Cherry Tree Farms, LLC et al v. Runyan et al

Filing 26

ORDER denying as moot 23 Motion for Protective Order; denying 16 Motion to Dismiss or in the alternative to transfer the action to the United States District Court for the Northern District of Alabama. Signed by Chief Judge James C. Dever III on 12/21/2016. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DMSION
No. 2:16-CV-60-D
CHERRY TREE FARMS, LLC, and
STACY LEE KING,

)
)
)
Plaintiffs,
)
)
v.
)
)
JOSEPH WALTON RUNYAN, JR., d/b/a
)
PLANTERS HARDWARE & BUILDING, INC.,
)
KEVIN R. EAST d/b/a OUTLAW GUNS & PAWN, )
)
and CHRIS JONES d/b/a JONES CATTLE CO.,
)
Defendants.
)

ORDER

On October 11, 2016, defendants moved to dismiss this action for lack of personal
jurisdiction and improper venue, or, in the alternative, to transfer venue under 28 U.S.C. § 1404
[D.E. 16] and filed a memorandum in support [D.E. 17]. On October 31,2016, plaintiffs responded
in opposition [D.E. 20]. On November 17, 2016, defendants replied [D.E. 22]. On December 1,
2016, defendants moved for a protective order staying discovery pending the court's disposition of
defendants' motion to dismiss [D.E. 23]. As explained below, the court denies defendants' motion
to dismiss, alternative motion to transfer venue, and motion for a protective order.

I.
Cherry Tree Farms, LLC ("Cherry Tree Farms") is a limited liability company engaged in
agricultural business in North Carolina, and Stacey Lee King ("King") is a North Carolina resident
and the member/manager of Cherry Tree Farms. See Compl. [D.E. 7] ,, 2-3 .. Joseph Walton
Runyan, Jr., ("Runyan") resides in Ashland, Alabama and owns and operates Planters Hardware &
Building, Inc., an Alabama corporation. Id. , 4. Kevin R. East ("East") resides in Ashland, Alabama
and owns and operates Outlaw Guns & Pawn. Id., 5. Chris Jones ("Jones") resides in Jefferson,
Georgia and owns and operates Jones Cattle Company. Id. , 6.

On July 27, 2012, East contacted Cherry Tree Farms and King in North Carolina about cattle
for sale. ld., 9. East told King that Runyan owned cattle in Alabama and wanted to sell them. See
id. , 10. East also told King that the cattle were healthy, had updated vaccinations, and were ready
to breed, but were a little light due to poor grass in Alabama. ld. ,, 12-14.
In late July 2012, to facilitate the sale East, sent photographs of the cattle to King in North

Carolina. In early August 2012, East sent emails to King in North Carolina regarding the cattle. See
id. ,, 16--19. Cherry Tree Farms (through King) agreed to purchase the cattle from Runyan and to
wire payment of $106,355.00 to Jones. See id. ,, 10, 15, 18-19. On August 14, 2012, King
received an email in North Carolina·from Jones informing King to wire transfer $106,355 to Jones
in Georgia as payment to Runyan in Alabama for the cattle. See id., 19. On August 15,2012,
Cherry Tree Farms (through King) wired the money. See id.
On August 20, 2012, the cattle arrived in North Carolina at Cherry Tree Farms on two trucks.
See id., 20. One truck contained 41 cows and the second truck contained 45 cows. See id. King
observed that the cattle appeared lean and texted East in Alabama about the cattle. See id. mf 21-22.
In response, East phoned King in North Carolina. See id., 23. During the conversation, King told

East that the cattle appeared to be in poor health. See id. , 24. East assured King that the cattle were
in good health and would gain weight with a better quality pasture. See id. , 25.
Between August 22, 2012, and September 19, 2012, the cattle ate well in North Carolina.
See id. , 26. On September 26, 2012, a cow died, and King called a local veterinarian, Dr. Dennis,
to investigate the death. See id., 29. Thereafter, Dr. Dennis was on site at Cherry Tree Farms at
least once a week because numerous cows were falling ill or dying. See id. , 30. From November
15, 2012, to July 1, 2013, six local veterinarians studied the cows and their sudden illnesses and
deaths. See id., 32.
On May 22, 2013, on the advice ofthe veterinarians, Cherry Tree Farms euthanized 35 ofthe
cows. See id., 33. On June 18,2013, again on the advice of the veterinarians, Cherry Tree Farms
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euthanized another 27 of the cows. See id. ~ 34.
King and Cherry Tree Farms had the veterinarians test the dead cows. See id. ~ 35. The
veterinarians opined that the cows arrived in North Carolina with pre-existing health problems
related to prolonged exposure to parasites and inadequate nutrition over an extended period oftime.
See id. ~ 36. The veterinarians opined that the health problems "would have been apparent to the
original owner and brokers of the animals." Id.
On August 16, 2016, plaintiffs filed this action [D.E. 2]. Jurisdiction is based on diversity.
See Compl. ~ 7. Plaintiffs seek relief for breach of contract (count one), strict liability in tort (count
two), breach of implied warranty (count three), and breach of express warranty (count four). See id.
~~ 39-73.

