VUONCINO v. FORTERRA, INC. et al

Filing 126

OPINION. Signed by Magistrate Judge Edward S. Kiel on 4/22/2021. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RAYMOND VUONCINO,

Case No. 18–cv–02437–CCC–ESK

Plaintiff,
v.

OPINION

FORTERRA, INC., et al.,
Defendants.
KIEL, U.S.M.J.

THIS MATTER is before the Court on defendants Forterra, Inc. and United
States Pipe Fabrication, LLC’s (collectively, Companies) motion to dismiss
plaintiff Raymond Vuoncino’s amended complaint for lack of personal
jurisdiction, to dismiss for improper venue, or alternatively, to transfer venue
(Companies Motion) (ECF No. 67), along with their motion to compel arbitration
(Arbitration Motion) (ECF No. 68).

Defendants Jeffrey Bradley and William

Kerfin (collectively, Officers) filed a similar dismissal motion (Officers Motion)
(ECF No. 69), and filed a joinder to the Companies’ Arbitration Motion (ECF No.
70).
For the following reasons, the aspects of the Companies Motion and Officers
Motion seeking transfer (Transfer Motions) are GRANTED.

This case will be

transferred to the United States District Court for the Northern District of Texas,
Dallas Division, for further proceedings.

The aspects of the Companies Motion

and Officers Motion seeking dismissal under Rule 12(b)(2) are terminated.

The

aspects of the Companies Motion and Officer Motion seeking dismissal under
Rule 12(b)(6) shall remain administratively terminated without prejudice.

The

Arbitration Motion shall remain administratively terminated without prejudice.

BACKGROUND
As alleged by Vuoncino, this action stems from the Companies and the
Officers’ (collectively, Defendants) “retaliatory discharge [of Vuoncino] for
whistleblowing activities concerning financial reporting practices at” defendants
Forterra, Inc. (Forterra) and United States Pipe Fabrication, LLC (Fabrication)
in violation of the Sarbanes Oxley Act of 2002, 18 U.S.C. § 1514A, et seq. (Sarbanes
Oxley Act).

(ECF No. 59 ¶ 1.) Fabrication retained Vuoncino as a consultant in

March of 2013.
(Id. ¶ 6.)
I.

(Id. ¶ 5.)

Fabrication then hired him as a general manager.

Vuoncino worked “primarily” out of his home in New Jersey.

(Id. ¶ 8.)

CORPORATE STRUCTURE

Forterra’s subsidiary acquired non-party USP Holdings, Inc. (Holdings) in
April of 2016.

(Id. ¶ 13.)

Holdings is the parent company to Fabrication (id. ¶ 9)

and non-party United States Pipe and Foundry Company, LLC (Foundry) (id.
¶ 12).

Forterra and Fabrication are defendants in this matter, but Foundry is

not.
Jeffrey Bradley was Forterra’s CEO.

(Id. ¶ 15.)

Foundry’s President was

William Kerfin, who was formerly Forterra’s President of Water Pipe and
Products.1 (Id. ¶¶ 15, 17.) The parties dispute whether Vuoncino’s employer
was Fabrication (ECF No. 76 p. 6) or Foundry (ECF No. 67-1 p. 9).

However,

Vuoncino does not challenge Defendants’ general description of the structure
between Forterra and the corporate entities involved in this action, which
Defendants have graphically displayed as follows (ECF No. 67-2 p. 2):

According to Kerfin’s declaration filed in support of the Officers’ Transfer Motion,
Kerfin was not the President of Foundry, but rather, was the President of Holdings, a
subsidiary of Forterra. (ECF No. 69-3 ¶ 2).
1

2

Fabrication promoted Vuoncino to Vice President of Operations in June of 2016.
(ECF No. 59 ¶ 21.)

One month later, Vuoncino’s role was expanded to cover more

branches nationwide. (Id. ¶ 22.)
In August of 2016, Bradley contacted Vuoncino to express disappointment
in Fabrication’s financial performance.

(Id. ¶ 24.)

In response, Vuoncino

proposed reviewing costs, which would entail plant closings or headcount
reductions.

(Id.) Bradley indicated “Forterra would pay Vuoncino a $2,000

bonus for each person eliminated in any downsizing.”

(Id. ¶ 25.)

Vuoncino

agreed to the arrangement, and each month prepared a list of employees to be
terminated.
II.

(Id.)

MEETINGS OUTSIDE OF NEW JERSEY

In October of 2016, Vuoncino attended a meeting with Kerfin and other
Fabrication officers in Birmingham, Alabama to discuss Fabrication’s business
plan for 2017 (Alabama Meeting).

(Id. ¶¶ 27–29.)

At the Alabama Meeting,

Kerfin proposed increasing Fabrication’s projected earnings by lowering the
“inter-company” price Foundry charged Fabrication for certain materials2, which

Vuoncino’s Certification of July 23, 2018 describes Foundry’s sale of “raw, pipe
material” to Fabrication. (ECF No. 24 ¶ 43.)
2

3

would result in greater profits for Fabrication.

(Id. ¶¶ 30–32.)

Vuoncino

viewed the proposal as “a ‘left pocket/right pocket’ move concerning financial
performance” (id. ¶ 33) and expressed reservations to Kerfin about the proposal.
In November of 2016, Vuoncino attended another meeting with Bradley and
Kerfin at Forterra’s headquarters in Irving, Texas (Texas Meeting).
By this time, Forterra was a publicly-traded company.

(Id. ¶ 34.)

(Id. ¶ 25.) At the Texas

Meeting, Bradley expressed concerns about whether Forterra could meet
projected quarterly earnings.

