matter, and that therefore the Court should give little weight to Defendant’s assertions.
Plaintiffs also assert that transfer of venue to North Carolina would create an equal
hardship on its own witnesses, many of whom are college students from Connecticut who
participated in the summer baseball league. “A party moving for transfer on the ground
of the convenience or availability of witnesses must specify the identity of key witnesses
and the nature of their likely testimony, and support these statements with affidavits.”
Costello, 888 F. Supp. 2d at 267. Here, Defendant has not specified the identity of any of
its key witnesses, or described the nature of their likely testimony. Further, there are
likely relevant witnesses located in both fora. Thus, Defendant has not met its burden to
establish that this factor weighs in favor of a transfer.

18

3.

The Location of Relevant Documents

Defendant acknowledges that modern technology limits the weight of this factor.
See Wilson v. DirectBuy, Inc., 821 F. Supp. 2d 510, 517 (D. Conn. 2011). Nevertheless,
Defendant argues that because police reports from the Myrtle Beach Police would be a
source of proof in this case this factor weighs in favor of transfer. However, Defendant
fails to explain how police reports differ from all other documents in the digital age that
can be easily produced in an electronic format. Further, as Plaintiffs point out, the Myrtle
Beach Police are not even located in the proposed transferee forum. Given the realities of
electronic discovery, this factor does not weigh in favor of either forum.
4.

The Convenience of the Parties

Defendant argues that North Carolina is a more convenient forum because its
witnesses and evidence are located in North Carolina. In contrast, Plaintiffs argue that
Connecticut is a more convenient forum because Reid Nelson is a college student and
would likely be forced to take a significant amount of time off from school to travel to
North Carolina. A transfer order should not be used “to do nothing more than shift the
burden of inconvenience from one party to another.” Pitney Bowes, Inc. v. National
Presort, Inc., 33 F. Supp. 2d 130, 132 (D. Conn. 1998). Here, it appears that no matter
where this case is located, inconvenience is unavoidable. See id.
5.

The Locus of Operative Facts

Defendant argues that the locus of operative facts is North Carolina, while
Plaintiffs argue that the locus of operative facts is Connecticut. Plaintiffs further argue
that even if some of the relevant events occurred outside Connecticut, they took place in

19

South Carolina, rather than in North Carolina as Defendant claims.12 “To determine the
locus of operative facts, courts look to where the events from which the claim arises
occurred.” Costello, 888 F. Supp. 2d at 268 (internal citations omitted). The events giving
rise to this claim occurred in South Carolina, North Carolina, and Connecticut. Because
the baseball league did not take place in the proposed transferee forum, and because the
nature of the events occurring in both North Carolina and Connecticut appear to be very
similar—i.e., the negotiation of contracts and the distribution of advertising—this factor
does not weigh heavily in favor of either forum.
6.

The Availability of Process to Compel the Attendance of Unwilling
Witnesses

The parties raise the same arguments here as were raised in the discussion of the
second factor. It is likely that there are witnesses with relevant information in both fora.
However, because neither party has identified any non-party witnesses, the availability of
process to compel attendance of unwilling witnesses does not clearly weigh in favor of
either forum. See id. at 267.
7.

The Relative Means of the Parties

Both parties agree that the relative means of the parties are unknown, and thus
this factor does not weigh in favor of either forum.
8.

The Forum’s Familiarity with Governing Law.

“The ‘governing law’ factor is to be accorded little weight on a motion to transfer
venue because federal courts are deemed capable of applying the substantive law of other
states.” MAK Marketing, Inc. v. Kalapos, 620 F. Supp. 2d 295, 311–12 (D. Conn. 2009).

12

Carolina.

The actual baseball league that is the subject of this suit was located in South
20

However, Plaintiffs’ claims are based on Connecticut statutory and common law, and
therefore even if this Court were to give weight to this factor, it can hardly be said to
weigh in favor of a transfer out of Connecticut.
9.

Trial Efficiency and the Interest of Justice

Defendant argues that since discovery has not yet begun, it would be more
efficient to transfer this case to the “appropriate forum.” Moreover, Defendant asserts
that since this Court does not have personal jurisdiction over it, it is most efficient to
transfer this case to the District of North Carolina where jurisdiction lies. However, aside
from restating its arguments regarding personal jurisdiction, Defendant fails to establish
how it would be more just or efficient to try this case in North Carolina.
Therefore, Defendant has not met its burden to show that this case should be
transferred to North Carolina, and Defendant’s alternative request for relief is denied.
III.

Conclusion
For the foregoing reasons, Defendant’s Motion [Doc. # 20] to Dismiss or to

Transfer Venue is DENIED.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.

Dated at New Haven, Connecticut this 4th day of December, 2013.

21