II.
Defendants move to dismiss the action and argue that this court lacks personal jurisdiction
over them. See Fed. R. Civ. P. 12(b)(2). To defeat a Rule 12(b)(2) motion, a plaintifftypically must
prove by a preponderance of the evidence that the court has personal jurisdiction over each
defendant. See Combs v. Bakker, 886 F.2d 673,676 (4th Cir. 1989). When the court rules on the
motion without an evidentiary hearing, the plaintiffneed only establish a prima facie case. Id. When
determining whether the plaintiff has met this burden, the court resolves all factual disputes and
draws all reasonable inferences in the light most favorable to the plaintiff. Id.; see Perdue Foods
LLCv.BRF S.A., 814F.3d 185,188 (4thCir. 2016); UniversalLeather.LLCv.KoroAR, S.A., 773
F.3d 553,561 (4thCir. 2014); MylanLabs., Inc. v.Akzo. N.V., 2F.3d56, 60 (4thCir. 1993). Here,
the court decides defendants' Rule 12(b)(2) motion without conducting an evidentiary hearing.
Thus, plaintiffs need only present a prima facie case ofpersonal jurisdiction. See, e.g., Perdue Foods
LLC, 814 F.3d at 188.
The North Carolina long':'arm statute extends personal jurisdiction over out-of-state
defendants consistent with the Fourteenth Amendment's Due Process Clause. See, ~' Dillon v.

3

NumismaticFundingCom.,291 N.C. 674,676,231 S.E.2d629, 630-31 (1977); CenturyDataSys..
Inc. v. McDonald, 109 N.C. App. 425, 427,428 S.E.2d 190, 191 (1993); see Christian Sci. Bd. of
Dirs. v. Nolan, 259 F.3d209, 215 (4th Cir. 2001); Vishaylntertechnology. Inc. v. Deltalnt'l Com.,
696 F.2d 1062, 1065 (4th Cir. 1982). To determine whether the North Carolina long-arm statute
reaches a particular defendant, courts analyze whether the defendant has sufficient minimum contacts
with North Carolina such that "maintenance of the suit does not offend traditional notions of fair
play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quotation
omitted); Christian Sci. Bd. ofDirs., 259 F.3d at 215; see Dillo!!, 291 N.C. at 676-80,231 S.E.2d
at 630-33.
Courts recognize two types of personal jurisdiction: general and specific. See Goodyear
Dunlop Tires Operations. S.A. v.

Bro~

131 S. Ct. 2846, 2851 (2011). A court may exercise

general personal jurisdiction over a defendant if the defendant has "continuous and systematic
contacts" with the forum state. See,

~'

Brown, 131 S. Ct. at 2853-57 (quotation omitted);

Christian Sci. Bd. of Dirs., 259 F.3d at 215. Defendants' contacts with North Carolina are not
continuous or systematic. See [D.E. 16-1]; [D.E. 16-2]; [D.E. 16-3]. Accordingly, this court may
not exercise general personal jurisdiction over defendants. See, e.g., Bro~ 131 S. Ct. at 2853-57.
When assessing specific personal jurisdiction, courts consider three factors: "(1) the extent
to which the defendant has purposefully availed itself of the privilege of conducting activities in the
[forum] state; (2) whether the plaintiffs' claims arise out of those activities directed at the state; and
(3) whether the exercise ofperso~jurisdiction would be constitutionally 'reasonable."' Carefust
ofMd.• Inc. v. Carefust Pregnancy Ctrs .• Inc., 334 F.3d 390, 397 (4th Cir. 2003); see Burger King
Com. v. Rudzewicz, 471 U.S. 462, 474-77 (1985); Perdue Foods LLC, 814 F.3d at 189. When
analyzing the first two elements, courts consider only the defendant's activities. See Burger King.
471 U.S. at 472-78. In keeping with this principle, a plurality of the Supreme Court has held that
"[t]he substantial connection between the defendant and the forum State necessary for a finding of