(Id. ¶ 35.) The business plan for 2017 was also

“discussed at a high level,” but according to the amended complaint, Kerfin did
not address the inter-company pricing proposal introduced at the Alabama
Meeting.

(Id. ¶¶ 34–36.)

Several weeks later, Vuoncino learned from Fabrication’s Division
Controller, Mark Ayres, that Forterra was instead providing “rebates” for
inventory transfers from Foundry to Fabrication. 3

(Id. ¶¶ 38, 39.)

Forterra’s “[s]enior management [that] decided upon this rebate[.]”

It was

(Id. ¶ 40.)

Vuoncino asked Ayres “how these intercompany transactions would be accounted
for[,]” and some discussion followed.
his objection to Ayres.

(Id. ¶¶  41, 42.)

(Id. ¶¶ 43, 44.)

the direction … came from ‘above.’”

Vuoncino later repeated

In response, “Ayres told Vuoncino that

(Id. ¶ 45.)

The amended complaint alleges

Vuoncino “reasonably believed … the scheme devised at Forterra violated the
law, would overstate earnings[,] and would result in Forterra submitting
fraudulent [securities] filings.”

(Id.)

In December of 2016, Vuoncino attended a lunch meeting in Chicago, Illinois
with Kerfin and Foundry officers to discuss Fabrication’s financial performance
(Illinois Meeting).

(Id. ¶¶ 46, 47.)

During the Illinois Meeting, Vuoncino

characterized the accounting for the rebate as “incorrect” and “fraudulent,” and

The amended complaint is silent on how or where the discussions between
Vuoncino and Ayres took place. (ECF No. 59 ¶¶ 39, 41, 42.)
3

4

referenced a sudden increase in earnings at Fabrication’s branch located in
Georgia.

(Id. ¶ 48.)

In January of 2017, Vuoncino attended a meeting in Phoenix, Arizona with
Kerfin and officers of Foundry and Fabrication (Arizona Meeting).4 (Id. ¶ 57.)
Kerfin “ran the sales meeting[.]”

(Id. ¶ 58.) Vuoncino “again wanted to discuss

the accounting for these inter-company transfers[.]”

(Id. ¶¶ 59, 60.)

Kerfin

“appeared agitated by Vuoncino’s question” and “avoided speaking with
Vuoncino.”

(Id.

¶ 61.)

The

amended

complaint

alleges

that

Vuoncino

“reasonably believed Kerfin’s behavior toward him was in response to Vuoncino’s
objection[,]” (id. ¶ 62), and that the Officers “either would cut Vuoncino off in
meetings or become noticeably agitated” (id. ¶ 64).
III. NOTIFICATION OF TERMINATION IN NEW JERSEY
About a week after the Arizona Meeting, Kerfin sent Vuoncino an e-mail
requesting to meet “outside the Newark Marriott Airport Aviation Grill
Restaurant.”

(Id. ¶ 65.)

Vuoncino “saw ‘the writing on the wall’ and knew he

would be fired for objecting to the issues involving inventory and the intercompany rebates.”

(Id. ¶ 66.) Vuoncino met with Kerfin and a Forterra human

resources representative at Newark Airport, and was formally terminated.

(Id.

¶ 67.)
Kerfin later issued a company announcement that Vuoncino was leaving
Fabrication.

(Id. ¶ 69.)

Separately, an executive human resources advisor for

Holdings advised Vuoncino that his position as Vice President of Operations for
Fabrication was being eliminated due to restructuring.

(Id. ¶ 71.)

However,

Vuoncino alleges that “[t]he reason proffered by Forterra for the decision to fire

The amended complaint identifies an attendee of the Alabama, Illinois, and
Arizona Meetings, Howard Smith, as “Vice President of Fabrication Sales” (ECF No. 59
¶ 29), yet elsewhere identifies Smith as “Vice President of Sales for” Foundry (id. ¶ 46).
The Companies contend Vuoncino was employed with non-party Foundry but was
“assigned a role” at Fabrication. (ECF No. 67-1 p. 12 (citations omitted).)
4

5

[him] was false and was an excuse to cover up the retaliatory discharge based
upon Vuoncino’s whistleblowing activities.”

(Id. ¶ 74.)

Notably, the amended

complaint here and elsewhere attributes decisions by Fabrication and Holdings
to Forterra.
The amended complaint claims “[v]enue is proper under 28 U.S.C.
§ 1391(b)(1) and (2) because Defendants are subject to this Court’s jurisdiction …
and a substantial part of the events or omissions giving rise to the claims occurred
in” New Jersey.5 (Id. ¶ 4.)
PROCEDURAL HISTORY
Vuoncino filed the complaint in this Court against Forterra and the Officers
on February 21, 2018. The complaint asserted claims for: retaliation under the
Sarbanes-Oxley Act as to Forterra (count one); retaliation under the Dodd-Frank
Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) as to Forterra
and the Officers (count two); violation of Florida’s Private Sector Whistleblower
Act, Fla. Stat. Ann. § 448.102 (Florida Act) as to Forterra (count three); wrongful
discharge in violation of public policy, ostensibly as to Forterra and the Officers
(count four); and breach of contract as to Forterra and Bradley (count five).
(ECF No. 1 pp. 12–15.) The original complaint did not name Fabrication as a
defendant.
I.

(Id.)

ORIGINAL MOTIONS

On June 1, 2018, Forterra moved to dismiss the complaint for lack of
personal jurisdiction, improper venue, and failure to state a claim, with an
alternative request to transfer venue to the Northern District of Texas, Dallas
Division.

(ECF No. 11.)

June 1, 2018.

