Dyno Nobel v. Johnson

Filing 12

ORDER AND MEMORANDUM DECISION denying 6 Motion to Dismiss for Lack of Jurisdiction; denying 6 Motion to Change Venue. Signed by Judge Tena Campbell on 4/27/21 (alt)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

DYNO NOBEL, INC., a Delaware
corporation,
Plaintiff,

ORDER AND MEMORANDUM DECISION

vs.
Case No. 2:20-CV-00840

BOB JOHNSON, an individual,

Judge Tena Campbell

Defendant.

Defendant Bob Johnson moves to dismiss this action for lack of personal jurisdiction
pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure. In the alternative, he moves to
transfer venue from the District of Utah to the Middle District of Tennessee under 28 U.S.C. §
1404. Plaintiff Dyno Nobel, Inc. (Dyno) opposes both of Mr. Johnson’s requests.
For the reasons set forth below, the court denies Mr. Johnson’s motion. (ECF No. 6). The
court finds that it can exercise personal jurisdiction over Mr. Johnson and that a venue transfer is
not warranted.
FACTUAL BACKGROUND 1
I.

Mr. Johnson’s Employment Agreement with Dyno

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Relevant facts are taken from the complaint and from affidavits submitted in support of Mr.
Johnson’s motion and Dyno’s opposition. The facts are taken as true for the purposes of this
order. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th Cir.
2008); Blueberry Hill LLC v. Shalom Int'l Corp., No. 2:17-CV-00385-DS, 2017 WL 5508347, at
*1 (D. Utah Nov. 15, 2017).
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Dyno is a commercial explosives company incorporated in Delaware with its principal
place of business in Utah. (Compl. ¶ 1.) Dyno’s headquarters are located in Salt Lake City. On
April 12, 2018, Mr. Johnson began working for Dyno as a Director of Joint Venture and
Independent Distributors. (Id. ¶ 7.) In this role, Mr. Johnson—who was based in Frankfort,
Illinois and Louisville, Kentucky—was responsible for managing Dyno’s commercial
relationships with several other companies. (Id.) These distributors included Warex, Inc.
(Warex), an Indiana corporation, and Brandywine Explosives and Supply, Inc. (Brandywine), a
Kentucky corporation. (Id.)
Mr. Johnson executed an Employment Agreement with Dyno (the Agreement) when he
began his job. The parties agreed that disputes related to the Agreement would be subject to Utah
law, although the Agreement does not have a forum selection clause. (Id. ¶ 18.)
The Agreement contains confidentiality and loyalty provisions meant to prevent Mr.
Johnson from disclosing Dyno trade secrets and from working for other companies while
employed by Dyno. (Id. ¶¶ 14–15.) The Agreement also includes a non-compete provision,
which prohibits Mr. Johnson from working for any of Dyno’s competitors for one year after the
termination of his employment from Dyno. (Id. ¶ 16.) The Agreement’s non-solicitation
provision forbids Mr. Johnson from soliciting business from Dyno customers for one year after
the termination of his employment. (Id. ¶ 17.)
Dyno bases its lawsuit on allegations that Mr. Johnson was “moonlighting”—performing
work on the side—for Warex in violation of the Agreement. (Id. ¶¶ 19–25.) Dyno specifically
claims that Mr. Johnson secretly worked with principals from Warex and Brandywine to form a
new venture, called BEX, that would divert customers away from Dyno. (Droubay Decl. ¶ 18.)

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On November 5, 2020, Dyno asked Mr. Johnson if he was moonlighting for Warex, and Mr.
Johnson denied the allegations. (Compl. ¶ 23; Droubay Decl. ¶ 12 (ECF No. 8-1).)
The next day, Mr. Johnson resigned from his position with Dyno. (Compl. ¶ 26.) He told
his former Dyno supervisor that he intended to begin employment with Warex. Dyno reminded
Mr. Johnson of his obligations under the Employment Agreement, and although Mr. Johnson
asked to be released from the non-compete provision, Dyno did not release him (Id. ¶¶ 27–29.)
II.

