Strategic Power Systems, Inc. v. Sciemus, LTD
ORDER granting 24 Motion To Transfer Pursuant To 28 U.S.C. 1404. This matter shall be transferred to the United States District Court for the Southern District of New York. Signed by Magistrate Judge David Keesler on 8/8/17. (mga)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. 3:16-CV-859-RJC-DCK
STRATEGIC POWER SYSTEMS, INC.,
SCIEMUS, LTD; ANDRE FINN; and
THIS MATTER IS BEFORE THE COURT on “Defendant Sciemus, Ltd. And Stefan
Geisse’s Motion To Transfer Pursuant To 28 U.S.C. § 1404 Or, In The Alternative, To Dismiss
Pursuant To Rules 9 And 12” (Document No. 24). This motion has been referred to the
undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b), and is ripe for disposition. Having
carefully considered the motion, the record, and applicable authority, the undersigned finds that
the pending motion to transfer should be granted.
Strategic Power Systems, Inc. (“Plaintiff” or “SPS”) initiated this action with the filing of
a “Complaint” (Document No. 1) in the Superior Court of Mecklenburg County, North Carolina,
on November 10, 2016. The original Complaint asserts that Sciemus, Ltd. (“Defendant” or
“Sciemus”) breached its fiduciary duty to Plaintiff in its capacity as a director of SPS by tortiously
interfering with business relationships, fraudulently concealing, and committing unfair and
deceptive trade practices. (Document No. 1-1, p.1). Plaintiff further alleged that Defendant
engaged in misconduct and breached its duties to Plaintiff by, among other things, engaging in
“self-dealing and abuse of an “Exclusivity Clause,” which breached its fiduciary duties to SPS.
(Document No. 1-1, p.8).
Plaintiff SPS is a North Carolina corporation with a principal place of business in Charlotte,
North Carolina, and “is an engineering and information technology company providing highly
specialized proprietary data collection and analytics services to various industries, including power
generation.” (Document No. 1-1, pp.2-3).
Defendant Sciemus is organized under the laws of
England and Wales, with a headquarters in London, England, and “is a data and analytics company
advising the power generation insurance sector, among others, on expected asset behavior and risk
quantification, over asset lifespan.” Id.
On November 14, 2016, this case was “designated to the North Carolina Business Court
by Order of the Chief Justice of the North Carolina Supreme Court.” (Document No. 1-2, p.1).
On December 21, 2016, Defendant filed its “Notice Of Removal” (Document No. 1) with this
Court. Defendant Sciemus’ “Notice…” asserted that removal to this Court was “preliminarily
proper” as the “District Court in the federal judicial district encompassing the Superior Court
where this suit was originally filed.” (Document No. 1, p.5).
However, Sciemus denies that venue was properly laid in the
Superior Court because, inter alia, filing this action in North
Carolina was in violation of the exclusive jurisdiction and venue
provisions of the Shareholder Agreement. Sciemus reserves all
defenses as to jurisdiction and venue which will be presented to this
Court at the appropriate procedural juncture.
On January 27, 2017, “Defendant Sciemus, Ltd.’s Motion To Transfer Pursuant To 28
U.S.C. § 1404 Or, In The Alternative, To Dismiss Pursuant To Rules 9 And 12” (Document No.
13) was filed, asserting that this matter should be transferred to the United States District Court
for the Southern District of New York, or dismissed.
On February 10, 2017, Plaintiff responded by filing an “Amended Complaint” (Document
No. 16) and a “…Response In Opposition To Defendant Sciemus, Ltd.’s Motion To Dismiss”
(Document No. 17). Based on Plaintiff’s timely Amended Complaint, the undersigned issued a
“Memorandum And Recommendation” (Document No. 19) recommending that “Defendant
Sciemus, Ltd.’s Motion To Transfer Pursuant To 28 U.S.C. § 1404 Or, In The Alternative, To
Dismiss Pursuant To Rules 9 And 12” (Document No. 13) be denied as moot. The “Memorandum
And Recommendation” (Document No. 19) was later adopted by the Honorable Robert J. Conrad,
Jr. on July 13, 2017. (Document No. 29).