Forterra also filed a motion to compel arbitration on

(ECF No. 12.)

The Officers likewise filed a motion to dismiss

“A reference to the wrong statute or an erroneous basis of jurisdiction will be
corrected by the court if it can determine the appropriate statute or jurisdictional source
from the complaint.” Boarhead Corp. v. Erickson, 923 F.2d 1011, 1018 (3d Cir. 1991).
5

6

seeking similar relief.

(ECF No. 14.) Vuoncino filed oppositions to these

motions on July 24, 2018.

(ECF Nos. 22, 23.)

Defendants filed reply briefs in

further support of the motions on August 20, 2018.

(ECF Nos. 26–28.)

By order entered on June 18, 2019, District Judge Claire C. Cecchi referred
this matter to mediation and terminated the motions without prejudice.
No. 34.)

(ECF

Since the matter did not resolve at mediation, the pending motions were

reinstated on August 28, 2019.
me on October 1, 2019.

(ECF No. 35.)

This matter was reassigned to

(Docket entry after ECF No. 35.)

On December 16, 2019, Vuoncino filed a cross-motion for leave to file an
amended complaint asserting additional allegations and adding Fabrication as a
new defendant.

(ECF No. 41.)

(ECF Nos. 44, 45, 49.)

The cross-motion to amend was fully briefed.

However, Vuoncino withdrew his claim under the Dodd-

Frank Act (ECF No. 51 ¶ 3), which resulted in the administrative termination of
the cross-motion to amend without prejudice (id. p. 3).
II.

AMENDED COMPLAINT AND PRESENT MOTIONS

Vuoncino refiled a motion to amend on March 4, 2020 (ECF No. 52), which
neither Forterra nor the Officers opposed, while preserving defenses to the
amended complaint (ECF Nos. 53, 54).

By order entered on March 20, 2020, I

granted Vuoncino’s refiled motion to amend.
amended complaint on March 23, 2020.

(ECF No. 58.)

Vuoncino filed the

(ECF No. 59.)

The amended complaint—the operative complaint in this matter—asserts
claims for: retaliation under the Sarbanes-Oxley Act as to the Companies (count
one); violation of the Florida Act as to the Companies (count two); wrongful
discharge in violation of public policy, ostensibly as to all Defendants (count
three); and breach of contract, ostensibly as to all Defendants and with specific
allegations directed at Bradley (count four).

(ECF No. 59 pp. 17–19.)

The Arbitration Motion (ECF No. 68), Companies Motion (ECF No. 67), and
Officers Motion (ECF No. 69) followed.

7

Vuoncino filed oppositions to each

Motion.

(ECF Nos. 74–76.) The Companies filed reply briefs in further support

of the Companies Motion (ECF No. 79) and the Arbitration Motion (ECF No. 80).
The Officers filed a reply brief in further support of the Officers Motion (ECF No.
81) and a joinder to the Companies’ reply brief in further support of the
Arbitration Motion (ECF No. 82).
By letter filed on December 10, 2020, the Companies and Officers requested
to have the Transfer Motions, along with the Arbitration Motion, referred to me
for decision.

(ECF No. 89 p. 1.) Vuoncino expressed no objection to the referral.

(ECF No. 90 p. 1; ECF No. 102 p. 3; ECF No. 107 p. 2.)

By text order entered on

January 21, 2021, I directed the Clerk of the Court to administratively terminate
the Companies Motion, Officers Motion, and Arbitration Motion, without
prejudice to Defendants reinstating the Motions, if appropriate, upon resolution
of the Transfer Motions.

(ECF No. 105.)

A hearing on the Transfer Motions

and Arbitration Motion was held on April 7, 2021.

(ECF No. 117; minute entry

after ECF No. 117.) Following the hearing, Vuoncino and the Companies filed
supplemental letters addressing issues raised during the hearing.

(ECF Nos.

119 through 123.)
PARTIES’ ARGUMENTS
I.

IMPROPER VENUE
A.

Defendants’ Positions

The Companies Motion argues this matter should be dismissed, or
alternatively transferred, because venue is improper in this district, “where only
one, not a substantial part, of the events or omissions giving rise to [Vuoncino]’s
claims occurred[.]”

(ECF No. 67-1 p. 21.) The Companies contend venue in the

Northern District of Texas, Dallas Division (Northern District of Texas), is proper
under 28 U.S.C. § 1391(b)(2) “because events or omissions giving rise to
[Vuoncino’s] claim[s] occurred [there], Forterra’s headquarters are there,
[Vuoncino] attended meetings there, and [Vuoncino] received calls from

8

Forterra’s headquarters related to the activities alleged.”

(Id. p. 24 (citations

omitted).) In addition, since all Defendants are subject to personal jurisdiction
in Texas, transfer is “favored” in this matter because transfer would “eliminate
jurisdictional uncertainties.”

(Id.) The Companies also submit that transfer is

proper based on application of the private and public factors under Jumara v.
State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995).6 (Id. p. 25.)
The Officers Motion likewise seeks dismissal under Rule 12(b)(3) for
improper venue, and alternatively (if venue in this district is proper), request
transfer under 28 U.S.C. § 1404(a) to the Northern District of Texas for
convenience and based on additional considerations.

(ECF No. 69-1 pp. 6, 19.)

The Officers represent that Kerfin “would waive [any] objection to [personal]
jurisdiction” in order to litigate this action in the” Northern District of Texas.7
(Id. p. 19.)

They add “the convenience of the parties and witnesses, the locus of

operative facts, and the location of relevant documents all weigh in favor of
transfer[.]”

