Nollner et al v. The International Mission Board of the Southern Baptist Convention, Inc. et al

Filing 28

MEMORANDUM signed by District Judge Aleta A. Trauger on 7/30/2014. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RON NOLLNER and BEVERLY NOLLNER,
Plaintiffs,
v.
SOUTHERN BAPTIST CONVENTION,
INC.; THE INTERNATIONAL MISSION
BOARD OF THE SOUTHERN BAPTIST
CONVENTION, INC.; and GLOBAL
ENTERPRISE SERVICES, LLC
Defendants.

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Case No. 3:14-cv-1065
Judge Trauger

MEMORANDUM
Pending before the court are several motions. Defendants the International Mission
Board of the Southern Baptist Convention, Inc. (“IMB”) and Global Enterprise Services, LLC
(“GES”) (together, the “defendants”) have filed a Motion to Dismiss (Docket No. 4). As an
alternative to dismissal, the defendants request that the court transfer this action to the United
States District Court for the Eastern District of Virginia. The plaintiffs, Ron and Beverly
Nollner, have filed a Response in opposition to the defendants’ Motion (Docket No. 15), to
which the defendants have filed a Reply (Docket No. 22). The plaintiffs have also filed a Motion
to Amend/Correct the Complaint (Docket No. 23), to which the defendants have filed a Response
in Opposition (Docket No. 27). Also pending before the court is the plaintiffs’ Motion for Leave
to File a Supplemental Response to the defendants’ Motion to Dismiss (Docket No. 25), which
the defendants have opposed (Docket No. 26).

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For the reasons stated herein, the plaintiffs’ Motion for Leave to File a Supplemental
Response will be granted, the plaintiffs’ Motion to Amend will be denied, and the defendants’
Motion to Dismiss will be granted without prejudice.
BACKGROUND
I.

Procedural History
The plaintiffs’ claims against IMB and GES have a lengthy history, which have been
described in part by this court in a Memorandum issued in a previous action, familiarity with
which is assumed. See Nollner v. S. Baptist Convention, Inc., et al., 852 F. Supp.2d 986 (M.D.
Tenn. 2012). The court will briefly summarize the history of the action for purposes of context.
The plaintiffs first filed suit against the Southern Baptist Convention, Inc. (“SBC”), IMB,
and GES1 in Tennessee state court on October 20, 2011, asserting Tennessee state law claims for
breach of contract, promissory estoppel, and retaliatory discharge. (Case No. 3:12-cv-0040
(M.D. Tenn.), Docket No. 1, Ex. A.) They amended their pleadings on December 9, 2011,
adding a claim for retaliatory discharge under a federal statute, the Dodd-Frank Wall Street
Reform and Consumer Protection Act (“DFA”), 15 U.S.C. § 78u-6. (Id., Docket No. 1, Ex. B.)
On January 6, 2012, IMB removed the action to this court on the ground that the court had
original federal question jurisdiction over the plaintiffs’ DFA claim and supplemental
jurisdiction over the state law claims. (Id., Docket No. 1) 
On April 3, 2012, this court issued an Order dismissing the plaintiffs’ DFA claim and
remanding the plaintiffs’ state law claims to the Circuit Court for Davidson County, Tennessee.
According to the defendants, on September 11, 2012, the action was transferred to the