Plaintiff’s Amended Complaint, inter alia, adds Finn and Stefan Geisse (“Geisse”) as
Defendants. (Document No. 16, p.1). The Amended Complaint asserts the following claims: (1)
breach of fiduciary duty (against all Defendants); (2) fraud (against Finn and Sciemus); (3) and
unfair and deceptive trade practices (against all Defendants). (Document No. 16, pp.11-15).
The Amended Complaint includes the following “facts applicable to all counts.”
Based on the representations of Sciemus’s CEO Finn that
Sciemus would use its existing business relationships to expand SPS
into the insurance market, SPS agreed to begin working with
Sciemus. The parties also entered into the November 15, 2010
Stockholders Agreement (the “Stockholders Agreement”),
whereby Sciemus became a minority shareholder and acquired
the power to appoint a Director of SPS, based on the
understanding that Sciemus would follow through on its
promise to promote their partnership within the insurance
industry. As part of the trust placed in Sciemus as a new
shareholder and de facto Director of SPS, the Stockholders
Agreement provided that SPS would be prevented from licensing
its valuable energy data in the insurance market without Sciemus’s
prior approval (“Exclusivity Clause”).
During this entire relationship, however, Sciemus never
produced a single business opportunity for SPS and never promoted
the partnership as promised by Finn.
The purpose of SPS’s relationship with Sciemus, both as a
licensee of SPS’s data and as appointor of one of SPS’s Directors,
was to open new business opportunities in the insurance space and
for Sciemus to present business opportunities to SPS through its
contacts in the power generation insurance sector.
(Document No. 16, pp.5-6) (emphasis added).
Now pending before the Court is Defendants’ renewed “…Motion To Transfer Pursuant
To 28 U.S.C. § 1404 Or, In The Alternative, To Dismiss Pursuant To Rules 9 And 12” (Document
No. 24), filed on March 15, 2017. The pending motion has been fully briefed, and immediate
review and disposition is now appropriate.
STANDARD OF REVIEW
Regarding a change of venue, 28 U.S.C. § 1404 provides that:
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 addition, previous decisions by this Court are instructive.
Even if venue in a jurisdiction is proper, a court may “for the
convenience of parties and witnesses, in the interest of justice,”
transfer the action to another district where venue is proper. 28
U.S.C. § 1404(a) (2006). This court has noted that § 1404(a) is
intended to place discretion in the district court to adjudicate
motions for transfer on an “individualized, case-by-case basis” of
convenience and fairness to the parties. AC Controls Co. v.
Pomeroy Computer Res., Inc., 284 F.Supp.2d 357, 360 (W.D.N.C.
2003) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29,
108 S.Ct. 2239, 2243 (1988)). In this case, to consider the
convenience and fairness to the parties of a transfer, the validity of
the forum selection clause must be determined.
. . . The Supreme Court has held that forum selection clauses are
prima facie valid unless the objecting party can prove that
enforcement of the clause would be unreasonable. See Bremen
v. Zapata, 407 U.S. 1, 10, 92 S.Ct. 1907, 1913, 32 L.Ed.2d 513
(1972). Case law has developed standards to determine when
enforcement of a forum selection clause would be “unreasonable:”
(1) if the formation of the clause was procured by fraud or
overreaching, (2) if the complaining party will be deprived of his
day in court because of the inconvenience or unfairness of the
selected forum, (3) the fundamental unfairness of the chosen law
will deprive the plaintiff of a remedy, or (4) enforcement of the
clause would contravene a strong public policy of the state. See
Allen v. Lloyd’s of London, 94 F.3d 923, 928 (4th Cir. 1996) (citing
Carnival Cruise Lines v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1152,
1528, 113 L.Ed.2d 622, ---- (1991); See, e.g., Bremen, 407 U.S. at
12-13, 15, 18 (1972).
