OnX USA LLC v. Sciacchetano et al

Filing 86

Opinion and Order denying Defendants' Motion to transfer venue (Related Doc # 54 ). Judge Christopher A. Boyko on 3/4/2013.(R,D) Modified text on 3/5/2013 (P,G).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

OnX USA LLC, etc.,
Plaintiff,
vs.
LOUIS SCIACCHETANO, et al.,
Defendants.

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CASE NO. 1:11CV2523
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Renewed Motion (ECF DKT #54) of
Defendants, Louis Sciacchetano and Sirius Computer Solutions, Inc., to Transfer Venue. For
the following reasons, the Motion is denied.
I. FACTUAL BACKGROUND
Defendant Sciacchetano is, and has been at all relevant times, a citizen and resident of
the State of New Jersey. OnX is a limited liability company organized and existing under the
laws of the State of Delaware, with its principal place of business in Mayfield Heights, Ohio.
OnX was formerly known as Agilysys Technology Solutions Group, LLC (“TSG”), and was a
subsidiary of Agilysys, Inc. On August 1, 2011, OnX officially changed its name from TSG

to OnX USA, LLC, and is the successor of the TSG business unit of Agilysys and all of its
rights pertinent thereto.1 Defendant Sirius Computer Solutions, Inc. (“Sirius”) is a Texas
corporation, with its principal place of business in San Antonio, Texas. Sirius maintains an
office in Ohio, and regularly transacts business in Ohio.
Sciacchetano was hired by OnX in 2004 as a Vice President of Sales. At all times
during his employment, Sciacchetano performed his job duties mainly from New Jersey and
traveled to OnX’s headquarters in Solon, Ohio approximately once per quarter in connection
with his position. He reported to Anthony Mellina, a Senior Vice-President and General
Manager, who worked in the Edison, New Jersey office. While working in New Jersey,
Sciacchetano dealt with many Ohio-based OnX employees, including his inside sales team,
business operations team, legal team, accounting team and his own assistant, whom he
personally supervised on a regular basis. When he contacted these team members,
Sciacchetano called phones located in Ohio. Sciacchetano directed customer invoices,
payments and pricing quotes to Ohio; and his pay, benefits, expense reimbursements and
equipment requests (computer, cell phone, etc.) were all handled and processed in Ohio.
Finally, Sciacchetano utilized OnX’s Ohio databases to send and obtain information to
perform his job.
Sciacchetano was presented with a Non-Disclosure Policy and Agreement in 2004,
which he signed. He also signed an Employment Agreement with Agilysys in 2006.
Agilysys offered another Employment Agreement to Sciacchetano in September of 2010. He

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Plaintiff will be referred to as “OnX” for events occurring both before and after Agilysys
Technology Solutions Group, LLC became OnX.

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attempted to negotiate the terms of the 2010 Agreement; and the parties dispute if, or when,
the 2010 Agreement was signed. In August of 2011, OnX terminated Sciacchetano.
Sciacchetano alleges that he was unwilling to agree to any post-employment non-solicitation
covenants; so, he signed a Separation Agreement only after crossing out the covenant
designated as Section 15. Sciacchetano accepted employment with Sirius on or about August
23, 2011.
OnX filed suit against Sciacchetano and Sirius in Cuyahoga County Common Pleas
Court. Defendants removed the action on November 21, 2011. OnX filed its First Amended
Complaint, with leave of Court, on June 15, 2012, alleging Breach of Contract; Tortious
Interference with Contracts; Misappropriation/Conversion of Trade Secrets; Accounting;
Unjust Enrichment; Unfair Competition; Civil Conspiracy; and Fraud under 18 U.S.C. §
1030. OnX alleges that Sciacchetano violated his obligations under his employment
agreements by soliciting OnX employees, customers and suppliers on behalf of Sirius. OnX
further alleges that Defendants intercepted and directed emails from OnX to Sciacchetano’s
personal email account.
On August 2, 2012, Sciacchetano and Sirius filed their Renewed Motion to Transfer
Venue, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the District of
New Jersey. The matter has been fully briefed.
II. LAW AND ANALYSIS
Pursuant to 28 U.S.C. § 1404(a), this Court has broad discretionary powers to transfer
civil actions: “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 may have

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been brought.”
When considering whether a change of venue is warranted, the district court must
weigh case-specific factors, public-interest factors and private concerns. Kerobo v.
Southwestern Clean Fuels Corp., 285 F.3d 531 (6th Cir.2002). “Among the specific private
interests a court may consider are plaintiff’s choice of forum, the location of books and
records and, ***, the convenience of witnesses. It has been said that plaintiff’s choice of
forum is entitled to ‘great weight.’” Bacik v. Peek, 888 F.Supp. 1405, 1414 (N.D.Ohio 1993)
(quoting Gdovin v. Catawba Rental Co., 596 F.Supp. 1325, 1327 (N.D.Ohio 1984)).
In order for the Court to analyze whether to transfer this case to another venue
pursuant to 28 U.S.C. § 1404(a), the Court must have personal jurisdiction over the
Defendants. Sirius never filed a challenge to personal jurisdiction; and, on December 19,
2012, the Court determined that its exercise of personal jurisdiction over Sciacchetano is
proper. (ECF DKT #76).
Plaintiff’s choice of forum
Plaintiff’s choice of forum is not determinative, but is “instead merely one of the
relevant factors in the § 1404(a) analysis.” Young v. Kiebler Recreation, No. 1:09CV1810,
2010 WL 395224, at *5 (N.D.Ohio Jan. 26, 2010) (citing Int’l Union, U.A.W. v. Aluminum
Co. of America, 875 F.Supp. 430, 433 (N.D.Ohio 1995)). However, it becomes the duty of
the District Court to “balance inconveniences and to determine upon which litigant the greater
hardship would rest,” if change of venue is granted. Nicol v. Koscinski, 188 F.2d 537 (6th
Cir. 1951). That determination is “subject to the rule that unless the balance is strongly in
favor of the defendant the plaintiff’s choice of forum should rarely be disturbed.” Id., citing