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The Nollners allege that GES was their nominal employer (a “dummy” company), and
that IMB (a wholly-owned subsidiary of SBC) and SBC jointly employed them.
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Williamson County Circuit Court after judges in Davidson County recused themselves. (Docket
No. 4 at 3.) On October 1, 2012, the plaintiffs filed a Notice of Voluntary Dismissal and the
lawsuit was dismissed without prejudice on October 19, 2012. (Id.)
On October 18, 2013, the plaintiffs filed the current action in Tennessee state court in
Davidson County against IMB, GES, and SBC. The original Complaint appears to be very
similar to the plaintiffs’ pleading in their prior action, with the exception of the elision of the
plaintiffs’ DFA claim. (Compare Docket No. 1, Ex. A with Case No. 3:12-cv-0040, Docket No.
1, Ex. B.) The case was subsequently transferred to Judge Easter of the Williamson County
Circuit Court. (Docket No. 1, Ex. D.) On January 17, 2014, SBC filed a motion to dismiss on
the ground that the plaintiffs failed to sufficiently allege that SBC was an employer of the
plaintiffs, a motion that the state court granted on April 23, 2014. (Docket No. 1, Ex. D; Docket
No. 4 at 4.) According to the defendants, IMB and GES also filed a motion to dismiss with the
state court, which was still pending at the time of removal.
On April 25, 2014, on the ground of diversity, the defendants removed the action to this
court. (Docket No. 1.) On April 29, 2014, the defendants filed the pending Motion to Dismiss.
(Docket No. 4.) The plaintiffs opposed the motion on June 13, 2014 (Docket No. 15), and the
defendants filed a Reply in support of their motion on June 19, 2014 (Docket No. 19). On June
27, 2014, the plaintiffs filed a Motion to Amend or Correct their Complaint, which the
defendants opposed on July 8, 2014. (Docket Nos. 23, 27.) Subsequently, the plaintiffs filed a
Motion for Leave to File a Supplemental Response to the defendants’ Motion to Dismiss, with
the proposed additional briefing attached. (Docket No. 25.) The defendants filed a Response in
opposition to the plaintiffs’ Motion, which addressed the substantive legal arguments raised by
the plaintiffs’ proposed Supplemental Response (but failed to address why the court should deny
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the plaintiffs’ Motion for Leave). (Docket No. 26.) As an initial matter, the plaintiffs’ Motion
for Leave to File a Supplemental Response will be granted, as the legal issues addressed by both
the plaintiffs’ Supplemental Response and the defendants’ opposition thereto are potentially
relevant to the court’s analysis of the viability of the plaintiffs’ claims and, consequently, the
merits of the defendants’ Motion to Dismiss.
II.

Allegations of the Complaint2
The facts underlying this suit were discussed at length in the court’s April 3, 2012
Memorandum issued in the plaintiffs’ previous action before this court. 852 F. Supp.2d at 986.
The court incorporates these facts by reference into its analysis and outlines the facts relevant to
the pending motions below. 852 F. Supp.2d 986 (M.D. Tenn. 2012).
The Nollners are Tennessee residents who are devoted members of the Southern Baptist
community. In May 2008, Doug Floyd, an employee of defendant IMB, sent a letter to the
Nollners enclosing a job description for a proposed missionary assignment located in India. The
job description stated:
The person filling this job will be managing the construction of a new office
building being planned in New Delhi. The proposed building will include a
basement and 4 floors above ground. You will be working with local Indian
companies, assisting in obtaining permits for construction, and ensuring
engineering standards are followed during construction.

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Unless otherwise indicated, the facts have been drawn from the plaintiffs’ Complaint
and the documents attached thereto and referenced therein. A court deciding a Rule 12 motion
may, without converting the motion into a Rule 56 motion, consider (1) documents that a
defendant attaches to a motion to dismiss, if they are referred to in the plaintiff’s complaint and
are central to her claim; and (2) documents that constitute public records or are otherwise
appropriate for the taking of judicial notice. See Weiner v. Klais & Co., Inc., 108 F.3d 86, 89
(6th Cir. 1997); New England Health Care Employees Pension Fund v. Ernst & Young, LLP, 336
F.3d 495, 501 (6th Cir. 2003).
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(Docket No. 6, Ex. A.) IMB also sent the Nollners a letter setting forth the parameters of their
employment (the “Employment Letter”). The letter stated:
Please note that your assignment will not be finalized until we receive your signed
“Acknowledgement of Willingness” document and it has been approved and
signed by an authorized official of IMB.
....
Once approved for service, your relationship to the IMB will be that of an “at
will” employee of a Virginia religious, non-profit corporation, with all aspects of
that relationship originating in Virginia and controlled by Virginia law and
applicable First Amendment law, including the “ministerial exception.”
(Docket No. 6, Ex. B.) The Nollners accepted the job position and indicated their acceptance by
signing an acknowledgement on May 11, 2008 (the “Acknowledgment”). (Id.)
When the Nollners arrived in New Delhi, the situation was different than what had been
promised by IMB. The planning phase of the construction project had already been completed,
and the defendants did not allow Mr. Nollner to meet with the architect or contractor of the
project until months after his arrival. Over a period of several months, Mr. Nollner became
aware of troubling information about the project that he was managing, including, inter alia,
unsafe workmanship and materials, suspicious activities related to project-related invoices and
payments, bribery of Indian officials by the contractor and architects, and an illegal or improper
permit issued by the Indian government and signed by an agent of the defendants related to the
building’s intended use. Mr. Nollner reported these practices to his supervisors multiple times,
but they ignored his entreaties.
On or about October 21, 2010, two of Mr. Nollner’s superiors, Tom Allinder and Randy
Pegues, asked him to resign his position in India. After Mr. Nollner refused to resign, the
defendants terminated the Nollners’ employment on or about October 23, 2010.