Mr. Johnson’s Connections to Utah

Mr. Johnson currently lives in Nashville, Tennessee. (Johnson Decl. ¶ 3 (ECF No. 6-1).)
Before he moved to Nashville in August of 2020, Mr. Johnson lived in Kentucky and Chicago,
Illinois. He has never lived, owned property, paid taxes, or advertised in Utah. (Id. ¶¶ 5–10.) He
has no family in Utah.
When he worked for Dyno, Mr. Johnson primarily interacted with Warex and
Brandywine in Indiana and Kentucky. (Id. ¶ 16.) He also worked with two companies in Iowa.
He never interacted with Dyno customers in Utah. (Id. ¶ 17.)
Mr. Johnson’s direct supervisor at Dyno was Steve Salter, who lives in Utah and works
from Dyno’s Salt Lake City headquarters. (Salter Decl. ¶¶ 3, 4 (ECF No. 8-2).) There were no
intermediaries between Mr. Johnson and Mr. Salter. 2 Mr. Johnson spoke with Mr. Salter on the
telephone at least once a week, and they emailed each other more frequently. Sometimes they
spoke on the phone every day. (Id. ¶ 6.)

2

The parties disagree about whether Mr. Salter was Mr. Johnson’s sole and direct supervisor.
Mr. Johnson states that he “principally communicated with Dyno managers and employees
located in [his] region, not in Utah.” (Johnson Decl. ¶ 15.) Because this is a 12(b)(2) motion to
dismiss, this factual dispute is resolved in Dyno’s favor, and the court takes as true the fact that
Mr. Johnson reported directly to Mr. Salter.
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According to Mr. Salter, Mr. Johnson traveled to Utah on at least five occasions during
his employment. (Id. ¶ 12.) He visited Utah when he was initially hired, brought a customer to
Utah to tour Dyno’s truck shop, and came to Utah to attend management training meetings. 3 (Id.
¶¶ 13–15.)
Every month Mr. Johnson participated on a forecasting videoconference call initiated
from Dyno’s Utah headquarters. (Id. ¶ 7.) Additionally, Mr. Johnson put together price lists for
his distributors and customers, who would then submit orders to Dyno’s Utah headquarters based
on those price lists. (Id. ¶ 8–9.)
Mr. Johnson made business purchases on a company card that was connected to Dyno’s
Utah headquarters. (Id. ¶ 9.) He also used a company vehicle, company phone, and company
computer that were paid for from Utah.
LEGAL STANDARD
The plaintiff bears the burden of establishing personal jurisdiction over a defendant.
Shrader v. Biddinger, 633 F. 3d 1235, 1239 (10th Cir. 2011). When responding to a Rule
12(b)(2) motion to dismiss, a plaintiff need only make a prima facie showing of personal
jurisdiction through the submission of affidavits or other written materials facts. Dudnikov v.
Chalk & Vermilion Fine Arts, Inc., 514 F. 3d 1063, 1070 (10th Cir. 2008). Allegations in the
complaint are taken as true if they are “plausible, non-conclusory, and non-speculative” Id.
When a defendant submits evidence to challenge personal jurisdiction, the plaintiff has a duty to
come forward with evidence supporting the jurisdictional allegations in the complaint. Pytlik v.
Professional Resources, Ltd., 887 F. 2d 1371, 1376 (10th Cir. 1989). Factual disputes in the

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The parties also dispute how many times Mr. Johnson traveled to Utah during his employment.
Mr. Johnson says that he only traveled to Utah twice while employed by Dyno. (See Johnson
Decl. ¶ 11.) At this stage in the proceedings, this factual dispute is resolved in Dyno’s favor.
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affidavits are resolved in the plaintiff’s favor. Dudnikov, 514 F. 3d at 1070 (citing FDIC v.
Oaklawn Apartments, 959 F.2d 170, 174 (10th Cir.1992)).
ANALYSIS
Dyno filed its complaint in the District of Utah, bringing six causes of action against Mr.
Johnson: breach of contract, breach of implied covenant of good faith and fair dealing, breach of
fiduciary duty, fraud, conversion, and tortious interference with economic relations. (See
Compl.) Mr. Johnson argues that personal jurisdiction in the District of Utah is improper because
Mr. Johnson does not have sufficient minimum contacts with Utah and because the events giving
rise to this dispute occurred outside of Utah. Even if this court can exercise personal jurisdiction,
Mr. Johnson asks the court to transfer venue to the Middle District of Tennessee for the
convenience of the parties and witnesses.
I.

