Motion to Dismiss re Personal Jurisd; Transfer Venue

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Motion to Dismiss re Personal Jurisd; Transfer Venue

Postby Administrator » Thu Oct 02, 2014 11:52 am

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NEW ORLEANS DIVISION



LAS ENTERPRISES, INC. CIVIL ACTION NO.
2:11-CV-02196-MVL-KWR
VERSUS JUDGE LEMMON

ACCU-SYSTEMS, INC. MAGISTRATE ROBY

MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS OR, ALTERNATIVELY, TO TRANSFER ACTION

MAY IT PLEASE THE COURT:
Defendant, ACCU-SYSTEMS, INC., respectfully files this Memorandum in Support of its MOTION TO DISMISS OR, ALTERNATIVELY, TO TRANSFER ACTION and asserts that plaintiff’s Action should be dismissed pursuant to Rules 12[b][2], 12[b][3], 12[b][6] and 12[b][7] of the Federal Rules of Civil Procedure and other applicable substantive and procedural laws, or alternatively to transfer the Action to the State of Utah, pursuant to 28 U.S.C. 1404 or 28 U.S.C. 1406, as follows:
I. BACKGROUND
Accu-Systems, Inc., is a Utah company. At this time or in the past, Accu-Systems, Inc., has: [1] no business operations in Louisiana; [2] no addresses in Louisiana; [3] no agents in Louisiana; [4] no employees in Louisiana; [5] no assets in Louisiana. Accu-Systems, Inc., has sold a total of five [5] business machines to persons from the State of Louisiana within the past four [4] years. In each of those instances, the person[s] from Louisiana either contacted Accu-Systems, Inc., in Utah, and requested that Accu-Systems, Inc., build and sell a business machine for the Louisiana resident/business or the person[s] from Louisiana contacted some other non-Louisiana distributor who, in turn, contacted Accu-Systems, Inc., and requested that Accu-Systems, Inc., build and sell a business machine for the Louisiana resident/business. In the latter instances, Accu-Systems, Inc., contracts with the distributor and is paid by the distributor and has limited Utah-based contacts with the person[s] from Louisiana. That was the occasion in this case with plaintiff.
The only contacts between any Louisiana resident/business and Accu-Systems, Inc., derived from the Louisiana residents/businesses contacting Accu-Systems, Inc., directly or indirectly, and not vice-versa. Accu-Systems, Inc., did not seek out those specific customers. Again, the Louisiana-based customers either called Accu-Systems, Inc., in Utah, and contacted Accu-Systems, Inc., and requested Accu-Systems, Inc., to perform the manufacturing in Utah or contacted some other non-Louisiana-based distributor and solicited the distributor in making contact with Accu-Systems, Inc. On some occasions, the Louisiana residents/businesses would send representatives to Utah to oversee the construction and design of the machines they ordered from Accu-Systems, Inc. Upon completion of construction and the sale of machines in Utah, the Louisiana residents/businesses would take delivery of the Accu-Systems, Inc.-manufactured machine. On some occasions, the Louisiana resident/business would ask that Accu-Systems, Inc., ship the machine to the State of Louisiana, post-sale, or have Accu-Systems, Inc., deliver and install the machine in the State of Louisiana, post-sale..
Accu-Systems, Inc., does not advertize in the State of Louisiana. Accu-Systems, Inc., does not have an office or place of business in the State of Louisiana. Accu-Systems, Inc., is not doing business in the State of Louisiana. Accu-Systems, Inc., is not registered to do business within the State of Louisiana. Accu-Systems, Inc., has no registered agent in the State of Louisiana.
Accu-Systems, Inc., does have employees travel to trade-shows in different states and does, from time to time, make presentations about the company, but Accu-Systems, Inc., has not made any trade show marketing presentations in the State of Louisiana. Accu-Systems, Inc., has and continues to employ two regional sales managers, one of whom is assigned the eastern one-half of the United States. His name is Joe Berry [“Berry”] and he resides in North Carolina, where he maintains a residence and office. Berry has traveled to Louisiana approximately three times in the last four years, the period in which Accu-Systems, Inc., employed him as a sales manager. Prior to that, Accu-Systems, Inc., had no regional sales manager or other sales person assigned to that region.
None of Berry’s few contacts with the State of Louisiana resulted in any sale or revenue or work for Accu-Systems, Inc. Berry did not initiate any contact or event leading to the transaction between plaintiff and Advantek Machinery, LLC, as explained further below. Again, the few contacts that the only Accu-Systems, Inc., employee has initiated with Louisiana resulted in no sale[s], no revenue[s] and no work, of any kind, for Accu-Systems, Inc., or anyone connected to Accu-Systems, Inc. Accu-Systems, Inc., has no sister companies, affiliated companies or other persons for whom Accu-Systems, Inc., markets. Accu-Systems, Inc., receives orders for custom-made machines at its physical offices in Salt Lake City, Utah, and the company manufactures all of its products in Utah.