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The Nollners allege a variety of claims under Tennessee law related to Mr. Nollner’s
discharge against IMB and GES, including (1) common law retaliatory discharge; (2) in the
alternative or in addition to their common law claim, retaliatory discharge from employment in
violation of the Tennessee Public Protection Act, T.C.A. § 50-1-304 (“TPPA”); (3) breach of
contract; and (4) promissory estoppel. The Nollners seek monetary damages, including back
pay, front pay, and actual, compensatory, and punitive damages. (Docket No. 1, Ex. A.)
ANALYSIS
Where there are both a dispositive motion and a motion to amend the complaint pending,
the court must first address the motion to amend the complaint. Ellison v. Ford Motor Co., 847
F.2d 297, 300 (6th Cir. 1988).
I.

Motion to Amend
A. Standard
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a
pleading “shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). In Foman v.
Davis, 371 U.S. 178 (1962), the Supreme Court stated:
Rule 15(a) declares that leave to amend shall be freely given when justice so
requires; this mandate is to be heeded. If the underlying facts or circumstances
relied upon by a plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits. In the absence of any
apparent or declared reason – such as undue delay, bad faith or dilatory motive on
the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of the
allowance of the amendment, futility of the amendment, etc. – the leave sought
should, as the rules require, be “freely given.” Of course, the grant or denial of an
opportunity to amend is within the discretion of the District Court, but outright
refusal to grant the leave without any justifying reason appearing for the denial is
not an exercise of discretion; it is merely abuse of that discretion and inconsistent