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minimum contacts must come about by an action of the defendant purposefully directed toward the
forum State." AsahiMetallndus. Co .. Ltd. v. Super. Ct. of Cal., 480 U.S. 102, 112 (1987) (plurality
opinion) (quotation, citations, and emphasis omitted).
When a defendant intentionally commits harmful acts against a plaintiff and expressly aims
those harmful acts at the plaintiff's state of residence, that state can exercise personal jurisdiction
over the defendant. See Calder v. Jones, 465 U.S. 783, 788-90 (1984). That the defendant
otherwise lacks general contacts with the forum state does not matter. Id. "Calder thus stands for
the proposition that a court may exercise personal jurisdiction over a non-resident defendant who
acts intentionally to cause harm to a resident's legally protected interest, knowing that such conduct
will cause harm at the victim's domicile to personal or property interests located there."
Musselwhite v. Int'l Learning Works. Inc., No. 2:97CV460, 1997 WL 34588522, at *3 (M.D.N.C.
Oct. 17, 1997) (unpublished); see Calder, 465 U.S. at 788-90; Perdue Foods LLC, 814 F.3d at 190;
Fiore v. Waldeg, 657 F.3d 838, 849-53 (9th Cir. 2011); cf. ESAB Gt:p.• Inc. v. Centricut Inc., 126
F.3d 617, 625-26 (4th Cir. 1997).
Plaintiffs argue that this court has personal jurisdiction over defendants because N.C. Gen.
Stat.§§ 1-75.4(4)(a)/5(c),2 and 5(e)3 and due process all support personal jurisdiction. Essentially,

1

Section 1-75 .4(4)(a) provides personal jurisdiction in any action "claiming injury to person
or property within this State arising out of an act or omission outside this State by the defendant,
provided that at or about the time of injury ... [s]olicitation or service activities were carried on
within this State by or on behalf of the defendant." N.C. Gen. Stat.§ 1-74.4(4)(a).
2

Section 1-75.4(5)(c) provides personal jurisdiction in any action that "[a]rises out of a
promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the
defendant to deliver or receive within this State ... goods, documents of title, or other things of
value." N.C. Gen. Stat.§ 1-74.4(5)(c).
3

Section 1-75.4(5)(e) provides personal jurisdiction in any action that "[r]elates to goods,
documents of title, or other things of value actually received by the plaintiff in this State from the
defendant through a carrier without regard to where delivery to the carrier occurred." N.C. Gen. Stat.
§ 1-74.4(5)(e).
5

plaintiffs contend that defendants East, on behalf ofhimself, Jones, and Runyan contacted plaintiffs
in North Carolina by telephone or email to sell the cows to plaintiffs. The negotiations involved
multiple calls and emails to North Carolina and culminated in plaintiffs buying cows shipped from
Alabama into North Carolina, and plaintiffs sending money to Georgia to be divided among
defendants in either Georgia or Alabama.

Thereafter, plaintiffs were injured as a result of

defendants' alleged breach of contract, breach of implied warranty, and breach of express warranty,
and as a result ofthe cow's illness for which plaintiffs contend defendants may be held strictly liable.
The record demonstrates that each defendant knew each was directing specific commercial
activities concerning the sale of the cows toward North Carolina. See [D.E. 16-1]; [D.E. 16-2];
[D.E. 16-3]; [D.E. 20-1]. On this record, defendants purposefully availed themselves ofthe privilege
of conducting activities in North Carolina, and plaintiffs' claims arise out of those activities directed
at plaintiffs in North Carolina. Moreover, exercising personal jurisdiction over the defendants is
fair and constitutionally reasonable. See Asahi Metal Indus. Co., 480 U.S. at 112-13; Burger King
Corp., 471 U.S. at 475-78; Calder, 465 U.S. at 789-91; Universal Leather. LLC, 773 F.3d at 561.
Thus, the court denies defendants' motion to

dismi~s.

m.
"For the convenience of parties and witnesses, in the interest ofjustice, a district court may
transfer any civil action to any other district or division where it might have been brought ...." 28
U .S.C. § 1404(a). In analyzing a motion to transfer, the court initially determines whether the action·
could have been brought in the proposed transferee district. See, e.g., Szulik v. TAG V.I.. Inc., 858
F. Supp. 2d 532, 547 (E.D.N.C. 2012) (collecting cases). If so, the court must then decide whether
to transfer venue. Id.
To determine whether an action could have been brought in the transferee forum, a court
must find that personal jurisdiction and venue would have been proper in the proposed transferee
district had the plaintiffs filed there. See, ~' Hoffman v. Blaski, 363 U.S. 335, 340--44 (1960).

6

Personal jurisdiction over defendants would have been proper in the Northern District of Alabama
based on defendants' contacts with that district. Venue also would have been proper in theNorthern
District of Alabama because a substantial part of the events and omissions giving rise to plaintiffs'
claims arose in that district. See Compl.