Personal Jurisdiction

“To obtain personal jurisdiction over a nonresident defendant in a diversity action, a
plaintiff must show that jurisdiction is legitimate under the laws of the forum state and that the
exercise of jurisdiction does not offend the due process clause of the Fourteenth Amendment.”
TH Agric. & Nutrition, LLC v. Ace European Grp. Ltd., 488 F.3d 1282, 1286–87 (10th Cir.
2007) (internal quotation marks omitted). The Utah long-arm statute authorizes jurisdiction to
the full extent permitted by the United States Constitution. Utah Code § 78B-3-201(3).
Accordingly, the court need only evaluate whether the exercise of personal jurisdiction over
defendants comports with constitutional due process. Kuenzle v. HTM Sport–Und Freizeitgerate
AG, 102 F.3d 453, 455 (10th Cir.1996).
“The Supreme Court has held that, to exercise jurisdiction in harmony with due process,
defendants must have ‘minimum contacts’ with the forum state, such that having to defend a

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lawsuit there would not ‘offend traditional notions of fair play and substantial justice.’”
Dudnikov, 514 F.3d at 1070 (quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). A
defendant's contacts with the forum state may give rise to either general or specific personal
jurisdiction. Here, neither party contends that there is general personal jurisdiction over Mr.
Johnson in the District of Utah. The court’s only inquiry is whether Mr. Johnson is subject to
specific personal jurisdiction.
Specific jurisdiction requires a two-step analysis. First, the court evaluates whether the
plaintiff has shown that the defendant has sufficient minimum contacts with the forum state.
Dudnikov, 514 F.3d at 1070. If so, the court then determines whether the exercise of personal
jurisdiction complies with traditional notions of fair play and substantial justice— in other
words, whether personal jurisdiction is fair and reasonable. Id.
A.

Minimum Contacts

The Tenth Circuit uses slightly different tests to assess minimum contacts for claims
based in contract versus claims based in tort. “In the tort context, we often ask whether the
nonresident defendant purposefully directed its activities at the forum state; in contract cases,
meanwhile, we sometimes ask whether the defendant purposefully availed itself of the privilege
of conducting activities or consummating a transaction in the forum state.” Id. at 1071 (internal
quotations omitted). Nevertheless, these tests have a shared goal, which is to ensure that an outof-state defendant is not bound to appear in a forum state for merely “random, fortuitous, or
attenuated contacts” with the state. Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462,
475 (1985)). In both situations, due process requires the court to consider whether plaintiffs’
injuries “arise out of” defendants’ contacts with the forum jurisdiction. Many courts have

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interpreted this language to require some sort of causal connection between a defendant’s
contacts and the suit at issue.
Dyno raises both contract and tort causes of action against Mr. Johnson, and the parties
analyze the contract and tort claims separately in their discussion of minimum contacts. But, as
Dyno notes, the doctrine of pendent personal jurisdiction allows the court to exercise jurisdiction
over the tort claims so long as it has an independent basis for jurisdiction over the contract
claims. United States v. Botefuhr, 309 F.3d 1263, 1272 (10th Cir. 2002) (“In essence, once a
district court has personal jurisdiction over a defendant for one claim, it may “piggyback” onto
that claim other claims over which it lacks independent personal jurisdiction, provided that all
the claims arise from the same facts as the claim over which it has proper personal jurisdiction.”)
Both Dyno’s contract and tort claims arise from the same nucleus of operative facts: Mr.
Johnson allegedly moonlighted for Warex, formed a competing company while still employed by
Dyno, and solicited Dyno customers—all in violation of the Employment Agreement. Because
the court finds that it has jurisdiction over Dyno’s contract claims, it does not analyze whether it
also has an independent basis for personal jurisdiction over the tort claims.
1.

Purposeful Availment

To have sufficient minimum contacts with a forum state, a defendant must have
purposefully availed himself of the protections or privileges of the state’s laws such that he
“should reasonably anticipate being haled into court there.” Burger King, 471 U.S. at 473–72.
“Purposeful availment requires actions by [the defendant] which create a substantial connection
with the forum state. . . we must examine the quantity and quality of [the defendant’s] contacts
with the forum state.” Employers Mutual Casualty Co. v. Bartile Roofs, Inc., 618 F.3d 1153,
1160 (10th Cir. 2010).