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with the spirit of the Federal Rules.
Id. at 182 (internal citations omitted). Thus, leave should be given unless there is a showing of
undue delay, bad faith or dilatory motive on the part of the moving party, undue prejudice to the
non-moving party, or futility of the proposed amendment. Id.; see also Hahn v. Star Bank, 190
F.3d 708, 715 (6th Cir. 1999). “A proposed amendment is futile if the amendment could not
withstand a Rule 12(b)(6) motion to dismiss.” Thiokol Corp. v. Dept. of Treasury, State of
Mich., Revenue Div., 987 F.2d 376, 382-82 (6th Cir. 1993); see Martin v. Assoc. Truck Lines,
Inc., 801 F.2d 246, 248 (6th Cir. 1986); see also Kottmyer v. Maas, 436 F.3d 684, 691-92 (6th
Cir. 2006).
B. The Plaintiffs’ Motion to Amend
The plaintiffs have moved to amend their Complaint because (1) they retained new
counsel, and (2) they seek to add SBC, an original defendant that was dismissed without
prejudice by the state court, back into the case as a defendant because they assert that SBC is a
“necessary and indispensable party to this action.” Upon comparison of the proposed
amendment and the operative Complaint, there are few changes to the pleadings besides the
addition of SBC as a defendant. Primarily, the plaintiffs have re-worded and added a handful of
vague allegations regarding SBC and its relationship with IMB and GES.
The plaintiffs admit that the addition of SBC, a Tennessee resident, would destroy
diversity and, consequently, the subject matter jurisdiction of this court. Accordingly, if the
court grants the plaintiffs’ Motion to Amend, the court must remand the action to an appropriate
state court. The plaintiffs contend that, “although previous actions have been filed” by the
plaintiffs, “this is a first amendment of this Complaint and Plaintiffs assert that amendment is
necessary to serve the ends of justice and would not be futile.” (Docket No. 23.)
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The defendants contend that the court should deny the plaintiffs’ motion to amend as
futile because the plaintiffs’ proposed Amended Complaint fails to state a claim upon which
relief can be granted. Specifically, the defendants argue that the Nollners’ employment contract
with IMB expressly states that it is governed by Virginia law, and the Nollners’ proposed
Amended Complaint (as well as their original Complaint) fails to state any claims under Virginia
law. Accordingly, the defendants argue, the plaintiffs’ proposed amended complaint would not
survive a motion to dismiss and is futile.
Upon thorough review of the plaintiffs’ prior action against these parties, the parties’
submissions, and the plaintiffs’ proposed Amended Complaint, the court agrees with the position
of the defendants.
1. Futility
The defendants vigorously contend that the court should deny the plaintiffs’ Motion to
Amend as futile because the Nollners have failed to plead claims under Virginia law. The
defendants’ argument as to futility precisely parallels a primary argument in their Rule 12(b)(6)
motion.
As with the pending motion to dismiss, a threshold question is whether Tennessee or
Virginia law governs the Nollners’ employment relationship with the defendants. The parties
appear to agree that the Nollners’ relationship with IMB and GES is governed by an employment
contract, specifically, the Employment Letter signed by IMB and its attached Acknowledgment,
signed and returned to IMB by the plaintiffs. Because the Employment Letter expressly states
that the plaintiffs’ employment relationship with IMB is governed by Virginia law, the
defendants argue that any common law claims related to the plaintiffs’ employment should be
pleaded as Virginia state law claims. Confusingly, the plaintiffs do not dispute the legitimacy of
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the choice of law provision in the contract; instead, the plaintiffs erroneously hang their hat on
the doctrine of lex loci contractus and argue that, because the contract was executed by the
plaintiffs in Tennessee, Tennessee law governs their claims.
Although the plaintiffs are correct that Tennessee adheres to the rule of lex loci
contractus, the plaintiffs appear to misunderstand the application of the doctrine. Lex loci
contractus instructs that “a contract is presumed to be governed by the law of the jurisdiction in
which it was executed absent a contrary intent.” Vantage Tech., LLC v. Cross, 17 S.W.3d 637,
650 (Tenn. Ct. App. 1999) (citing Ohio Cas. Ins. Co. v. Travelers Indem. Co., 493 S.W.2d 465,
467 (Tenn. 1973)). If the parties manifest an intent to instead apply the laws of another
jurisdiction, such as by including a choice of law provision in a contract, then that intent will be
honored, provided that certain requirements are met. Id. “The choice of law provision must be
executed in good faith, the chosen jurisdiction must bear a material connection to the transaction,
the basis for the jurisdiction must be reasonable and not a sham, and, finally, the choice of the
jurisdiction must not be contrary to the fundamental policy of a state having a materially greater
interest and whose law would otherwise govern.” Southeast Texas Inns, Inc. v. Prime
Hospitality Corp., 462 F.3d 666, 672 n.8 (6th Cir. 2006).
Here, the plaintiffs signed an employment contract that stated: “Once approved for
service, your relationship to the IMB will be that of an ‘at will’ employee of a Virginia religious,
non-profit corporation, with all aspects of that relationship originating in Virginia and
controlled by Virginia law . . ..” (Docket No. 6, Ex. B (emphasis added).) Accordingly, the
parties entered into a contract containing an unambiguous choice of law provision selecting
Virginia law. The plaintiffs do not argue that the choice of law provision should be disregarded;

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indeed, they appear to completely ignore the existence of the choice of law provision. 3
Accordingly, the court concludes that the choice of law provision included in the plaintiffs’
employment agreement with IMB is valid and enforceable and, therefore, the plaintiffs’ common
law claims filed under Tennessee law related to their employment are deficient as a matter of
law.
Because the plaintiffs have failed to plead any claims under Virginia law in their
proposed Amended Complaint, the court concludes that the plaintiffs’ proposed amendment
would not survive a Rule 12(b)(6) Motion to Dismiss.4 Consequently, the proposed amendment
is futile and the plaintiffs’ Motion to Amend will be denied.
II.