The Plaintiff in this case, LAS ENTERPRISES, INC., a Louisiana-based entity, contacted Accu-Systems, Inc., in Utah, through plaintiff’s agent, Advantek Machinery, LLC, a Tennessee company. Plaintiff placed an order with Advantek Machinery, LLC, for a custom-built machine [“subject machine”] to be manufactured in the State of Utah. The subject machine was designed and built in Utah. There were no Louisiana contacts whatsoever in this contract to build/manufacture transaction. The subject machine that the Plaintiff received was designed and manufactured in Utah. The contract to build between Plaintiff and Advantek Machinery, LLC, was actually executed in Lakeland, Tennessee, between Plaintiff and Advantek Machinery, LLC, at a business location of Advantek Machinery, LLC. See Affidavit of M.Hatch and attached EXH. 1 to affidavit. Advantek Machinery, LLC, in turn, contacted Accu-Systems, Inc., and requested that the subject machine be designed, in part, and built by defendant.
Advantek Machinery, LLC did advise Accu-Systems, Inc., that the subject machine was being designed and constructed for plaintiff. Advantek Machinery, LLC has no other relationship to Accu-Systems, Inc. Advantek Machinery, LLC is obviously aware of Accu-Systems, Inc., products and reputation in the industry and will refer customers to Accu-Systems, Inc., if it decides to but is not required to do so. Advantek Machinery, LLC can order products to be built by Accu-Systems, Inc, such as in this case. Plaintiff could have ordered the subject machine directly from Accu-Systems, Inc. Accu-Systems, Inc., is well known in its industry for quality products. Advantek Machinery, LLC is not employed by Accu-Systems, Inc. Advantek Machinery, LLC is not an agent of Accu-Systems, Inc. Advantek Machinery, LLC is not entitled to solicit orders for Accu-Systems, Inc., as a broker for Accu-Systems, Inc. Advantek Machinery, LLC is not entitled to design or perform any act of manufacture for Accu-Systems, Inc. Advantek Machinery, LLC is not entitled to invoice for Accu-Systems, Inc. Advantek Machinery, LLC is not entitled to collect monies or deposits for Accu-Systems, Inc. Advantek Machinery, LLC may choose to refer a potential customer to Accu-Systems, Inc., however there are no referral contracts between Advantek Machinery, LLC and Accu-Systems, Inc. There is not any kind of exclusive referral arrangement or the like involved.
Accu-Systems, Inc., made a written estimate and quotation to Plaintiff, through Advantek Machinery, LLC. Advantek Machinery, LLC invoiced Plaintiff for the purchase of the subject machine. See Affidavit of M.Hatch and attached EXH. 1 to affidavit. Plaintiff paid Advantek Machinery, LLC, for the subject machine. Advantek Machinery, LLC, paid Accu-Systems, Inc., for the subject machine. See Affidavit of M.Hatch and attached EXH. 2 to affidavit.
Demonstrations to the Plaintiff regarding Accu-Systems, Inc., products, and demonstrations regarding the subject machine that Advantek Machinery, LLC ordered, for plaintiff’s approval and acquisition, took place in Utah. When Accu-Systems, Inc., finished manufacturing the subject machine that the Plaintiff acquired, the Plaintiff’s representatives traveled to Utah to approve samples and to check the subject machine to make sure it was viable for the purpose that the subject machine was designed for. In Utah, Plaintiff’s representatives reviewed the subject machine, ran the subject machine, received hands-on instructions for operation, maintenance and upkeep for the subject machine, and approved outputted samples which were produced by the subject machine in Utah, prior to transfer of the subject machine.
Initial delivery of the subject machine was delayed because, during manufacture, Advantek Machinery, LLC, on behalf of the Plaintiff, requested changes in the subject machine. The subject machine was manufactured per the exact specifications of plaintiff and Advantek Machinery, LLC. In Utah, Plaintiff approved the subject machine prior to shipping.
After the manufacture and transfer of ownership of the subject machine, under a new agreement and on an hourly rate charge separate from the contract to build between Advantek Machinery, LLC, and defendant, plaintiff contacted defendant and requested that a representative of Accu-Systems, Inc., travel to Louisiana to install the subject machine and to make software changes because plaintiff was not proficient with CNC machinery. Plaintiff has never complained about the installation but requested additional computer programming assistance as Plaintiff has no proficient programmers on staff to write additional programs.
Accu-Systems, Inc., made follow up phone calls to Plaintiff and those calls initiated from Utah to Louisiana and some of those calls were responsive contacts. Accu-Systems, Inc., delivered and installed the subject machine in Louisiana, as requested after the delivery of the subject machine.