McLeod Addictive Disease Center, Inc. v. Wildata Systems Group, Inc., 3:08-CV-027-GCM, 2008
WL 2397614, at *1-2 (W.D.N.C. June 10, 2008) (granting Defendant’s motion to transfer)
(emphasis added). “The Court emphasizes that the applicable law contemplates that a court’s
decision to transfer or not transfer venue under 28 U.S.C. § 1404(a) is largely discretionary.” 3A
Composites USA, Inc. v. United Industries, Inc., 5:13-CV-083-RLV, 2014 WL 1471075, at *1
(W.D.N.C. Apr. 15, 2014).
“Although the presence of a forum selection clause will be a ‘significant factor that figures
centrally in the district court’s calculus,’ the Court guides district courts to ‘weigh in the balance
a number of case-specific factors.’” Giammattei v. Bertram Yacht, Inc., 3:09-CV-399-RLV, 2010
WL 2593612, at *2 (W.D.N.C. June 23, 2010) (quoting Stewart, 487 U.S. at 29).
When considering a motion to transfer, courts should consider,
among other things, eleven factors: 1) the plaintiff's choice of
forum, 2) the residence of the parties, 3) access to evidence, 4) the
availability of compulsory process for witnesses and the costs of
transporting and obtaining those witnesses, 5) the possibility of a
view by the jury, 6) the enforceability of a judgment, 7) the relative
advantages and obstacles to a fair trial, 8) practical issues affecting
trial expediency and efficiency, 9) the relative court congestion
between the districts, 10) the interest of resolving localized
controversies at home and the appropriateness of having the trial of
a diversity case in a forum that is at home with the state law that
must govern the action, and 11) the avoidance of conflict of laws.
Id. at 96. The factors are accorded different weights based on the
court’s discretion. Id.
Nutrition & Fitness, Inc. v. Blue Stuff, Inc., 264 F.Supp.2d 357, 362 (W.D.N.C. 2003) (citing Jim
Crockett Promotions, Inc. v. Action Media Group, Inc., 751 F.Supp. 93, 95 (W.D.N.C. 1990));
see also, Cohen v. ZL Technologies, Inc., 3:14cv377–FDW–DSC, 2015 WL 93732, at *1–2
(W.D.N.C. Jan. 7, 2015); and Mitsui Sumitomo Ins. Co. of America v. Travelers Property Cas.
Co. of America, 3:15-CV-207-RJC-DCK, 2015 WL 5918042 (W.D.N.C. Oct. 9, 2015).
The Court in its discretion finds good cause to allow Defendants’ motion to transfer to the
Southern District of New York and the undersigned will, therefore, decline to make any
recommendation as to the alternative request to dismiss. In short, the undersigned finds that this
matter substantially arises from the parties’ Stockholders Agreement, which provides a valid forum
selection clause that dictates that New York is the proper venue for this action. See 28 U.S.C. §
In reaching the determination that this matter should be transferred, the undersigned has
considered whether the forum selection clause is reasonable, and has applied the eleven factors
identified in Jim Crockett Promotions, Inc. v. Action Media Group, Inc., as discussed below.
Where, as here, a forum selection clause is present that directs venue
to a different forum, that burden shifts to the plaintiff to demonstrate
that enforcement of the clause would be “unreasonable.” Allen v.
Lloyd’s of London, 94 F.3d 923, 928 (4th Cir. 1996). The court then
engages in a four-part test to determine whether the clause is
unreasonable. Id. If deemed reasonable, the choice of forum clause
establishes the presumption of enforcement. Cable–La, Inc. v.
Williams Communications, Inc., 104 F.Supp.2d 529
Having established the presumption directed by the choice of
forum clause, the court then proceeds to analyze eleven (11)
factors—including the forum selection clause—to determine
whether to grant the motion to transfer under 28 U.S.C. § 1404(a).
Jim Crockett Promotions, Inc. v. Action Media Group, Inc., 751
F.Supp. 93 (W.D.N.C. 1990).
Inheanacho v. ABC Bus Leasing, Inc., 3:12-CV-343-RJC-DCK, 2013 WL 636876, at *2
(W.D.N.C. Feb. 20, 2013).