The Defendants’ Motion to Dismiss
A. Motion to Dismiss for Improper Venue or, in the Alternative, to Transfer Venue

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The court notes that, despite several prior admonitions from this court, the plaintiffs’
counsel has submitted a brief that fails to address (or even acknowledge) several cogent
arguments raised by the defendants.
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Because the court has concluded that the plaintiffs’ proposed amendment would be
futile, the court need not reach the defendants’ alternative argument that the plaintiffs must
survive the rigorous standards set by 28 U.S.C. § 1447(e) in order to re-add SBC as a defendant
to the case. However, the court notes that, even had the plaintiffs plead proper claims under
Virginia law in their proposed Amended Complaint, the plaintiffs failed to add substantive
allegations to their pleadings related to their alleged employment relationship with SBC. The
state court dismissed SBC (without prejudice) from the action primarily because the plaintiffs
had failed to plead a sufficient employment relationship with SBC. Despite this clear direction
from the state court, the plaintiffs’ proposed Amended Complaint fails to add substantive
allegations of any sort to demonstrate an employment relationship between themselves and SBC.
Instead, the plaintiffs ignored the guidance of the state court and rely again in their proposed
Amended Complaint on the conclusory allegations of “joint employment” that were rejected by
the state court.
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In their Motion to Dismiss, the defendants first argue that the Complaint should be
dismissed under Fed. R. Civ. P. 12(b)(3) for Improper Venue or, in the Alternative, transferred to
the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a). The court notes that, despite the
defendants’ reference to Fed. R. Civ. P. 12(b)(3), they appear to solely move for dismissal on the
basis of the doctrine of forum non conveniens. Moreover, the parties appear to agree on the
(inaccurate) proposition that the court’s discretion under the doctrine of forum non conveniens is
identical to the court’s authority to dismiss an action for improper venue under Rule 12(b)(3) or
to transfer venue pursuant to Section 1404(a). This comparison is in error, as a motion to
dismiss for improper venue is distinct from a motion to dismiss the claim based upon forum non
conveniens. As Professors Wright and Miller have explained:
If venue in a federal civil action is improper, the district court may dismiss or, as
is more common, transfer the case to a proper venue under 28 U.S.C. § 1406(a).
If venue is proper, but another proper federal district court would be a more
convenient forum, the court may order that the case be transferred to that court
under 28 U.S.C. § 1404(a). If the superior alternative forum is in a different
judicial system—typically, the court of another country—there is no mechanism
by which the case may be transferred. Instead, the court may dismiss (or stay) the
case under the ancient doctrine of forum non conveniens.
Charles A. Wright & Arthur R. Miller, 14D Federal Practice & Procedure § 3828 (4th ed. April
2014).
The court notes that the defendants’ argument for dismissal and the plaintiffs’ Response
in opposition focus nearly entirely on the doctrine of forum non conveniens. (Docket No. 5 at 37.) Accordingly, the court will presume that the defendants intended to argue for dismissal on
the grounds of forum non conveniens or, in the alternative, request that the court transfer the
action pursuant to Section 1404(a).
1. Dismissal Based upon the Doctrine of Forum Non Conveniens
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As an initial matter, the Supreme Court (and the Sixth Circuit) has clearly instructed that
the common law doctrine of forum non conveniens, since the enactment of Section 1404, applies
in federal courts “only in cases where the alternative forum is abroad, and perhaps in rare
instances where a state or territorial court serves litigational convenience best.” Sinochem Int’l
Co. Ltd. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430 (2007) (quoting Am. Dredging Co.
v. Miller, 510 U.S. 433, 449 n.2 (1994)); see also Zions First Nat. Bank v. Moto Diesel
Mexicana, S.A. de C.V., 629 F.3d 520, 523 n.1 (6th Cir. 2010) (“If another federal district is an
alternative forum, dismissal on grounds of forum non conveniens is inapplicable and Section
1404(a) applies.”). Because the defendants here have urged dismissal or transfer to an
alternative federal court within the United States, the court concludes that the common law
doctrine of forum non conveniens does not apply here. Accordingly, the court will deny the
defendants’ motion to dismiss or transfer the action on grounds of the common law doctrine of
forum non conveniens.
2. Transfer Pursuant to Section 1404(a)
Section 1404(a) provides that a district court may transfer a 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.” As the Supreme Court has instructed, Section 1404(a) was intended to
revise, not codify, the common law doctrine of forum non conveniens. Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 253-54 (1981) (noting that district courts were given more discretion to
transfer under Section 1404(a) than they had to dismiss on grounds of forum non conveniens)
(citing Norwood v. Kirkpatrick, 349 U.S. 29 (1955)). In determining whether to transfer a case
pursuant to Section 1404(a), a district court should consider a number of “case specific factors,”
including the existence of a forum selection clause, as well as “the private interests of the parties,
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including their convenience and the convenience of potential witnesses, as well as other publicinterest concerns, such as systemic integrity and fairness, which come under the rubric of
‘interests of justice.’” Moses v. Business Card Exp., Inc., 929 F.2d 1131, 1137 (6th Cir. 1991)
(internal citations omitted). The moving party bears the substantial burden of establishing that
the factors weigh strongly in favor of transferring venue. See, e.g., Picker Int’l Inc. v. Travelers
Indem. Co., 35 F. Supp.2d 570, 573 (N.D. Ohio 1998); Blane v. Am. Investors Corp., 934 F.
Supp. 803, 907 (M.D. Tenn. 1996). “Merely shifting the inconvenience from one party to
another does not meet Defendant’s burden;” to succeed in a motion to transfer pursuant to
Section 1404(a), “[t]he movant must show that the forum to which he desires to transfer the