In this lawsuit, Plaintiff alleged and complained that Accu-Systems, Inc., sold it the wrong machine for its intended purpose and that, allegedly, the Accu-Systems, Inc., machine is designed only for wood-milling and not metal-milling.
II. THE COURT’S SUBJECT MATTER JURISDICTION
This Court has original subject matter jurisdiction by virtue of 28 U.S.C. 1332 as this case involves claims between [corporate] citizens of different states, diversity of citizenship exists by law and the amount in controversy exceeds $75,000.00, per pars. VII and XX of the petition. Plaintiff filed this civil action by petition [also referred to herein as “complaint”] entitled "LAS ENTERPRISES, INC. v. ACCU SYSTEMS, INC., suit no. 703-515-D, 24th Judicial District Court for the Parish of Jefferson, State of Louisiana," in the state district court in Jefferson Parish, Louisiana, and defendant removed the case to this Honorable Court pursuant to 28 U.S.C. 1446. Jefferson Parish is designated as part of the Eastern District of Louisiana and specifically designated as a Parish assigned by the New Orleans Division. 28 U.S.C. 98[a].
III. LACK OF PERSONAL JURISDICTION OVER THE DEFENDANT
Defendant asserts that this Honorable Court lacks personal jurisdiction over the defendant and that defendant lacks requisite contacts with this State [and District] to permit defendant to be haled into court in this State and District. The transactions and events giving rise to the cause of action in this case arose out of state and not in Louisiana. The claims asserted have no Louisiana connection, there are no minimum contacts to support specific personal jurisdiction, and defendant is not subject to specific personal jurisdiction. Further, defendant has had no continuous or systematic contacts with this State [and District] to support a finding of general personal jurisdiction in this State and District. A motion to dismiss this Action based on lack of personal jurisdiction should be granted, pursuant to Rule 12[b][2].
Due process requires that the defendant must have certain minimum contacts with the forum state in order to subject a nonresident defendant to a personal judgment, such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 [1945]; A & L Energy, Inc. v. Pegasus Group, 791 So.2d 1266, 1270 [La. 2001], cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 [2001]; Ruppert v. George Kellett & Sons, Inc., 996 So.2d 501, 506 [La. App. 5 Cir. 2008]. There are two parts to the due process test-“minimum contacts” and “traditional notions of fair play and substantial justice.” A & L Energy, Inc. v. Pegasus Group, supra, at 1271; Ruppert v. George Kellett & Sons, Inc., supra, at 506. The Courts have held that the minimum contacts prong is satisfied “by a single act or actions by which the defendant ‘purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.’” Southeast Wireless Network, Inc. v. U.S. Telemetry Corp., 954 So.2d 120, 125 [La. 4/11/07], citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 [1985]; Ruppert, supra, at 506. “Purposeful availment” must be such that the defendant “should reasonably anticipate being haled into court” in the forum state. Southeast Wireless Network, Inc., supra, at 125, citing Ruckstuhl v. Owens Corning Fiberglas Corporation, 731 So.2d 881 [La. 1999], cert. denied, 528 U.S. 1019, 120 S.Ct. 526, 145 L.Ed.2d 407 [1999]; Ruppert, supra, at 506. “Purposeful availment” ensures that the moving party will not be haled into a jurisdiction solely as a result of a random, fortuitous or attenuated contact, or by the unilateral activity of another party or a third person. Southeast Wireless Network, Inc., supra, at 125; Ruppert, supra, at 506.
The Southeast Wireless Network court explained: “If the defendant deliberately engages in significant activities within a state, or creates continuing obligations between himself and residents of the forum, he manifestly has availed himself of the privilege of conducting business there. Because his activities are shielded by the benefits and protections of the forum's laws, it is presumptively not unreasonable to require the defendant to submit to the burdens of litigation in that forum.” Id. at 125, citing de Reyes v. Marine Management and Consulting, Ltd., 586 So.2d 103, 106 [La.1991]. The foreseeability of causing an injury in another State is not a “sufficient benchmark” for exercising personal jurisdiction. Burger King Corp. v. Rudzewicz, 471 U.S. at 474, 105 S.Ct. at 2174; Ruppert, supra, at 506. The foreseeability that is critical to due process analysis is whether the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. World–Wide Volkswagen Corp. v. Woodson, 444 U.S., 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 [1980]; Ruppert, supra, at 507. The second part of the due process test centers around the fairness of asserting jurisdiction over the defendant. Ruppert, supra, at 507. Even when minimum contacts exist, the exercise of personal jurisdiction over a nonresident defendant will fail to satisfy due process requirements if the assertion of jurisdiction offends “traditional notions of fair play and substantial justice.” A & L Energy, Inc. v. Pegasus Group, supra, at 1271, citing International Shoe, supra. at 158; Ruppert, supra, at 507.
