Dillon v. BDI Pharma, Inc. et al

Filing 23

ORDER - To the extent defendants seek to transfer this case to the District of South Carolina, the court GRANTS defendants' motion. 10 . The court DENIES AS MOOT defendants' motion to dismiss for lack of personal ju risdiction. 10 . The court ORDERS that this action is hereby TRANSFERRED to the United States District Court for the District of South Carolina. The clerk is DIRECTED to send a certified copy of this order together with the case file to the Clerk of Court for the District of South Carolina. Signed by District Judge Louise Wood Flanagan on 7/26/2018. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:17-CV-00474-FL

WILLIAM C. DILLON,
Plaintiff,
v.
BDI PHARMA INC., RICHARD J.
GATON, and EDWARD STIEFEL, JR.,
Defendants.

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ORDER

This matter is before the court on defendants’ motion to dismiss for lack of personal
jurisdiction and improper venue, alternatively motion to transfer venue. (DE 10). The motion has
been fully briefed, and, in this posture, the issues raised are ripe for adjudication. For reasons
addressed herein, defendants’ alternative motion to transfer is granted and their motion to dismiss
for lack of personal jurisdiction is denied as moot.
BACKGROUND
Plaintiff initiated this action August 7, 2017, in the General Court of Justice, Superior Court
Division, for Wake County, North Carolina, asserting claims against defendants for violations of
North Carolina’s Wage and Hour Act, N.C. Gen. Stat. §§ 95-25, et seq., alternatively claims for
breach of contract. On September 18, 2017, defendants removed the action to this court on the bases
of diversity jurisdiction. 28 U.S.C. § 1332.
On October 16, 2017, defendants BDI Pharma, Inc., (“BDI”), Richard Gaton (“Gaton”), and
Edward Stiefel, Jr. (“Stiefel”), filed the instant motion to dismiss for lack of personal jurisdiction

and improper venue, alternative motion to transfer. Plaintiff filed response in opposition on
December 16, 2017.
STATEMENT OF FACTS
The facts alleged in the complaint may be summarized as follows. Plaintiff is a resident of
Wake County, North Carolina. Defendant BDI is a South Carolina corporation, with a principal
place of business in Richland County, South Carolina. (DE 1-1, ¶ 2). Defendants Gaton and Stiefel
are the co-owners and founders of defendant BDI and are both are citizens and residents of Richland
County, South Carolina. (Id. ¶ ¶ 4, 6, and 10). At all relevant times herein, plaintiff was an
employee of defendant BDI, which employment was controlled by defendants Gaton and Stiefel.
(Id. ¶ ¶ 11).
In or around October 2014, plaintiff began working as the Chief Commercial Officer of
defendant BDI. (Id. ¶ 15). As relevant to the instant dispute, pursuant to the terms of his
employment agreement, plaintiff was entitled to participate in defendant BDI’s 2015 bonus plan (the
“plan”). (Id. ¶ 16). Under the plan’s terms, plaintiff’s bonus was based three factors: 1) defendant
BDI’s revenue; 2) defendant BDI’s net income; and 3) plaintiff’s achievement of his personal goals.
(Id. ¶ 18).
On or about December 16, 2015, defendants terminated plaintiff’s employment with
defendant BDI. (Id. ¶ 29). According to plaintiff, defendants failed to pay him the bonus he was
entitled to pursuant to the terms of the plan. (Id. ¶ ¶ 31–33). More specifically, plaintiff claims
defendants failed to pay him a minimum bonus of $346,686.65. (Id. ¶ 34).

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COURT’S DISCUSSION
Where defendants seek dismissal for lack of personal jurisdiction, this court can consider and
resolve their alternative motion to transfer without first resolving their jurisdictional challenge.
See e.g., Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962), The court does not need personal
jurisdiction over defendants to transfer this matter pursuant to 28 U.S.C. § 1404. See id. (holding
personal jurisdiction is not required to transfer a case pursuant to § 1406 transfers). Moreover, even
were the court to address and find it lacks personal jurisdiction over defendants, it would not have
to dismiss them as parties if the possibility remained that the action could be transferred to a district
that has jurisdiction. See City of Virginia Beach, Va. v. Roanoke River Basin Ass’n, 776 F.2d 484,
488 (4th Cir. 1985) (holding district court lacked personal jurisdiction over certain defendant but
remanding to determine whether transfer or dismissal was appropriate).
Pursuant to § 28 U.S.C. § 1404(a), a court may, for the convenience of the parties and in the
interest of justice, order the transfer of a case to any district where it might otherwise have been
brought. The question of transfer under § 1404 is one committed to the sound discretion of the
district court. Southern Rv. Co. v. Madden, 235 F.2d 198, 201 (4th Cir. 1956).
This court previously has recognized that “[a] motion to transfer demands a holistic
analysis.” Memsys, Inc. v. Act Tech. Seed Fund, L.L.C., No. 5:09-CV-516-FL, 2010 WL 2402846
*2 (E.D.N.C. June 14, 2010). “ ‘Much necessarily must turn on the particular facts of each case, and
. . . the trial court must consider and balance all the relevant factors to determine whether or not the
litigation would proceed more conveniently and the interests of justice be better served by transfer
to a different forum.’ ” Id. (quoting Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
15 Federal Practice & Procedure Jurisdiction § 3847 (3d ed.)).