litigation is the more convenient one vis a vis the Plaintiff’s initial choice.” B.E. Tech., LLC v.
Facebook, Inc., 957 F. Supp. 2d 926, 930-31 (W.D. Tenn. 2013) (citing McFadgon v. Fresh
Mkt., Inc., No. 05-2151, 2005 WL 3879037, at *2 (W.D. Tenn. Oct. 21, 2005) and Robert
Metals, Inc. v. Florida Prop. Marketing Grp., Inc., 138 F.R.D. 89, 93 (N.D. Ohio 1991)).
Among the factors that courts consider in a Section 1404(a) analysis are the plaintiff’s
choice of forum, the convenience of the witnesses and the residence of the parties, the location of
sources of proof, including the availability of compulsory process to insure witness attendance,
the location of the events giving rise to the dispute, any obstacles to a fair trial, the advantage of
having the dispute adjudicated by a local court, and all other considerations of a practical nature
that make a trial easy, expeditious, and economical. See, e.g., Clayton v. Heartland Resources,
Inc., No. 3:08-cv-0513, 2008 WL 2697430, at *5 (M.D. Tenn. June 30, 2008); S. Elec. Health
Fund v. Bedrock Servs., No. 3:02–CV–00309, 2003 WL 24272405, at *5 (M.D. Tenn. July 23,
2003). The court addresses each of these factors individually below.
i. Plaintiffs’ Choice of Forum
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A plaintiff’s choice of forum is generally afforded “great weight,” although it is not
dispositive. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (“Unless the balance is strongly
in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”); see
Picker, 35 F. Supp. 2d at 573; see also Lewis ACB Bus. Servs., Inc., 135 F.3d 389, 413 (6th Cir.
1998). Here, where no forum selection clause conflicts with the plaintiffs’ choice of forum, this
factor weighs strongly in favor of Tennessee.
ii. Convenience of Witnesses and Residence of the Parties
The convenience of witnesses is also an important factor in the Section 1404(a) analysis.
Here, the defendants claim that, with the exception of the plaintiffs, all material witnesses to the
action reside in Virginia or Asia and, therefore, the convenience of witnesses favors Virginia.
The defendants have identified precisely two witnesses located in Virginia, Randy Pegues and
Clyde Meador, and an additional three witnesses who reside “either in Virginia or Asia.”
The plaintiffs contend that (1) discovery is required to determine exactly how many
witnesses are material to this action and where they reside, but that (2) at least four material
witnesses reside in Tennessee (in addition to the plaintiffs), and (3) the convenience of witnesses
residing outside Tennessee or Virginia otherwise favors the plaintiffs’ forum choice because
most witnesses are traveling from west of Tennessee and, therefore, Tennessee is a more
accessible forum than Virginia. From the information before the court, it appears that there are
at least six witnesses in Tennessee and between two and five witnesses working for IMB in
Virginia and/or Asia, as well as an unknown number of witnesses scattered across the United
States and internationally. Accordingly, the convenience of witnesses favors Tennessee over
Virginia to the extent that the number of witnesses located in Tennessee exceeds those located in
Virginia.
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iii. Location of Sources of Proof
The parties appear to agree that the majority of employment records related to the
Nollners’ service with IMB are located in Virginia. Although the import of this factor is
mitigated in light of technology, including the availability of electronic discovery, to the extent
that there may be some minor convenience associated with the existence of the document
originals in a district where the case is adjudicated, this factor slightly favors Virginia.
iv. Location of Events Giving Rise to Dispute
With respect to the location of operative events, this factor is neutral. The allegations of
the Complaint clearly indicate that the primary events which gave rise to the Nollners’
termination took place in New Delhi, India.
v. Any Obstacles to a Fair Trial
The parties do not assert that there are any concerns related to the availability of a fair
trial in either venue. Accordingly, this factor is neutral.
vi. Advantage of a Local Court
Because both Virginia and Tennessee residents are parties to this action, the court
concludes that both forums possess an interest in the litigation. Moreover, with respect to the
defendants’ assertion that this action is best suited for a forum that is “most familiar” with
Virginia law, the court is confident that federal courts in both Virginia and Tennessee are well
suited to applying Virginia law to the plaintiffs’ claims. Accordingly, this factor does not favor
either forum.
Despite claiming that litigating in Tennessee would place a substantial burden on the
defendants, the defendants have failed to demonstrate that the factors strongly indicate that a trial
would be easier, more expeditious, or more economical for both parties in Virginia. In light of
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these considerations, the court concludes that the defendants have not carried their burden of
demonstrating that the factors weigh strongly in favor of a transfer. Accordingly, the interests of
justice do not warrant a transfer of venue to the Eastern District of Virginia under Section
1404(a).
B. Motion to Dismiss for Failure to State a Claim
1. Standard
In deciding a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court
will “construe the complaint in the light most favorable to the plaintiff, accept its allegations as
true, and draw all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487
F.3d 471, 476 (6th Cir. 2007); Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). The
Federal Rules of Civil Procedure require only that a plaintiff provide “‘a short and plain
statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and
the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). The court must
determine only whether “the claimant is entitled to offer evidence to support the claims,” not
whether the plaintiff can ultimately prove the facts alleged. Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
The complaint’s allegations, however, “must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To establish the
“facial plausibility” required to “unlock the doors of discovery,” the plaintiff cannot rely on
“legal conclusions” or “[t]hreadbare recitals of the elements of a cause of action,” but, instead,
the plaintiff must plead “factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678-79