There are two types of personal jurisdiction - general” and “specific” jurisdiction. de Reyes, supra, at 105; Ruppert, supra, at 507. Specific jurisdiction is appropriate when that defendant has purposefully directed its activities at residents of the forum state and the litigation results from alleged injuries that arise out of or relate to those activities. A & L Energy, Inc. v. Pegasus Group, supra, at 1271; citing Burger King, supra, at 2182 n.15; Ruppert, supra, at 507. General jurisdiction attaches where the nonresident defendant's contacts with the forum state, although not related to the plaintiff's cause of action, are continuous and systematic. A & L Energy, Inc. v. Pegasus Group, supra, at 1271; Ruppert, supra, at 507.
Here, there are no contacts related to the cause of action. The after-the-fact installation and reprogramming was unrelated and done at plaintiff’s request. Defendant’s sales manager has come to Louisiana several times but no sales, no revenue and no work resulted. Defendant has no marketing campaign in Louisiana. Defendant has essentially no contacts with Louisiana. Even if someone could argue that the most trivial form of minimal contacts satisfied that part of the test, defendant has not had sufficient contacts to make it fair to force defendant to litigate in Louisiana. There is no “purposeful availment” by defendant in Louisiana.
IV. IMPROPER VENUE IN THIS DISTRICT
Defendant asserts that this Honorable Court lacks personal jurisdiction over the defendant in this District and that defendant lacks requisite contacts with this District to support venue in this District. Plaintiff filed this Action in an improper venue. The transactions and events giving rise to the cause of action in this case arose out of state and not in this District. The claims asserted have no connection to this District, there are no minimum contacts with this District to support specific personal jurisdiction in the District and therefore venue, and defendant is not subject to specific personal jurisdiction in the District and therefore venue is improper. Further, defendant has had no continuous or systematic contacts with this District to support a finding of general personal jurisdiction in this District and therefore venue. [[The provision of section 1391[c] is applied to unincorporated associations, including limited liability companies. Advocate Financial, L.L.C. v. Parker Interests, L.L.C., 2008 WL 2773650 [U.S.D.C. M.D. La. July 16, 2008]; Dental Arts Lab., Inc. v. Studio 360 The Dental Lab, LLC, 2010 WL 4877708 [U.S.D.C. N.D. Ill. Nov.23, 2010]; Signode v. Sigma Techs. Int'l, LLC, 2010 WL 1251448 [U.S.D.C. N.D. Ill. March 24, 2010]; Century Consultants, Inc. v. Choctaw Racing Servs., LLC, 2005 WL 2671248 [U.S.D.C. E.D.Wis. Oct.18, 2005]; Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Fed. Prac. & Proc: Jurisdiction 3d §3811.1, at 339–40 & n.19 [2007].]] A motion to dismiss this Action based on lack of proper venue should be granted, pursuant to Rule 12[b][3], and the court should dismiss this action or, alternatively, transfer this action to a District in which the action could or should have been brought per 28 U.S.C. 1406. [[Fort Knox Music, Inc. v. Baptiste, 257 F.3d 108, 111 [2d Cir.2001] [“The district court has this power to transfer venue even if it lacks personal jurisdiction over the defendants.”]; U.S. v. Berkowitz, 328 F.2d 358, 361 [3rd Cir.1964] [citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467, 82 S.Ct. 913, 8 L.Ed.2d 39 [1962] [a court may transfer an action under 28 U.S.C. § 1406[a] even though it lacks personal jurisdiction], and holding that, even if a district court does not have personal jurisdiction over a defendant, the court has discretion pursuant to §1404[a] to decide whether a case should be transferred]; CNA Metals West Coast, LLC v. Am. Metal Group, Inc., 2011 WL 128119, at *3 [W.D. Wash. Jan.14, 2011] [finding that the court had jurisdiction to decide a motion to transfer venue pursuant to §1404[a] without reaching a decision on whether personal jurisdiction existed over defendants]; Mentor Graphics Corp. v. Quickturn Design Sys., Inc., 77 F.Supp.2d 505, 512 [D. Del. 1999] [noting that transfer would obviate substantial dispute concerning whether transferor district court could exercise personal jurisdiction over defendant and ruling that judicial economy and interests of justice would be served by transferring case]; see also Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 [9th Cir. 2000] [“under §1404[a], the district court has discretion to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness” [internal quotation marks omitted]]. Turner v. Harrah's New Orleans Hotel & Casino, 2011 WL 1666925 [U.S.D.C. C.D. Cal. 2011].]] Defendant asserts that Utah was the proper state and District under the facts.