Forum Selection Clause
Plaintiff has not persuasively argued that the forum selection clause in the Stockholders
Agreement is invalid or unreasonable. See Allen v. Lloyd’s of London, 94 F.3d 923, 928 (4th Cir.
1996). The relevant passage from the “Note Cancellation, Stock Purchase And Stockholders
Agreement” (the “Stockholders Agreement”), filed as an attachment to Defendants’ motion,
provides as follows:
7.4 Governing Law. This Agreement, and the rights of the
parties hereto, shall be governed by and construed in accordance
with the laws of the State of New York without regard to the
conflicts of law principles of any jurisdiction. No suit, action or
proceeding with respect to this Agreement may be brought in
any court or before any similar authority other than in a court of
competent jurisdiction in the State of New York and the parties
hereby submit to the exclusive jurisdiction of such courts for the
purpose of such suit, proceeding or judgment. Each of the parties
hereto hereby irrevocably waives any right which it may have had
to bring such an action in any other court, domestic or foreign, or
before any similar domestic or foreign authority and agrees not to
claim or plead the same. Each of the parties hereto hereby
irrevocably and unconditionally waives trial by jury in any legal
action or proceeding in relation to this Agreement and for any
(Document No. 26, p.14) (emphasis added).
In support of the pending motion, Defendants focus on arguments that the forum selection
clause is mandatory and that this action is within its scope, rather than addressing the four factors
related to reasonableness (or the eleven factors related to transfer) identified above.
Defendants first assert that the clause provides that the courts of New York have “exclusive
jurisdiction” and that no such action can be brought “in any other court.” (Document No. 25,
pp.12-13) (citing Document No. 26, p.14; Weingard v. Telepathy, Inc., 2005 WL 2990645, at *3
(S.D.N.Y. Nov. 7, 2005); and Queen City Pastry, LLC v. Bakery Tech. Enter., LLC, 5:14-CV142-RLV, 2015 WL 3932722, at *5 (W.D.N.C. June 26, 2015)).
Next, Defendants assert that although Plaintiff has avoided a breach of contract claim, all
of its claims “arise out of and are predicated upon the Stockholder Agreement, specifically the
‘Exclusivity Clause.’” (Document No. 25, pp.13-15). See also, (Document No. 26, pp.10-11).
In response, Plaintiff contends that the “forum selection clause is phrased narrowly and
concerns only those claims ‘with respect’ to the Agreement.” (Document No. 27, p.3) (citing
Document No. 26, p.14). Plaintiff further contends that it has not alleged a breach of the
Stockholders Agreement and that “the fraud claim against Finn and Sciemus arises out of facts
entirely independent of the Agreement.” (Document No. 27, p.4).
Plaintiff states that it “would likewise be inappropriate to apply the forum selection clause
to SPS’s claims for breach of fiduciary duty against the Defendants since SPS is not seeking relief
under the Agreement, nor do the claims originate ‘with respect’ to that contract.” Id. Plaintiff also
asserts that Geisse is a non-party to the Stockholders Agreement, so the forum selection clause
does not apply to him.
In reply, Defendants contend that the principal “wrongdoing” asserted by Plaintiff in the
Amended Complaint is “Sciemus’ refusal to consent to the so-called FM Global ‘opportunity.’”
(Document No. 28, p.1). Defendants argue that SPS has admitted “that the fiduciary duty claims
are premised on the exercise of the Exclusivity Clause of the Stockholder Agreement regarding
the FM Global ‘opportunity.’” (Document No. 28, p.2) (citing Document No. 27, p.4). See also
(Document No. 26, pp.10-11; § 5.5 “Exclusivity Agreement”). Defendants contend that whatever
Sciemus did with regard to consent (or non-consent) as to FM Global and/or the Exclusivity Clause
– “was the exercise of a contractual right; nothing more, nothing less.” Id.
Defendants go on to argue that courts consistently hold that forum selection clauses are to
be interpreted broadly and routinely apply contract-based forum selection clauses to related tort
claims. (Document No. 28, p.13) (citations omitted). Defendant contends that the pertinent
language at issue here from the forum selection clause – “with respect to” – is equivalent to “relate
to,” and not the more narrow language “arising out of.” (Document No. 28, p.14).