(Id.) Further, because no Defendants reside in New Jersey, the

Officers submit venue is improper under 28 U.S.C. § 1391(b)(1).

This statute

permits venue in a judicial district where any defendant resides so long as “all
defendants are residents of the State in which the district is located[.]”

(Id. p. 18

(citation omitted).)

The Companies appear to request transfer of venue pursuant to 28 U.S.C.
§ 1404(a) (ECF No. 67 p. 2; ECF No. 67-1 p. 43), but elsewhere reference 28 U.S.C.
§ 1406(a), which allows for dismissal or transfer (ECF No. 67-1 p. 23 n. 14.) “Under a
typical § 1404(a) analysis, courts must evaluate whether transfer is appropriate based on
a series of private and public interest factors to determine whether ‘on balance the
litigation would more conveniently proceed and the interests of justice be better served
by transfer to a different forum.’” Darrow v. InGenesis, Inc., No. 19-17027, 2020 WL
2059946, at *4 (D.N.J. Apr. 29, 2020) (quoting Jumara, 55 F.3d at 879).
6

According to the Officers, Bradley “at all relevant times worked at Forterra’s
headquarters[,]” which is located in Irving, Texas. (ECF No. 69-1 p. 19 (citation
omitted).)
7

9

B.

Vuoncino’s Oppositions

In opposition to the Transfer Motions, Vuoncino argues that venue is proper
in this district under 28 U.S.C. § 1391(b)(2) because a “substantial part of the
events or omissions giving rise to the claim” occurred in New Jersey, namely, “the
actionable conduct of the alleged unlawful termination of Vuoncino at Newark
Airport.”

(ECF No. 75 p. 15.)

Vuoncino adds he was “clearly” a “New Jersey

employee” where he had “long operated.” (Id. p. 16.)

In addition, he argues

against transfer to the Northern District of Texas under 28 U.S.C. § 1404(a)
because “the transfer factors do not weigh in favor of transfer.”

(Id.  pp. 18–22;

ECF No. 76 p. 15.) Vuoncino points out that “Texas appears to be less convenient
for the [Officers] than New Jersey considering that neither … has any reason to
travel to Texas for work [anymore].”

(Id. p. 5.)

As such, the litigation should

remain “venued in New Jersey, where Vuoncino lives, worked[,] and was fired.”
(Id.) Vuoncino also argues that, because Bradley and Kerfin are subject to this
Court’s personal jurisdiction, venue is proper in this district pursuant to 28
U.S.C. § 1391(b)(3).8 (Id. pp. 15, 16.)
C.

Defendants’ Reply Briefs

Repeating some of the arguments in their moving briefs, the Companies
contend in response to Vuoncino’s opposition that venue is improper under 28
U.S.C. § 1391(b)(2) because Vuoncino “cannot refute that most of the events …
giving rise to his claims—the meetings in which the Rebate Program was
discussed and the termination decision—occurred outside of New Jersey.”
No. 79 p. 11.)

(ECF

They also argue Vuoncino “fails to show why … this case should

not be transferred to a more convenient district [under] 28 U.S.C. § 1404(a)[,]” (id.
p. 7), and again urge that the private and public factors favor transfer under 28

28 U.S.C. § 1391(b)(3) provides, “if there is no district in which an action may
otherwise be brought as provided in this section,” a civil action may be brought in “any
judicial district in which any defendant is subject to the court’s personal jurisdiction with
respect to such action.” 28 U.S.C. § 1391(b)(3).
8

10

U.S.C. § 1404(a).

(Id. pp. 11, 12.)

The Companies also submit that Vuoncino

cannot rely on 28 U.S.C. § 1391(b)(3) because this venue provision “is only
available where there is no other jurisdiction in which the action may have been
brought[.]” (Id. p. 10.)

The Officers’ reply brief advances similar arguments.

(ECF No. 81 pp. 16–18.)
D.

Defendants’ Declarations
1.

Greene Declaration

In support of their Transfer Motion (ECF No. 67), the Companies rely upon
the June 12, 2020, Declaration of Truman Greene, a Senior Vice President of
Human Resources at Forterra.

(ECF No. 67-4.) According to Greene,

Forterra’s headquarters, books, and records are located in Irving, Texas.

(Id.

¶ 4.) “The majority of Forterra’s executive functions are performed at [its]
headquarters in Irving, Texas.”

(Id.) Forterra’s board of directors and

corporate officers “direct, control, and coordinate” these functions from Forterra’s
headquarters.

(Id.) While employed with Forterra, Bradley “maintained his

office at [Forterra’s] headquarters … in Irving, Texas.”

(Id.) Importantly, “the

decision to terminate Vuoncino was made in Texas by executive officers of
Foundry.”

(Id. ¶ 15.) By contrast, “[n]one of Forterra’s executive functions are

performed in New Jersey.”
2.

(Id. ¶ 4.)

Officers’ Declarations

In support of their Transfer Motion (ECF No. 69), the Officers rely upon the
June 15, 2020, Declaration of Jeffrey Bradley (ECF No. 69-2) and the June 14,
2020, Declaration of William Kerfin (ECF No. 69-3).

Bradley was Forterra’s

chief executive officer from August 31, 2015 to June 30, 2019.

(ECF No. 69-2

¶ 2.) While employed by Forterra, he was “employed in the State of Texas, and
[his] office was at Forterra’s headquarters” located in Irving, Texas.

(Id. ¶ 4.)

Further, “[t]he board of directors and corporate officers direct, control, and

11

coordinate Forterra’s activities from Forterra’s headquarters in Irving, Texas”
and “[t]he majority of [Forterra]’s executive functions are performed” there.