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Contracts alone are usually insufficient to establish minimum contacts. But parties who
reach out from one state to “create continuing relationships and obligations with citizens of
another state” can expect to be sued in that other state as the consequence of their activities.
Marcus Food Co. v. DiPanfilo, 671 F.3d 1159, 1166 (10th Cir. 2011) (citing TH Agric., 488 F.3d
at 1287–88)); see also Burger King, 471 U.S. at 480 (upholding jurisdiction over defendants who
reached out into the forum state by entering a contractual relationship that envisioned
“continuing and wide-reaching contacts” there.) In its analysis, the court must examine the
parties’ “prior negotiations and contemplated future consequences, along with the terms of the
contract and the parties' actual course of dealing.” TH Agric., 488 F.3d at 1278–88.
In Marcus Food Co. v. DiPanifilo, the defendant—a Canadian citizen—had entered into
an oral agreement to serve as an independent agent for the plaintiff, a Kansas company. 671 F.3d
at 1164. The court found that the defendant had sufficient minimum contacts with Kansas
because he communicated with the plaintiff at its Kansas headquarters on a monthly basis,
received reimbursements from the Kansas headquarters, and traveled to Kansas on two occasions
as a result of his relationship with the plaintiff. Id. at 1667–68. According to the Tenth Circuit,
“[t]he parties' agreement created precisely the type of ‘continuing relationship’ on which the
Supreme Court grounded personal jurisdiction in Burger King Corp. v. Rudzewicz, 471 U.S.
462, 473, 478, 486.” Id. at 1167.
Similarly, in Equifax Services, Inc. v. Hitz, 905 F.2d 1355 (10th Cir. 1990), the Tenth
Circuit found sufficient minimum contacts between a California defendant and the forum state of
Kansas. The defendant was the plaintiff’s former employee and had entered into an employment
contract subject to Kansas law. The defendant made two trips to Kansas during his employment,
reported directly to supervisors in Kansas, consistently communicated by telephone, mail, and

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email with employees in Kansas, and received reimbursements from the plaintiff’s Kansas office.
These contacts indicated “purposeful affiliation with the forum through an interstate contractual
relationship” and were sufficient to establish personal jurisdiction. Id. at 1359.
Like the defendants in Marcus Food and Equifax, Mr. Johnson had a deliberate and
continuous relationship with Utah while he was employed by Dyno for over two years. He
communicated frequently with his supervisor who was located at Dyno’s Utah headquarters. He
visited Utah five times on work-related trips and received various benefits and reimbursements
from the Utah office. He participated on monthly videoconference calls with employees in Utah
and worked with customers who submitted orders to Utah.
Mr. Johnson’s connections to Utah reinforce the “interstate character” of his work.
Equifax Services, 905 F.2d at 1359. Mr. Johnson’s Agreement with Dyno is governed by Utah
law, which supports Mr. Johnson’s “deliberate affiliation with the forum State and the reasonable
foreseeability of possible litigation there.” Burger King, 471 U.S. at 482.
Mr. Johnson tries to distinguish the facts of Marcus Foods and Equifax from his situation.
He also emphasizes that Marcus Foods and Equifax were decided before the Supreme Court
handed down its decision in Walden v. Fiore, 571 U.S. 277 (2014). He argues that Walden
precludes this court from exercising personal jurisdiction.
Mr. Johnson’s assertions are unconvincing. The factual differences that Mr. Johnson
highlights are minimal, while the similarities between the present case and Marcus Food and
Equifax are abundant and compelling. Likewise, Mr. Johnson’s application of Walden is
misplaced. In Walden, Nevada citizens brought a Bivens action in federal court in Nevada
against a police officer who allegedly violated their Fourth Amendment rights when they
traveled through an airport in Georgia. 571 U.S. at 281. All of the conduct giving rise to the

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lawsuit had occurred in Georgia, and the police officer had never traveled to, conducted activities
within, or contacted anyone in Nevada. The Supreme Court concluded that the police officer
lacked minimum contacts with Nevada and overturned the Court of Appeal’s analysis, which
improperly focused on the plaintiffs’ contacts as opposed to the defendant’s. The proper
evaluation, the Court explained, is whether the defendant’s conduct “connects him to the forum
in a meaningful way.” Id. at 290.
Mr. Johnson argues that his relationship with Dyno Nobel is his only connection to Utah,
and under Walden this relationship is insufficient to support jurisdiction. But unlike the
defendant in Walden, Mr. Johnson’s employment by Dyno created a considerable and
meaningful connection between Mr. Johnson and Utah. Mr. Johnson agreed to employed by a
Utah-based company, through which he received training, a salary, consistent supervision,
business expense reimbursements, a car, a phone, and a computer—all of which came from Utah.
Mr. Johnson also agreed that disputes arising from his employment contract would be subject to
Utah law. Mr. Johnson’s relationship to Utah is far more extensive than the Walden defendant’s
relationship to Nevada.
For these reasons, it is clear that Mr. Johnson purposefully availed himself of Utah’s
privileges and could reasonably anticipate being brought into court in Utah.
2.