The undersigned finds Defendants’ arguments more persuasive. In particular, it does
appear that the crux of Plaintiff’s Amended Complaint is the alleged failure by Defendants to
perform as required by the Stockholders Agreement, and specifically the Exclusivity Clause. Of
course, Plaintiff accurately notes that it has not included a breach of contract claim; however, as
noted by Defendants, the Amended Complaint does premise its fiduciary duty claims on the
Stockholders Agreement. See (Document No. 28, p.2) (citing Document No. 16, pp.7-10). For
example, the Amended Complaint alleges that Sciemus and Finn “stifled any opportunities
between SPS and FM Global” and that this “was yet further evidence of Finn’s self-dealing and
abuse of the Exclusivity Clause, which breached his fiduciary duty to SPS.” (Document No.
16, p.9) (emphasis added). As such, the undersigned is satisfied that a sufficient portion of the
Amended Complaint is brought “with respect to” (or is related to) the Stockholders Agreement,
and therefore, its forum selection clause is applicable here.
Moreover, Plaintiff has not presented any compelling arguments that: (1) the formation of
the clause was procured by fraud or overreaching; (2) the complaining party will be deprived of
his day in court because of the inconvenience or unfairness of the selected forum; (3) the
fundamental unfairness of the chosen law will deprive the plaintiff of a remedy; or that (4) the
enforcement of the clause would contravene a strong public policy of the state. See Allen v.
Lloyd’s of London, 94 F.3d at 928. Thus, Plaintiff has not sufficiently satisfied its burden to show
that the forum selection clause is unreasonable.
Based on the foregoing, the Court will turn to the factors to be considered under 28 U.S.C.
As mentioned above, Defendants’ briefs fail to provide any analysis of the eleven factors
this Court usually weighs when considering a motion to transfer venue. See (Document Nos. 25
and 28). Plaintiff’s response is not much more helpful, but does provide a cursory discussion of a
few of the factors. See (Document No. 27, pp.10-11).
The undersigned will provide a brief analysis of each factor in turn.
Plaintiff’s Choice of Forum
“Having established the presumption directed by the choice of forum clause, the court then
proceeds to analyze eleven (11) factors—including the forum selection clause—to determine
whether to grant the motion to transfer under 28 U.S.C. § 1404(a).” Inheanacho, 2013 WL 636876,
at *2. The undersigned finds the following excerpt from a prior decision of this Court to be
“A plaintiff’s choice of a proper forum is a paramount consideration
in any determination of a transfer request, and that choice ... should
not be lightly disturbed.” Datasouth Computer Corp. v. Three
Dimensional Techs., Inc., 719 F.Supp. 446, 451 (W.D.N.C. 1989)
(citations omitted). Seemingly, this first factor would favor
retention in North Carolina, because ACC originally filed this action
in North Carolina. However, as the Supreme Court noted in Stewart,
these factors must be viewed with reference to “the parties’
expressed preference ... in light of the forum-selection clause.”
Stewart, 487 U.S. at 29, 108 S.Ct. 2239. “When a forum-selection
clause is part of the balancing, as Stewart requires, it is more
logical to consider the plaintiff’s initial choice of forum to be the
forum that is contractually agreed upon.” Republic Mortg. Ins.
Co., 35 F.Supp.2d at 486. The Eleventh Circuit echoed this
sentiment in holding that:
[I]n the usual motion for transfer under section
1404(a), the burden is on the movant to establish that
the suggested forum is more convenient. When,
however, the parties have entered into a contract
containing a valid, reasonable choice of forum
provision, the burden of persuasion is altered. In
attempting to enforce the contractual venue, the
movant is no longer attempting to limit the plaintiff’s
right to choose its forum; rather, the movant is trying
to enforce the forum that the plaintiff had already
chosen: the contractual venue. In such cases, we see
no reason why a court should accord deference to the
forum in which the plaintiff filed its action. Such
deference to the filing forum would only encourage
parties to violate their contractual obligations, the
integrity of which are vital to our judicial system.