~~

9-38; 28 U.S.C. § 1391(b)(2). Therefore, personal

jurisdiction and venue would have been proper in the Northern District of Alabama had plaintiffs
originally filed the action there.
Next, the court must decide whether to transfer venue. See Szulik, 858 F. Supp. 2d at 548;
Dacar v. Saybolt LP, No. 7:10-CV-12-F, 2011 WL 223877, at *2 (E.D.N.C. Jan. 24, 2011)
(unpublished); Blue Malco. Inc. v. Minidis, 472 F. Supp. 2d 690, 703 (M.D.N.C. 2007). A district
court must "consider four factors when deciding whether to transfer venue: (1) the weight accorded
to plaintiffs choice of venue; (2) witness convenience and access; (3) convenience of the parties;
and (4) the interest of justice." Trustees of the Plumbers and Pipefitters Nat'l Pension Fund v.
Plumbing Servs.. Inc., 791 F .3d 436, 444 (4th Cir. 20 15).4 In balancing these factors, a district court

has substantial discretion to decide whether to transfer venue. See Stewart Org.. Inc. v. Ricoh Com.,
487 U.S. 22, 29 (1988); Brock v. Entre Comput. Ctrs .. Inc., 933 F.2d 1253, 1257 (4th Cir. 1991);
Jenkins v. AlbuquerqueLonestarFreightliner. LLC, 464F. Supp. 2d491, 493 (E.D.N.C. 2006). The
court now considers each factor in turn.
As for the first factor, the weight accorded to plaintiffs' iirltial choice of forum, plaintiffs
initially filed this action in the Eastern District of North Carolina. Thus, the first factor weighs
against transfer.
The second factor concerns accessibility of evidence and witnesses. Although there will be
some evidence concerning the transaction in Alabama and Georgia, there will be at least the same,

4

Courts in this district have described the test in terms of eleven more-specific factors rather
than four more-general factors, but the analysis remains essentially the same. See Szulik, 858 F.
Supp. 2d at 548; Dacar, 2011 WL 223877, at *3; Charles v. Bradley, No. 5:08-CV-124-F, 2009 WL
1076771, at *2 (E.D.N.C. Apr. 21, 2009) (unpublished).

7

if not more, evidence concerning the transaction in North Carolina. Moreover, the six local
veterinarians that treated the cows and analyzed their health in North Carolina will provide
substantial and important evidence. Thus, the second factor weighs against transfer.
The third factor concerns the convenience of the parties. Plaintiffs reside in the Eastern
District ofNorth Carolina. See Compl. ~~ 2-3. Defendants Runyan and East reside in the Northern
District of Alabama. See id. ~~ 4-5. Defendant Jones resides in the Northern District of Georgia.
See id. ~ 6. On balance, the third factor is neutral.
The fourth factor requires the court to consider the interests ofjustice. The interests ofjustice
implicate the relative congestion of the transferee and transferor courts, the particular interest a
forum may have in deciding a case, and the preference for judicial efficiency and consistency. The
Northern District of Alabama is less congested than the Eastern District ofNorth Carolina. As of
June 30, 2016, the Eastern District ofNorth Carolina had 759 pending cases per judge, whereas the
Northern District of Alabama had 376 pending cases per judge. See United States Courts, Federal
Court Management Statistics, http://www.uscourts.gov/statistics-reports/federal-court-managementstatistics-june-2016. However, the median time between the filing of a civil action and its
disposition is 10.2 months in the Northern District of Alabama, compared to 9.2 months in the
Eastern District ofNorth Carolina. Id. Therefore, the relative congestion of the two forum courts
slightly favors transfer.
As for the local interest in this case, the local interest is much greater in the Eastern District
of North Carolina. Plaintiffs' case has a local character in that it concerns cattle that, although
raised outside North Carolina, were sold to plaintiffs, delivered to North Carolina, and treated in
North Carolina before ultimately dying in North Carolina. Therefore, the preference for having a
local court resolve a local dispute weighs against transfer.
Viewed as a whole, the only factor slightly weighing in favor of transfer is the relative
congestion of this court compared to the Northern District of Alabama. This factor does not

8

overcome the "substantial weight" generally afforded a plaintiffs choice of venue or the other
factors. See,~' Trustees of the Plumbers and Pipe:fitters Nat'l Pension Fund, 791 F.3d at 444.
Accordingly, having considered the entire record, the court denies defendants' motion to transfer the
action to the Northern District of Alabama.

IV.
In sum, defendants' motion to dismiss or in the alternative to transfer the action to the United
States District Court for the Northern District of Alabama [D.E. 16] is DENIED. Defendants'
motion for a protective order [D.E. 23] is DENIED as moot.
SO ORDERED. This_!!_ day of December 2016.

9