“Arising Out Of”

It is uncontested that Dyno’s alleged injuries arise from Mr. Johnson’s contacts in Utah.
If not for Mr. Johnson’s Utah connections—his employment with Dyno, the Agreement, his
relationship with Mr. Salter, and his business activities connected to Dyno’s headquarters—
Dyno would not have a lawsuit to bring against Mr. Johnson.
B.

Fairness Factors

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At the second step of the specific jurisdiction analysis, the court considers five factors in
deciding whether the exercise of personal jurisdiction comports with traditional notions of fair
play and substantial justice. See World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
292, (1980) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The factors are:
(1) the burden on the defendant,
(2) the forum state's interests in resolving the dispute,
(3) the plaintiff's interest in receiving convenient and effectual relief,
(4) the interstate judicial system's interest in obtaining the most efficient resolution of
controversies, and
(5) the shared interest of the several states or foreign nations in furthering fundamental
social policies.
Marcus Food, 671 F.3d at 1167.
Here, only the first factor—the burden on the defendant—weighs in favor of Mr.
Johnson. Nashville is far from Salt Lake City, and Mr. Johnson will likely have travel over 1,600
miles to litigate this action. On the other hand, the remaining factors either favor Dyno, are
neutral, or are inapplicable. Utah, like all states, has an “important interest in providing a forum
in which their residents can seek redress for injuries caused by out-of-state actors,” and “the
state’s interest is also implicated where resolution of the dispute requires a general application of
the forum state’s laws.” Benton v. Cameco Corp., 375 F.3d 1070, 1079 (10th Cir. 2004). Dyno
has an interest in receiving relief in Utah because it chose to litigate in this forum. The fourth
factor is neutral, and the fifth factor does not apply.

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For these reasons, this court’s exercise of personal jurisdiction over Mr. Johnson is
reasonable and fair. Dyno has met its burden to show that jurisdiction in the District of Utah is
proper.
II.

Transfer under 28 U.S.C. § 1404(a)

Even though personal jurisdiction exists in the District of Utah, Mr. Johnson requests that
this action be transferred to the Middle District of Tennessee. Under 28 U.S.C. § 1404(a), “[f]or
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.” The decision whether to transfer an
action is within the discretion of the trial court. Wm. A. Smith Contracting Co., Inc. v. Travelers
Indem. Co., 467 F.2d 662, 664 (10th Cir. 1972).
As the party seeking a change of venue, Mr. Johnson “bears the burden of establishing
that the existing forum is inconvenient.” Chrysler Credit Corp. v. Country Chrysler, Inc., 928
F.2d 1509, 1515 (10th Cir. 1991). “Merely shifting the inconvenience from one side to the other,
however, obviously is not a permissible justification for a change of venue.” Scheidt v. Klein,
956 F.2d 963, 966 (10th Cir.1992) In assessing whether the existing forum is inconvenient,
courts weigh the following factors:
The plaintiff's choice of forum; the accessibility of witnesses and other sources of
proof, including the availability of compulsory process to insure attendance of
witnesses; the cost of making the necessary proof; questions as to the enforceability
of a judgment if one is obtained; relative advantages and obstacles to a fair trial;
difficulties that may arise from congested dockets; the possibility of the existence
of questions arising in the area of conflict of laws; the advantage of having a local
court determine questions of local law; and[ ] all other considerations of a practical
nature that make a trial easy, expeditious and economical.

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Employers Mutual, 618 F.3d at 1167 (internal quotations omitted). As described below,
an analysis of the factors demonstrates that the District of Utah is as convenient as the
Middle District of Tennessee.
A.