In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989). Accordingly,
having determined the forum selection clause is valid, this factor
heavily weighs in favor of transferring venue to California.
AC Controls Co., Inc. v. Pomeroy Computer Res., Inc., 3:03-CV-302-GCM, 284 F.Supp.2d 357,
363 (W.D.N.C. 2003) (emphasis added).
Having found the underlying forum selection clause to be reasonable and applicable, the
undersigned agrees with Judge Mullen’s analysis and cited authority determining that it is more
logical to consider Plaintiff’s initial choice of forum to be the forum that was contractually agreed
upon. AC Controls Co., Inc., 284 F.Supp.2d. at 363; see also, Republic Mortg. Ins. Co., 35
F.Supp.2d 482, 486 (M.D.N.C. 1999).
Like the Court in AC Controls Co., Inc., the undersigned finds that the underlying forum
selection clause in this case weighs heavily in favor of transferring venue to New York.
2. Residence of the Parties
Plaintiff is a North Carolina corporation with a principal place of business in Charlotte,
North Carolina. (Document No. 16, p.2). Defendants are headquartered in and/or residents of
London, England. (Document No. 16, pp.2-3). The undersigned finds that this factor weighs
3. Access to Evidence
Neither side has suggested any issues regarding access to evidence. Presumably, this
business dispute will focus on a few documents, including the Stockholders Agreement, and the
testimony of representatives from each side. Without more information, the undersigned finds this
factor to be neutral.
4. Convenience of Witnesses
Neither side specifically identifies any witnesses, but the undersigned assumes based on
the papers that Defendants Finn and Geisse, as well as Peter Niland (“Niland”) who provided a
“Sworn Declaration…” (Document No. 26) are possible witnesses. Apparently, each of these
individuals are residents of London, England, and prefer travel to New York City over travel to
Charlotte. (Document No. 25, p.16).
In one of the few statements the Court might construe as related to these factors, Defendants
do state that “travel for witnesses for both sides would be greatly enhanced by a New York City
venue.” (Document No. 25, p.16). Defendants mention the major air hubs in New York City, and
that each side has legal representation in New York, but declines to elaborate further. As such, it
is unclear why New York is more convenient for Defendants than Charlotte.
Plaintiff does not make any statement regarding witnesses or their convenience. It is likely,
that Plaintiff will have witnesses located in or near its principal place of business in Charlotte.
However, it is also likely there are witnesses in other places.
For example, the Amended Complaint alleges that Defendants breached their duties to
Plaintiff with respect to the Exclusivity Clause by causing Plaintiff to “miss lucrative opportunities
with FM Global.” (Document No. 16, pp.6-9). Plaintiff identifies FM Global as “an international
property insurance and loss prevention engineering company that, much like Sciemus purported
to do, employs engineering and data analytics to evaluate risk and premiums for covered assets.”
(Document No. 16, p.7). However, Plaintiff does not explain whether witnesses from FM Global
will be called in this matter, or where they are located.
Based on the facts and arguments before the Court, the undersigned finds that this factor
5. Possibility of a View by the Jury
There is no indication there is any need for a jury to view any location related to this
lawsuit. The undersigned finds this factor to be neutral.
6. Enforceability of a Judgment
The undersigned is not aware of any likely difficulty enforcing a judgment from a court in
New York or North Carolina. The undersigned finds this factor to be neutral.
7. Relative Advantages and Obstacles to a Fair Trial
Neither side has identified any advantages or obstacles to a fair trial. The undersigned
finds this factor to be neutral.
8. Practical Issues Affecting Trial Expediency and Efficiency
“Trials are never easy, expeditious, or inexpensive.” Century Furniture, LLC v. C & C
Imports, Inc., 1:07-CV-179–DLH, 2007 WL 2712955, at *5 (W.D.N.C. Sept. 14, 2007). Whatever
this Court decides, there will be some travel and inconvenience. Here, the parties have not
identified, and the Court is unaware of any, particular practical issues affecting expediency and
efficiency. As such, the undersigned finds this factor to be neutral.