(Id.)

Kerfin was the President of Holdings, a subsidiary of a subsidiary of
Forterra, from April 26, 2016 to the Summer of 2018.

(ECF No. 69-3 ¶ 2; ECF

No. 67-2 p. 2.) While employed by Holdings, Kerfin was “employed in the State
of Alabama, and [his] main office was at [Holdings’] headquarters in
Birmingham, Alabama.”

(ECF No. 69-3 ¶ 3.)

Vuoncino “reported to [Kerfin] at

[Holdings’] headquarters in Birmingham, Alabama.”

(Id. ¶ 5.)

Although

employed in Alabama, as part of his responsibilities as president of Holdings,
Kerfin “traveled to Forterra’s headquarters in Irving, Texas for business
reasons.”

(Id. ¶ 6.)
E.

Vuoncino’s Certification

In opposition to the Transfer Motions, Vuoncino cites to his certification of
July 23, 2018, submitted in support of his opposition to the Officers’ prior motion
to dismiss filed on June 1, 2018.

(ECF No. 22-5; ECF No. 24).

The certification,

which is somewhat dated by this point, also contains an incorrect jurat.
However, following the hearing on the Transfer Motions and Arbitration Motion,
Vuoncino filed a supplemental certification with the appropriate jurat under 28
U.S.C. § 1746.

(ECF No. 122.)

Other than correcting the jurat and stating that

he believed his prior certification was accurate at the time it was executed, the
supplemental certification contains no new statements.

(ECF No. 122-2.)

Vuoncino’s certification of July 23, 2018 concedes his job “entailed a lot of
travel, [though] the majority of [his] time was spent working from New Jersey.”
(ECF No. 24 ¶ 11.) He avers that Bradley and Kerfin “stated on numerous
occasions that their ‘only’ priority was meeting projected quarterly earnings.”
(Id. ¶ 41.) Vuoncino also indicates he “consistently expressed [his] objections and
concerns about the Rebate Program” to Bradley and Kerfin.

12

(Id. ¶ 49.)

APPLICABLE LAW
“In federal court, venue questions are governed either by 28 U.S.C. § 1404(a)
or 28 U.S.C. § 1406.” Jumara, 55 F.3d at 878.

“For the convenience of parties

and witnesses [and] in the interest of justice, a district court may transfer any
civil action to any other district … where it might have been brought or to any
district … to which all parties have consented.”

28 U.S.C. § 1404(a).

“The

district court of a district in which is filed a case laying venue in the wrong …
district shall dismiss, or if it be in the interest of justice, transfer such case to any
district … in which it could have been brought.”

28 U.S.C. § 1406(a).

“[E]ither

statute could theoretically provide a basis for … transfer[,]” but “Section 1406 …
applies where the original venue is improper and provides for either transfer or
dismissal[.]”

Jumara, 55 F.3d at 878.

“Under either section, the district court

has broad discretion to grant or deny a motion to transfer the case.”

Cote v.

Wadel, 796 F.2d 981, 985 (7th Cir. 1986).
28 U.S.C. § 1391 governs the venue “of all civil actions brought in district
courts of the United States[.]”

28 U.S.C. § 1391(a)(1).

A civil action may be

brought in “a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located[.]”
§ 1391(b)(1).

It may also be brought in “a judicial district in which a substantial

part of the events or omissions giving rise to the claim occurred[.]”
§ 1391(b)(2).

28 U.S.C.
28 U.S.C.

“[I]f there is no district in which an action may otherwise be

brought as provided in” 28 U.S.C. § 1391, a civil action may be brought in “any
judicial district in which any defendant is subject to the court’s personal
jurisdiction[.]”

28 U.S.C. § 1391(b)(3).

establishing that venue is improper.

The defendant bears the burden of

Cosmopolitan Shopping Co., Inc. v. Cont’l

Ins. Co., No 17-04933, 2018 WL 1617701, at *1 (D.N.J. Apr. 3, 2018) (citation
omitted).

13

DISCUSSION
I.

VENUE IN NEW JERSEY IS IMPROPER UNDER § 1391(b)(1)

First, venue in New Jersey is improper under 28 U.S.C. § 1391(b)(1).

Under

this provision, venue is proper in a district where one defendant resides so long
as all defendants are residents of the state embracing that district.
§ 1391(b)(1).

Here, no defendant ever resided in New Jersey.

incorporated in Delaware and is headquartered in Texas.
(citations omitted).)
in Florida.

28 U.S.C.
Forterra is

(ECF No. 67-1 p. 11

Fabrication is incorporated in Delaware and headquartered

(Id.) Bradley resides in Pennsylvania and Kerfin resides in Illinois.

(ECF No. 69-1 p. 7 (citations omitted).)

The amended complaint vaguely asserts

that “[v]enue is proper under 28 U.S.C. § 1391(b)(1)” (ECF No. 59 ¶ 4) without
specifically identifying where any defendant resides.

Vuoncino’s oppositions to

the Transfer Motions, moreover, do not reference or discuss 28 U.S.C. § 1391(b)(1).
Accordingly, Vuoncino cannot rely on 28 U.S.C. § 1391(b)(1) as a basis for
establishing venue in New Jersey.
II.

VENUE IN NEW JERSEY IS IMPROPER UNDER § 1391(b)(2)

Second, venue in New Jersey is improper under 28 U.S.C. § 1391(b)(2).
Under this provision, venue is proper in a district where a substantial part of the
events or omissions giving rise to the action occurred.

