Advanced Reimbursement Management, LLC v. Plaisance et al
ORDER - MEMORANDUM re 12 MOTION to Dismiss for Lack of Jurisdiction Over the Person MOTION to Dismiss for Improper Venue Pursuant to Rules 12(B)(2) and 12(B)(3) of the Federal Rules of Civil Procedure and Alternative Motion to Trans fer Venue Pursuant to 28 U.S.C. Sec. 1404. IT IS ORDERED that the Defendants' Motion to Dismiss or Transfer based on improper venue (ECF Doc. No. 12) is GRANTED and the Clerk of Court shall forthwith transfer this matter to the Clerk of Court for the United States District Court for the Western District of Louisiana, Lafayette Division and close this case in this District. Signed by Judge Mark A. Kearney on 9/8/2017. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ADVAN CED REIMBURSEMENT
PLAISANCE, et al.
AND NOW, this 8th day of September 2017, upon considering Defendants' Motion to
dismiss or transfer (ECF Doc. No. 12), Plaintiffs Opposition (ECF Doc. No. 16), Defendants'
Reply (ECF Doc. No. 19) and finding we lack venue but the parties may proceed in the Western
District of Louisiana, it is ORDERED the Defendants' Motion based on improper venue (ECF
Doc. No. 12) is GRANTED and the Clerk of Court shall forthwith transfer this matter to the
Clerk of Court for the United States District Court for the Western District of Louisiana,
Lafayette Division and close this case in this District.
Formed in Delaware but headquartered and managed in Georgia, Advanced
Reimbursement Management LLC sues Louisiana citizens Clay Plaisance and his companies
TKC Works LLC, and TKC Plaisance LLC for allegedly breaching restrictive covenants in an
asset purchase agreement and consulting agreement signed by Advanced and Mr. Plaisance. The
only connection to this District is Advanced is formed as a limited liability company under
Delaware law and its two agreements with Mr. Plaisance have forum selection clauses
consenting to jurisdiction here. 1 Advanced's theories do not involve Delaware.
Mr. Plaisance and his companies move to dismiss for lack of personal jurisdiction and
lack of venue. While Advanced may have the better of the argument on personal jurisdiction
over at least Mr. Plaisance under the forum selection clause, it has not shown a basis for venue
under 28 U.S.C. § 1391(b) in this District.
Under § 1391(b), venue is proper only where: (1) a defendant resides, if all the
defendants reside in the same state; (2) a substantial part of events or omissions occurred, or a
substantial part of property at issue is located; or (3) a defendant is subject to the court's personal
jurisdiction, if there is no district satisfying either of the other two requirements. Mr. Plaisance,
TKC Works and TKC Plaisance are Louisiana citizens.2 Advanced does not allege substantial
events, omissions, or property at issue within Delaware. 3 Section 1391 is not satisfied here, and
venue here is improper. 4 Advanced's reliance on the forum selection clause to establish venue
is misplaced. The forum selection clause does not affect our analysis of proper venue under
1391(b) and transfer under 28 U.S.C. §1406: "[w]hether the parties entered into a contract
containing a forum-selection clause has no bearing on whether a case falls into one of the
categories of cases listed in§ 1391(b)." 5
ECF Doc. No. 1, p. 2-3.
ECF Doc. No. 1, p. 2-3.
ECF Doc. No. 1.
28 U.S.C. § 139l(b).
At. Marine Constr. Co., Inc. v. US. Dist. Ct. for the WD. Tex., et al., 134 S. Ct. 568, 577
(2013); see PNC Bank, NA. v. Molen, No. 17-00867, 2017 U.S. Dist. LEXIS 134226, at *7 n.4
Lacking venue, we transfer to the Western District of Louisiana with undisputed venue
and personal jurisdiction.
There is sound prudential justification for us to consider venue
without first addressing personal jurisdiction, as the issue of venue is dispositive. 6
We elect to transfer rather than dismiss. Advanced can seek its remedies in the Western
District of Louisiana, and in the interest of justice, we transfer under § 1406(a) to the District
with proper venue. 7
(W.D. Pa. 2017) ("the existence or non-existence of a forum selection clause only impacts the
"The question of personal jurisdiction, which goes to the court's power to exercise control over
the parties, is typically decided in advance of venue, which is primarily a matter of choosing a
convenient forum." Leroy v. Great Western United Corp., 443 U.S. 173, 180 (1979). "On the
other hand, neither personal jurisdiction nor venue is fundamentally preliminary in the sense that
subject matter jurisdiction is, for, both are personal privileges of the defendant, rather than
absolute scriptures on the court, and both may be waived by the parties." Id. "Accordingly,
when there is a sound prudential justification for doing so, we conclude that a court may reverse
the normal order of considering personal jurisdiction and venue." Id. "One such justification is
if the issue of venue itself is dispositive, so that it is 'unnecessary to address the other issues
raised by' the defendant." Crayola, LLC v. Buckley, 179 F.Supp.3d 473, 477 (E.D. Pa. 2016).
28 U.S.C. § 1406(a); "The decision to transfer a case lies within the broad discretion of the
district court." Keyter v. Bush, No. 08-097, 2008 WL 3833428, at *2 (D. Del. 2008) (citing
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). "Transfer further avoids the 'timeconsuming and justice-defeating technicalities' required to refile a case in a proper venue."
Semanic v. Express Car Rental, No. 09-1420, 2010 WL 1053058, at *3 (E.D. Pa. 2010) (citing
Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962)). In determining whether to dismiss or transfer
under 1406(a), "doubts should be resolved in favor of preserving the action, particularly where it
appears that venue may be properly laid in the proposed transferee district." Christian Dalloz
S.A. v. Holden, No. 90-0835, 1990 WL 121342, at *5 (E.D. Pa. 1990).
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