9. Relative Court Congestion Between the Districts
Defendant asserts that the “Southern District is obviously skilled in handling commercial
matters and international disputes,” but offers no other argument or evidence on this point.
(Document No. 25, p.16).
Plaintiff acknowledges that both the Western District of North Carolina and the Southern
District of New York “are saddled with heavy dockets and significant cases,” but contends that the
Federal Court Management Statistics from 2016 shows that there are more pending cases per
judgeship in the Southern District of New York than the Western District of North Carolina.
(Document No. 27, p.10).
The undersigned has reviewed the data tables for the “U.S. District Courts – Combined
Civil and Criminal Federal Court Management Statistics” as of March 31, 2017.
tables show that the Southern District of New York (“S.D.N.Y.”) has a slightly lower total caseload
per judgeship, but a higher civil caseload per judgeship, than this Court (“W.D.N.C.”). The tables
also indicate that S.D.N.Y. has 28 judgeships, while W.D.N.C. has 5. While the tables do factor
in some vacant judgeship months for S.D.N.Y, they, of course, do not account for imminent
vacancies, such as the vacancy the W.D.N.C. faces beginning August 31, 2017.
Based on the available statistics, the undersigned finds that this factor weighs slightly
against transfer as of the date of this Order; however, it is quite possible that the numbers will
suggest a different outcome a month from now – and for the lifetime of this case.
10. Interest of Resolving Localized Controversies Settled at Home
Plaintiff also makes an argument that this is a localized controversy that should be settled
at home. (Document No. 27, pp.10-11). Plaintiff contends that “[w]here a controversy and harm
occurs within this state and ‘has the greatest impact on citizens of North Carolina,’ ‘[t]here is a
strong interest in having it resolved in North Carolina.” Id. (quoting Rice v. Bellsouth Advertising
& Pub. Corp., 240 F.Supp.2d 526, 531 (W.D.N.C. 2002)). Plaintiff also contends that a diversity
case should be “in a forum that is at home with a state law that must govern the action.” (Document
No. 27, p.10).
The undersigned finds that this factor presents a close call. Plaintiff is a North Carolina
corporation that has allegedly suffered harm within the W.D.N.C. However, the undersigned is
reluctant to give much weight to this matter as a “localized” controversy where it involves a
sophisticated Plaintiff that entered into agreements with Defendants in the United Kingdom. One
of those agreements, as decided above, provides for the application of New York law in New York
courts, and the other – which is barely mentioned by the parties in this dispute – calls for disputes
to be resolved by arbitration in London, England and/or the courts of England, and to be governed
by the laws of England and Wales. See (Document No. 26, pp.14, 27-28).
If the Court applies Plaintiff’s argument that this case should be in the forum that is at home
with the state law that must govern the action, then based on the Court’s finding that the forum
selection clause is reasonable and applicable here, the case belongs in New York.
To the extent Plaintiff asserts that N.C.Gen.Stat. §22B-3 requires this action to remain in
North Carolina, the undersigned notes that this Court has recently held that “[c]ourts within North
Carolina have enforced forum selection clauses notwithstanding this statute.”
Jevremovic, 5:15-CV-148-RLV, 2016 WL 4374046, at *3 (W.D.N.C. Aug. 12, 2016) (citations
Under the circumstances, the undersigned will weigh this factor as neutral.
11. Avoidance of Unnecessary Problems with Conflict of Laws
Neither side addresses this factor. The undersigned is not persuaded that an unnecessary
problem with conflicts of laws would be created by transfer, and thus finds this factor neutral.
Based on the foregoing, the Court in its discretion will direct that this case be transferred.
The undersigned is not persuaded that the factors favoring retention outweigh those favoring
transfer – particularly the forum selection clause in the parties’ Stockholders Agreement. Rather,
the circumstances of this case and the interests of justice dictate that this matter should be
IT IS, THEREFORE, ORDERED that “Defendant Sciemus, Ltd. And Stefan Geisse’s
Motion To Transfer Pursuant To 28 U.S.C. § 1404…” (Document No. 24) is GRANTED. This
matter shall be transferred to the United States District Court for the Southern District of New
Signed: August 8, 2017
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