V. FAILURE TO NAME NECESSARY AND INDISPENSABLE PARTY
Plaintiff is the Master of [its] the complaint filed. Plaintiff filed a claim in redhibition and asserted claims that it was “sold” the wrong machine. Plaintiff was aware of facts that required it to name, cite/summon and serve a third party, “Advantek Machinery, LLC.” Plaintiff is in privity of contract with Advantek Machinery, LLC, and Advantek Machinery, LLC, had a contract with plaintiff to construct and supply the subject machine. Advantek Machinery, LLC, contracted with plaintiff, invoiced plaintiff and facilitated a sub-contract between Advantek Machinery, LLC, and responding defendant in order to have the subject machine built. Plaintiff couched its claims in “redhibition” but in reality it was a contract to build between Plaintiff and Advantek Machinery, LLC. In terms of claims and remedies, this is not a subtle distinction. In turn, Advantek Machinery, LLC, contracted with defendant. Advantek Machinery, LLC, paid defendant. Plaintiff paid Advantek Machinery, LLC. Advantek Machinery, LLC, communicated with defendant, along with plaintiff, concerning design issues, etc. Defendant did not sell anything to plaintiff. Advantek Machinery, LLC, sold the subject machine to plaintiff. A motion to dismiss this Action, in part, for failure to join a party under Rule 19 should be granted, pursuant to Rule 12[b][7]. Advantek Machinery, LLC, is a party necessary for the adjudication of the claims presented herein. Plaintiff’s purposeful failure to name Advantek Machinery, LLC, as required under Rule 19 should result in dismissal for failure to name a party required by Rule 19.
Federal Rule of Civil Procedure 19 guides the determination of whether VT Halter is a necessary and indispensable party. Rule 19 provides for a two-step analysis. Rule 19[a] provides that a non-party must be joined if they meet the requirements of the rule, are subject to service of process and their joinder will not deprive the court of subject matter jurisdiction. U.S. Marine, Inc. v. U.S., 2008 WL 4443054 [U.S.D.C. E.D. La. 2008]. Joinder of Advantek Machinery, LLC, would not deprive this Court of subject matter jurisdiction. Advantek Machinery, LLC, is a Tennessee limited liability company who, upon information, has no Louisiana or Utah members. Greenville Imaging, LLC v. Washington Hosp. Corp., 326 Fed.Appx. 797, 2009 WL 1657057 [5th Cir. [Miss.] June 15, 2009]; Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077 [5th Cir. [La.] 2008]. The Rule 19[a] analysis is solely to determine if Advantek Machinery, LLC, would be joined as a party but for the fact that joinder would deprive this Court of subject matter jurisdiction. If the Rule 19[a] test is met, as defendant asserts that it is, then the analysis proceeds to Rule 19[b] to determine if Advantek Machinery, LLC, is an indispensable party. Sorrels Steel Co. v. Great Southwest Corp., 906 F.2d 158 [5th Cir.1990]; U.S. Marine, Inc. v. U.S., 2008 WL 4443054 [U.S.D.C. E.D. La. 2008]. There are two reasons to join a party under Rule 19[a]. First, under Rule 19[a][1][A] a non-party should be joined if “the court cannot accord complete relief among existing parties” without joining the non-party. Fed.R.Civ.P. 19[a][1][A]; U.S. Marine, Inc. v. U.S., 2008 WL 4443054 [U.S.D.C. E.D. La. 2008]. This analysis is limited solely to the effect on the current parties; the effect on the non-party is not considered. Pulitzer-Polster v. Pulitzer, 784 F.2d 1305, 1309 [5th Cir.1986]. Rule 19[a][1][B] provides the second reason to join a non-party. A non-party should be joined when that party “claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: [I] as a practical matter impair or impede the person's ability to protect the interest; or [ii] leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” Fed.R.Civ.P. 19[a][1][B]; U.S. Marine, Inc. v. U.S., 2008 WL 4443054 [U.S.D.C. E.D. La. 2008].
Here, Advantek Machinery, LLC, should have been joined by plaintiff as Advantek Machinery, LLC, is the party in privity of contract with plaintiff and plaintiff has asserted, substantially, a contract to build claim and a purported “misrepresentation” claim tied to a contract plaintiff had with Advantek Machinery, LLC. Further, the failure to join Advantek Machinery, LLC, would impair and impede the litigation as defendant has no contract with plaintiff, as plaintiff artfully failed to plead and mention details of the contractual scenario in this instance. Given Advantek Machinery, LLC’s substantial role in the design and selection of the subject machine, as well as role in oversight, it is inconceivable that Advantek Machinery, LLC, would not be a named party. Further, absent Advantek Machinery, LLC, plaintiff might sue Advantek Machinery, LLC, in Tennessee or also in Louisiana or maybe in Utah, claiming that Advantek Machinery, LLC, is liable unto plaintiff. In turn, Advantek Machinery, LLC, would have an interest in naming defendant based on the contract between Advantek Machinery, LLC, and defendant.