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In determining whether to transfer a case pursuant to 28 U.S.C. § 1404, courts consider the
following factors: 1) plaintiff’s initial choice of forum; 2) the residence of the parties; 3) the ease
of access to the sources of proof; 4) the convenience of the parties and witnesses; 5) the cost of
obtaining the attendance of the witnesses; 6) the availability of compulsory process; 7) the
possibility of a view by the jury; 8) the enforceability of a judgment; 9) other practical problems that
make trial expeditious and inexpensive; 10) the interest in having local controversies decided at
home and at home with the state law that governs; and 11) the interests of justice. See Landers v.
Dawson Constr. Plant. Ltd., 201 F.3d 436, at *2 (4th Cir. 1999) (unpublished table decision);
Hardee’s Food Sys. v. Rosenblatt, 44 F. Supp. 2d 767, 770 (E.D.N.C. 1998).
Plaintiff’s initial choice of forum is an important factor and generally should not be disturbed
unless the balance is tipped strongly in favor of defendants. Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508 (1947) (discussing choice of forum in the context of forum non conveniens). Even if the
plaintiff’s choice of forum is inconvenient for defendants, “[t]he court should refrain from
transferring venue if to do so would simply shift the inconvenience from one party to another.”
Regent Lighting Corp. v. Galaxy Elec. Mfg., Inc., 933 F. Supp. 507, 513 (M.D.N.C. 1986); see
also Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992). Nonetheless, the weight to be given to
a plaintiff’s choice of venue “varies with the significance of the contacts between the venue chosen
by plaintiff and the underlying cause of action.” Bd. of Trs., Sheet Metal Workers Nat’l Fund v.
Baylor Heating & Air Conditioning, Inc., 702 F. Supp. 1253, 1256 (E.D.Va 1988). When the initial
forum is not the site of the conduct giving rise to the complaint, plaintiff’s choice of forum is given
less weight.

See e.g., Parham v. Weave Corp., 323 F. Supp. 670, 674 (M.D.N.C. 2004);

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Telepharmacy Solutions, Inc. v. Pickpoint Corp., 238 F. Supp. 2d 741, 743 (E.D. Va. 2003); Mims
v. Proctor & Gamble Distributing Co., 257 F. Supp. 648, 656 (D.S.C. 1966).
Here, plaintiff’s choice of forum in this district is not controlling. Although plaintiff resides
in this district, the events giving rise to this action took place in the District of South Carolina.
Additionally, all defendants reside in the District South Carolina and documentary evidence
necessary to establish the parties’ claims and defenses are located at defendant BDI’s corporate
headquarters, which is also located within the District of South Carolina. In light of the foregoing,
it would be both less expensive and more efficient to transfer the case to that district.
Moreover, all defendants are amenable to personal jurisdiction in the District of South
Carolina. (See DE 11 at 21 n.2). If the action remained in this forum, plaintiff likely would have
to re-file in the District of South Carolina were the court to find personal jurisdiction lacking here.
Thus, transfer is in the interests of justice.
On the basis of this record, the court finds that the instant case could originally have been
brought in the District of South Carolina. As the convenience of the parties and witnesses and
interests of justice favor transfer to that district, the court allows defendants’ motion to transfer
pursuant to 28 U.S.C. § 1404.
CONCLUSION
Based on the foregoing, to the extent defendants seek to transfer this case to the District of
South Carolina, the court GRANTS defendants’ motion. (DE 10). The court DENIES AS MOOT
defendants’ motion to dismiss for lack of personal jurisdiction. (DE 10). The court ORDERS that
this action is hereby TRANSFERRED to the United States District Court for the District of South

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Carolina. The clerk is DIRECTED to send a certified copy of this order together with the case file
to the Clerk of Court for the District of South Carolina.
SO ORDERED, this the 26th day of July, 2018.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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