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Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).
Defendants assert that OnX’s choice of forum should be given little weight because
this action was removed to federal court, and they cite to Improvita Health Prods., Inc. v. F &
F Foods, Inc., No. 1:07CV1097 (N.D.Ohio May 31, 2007) (Boyko, Judge). Defendants have
accurately attributed that principle to the Improvita decision; but failed to note the additional
factors of a forum-selection clause and a major third-party out-of-state witness, which tipped
the scales in favor of transfer. Here, by contrast, there is no forum-selection clause in the
employment agreements. Furthermore, the record is clear that OnX affirmatively chose to file
an Ohio state court complaint, based upon claims OnX alleges arise out of activities
Defendants conducted within the state. OnX’s General Counsel, Richard Rudolph,
recognized the possibility of removal, yet stated in that regard: “ I was aware OnX’s $10
Million plus demand and Defendants’ status as non-Ohio residents created diversity
jurisdiction in the U.S. District Court for the Northern District of Ohio. I did not care whether
the case was litigated in Ohio state court or Ohio federal court, so long as it was litigated in
Ohio.” (Rudolph Supplemental Declaration, ECF DKT #61-2). Defendants strongly dispute
that the actions and events giving rise to OnX’s claims occurred within Ohio; but, in the
Court’s view, Defendants have not swayed the balance of inconveniences in favor of New
Jersey. OnX’s choice of forum will not be disturbed.
Location of relevant records and documents
The Court finds that the location of relevant records and documents is almost a nonfactor in its venue analysis. OnX maintains corporate, employment, and customer records in
Ohio. Sirius has its principal place of business in Texas, and that is most likely where

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physical documentary evidence would be found. Sciacchetano’s personal computer data and
paperwork should be in New Jersey. Yet, in this age of modern technology – photocopying,
scanning; faxing; and emailing – the transmission of relevant records from one state to
another is greatly simplified. Neither New Jersey nor Texas is more favorable a venue than
Ohio.
Convenience of third-party witnesses
“It has also been said that ‘the most important factor, and the factor most frequently
mentioned, in passing on a motion to transfer under 28 U.S.C.A. § 1404(a) is the convenience
of witnesses’” Bacik, 888 F.Supp. at 1414 (quoting 15 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure § 3851 at 415 (1986)). Both sides present the Court with a
listing of “material” third-party witnesses which each believes justifies their preferred venue.
At the same time, both Plaintiff and Defendants acknowledge that: “Convenience to witnesses
is more than just a numbers game; a court should not merely tally witnesses but should
instead evaluate the significance of their expected testimony.” Siegfried v. Takeda Pharm. N.
Am., Inc., No. 1:10CV2713 (N.D.Ohio Apr. 14, 2011); Midwest Motor Supply Co. v. Kimball,
761 F.Supp. 1316, 1319 (S.D.Ohio 1991). It is obvious that there are significant witnesses
located in both Ohio and New Jersey. However, Defendants have not convinced the Court
that New Jersey is more convenient than Ohio for individuals offering relevant testimony in
this dispute.
Public interest
Upon consideration of this factor, the Court finds that the arguments from both parties
are in equipoise. New Jersey would have an interest in the conduct of its citizen,

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Sciacchetano; and Texas would likewise regulate its corporate citizens, such as Sirius.
Certainly, Ohio has an interest in the business and contractual activities of OnX, that
maintains its principal place of business in the City of Mayfield Heights. OnX points out,
moreover, that Sciacchetano’s 2006 Employment Agreement and his Separation Agreement
both contain an Ohio choice of law provision. Sciacchetano, for his part, contests which
contract controls, and disputes certain provisions of the Agreements. The Court believes a
New Jersey court would be quite capable of applying Ohio contract law; but “[t]here is an
appropriateness, too, in having the trial of a diversity case in a forum that is at home with the
state law that must govern the case, rather than having a court in some other forum untangle
problems in conflict of laws, and in law foreign to itself.” Gulf Oil, 330 U.S. at 509. Thus,
the public interest factor does not persuade the Court to transfer venue.
III. CONCLUSION
For all these reasons, and after weighing the case-specific factors, public-interest
factors and private concerns, the Court finds, pursuant to 28 U.S.C. § 1404(a), for the
convenience of parties and witnesses, and in the interest of justice, that venue is appropriate
in the United States District Court for the Northern District of Ohio. Defendants’ Renewed
Motion (ECF DKT #54) to Transfer Venue is denied.
IT IS SO ORDERED.
DATE: __3/4/13_________

s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

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