Plaintiff’s Choice of Forum

“Unless the balance is strongly in favor of the movant[,] the plaintiff's choice of forum
should rarely be disturbed.” Id. at 1167–68. On the other hand, courts “give little weight” to a
plaintiff's choice of forum “where the facts giving rise to the lawsuit have no material relation or
significant connection to the plaintiff's chosen forum.” Id. (quoting Cook v. Atchison, Topeka &
Santa Fe Ry. Co., 816 F.Supp. 667, 669 (D.Kan.1993)).
Here, the balance of factors does not weigh strongly in favor of a transfer, and as a result
Dyno’s choice to sue Mr. Johnson in the District of Utah must be respected. The court disagrees
with Mr. Johnson that the majority of facts giving rise to this action have no material relation or
significant connection to Utah. On the contrary, Mr. Johnson agreed to work for a Utah
corporation, entered into an Employment Agreement governed by Utah law, and reported to Mr.
Salter in Utah. See F.H.G. Corp. v. Green Wave, Inc., No. 1:16–cv–00147–JNP, 2017 WL
2728412, at *5 (D. Utah Jun. 23, 2017) (“[T]he inquiry at this stage is not whether some other
forum has a greater material relation or significant connection—it is whether this particular
forum has at least some ‘material relation or significant connection’ to the ‘facts giving rise to
the lawsuit.’” (quoting Employers Mutual, 618 F.3d at 1168)). Although Mr. Johnson’s alleged
breach of the Employment Agreement occurred outside of Utah, this does not detract from
Utah’s connection to the facts underlying Dyno’s claims. See Butikofer v. Nygren, No. 2:16–cv–
00610–DN, 2016 WL 7190556, at *4 (D. Utah Dec. 12, 2016). Because Dyno’s choice of forum
is afforded great weight, this factor heavily favors Dyno.

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B.

Accessibility of Witnesses

The accessibility and convenience of witnesses is “the most important factor in deciding
a motion under §1404(a).” Employers Mutual, 618 F.3d at 1169. To show that the forum court is
inconvenient, the movant must “(1) identify the witnesses and their locations; (2) ‘indicate the
quality or materiality of the[ir] testimony’; and (3) ‘show[ ] that any such witnesses were
unwilling to come to trial . . . [,] that deposition testimony would be unsatisfactory[,] or that the
use of compulsory process would be necessary.’” Id. (quoting Scheidt, 956 F.2d at 966 (brackets
omitted) (internal quotation marks omitted); see also 15 Charles A. Wright, Arthur R. Miller,
Edward H. Cooper & Catherine T. Struve, Federal Practice and Procedure Wright, § 3851, at
227–28 (4th ed. 2008) (“If the moving party merely has made a general allegation that necessary
witnesses are located in the transferee forum, ... the application for transferring the case should
be denied....”).
Mr. Johnson describes two witnesses, besides himself, who live in Tennessee: Travis
Martzall, Dyno’s General Manager, and an unidentified sales manager employed by Hermitage
Explosives. The other witnesses Mr. Johnson identifies, Todd Wallwork of Warex and Tom
McMahan of Brandywine, line in Evansville, Indiana, and Paris, Kentucky, respectively. And at
least two other witnesses, Steve Salter and John Droubay, live in Utah.
If two witnesses live in Tennessee, two live in Utah, and the rest live somewhere in the
middle, then the forums are equally convenient. The court is not persuaded by Mr. Johnson’s
argument that it is decisively more convenient for the Indiana and Kentucky witnesses to travel
to Tennessee than to Utah—either way, a flight or long car ride is likely required. And, to the
extent the Indiana and Kentucky witnesses are beyond the 100-mile radius of the District of

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Utah’s subpoena power, they also are beyond the subpoena power of the Middle District of
Tennessee. 4
Moreover, Mr. Johnson has not provided any declarations from witnesses stating that
they would be unable or unwilling to travel to Utah. Compare Rodriguez-Cayro v. RodriguezCayro, No. 217CV01197HCNPMW, 2019 WL 4917066, at *4 (D. Utah Oct. 4, 2019) (granting
transfer where the defendant sufficiently detailed the significance of his witnesses’ anticipated
testimony and provided declarations from most witnesses stating they would be unwilling to
travel to the forum state). Tennessee and Utah are equally convenient forums for the witnesses,
so this factor is neutral.
C.

Cost of Making Necessary Proof

The cost of litigating this case in Utah is not significantly more than it would be in
Tennessee. Unlike in Star Stone Quarries, Inc. v. Garland, where “almost all of the evidence and
witnesses for trial” were located in the transferee state, the witnesses in this case are spread out
equally among and between Utah and Tennessee. 300 F. Supp. 2d 1177, 1182 (D. Utah 2003).
Likewise, Mr. Johnson does not mention any evidence in Tennessee that does not also exist in
Utah. The cost of depositions would likely be the same in either forum because depositions are
often conducted virtually. This factor is neutral.
D.