28 U.S.C. § 1391(b)(2).

However, a substantial part of the relevant events and omissions giving rise to
this matter did not occur in New Jersey.
“[I]n determining whether a substantial part of the events or omissions
giving rise to a cause of action occurred in a specific jurisdiction [under 28 U.S.C.
§ 1391(b)(2)], ‘[t]he test … is not the defendant[s’] ‘contacts’ with a particular
district, but rather the location of those events or omissions giving rise to the
claim.’”

Bockman v. First Am. Mktg. Corp., 459 F.App’x 157, 161 (3d Cir. 2012)

(quoting Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir.
1994)).

“In assessing whether events or omissions giving rise to the [plaintiff’s]

14

claims are substantial, it is necessary to look at the nature of the dispute.”
Cottman, 36 F.3d at 295.

“Events or omissions that might only have some

tangential connection with the dispute in litigation is not enough.”

Id. at 294.

The facts of this matter resemble those in Darrow v. InGenesis, Inc., No. 1917027, 2020 WL 2059946 (D.N.J. Apr. 29, 2020).

In Darrow, the plaintiff was

employed by a staffing company based in San Antonio, Texas, but worked almost
exclusively from home in New Jersey and reported remotely to supervisors in
Texas and Pennsylvania.

Id. at *1–2.

The plaintiff repeatedly objected to how

background checks were being conducted for employees of the company’s clients,
was terminated by the company, and sued for retaliation. Id. at *2–3.

Because

the plaintiff’s “chain of command flowed through [the company’s] San Antonio
headquarters” and “the alleged retaliation … occurred in Texas[,]” the Darrow
Court found that “a substantial part of the events or omissions giving rise to the
claim occurred” in the Western District of Texas, which was deemed an eligible
“transferee district.”

Id. at *4.

The facts of this matter also resemble those in Taube v. Common Good Sys.,
Inc., No 11-02380, 2011 WL 5599821 (D.N.J. Nov. 1, 2011), report and
recommendation adopted, No. 11-02380, 2011 WL 5825792 (D.N.J. Nov. 16,
2011).

In Taube, the plaintiff’s supervisors made derogatory remarks about her

pregnancy and terminated her for “poor work performance” while on maternity
leave.

She sued for gender and pregnancy discrimination.

5599821, at *1–2.

Taube, 2011 WL

The discriminatory comments and decision to terminate the

plaintiff were made in Illinois, where the employer was headquartered.
*2.

Id. at

Although the plaintiff “frequently” traveled to her employer’s corporate

office in Illinois, she also “communicated by telephone and email in New Jersey
… with [co-workers] located in Illinois.”

Id. at *1, *4.

In recommending transfer to the Northern District of Illinois under 28
U.S.C. § 1406(a), the Taube Court reasoned that “the mere performance of
[plaintiff’s] job duties in New Jersey and receipt of her termination letter in New

15

Jersey” did not give rise to her discrimination claims.

Id. at *4.

Further, the

Taube Court disagreed that venue was properly laid in New Jersey merely
because the plaintiff was recruited, hired, and “predominantly” worked in New
Jersey, where she also received the termination letter.
Taube Court found venue improper in New Jersey.

Id.

On these facts, the

Id. at *1.

Here, Vuoncino worked “primarily” out of his New Jersey home, but traveled
to attend meetings in Alabama, Texas, Illinois, and Arizona.

At the Alabama

Meeting, Vuoncino expressed reservations about Kerfin’s pricing proposal.

At

the Texas Meeting, although the pricing proposal was allegedly not discussed,
Bradley nevertheless addressed Fabrication’s business plan, and Vuoncino by
that juncture knew Forterra was pressing to meet certain financial and fiscal
objectives. Later, Vuoncino learned that Forterra was providing rebates for
inventory transfers from Foundry to Fabrication—a decision made by Forterra’s
“senior management.”

(ECF No. 59 ¶ 40.) According to Fabrication’s Division

Controller, the rebate decision came “from above.”
to Forterra’s decision.

Vuoncino repeatedly objected

(Id. ¶¶ 39–45.)

At the Illinois Meeting in December of 2016, with Kerfin in attendance,
Vuoncino described the rebate as “incorrect” and “fraudulent.”

At the Arizona

Meeting of January of 2017, Kerfin and other officers of Foundry and Fabrication
expressed hostility when Vuoncino attempted to discuss the rebate.

When

Kerfin sent Vuoncino an e-mail proposing to meet at Newark Airport, Vuoncino
already saw “the writing on the wall” and expected to be terminated.

(Id. ¶ 66.)

Vuoncino claims “Forterra[,] at all relevant times[,] was … Fabrication’s alter ego
as a result of … forcing [Fabrication] to take the complained-of action with regard
to the rebate program.”

(Id. ¶ 77.) He also notes that Fabrication’s financial

information is “included in Forterra’s consolidated financial statements[.]”

(Id.

¶ 94.)
Having canvassed the motion record, I cannot find that venue was properly
laid in New Jersey.

The amended complaint alleges that this action arises from

16

Defendants’ “retaliatory discharge” for Vuoncino’s “whistleblowing activities”
concerning the Companies’ financial reporting practices.

As to the retaliatory

discharge, there is no dispute the decision to terminate Vuoncino was made at
Forterra’s headquarters in Irving, Texas, where Forterra’s executive functions
are performed.

(ECF No. 69-2 ¶ 2.) When Kerfin e-mailed Vuoncino proposing

to meet in New Jersey, the writing was already “on the wall.”
The mere formality of verbalizing Vuoncino’s termination by Forterra in
person at Newark Airport—when Vuoncino was already “expecting” to be fired—
does not support the conclusion that a substantial part of the events or omissions
at issue took place in this district. Actually, Vuoncino may have already been
subjected to a form of retaliatory conduct at least as early as the Arizona Meeting
in January of 2017 where Kerfin was “agitated” and avoided Vuoncino for
attempting to discuss the accounting for the rebate.9 For purposes of deciding
the Transfer Motions, no retaliation occurred in New Jersey.