Advantek Machinery, LLC, is a real party in interest and as the contracting party with plaintiff, Advantek Machinery, LLC, has real and substantial rights and interests affected by this Action. It has a right to enforce its contract with defendant. Advantek Machinery, LLC, is also in privity of contract with plaintiff. Farrell Const. Co. v. Jefferson Parish, La., 896 F.2d 136 [5th Cir. [La.] 1990]; Fed.R.Civ.P. 17,19. Under Louisiana state law, which the court must apply in this analysis, under Erie, et al, privity of contract is not even required to deem a party to be necessary or indispensable. Here, warranties run from defendant to Advantek Machinery, LLC. Kirkland v. Lummus Co., 230 F.Supp. 793 [U.S.D.C. E.D. La. 1964]. There is no third party beneficiary contract scenario here either. Based on privity, Advantek Machinery, LLC, is a necessary and indispensable party under Louisiana law. Denkmann Associates v. International Paper Co., 132 F.R.D. 168 [U.S.D.C. M.D. La. 1990].
VI. NO CAUSE OF ACTION
Defendant is not subject to a claim in redhibition and, under the facts stated in the complaint, plaintiff had a contract to build with Advantek Machinery, LLC. Defendant asserts that plaintiff has failed to state a cause of action and claim against this defendant: [I] in redhibition, under the facts stated in the complaint; and [ii] for the remedy of attorneys’ fees. La. C.C. arts. 1994, et. seq. A motion to dismiss this Action, in part, for failure to state a cause of action should be granted, pursuant to Rule 12[b][6].
"Three major factors are used to determine whether or not a contract is one of sale or one to build: [1] The buyer has some control over the specifications of the object, [2] the negotiations generally take place before the object is constructed, and [3] the parties contemplate that one of them will supply the materials and his skill and labor in order the construct the specified object. Duhon v. Three Friends Homebuilders Corp., 396 So.2d 559, 561 [La.App. 3 Cir.1981]; Keglers, Inc. v. Levy, 239 So.2d 450 [La.App. 4 Cir.1970], writ denied, 256 La. 1150, 241 So.2d 253 [1970]; Airco Refrigeration Service, Inc. v. Fink, 242 La. 73, 134 So.2d 880 [1961]." Hebert v. McDaniel, 479 So.2d 1029 [La. App. 3 Cir. 1985]. A building contract results in construction of a product over which the buyer [Advantek Machinery, LLC] had some or total control. Advantek Machinery, LLC, [and even plaintiff] did. Further, negotiations between Advantek Machinery, LLC, and defendant resulted from the quotation request. Defendant supplied the materials and labor to build the subject machine for Advantek Machinery, LLC. Redhibition applies to sales of products or things that are either existing or which the buyer has little control over design or manufacturing aspects. The distinction has existed in Louisiana law since inception. Harris v. Williams, 679 So.2d 990 [La. App. 2 Cir. 1996]; Linzay v. Sandy Ewing Aquatech Pools, Inc., 546 So.2d 311 [La. App. 3 Cir. 1989]; Degeneres v. Burgess, 486 So.2d 769 [La. App. 1st Cir.1986]; Wurst v. Pruyn, 250 La. 1109, 202 So.2d 268 [1967]; Unverzagt v. Young Builders, Inc., 207 So.2d 405 [La. App. 3rd Cir.1967], affirmed, 252 La. 1091, 215 So.2d 823 [La.1968]; Catalina Pools v. Sellers, 322 So.2d 812 [La. App. 4th Cir.1975]; Holland v. Hurst, 385 So.2d 495 [La. App. 1st Cir.1980]; Aizpurua v. Crane Pool Co., Inc., 439 So.2d 572 [La. App. 1st Cir.1983], modified, 449 So.2d 471 [La.1984]; Hageman v. Foreman, 539 So.2d 678 [La. App. 3 Cir.1989].
“Under Louisiana law, attorneys' fees are not recoverable except where such recovery is authorized by statute or contract. See Ogea v. Loffland Brothers Co., 622 F.2d 186 [5th Cir.1980].” Saddler v. Chesapeake Louisiana, LP, Slip Copy, 2009 WL 2487994 [U.S.D.C. W.D. La. August 11, 2009]. Neither instance exists under the allegations of the complaint.
VII. FORUM NON-CONVENIENS
Alternatively, defendant asserts that the Eastern District of Louisiana is an inconvenient forum. The witnesses to the design and manufacture of the subject machine are in Utah. The processes used to fabricate the subject machine are in Utah. Advantek Machinery, LLC, is located in Tennessee and its witnesses are there. The machine itself is large and could not be brought to the courthouse as evidence and a video of its operation would be used and therefore location of the machine itself is not a factor. There are far more witnesses and evidence in Utah than in Tennessee or Louisiana and the interests of justice, as well as convenience of the parties and witnesses, tilts in favor of a discretionary transfer based on forum non conveniens per 28 U.S.C. 1404.