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(2009). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”
Id. at 1950.
2. Application
For substantially the same reasons discussed in the section addressing the plaintiffs’
Motion to Amend, the defendants’ Motion to Dismiss will be granted on the ground that the
plaintiffs have failed to state claims upon which relief can be granted.
On May 11, 2008, the plaintiffs signed an employment agreement that included a choice
of law provision selecting Virginia law as the governing law for the parties’ employment
relationship. The operative Complaint includes four common law claims under Tennessee law
and no claims asserted under Virginia law. Because Virginia law governs the plaintiffs’
common law claims, their Tennessee law claims will be dismissed.5
On a final note, the court recognizes that, despite being aware of the defendants’ position
as to the choice of law provision for nearly three years (and throughout two lawsuits), the
plaintiffs have failed to amend their pleadings to include Virginia law claims (even in addition to
their Tennessee law claims). Despite this lapse, the court will grant the plaintiffs leave to file an
Amended Complaint to address the deficiencies in their pleadings.
CONCLUSION
For these reasons, the plaintiffs’ Motion for Leave to File a Supplemental Response will
be granted, the plaintiffs’ Motion to Amend will be denied, and the defendants’ Motion to
Dismiss will be granted. The plaintiffs’ claims will be dismissed without prejudice on the
ground that the plaintiffs have failed to state a claim upon which relief can be granted. The

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Because the court will grant the defendants’ Motion to Dismiss on these grounds, it
need not reach the defendants’ additional arguments as to dismissal of the plaintiffs’ claims.
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plaintiffs will be granted leave to file an Amended Complaint within 15 days of the court’s
Order.
An appropriate order will enter.
Enter this 30th day of July 2014.
_______________________________
ALETA A. TRAUGER
United States District Judge

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