See Taube, 2011

WL 5599821, at *1–2 (finding “the mere performance of [plaintiff’s] job duties in
New Jersey and receipt of her termination letter in New Jersey” insufficient to
establish that claims arose in New Jersey).
As to the whistleblowing activities, Vuoncino did not object to the intercompany pricing or rebate proposals at any meeting conducted in New Jersey.
Rather, Vuoncino objected at meetings in Alabama, Illinois, and Arizona.

While

Vuoncino asserts he repeatedly voiced his objection to the rebate proposal to
Ayres (Fabrication’s Division Controller), Vuoncino nowhere alleges he and Ayres
were in New Jersey when these objections were made.

Id. at *4 (finding venue

in New Jersey improper since, among other grounds, discriminatory comments
were not “made at in person meetings in New Jersey.”)

Under the Sarbanes-Oxley Act, “[n]o … company … may discharge, demote,
suspend, threaten, harass, or in any other manner discriminate against an employee in
the terms and conditions of employment because of [whistleblowing or other protected
activity].” Lawson v. FMR LLC, 571 U.S. 429, 432 (2014) (citing 28 U.S.C. § 1514A(a)).
9

17

The Vuoncino Certification does state, however, that Vuoncino “consistently
expressed [his] objections and concerns about the Rebate Program” to Kerfin and
Bradley.

(ECF No. 24 ¶ 49.)

Thus, to the extent Vuoncino “primarily” worked

from home in New Jersey and regularly communicated by phone and e-mail with
his superiors, it appears some part of the events giving rise to Vuoncino’s claims
occurred in this district.
But the question is whether a substantial part of those events or omissions
occurred in this district.

Even if Vuoncino had objected to the rebate proposal

during phone calls with the Officers, Bradley would presumably have been at
Forterra’s headquarters in Irving, Texas, and Kerfin would have been in either
Birmingham, Alabama or Irving, Texas.

The respective locations of Vuoncino,

Bradley, and Kerfin during these calls do not weigh in favor of finding venue
proper in New Jersey under 28 U.S.C. § 1391(b)(2).

See Darrow, 2020 WL

2059946, at *1–3 (finding a substantial part of the events and omissions occurred
in Western District of Texas even though the plaintiff worked almost exclusively
from New Jersey and communicated with and voiced objections to supervisors
remotely).
district.

Most of the relevant events in this matter took place outside of this

Accordingly, I find that venue was improperly laid in New Jersey.

III. NORTHERN DISTRICT OF TEXAS IS AN ELIGIBLE
TRANSFEREE DISTRICT
Conversely, because a substantial part of the events and omissions giving
rise to Vuoncino’s claims occurred in Texas, the Northern District of Texas is an
eligible transferee district.

Consequently, Vuoncino cannot rely on 28 U.S.C.

§ 1391(b)(3) to properly establish venue in New Jersey, as this provision is
available only where there is no district in which an action may otherwise be
brought under 28 U.S.C. § 1391(b)(1) or (2).
Moreover, since venue in New Jersey is improper, 28 U.S.C. § 1406 applies,
and 28 U.S.C. § 1404(a) does not.

“Section 1406 … applies where the original

venue is improper and provides for either transfer or dismissal[.]”

18

See Jumara,

55 F.3d at 878.

As such, I decline to reach the issue of whether transfer under

28 U.S.C. § 1404(a) would be convenient for the parties.

28 U.S.C. § 1406 is not

addressed in Vuoncino’s supplemental letters and arguments submitted after the
hearing.

(ECF Nos. 119–121, 123.)

Here, Defendants have “satisfied their burden of showing that venue would
be proper in the transferee district[.]”

Darrow, 2020 WL 2059946, at *4.

The

motion record shows Vuoncino’s “chain of command flowed through” Forterra’s
headquarters in Irving, Texas.
made in Irving, Texas.
Forterra there.

Id. The decision to terminate Vuoncino was

The pricing and rebate proposals were conceived by

Indeed, Ayres told Vuoncino that decisions on the rebate

proposal came “from above” from Forterra’s senior management.
Furthermore, Texas would have subject matter jurisdiction over this matter
based on the complete diversity of citizenship between Vuoncino and Defendants
and because the amount of controversy exceeds $75,000.

The Companies

represent in briefing that “all [D]efendants are subject to personal jurisdiction”
in Texas.

(ECF No. 67-1 p. 24.)

In fact, Fabrication, Bradley, and Kerfin waive

any potential argument to personal jurisdiction in Texas.

(Id. pp. 24, 25 n. 15.)

The Northern District of Texas is an eligible transferee district under 28 U.S.C.
§ 1406(a).
IV. THE BREACH OF CONTRACT CLAIM
While this lawsuit is chiefly premised on allegations of protected
whistleblowing activities and the corresponding retaliatory discharge, Vuoncino
has also asserted a claim for breach of contract.

(ECF No. 59 pp. 19, 20.) The

amended complaint alleges that Bradley (Forterra’s CEO) offered Vuoncino a
$2,000 bonus from Forterra for each employee eliminated in any downsizing.
(Id. ¶¶ 22–25.)
bonus.

It is alleged that Forterra never paid Vuoncino the promised

(Id. ¶¶ 111–114.)