Enforceability of Judgment

Dyno requests injunctive relief, including an order requiring “Johnson to immediately
terminate working for Warex, and prohibiting him from working for any competitor of Dyno…”
(Compl. at 18.) Any injunction awarded against Mr. Johnson would be more easily enforced

4

Evansville, Indiana, is located 150 miles from Nashville and Paris, Kentucky, is located 230
miles from Nashville.
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from Tennessee, where he lives and works. Still, “a judgment issued in [the District of Utah] is
enforceable in any district in the country.” Cmty. Television of Utah, LLC v. Aereo, Inc., 997 F.
Supp. 2d 1191, 1207 (D. Utah 2014). As such, this factor weighs only slightly in Mr. Johnson’s
favor.
E.

Advantages and Obstacles to a Fair Trial

Mr. Johnson says that if this case is not transferred it is “a virtual certainty” that thirdparty witnesses will only be heard through deposition testimony, which would be “unfair.”
(Def.’s Mot. at 22–23.) But again, Mr. Johnson has not provided any evidence that the
prospective third-party witnesses in this case are unable or unwilling to travel to Utah. There is
no indication that a trial held in Utah would be less fair than a trial held in Tennessee in any
other respect. This factor is neutral.
F.

Difficulties Arising from Congested Dockets

Mr. Johnson provides statistics from the District of Utah and the Middle District of
Tennessee about median time from filing to disposition in each court, the median time from
filing to trial in each court, the number of pending cases per judge in each court, and the average
weighted filings per judge. But the difference in statistics between the two courts is negligible.
For example, the average number of months from filing to disposition was 10.4 months in Utah
versus 10.3 months in Tennessee as of September 30, 2020. (See Def.’s Mot. at 23.)
Consequently, this factor is neutral.
G.

Conflicts of Laws & Advantage of Local Courts Determining Local

“In a diversity action, courts prefer the action to be adjudicated by a court sitting in the
state that provides the governing substantive law.” Employers Mutual, 618 F.3d at 1170. Yet this
factor receives less weight when the case involves “relatively simple” legal issues. Id.

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There is little question that the Employment Agreement, from which Dyno’s breach of
contract claims arise, is governed by Utah law. The more complicated issue is which state’s law
governs Dyno’s tort claims.
To figure this out, the presiding court must apply its own state’s choice of law rules. Utah
and Tennessee both apply the “most significant relationship” approach for tort claims, as
described in the Restatement (Second) of Conflict of Laws. Hataway v. McKinley, 830 S.W.2d
53, 59–60 (Tenn. 1992); Waddoups v. Amalgamated Sugar Co., 54 P.3d 1054, 1059 (Utah
2002). This approach provides that the rights and liabilities of the parties to an action in tort are
determined by the local law of the state that has the most significant relationship to the incident
and the parties involved.
Although the court refrains from performing a full choice-of-law analysis in this order, it
seems likely that Tennessee law will govern Dyno’s tort claims under the most significant
relationship approach. Consequently, if this case remains in Utah, this court will apply Utah law
to the contract claims and Tennessee law to the tort claims. The same would be true if this case
were to be transferred to the Middle District of Tennessee. On the whole, this factor is neutral.
Finally, “when the merits of an action are unique to a particular locale, courts favor
adjudication by a court sitting in that locale.” Id. at 1170. This case does not involve issues that
are unique to Utah or Tennessee.
In sum, the balance of factors weighs against transferring this case. Dyno’s choice of
forum heavily favors keeping this case in the District of Utah, and only one factor—
enforceability of the judgment— tilts slightly in Mr. Johnson’s favor. All of the remaining
factors are neutral, and a venue transfer would merely shift the inconvenience from Mr. Johnson
to Dyno. Accordingly, Mr. Johnson’s request to transfer venue is denied.

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ORDER
For the reasons stated, Mr. Johnson’s motion to dismiss for lack of personal jurisdiction
or, in the alternative, to transfer venue (ECF No. 6) is DENIED.
DATED this 27th day of April, 2021.
BY THE COURT:

TENA CAMPBELL
U.S. District Court Judge

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