Alternatively and only in the event this Honorable Court finds personal jurisdiction over defendant and finds proper venue, then defendant moves this Honorable Court to transfer this cause to the District of Utah, Salt Lake City Division, a District with proper venue, where defendant resides, where the subject equipment was manufactured, where the witnesses to the design, manufacture and operations are located, where the contract and all negotiations occurred, where payments were made, where all witnesses [other than plaintiff and plaintiff’s agent] are located and where all events transactions occurred. 28 U.S.C. 1404[a]; Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 8 Fed.R.Serv.2d 17b.11, 1, 11 L.Ed.2d 945, [U.S. 1964] [Pa.]. This District lacks an adequate factual nexus to the events underlying the alleged cause of action. [[“Generally, the plaintiff's choice of forum is accorded great weight; however, none of the relevant conduct occurred in this district, and the plaintiff is actually a resident of the Middle District of Pennsylvania. Under these circumstances, plaintiff's choice of forum is given less deference. Wolfson v. Diamond Crystal Salt Co., No. 88-4103, 1989 U.S. Dist. LEXIS 1079 [E.D. Pa. February 8, 1989]; Rowles v. Hammermill Paper Co., 689 F.Supp. 494, 495-496 [E.D. Pa.1988]. Plaintiff's choice of forum is accorded little weight, and the other relevant factors point in favor of transfer. The factors that must be considered are:1. relative ease of access to sources of proof; 2. availability of compulsory process for attendance of unwilling witnesses; 3. cost of attendance at trial by willing witnesses; 4. the possibility of view of the premises, if appropriate; 5. all other practical problems that make trial of a case easy, expeditious, and inexpensive; and 6. “public interest” factors, including the relative congestion of court dockets, and the advantage of having local issues of law and fact determined by local courts and juries. Rowles, 689 F.Supp. at 495.” Mullen v. New Jersey Steel Corp., Not Reported in F.Supp., 1989 WestLaw 20193, [U.S.D.C. E.D. Pa. 1989]. Also see: Ross v. Consolidated Rail Corp., Not Reported in F.Supp., 1989 WestLaw 11721, [U.S.D.C. E.D. Pa. 1989]; DPR Const., Inc. v. IKEA Property, Inc., Not Reported in F.Supp.2d, 2005 WestLaw 1667778 [U.S.D.C. E.D. Va. 2005].]] Berthelot v. Foti, 2003 WL 1462930 [U.S.D.C. E.D. La. 2003]; Paul v. International Metals Corp., 613 F.Supp. 174, 179 [U.S.D.C. S.D. Miss.1985]; 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure §3848 [1986]. Transfer of venue would serve to protect all of the litigants, witnesses and public from unnecessary expense, burden and inconvenience. The interests of justice mandate a transfer to Utah.
Obviously, a plaintiff would like to select a district in which the plaintiff lives, in order to litigate. This plaintiff did so. The problem is that this District has no identifiable nexus to the activities, events and transactions underlying this Action, except that the machine was ultimately delivered to Louisiana. Cowan v. Jack, 2002 WL 927788 [U.S.D.C. E.D. La. 2002]. Defendant had a contract with a Tennessee company to manufacture the machine. The contacts, negotiations, manufacture, set-up programming, etc., all occurred in Utah. Plaintiff cannot create venue by baiting defendant to reprogram and install a machine. The machine itself functions precisely as designed and built. It was plaintiff who failed to properly operate it and asked for reprogramming under a separate contract. The reprogramming provided is not the subject of this lawsuit. The witnesses to and evidence of the manufacturing are in Utah.
The Utah courts are far less congested than this District and can more easily handle this action. Administrative difficulties caused by court congestion could occur in this District. Reports show that the District of Utah is fair less congested and, while it can be argued that all courts are overly crowded with cases, courts have uniformly held that the “speed of disposition of lawsuits” without any connection to the forum District “is not a valid reason for forum shopping” and filing cases without any rational nexus to the forum district could create congestion beyond that district's resources. Hanby v. Shell Oil Co., 2001 WL 640639, at *5 [U.S.D.C. E.D. Tex. 2001]; Rock Bit Internat'l, Inc. v. Smith Internat'l, Inc., 957 F.Supp. 843, 844 [U.S.D.C. E.D.Tex. 1997]. “[T]he courts of this district should not be required to expend judicial resources on matters that have little relationship to this district.” Varnado v. Danek Medical, Inc., No.Civ.A. 95–1802, 1998 WL 524896, at * 3 [U.S.D.C. E.D. La. August 19, 1998]. These factors weigh heavily in favor of a transfer to the District of Utah.