Vuoncino’s breach of contract claim does not appear

to be “the heart of [the] entire lawsuit” and does not “serve[ ] the basis for each of

19

the [other] claims asserted in the [amended] complaint.”

McNulty v. J.H. Miles

& Co., Inc., 913 F.Supp.2d 112, 119 (D.N.J. 2012).
In any event, it appears the “agreement” was formed between Bradley (on
behalf of Forterra) and Vuoncino over a phone call.

While Vuoncino presumably

conducted a portion of the downsizing activities in New Jersey, he transmitted
the list of employees to Bradley, who worked out of Forterra’s headquarters.
(ECF No. 59 ¶ 25 (“each month Vuoncino prepared a list of employees who had
been laid off and sent it … to Bradley and Kerfin.”); ECF No. 69-2 ¶ 4).
Significantly, insofar as Forterra breached the agreement to pay Vuoncino
the bonus, the alleged breach is properly deemed to have occurred in Irving,
Texas—where Forterra is headquartered, performs its executive functions, and
“direct[s], control[s], and coordinate[s]” its activities.

(ECF No. 69-2 ¶¶ 2, 4.)

While Vuoncino’s breach of contract is not at the “heart” of this lawsuit, that the
breach occurred in Texas further supports the finding that a substantial part of
the events or omissions giving rise to Vuoncino’s claims occurred there, and not
in New Jersey.
V.

UNRESOLVED JURISDICTIONAL ISSUES FAVOR
TRANSFER

The existence of unresolved jurisdictional issues in this case also weighs in
favor of transfer.

Although the dispositive aspects of the Companies Motion and

Officers Motion have not been referred to me, I note that “a court may reverse the
normal order of considering personal jurisdiction and venue[.]”
W. United Corp., 443 U.S. 173, 180 (1979).

Leroy v. Great

And “[t]he language of [§] 1406(a) is

amply broad enough to authorize the transfer of cases, however wrong the
plaintiff may have been in filing his case as to venue, whether the court in which
it was filed had personal jurisdiction over the defendants or not.”

Goldlawr, Inc.

v. Heiman, 369 U.S. 463, 466 (1962).
Defendants have sought dismissal of this matter pursuant to Rule 12(b)(2)
for lack of personal jurisdiction.

Transfer of this matter would moot and thereby

20

dispose of the issue of whether this Court may assert personal jurisdiction over
Defendants.

See Greenwald v. Holstein, No. 13-00674, 2015 WL 12843229, at *8

(D.N.J. May 29, 2015) (finding that “substantial questions concerning whether
Defendants are subject to personal jurisdiction in New Jersey … warranted
transfer to the Southern District of Ohio, where jurisdiction clearly exists”).
In the interests of justice and efficient case management, the transfer of this
case to the Northern District of Texas will eliminate lingering issues as to
personal jurisdiction.

In this regard, I defer decision on the Arbitration Motion,

along with the dispositive aspects of the Companies Motion and Officers Motion,
to the Texas Court.

See McNulty, 913 F.Supp.2d at 113 (“In light of this transfer,

Defendant’s motion to partially dismiss will be referred to the transferee court for
resolution.”)
VI. TRANSFER IN LIEU OF DISMISSAL
Although Defendants have sought dismissal under Rule 12(b)(3) for
improper venue, I find that dismissal for improper venue would cause hardship
to all parties, particularly Vuoncino.

The interest of justice would not be served

if this matter were dismissed, only for this action to be refiled elsewhere.

28

U.S.C. § 1406(a)’s “transfer provision is designed to preserve claims that rigid
application of dismissal rules may bar.”
Cir. 2007) (citation omitted).
justice than dismissal.”

Lafferty v. St. Riel, 495 F.3d 72, 79 (3d

“Transfer is generally more in the interest of

Boily v. Walt Disney World Co., No. 08-04967, 2009 WL

1228463, at *8 (D.N.J. May 1, 2009) (citation omitted).
remedy” whereas transfer is “the preferred remedy.”

Dismissal is a “harsh

Konica Minolta, Inc. v. ICR

Co., No. 15-01446, 2015 WL 9308252, at *5 (D.N.J. Dec. 22, 2015) (quoting NCR
Credit Corp. v. Ye Seekers Horizon, Inc., 17 F.Supp.2d 317, 319 (D.N.J. 1998)).
Accordingly, I find that transferring this matter to the Northern District of Texas,
in lieu of dismissal, will serve the interest of justice.

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CONCLUSION
For the reasons stated, the Transfer Motions are GRANTED.

This case

will be transferred to the United States District Court for the Northern District
of Texas, Dallas Division, for further proceedings.
The aspects of the Companies Motion and Officers Motion seeking dismissal
under Rule 12(b)(2) are terminated.

The aspects of the Companies Motion and

Officers Motion seeking dismissal under Rule 12(b)(6), along with the Arbitration
Motion, shall remain administratively terminated.
An order incorporating this decision accompanies this Opinion.10

/s/ Edward S. Kiel
EDWARD S. KIEL
UNITED STATES MAGISTRATE JUDGE

Date: April 22, 2021

On April 22, 2021, the date of this Opinion, Vuoncino filed a motion for leave to
file a second amended complaint (Motion to Amend). (ECF No. 125.) The Motion to
Amend seeks to add Foundry and Holdings as defendants. (ECF No. 125-6 p. 2.)
However, the deadline to file motions to amend or add new parties lapsed on February
12, 2021. (ECF No. 88 ¶ 3.) The Motion to Amend does not alter my analysis and
decision as to the Transfer Motions. The Motion to Amend will be administratively
terminated and shall be deferred to the Northern District of Texas for resolution.
10

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