The burdens of jury duty, because the alleged events and transactions that gave rise to this lawsuit occurred in Utah and because Utah law must be applied in this case, the citizens of this District should not be burdened with jury duty in this case. It seems most fair and just that the citizens of the District of Utah be called upon to decide disputed facts in this case. “Under these circumstances, the waste of judicial resources and imposition upon the citizens of this state are manifest.” Hartford Fire Ins. Co. v. Westinghouse Electric Corp., 725 F.Supp. at 322 [U.S.D.C. S.D. Miss. 1989]. Accordingly, these factors weigh in favor of a transfer to Utah.
Utah law would apply [[In Martin v. Martin, 38 So.3d 1174 [La. App. 1 Cir. 2010], the court noted that “Louisiana Civil Code article 3537 sets forth the general rule to resolve conflict of laws relating to contracts. It provides: ‘Except as otherwise provided in this Title, an issue of conventional obligations is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of the involved states in the light of: [1] the pertinent contacts of each state to the parties and the transaction, including the place of negotiation, formation, and performance of the contract, the location of the object of the contract, and the place of domicile, habitual residence, or business of the parties; [2] the nature, type, and purpose of the contract; and [3] the policies referred to in Article 3515, as well as the policies of facilitating the orderly planning of transactions, of promoting multistate commercial intercourse, and of protecting one party from undue imposition by the other.’ Louisiana Civil Code article 3515 sets forth general principles of conflict of laws applicable in the event that a more specific article does not apply, but those general principles are at the same time the basic foundation of the specific principles of the other articles on conflict of laws. See La. C.C. art. 3515, Revision Comments-1991, [a]. It provides as follows: Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: [1] the relationship of each state to the parties and the dispute; and [2] the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state.” All factors favor Utah law as to the contract between Advantek Machinery, LLC, from Tennessee, and defendant, from Utah.]] to the contract between defendant and Advantek Machinery, LLC. Defendant’s processes and products would be subject to Utah products liability law and contract to build/manufacture laws, not Louisiana. There is no Louisiana-based contract between plaintiff and defendant at issue. [[How could Louisiana law ever be applied to a contract between Advantek Machinery, LLC, from Tennessee, and defendant, from Utah. Further, even plaintiff’s contract with Advantek Machinery, LLC, was executed in Tennessee and provides for application of Tennessee law to that contract. Where is Louisiana law? It is not involved. Forum shopping by plaintiff should not be allowed. A court is more likely to find a plaintiff engaged in impermissible forum shopping where the federal action would change the applicable law. Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 n. 3 [5th Cir.1983]; Sherwin-Williams Co. v. Holmes County, 343 F.3d 383, 387 [5th Cir. 2003]; AXA Re Property & Cas. Ins. Co. v. Day, 162 Fed.Appx. 316 [5th Cir. [Miss.] 2006].]] There are a number of Utah-based witnesses, including consultants, engineers and other professionals involved in the manufacture and design aspects, who are not subject to compulsory service of process in Louisiana and it will burden defendant and impair the presentation of evidence at trial. Even if some would be willing to travel to testify, the costs associated and to be born by defendant would be overwhelming at an hourly rate, together with associated expenses. All the while, there is little cost to plaintiff in traveling to Utah as plaintiff had done in the past. These factors weigh heavily in favor of transfer to Utah.
The Court must consider the location of counsel as a convenience factor. This factor is to be given some weight when compared to the other convenience factors. Robertson v. Kiamichi RR Co., L.L.C., 42 F.Supp.2d 651, 655 [U.S.D.C. E.D. Tex.1999]; Reed v. Fina Oil and Chemical Co., 995 F.Supp. 705, 715 [U.S.D.C. E.D. Tex.1998]. In the present case, the Plaintiff’s counsel is located in New Orleans, Louisiana, and counsel for Defendants are located in Shreveport, Louisiana and the State of Utah. This factor weighs in neither parties’ favor.
Transfer of this Action to the District of Utah is proper.
CONCLUSION
Defendant’s motion should be granted.
Respectfully submitted,

Bodenheimer, Jones & Szwak, LLC


/s/ David A. Szwak
By: ______________________________________
David A. Szwak, LBR# 21157, TA
416 Travis Street, Ste. 1404
Mid South Tower
Shreveport, Louisiana 71101
[318] 424-1400
FAX 221-6555

WIMMER & PITTS, P.C.


By: ______________________________________
JUDSON PITTS, UBR# 09946
45 West 10000 South, Suite 211
Sandy, Utah 84070
[801] 285-8737
FAX 285-8738
ATTORNEY FOR DEFENDANT

CERTIFICATE OF SERVICE
I hereby certify that a copy of the above and foregoing has been served upon all counsel of record, as noted below, by placing a copy of same in the United States Mail, properly addressed and first class postage pre-paid on this the 13th day of September, 2011.

Lee Rand, Attorney
1010 Common Street #2700
New Orleans, LA 70112-2428
/s/ David A. Szwak
___________________________________
OF COUNSEL
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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