Opinion
CIVIL ACTION FILE No. 1:19-cv-01533-SCJ
11-14-2019
WEINSTEIN GROUP, INC., d/b/a Brightwell Talent Services, Plaintiff, v. O'NEILL & PARTNERS, LLC, Defendant.
William Daniel Davis, Ichter Davis, LLC, Atlanta, GA, for Plaintiff. Jonathan Palmer, Knight Law LLC, Joseph C. Sullivan, Taylor English Duma LLP, Atlanta, GA, Nicholas Tivy Sears, Knight Palmer, LLC, for Defendant.
William Daniel Davis, Ichter Davis, LLC, Atlanta, GA, for Plaintiff.
Jonathan Palmer, Knight Law LLC, Joseph C. Sullivan, Taylor English Duma LLP, Atlanta, GA, Nicholas Tivy Sears, Knight Palmer, LLC, for Defendant.
ORDER
HONORABLE STEVE C. JONES, UNITED STATES DISTRICT JUDGE
This breach of contract action comes before the Court on Defendant's Motion to Dismiss, or in the Alternative, to Transfer Venue (Doc. No. [5] ), and Plaintiff's Motion for Leave to Conduct Jurisdictional Discovery and to Deny Defendant's Motion Without Prejudice (Doc. No. [8] ).
I. BACKGROUND
This breach of contract action was originally filed in the Superior Court of Fulton County. Doc. No. [1], p. 1. Plaintiff Weinstein Group, Inc., d/b/a BrightWell Talent Services (hereinafter "BrightWell") is a Georgia corporation specializing in executive search and placement services. Doc. No. [7], p. 1. Defendant O'Neill & Partners (hereinafter "O'Neill") is a law firm organized as a limited liability company ("LLC"). Doc. No. [5-1], p. 1. O'Neill is registered in Maryland and has its principle place of business in Maryland. Id. O'Neill has no offices outside of Maryland. Doc. No. [5-1], ¶ 5. O'Neill's sole owner, Brian O'Neill (hereinafter "Mr. O'Neill"), is a citizen of Maryland. Doc. No. [5-1], p. 2. O'Neill removed this action pursuant to 28 U.S.C. §§ 1332, 1441 and 1446. Doc. No. [1], p. 1.
O'Neill now argues that this Court does not have personal jurisdiction over it, because it is a foreign LLC, and the transaction at issue here does not fall within the purview of Georgia's long-arm statute. Doc. No. [5], p. 1. It therefore moves to dismiss the action without prejudice so that BrightWell may refile in Maryland if it so chooses. Id. at 1–2. Alternatively, O'Neill moves the Court to dismiss or transfer this action for improper venue to the Northern District of Maryland, pursuant to 28 U.S.C. § 1406 or § 1404. Id. In support of its Motion, O'Neill provides the declaration of Mr. O'Neill. See O'Neill Decl., Doc. No. [5-2].
In or around May 2018, O'Neill solicited BrightWell to source attorneys for the law firm. Doc. Nos. [7], p. 1; [7-1], ¶ 4. It is undisputed that BrightWell did source, and O'Neill did retain, three attorneys ("the Attorneys"). Doc. Nos. [7], p. 2; [5-2], ¶ 16. One of those Attorneys, Dimeji Ogunsola (hereinafter "Mr. Ogunsola"), resides and is licensed to practice in Georgia. Doc. No. [7], p. 3. O'Neill paid BrightWell a $5,000 fee for its services. Id. However, BrightWell alleges that O'Neill's failed to pay $126,000 in placement fees for the Attorneys. Id.; Doc. No. [7-1], ¶ 17.
It is unclear whether Mr. Ogunsola ever practiced law in Georgia for the benefit of O'Neill. Mr. O'Neill stated that "[n]one of the Attorneys" sourced by BrightWell "are still employed by O'Neill." O'Neill Decl., Doc. No. [5-2], ¶ 18. However, BrightWell's Exhibits show that, as of April 17, 2019, the State Bar of Georgia listed Mr. Ogunsola as affiliated with O'Neill and provides an Atlanta address, O'Neill's website designated Mr. Ogunsola as "Of Counsel," and O'Neill's website specifically noted Mr. Ogunsola is licensed to practice in Georgia (and only Georgia). Doc. No. [7-1], pp. 37, 39.
The nature of the agreement between the parties is disputed. In response to O'Neill's Motion to Dismiss, BrightWell provides the affidavit of Vincent Stewart (hereinafter "Mr. Stewart"), the BrightWell employee who dealt with O'Neill. See Stewart Aff., Doc. No. [7-1]. BrightWell alleges that Mr. O'Neill approached it about placement services and told Mr. Stewart he was "thinking about opening an office in Atlanta," had "looked at space in Buckhead and Midtown," and "inquired about sub-letting space from BrightWell in order to operate in Georgia." Id. ¶ 5. Mr. Stewart stated that he "texted [Mr.] O'Neill pictures of BrightWell's office so he could evaluate its suitability," and that he "specifically searched for and referred candidates licensed to practice in Georgia" because Mr. O'Neill "stated [O'Neill] was interested in conducting business in Georgia." Id. at ¶¶ 5, 10.
O'Neill does not dispute that Mr. O'Neill toured office space in Atlanta. See Doc. No. [9]. However, it asserts that the possibility of opening an Atlanta office was merely "an idea," and that "permitting a plaintiff to assert personal jurisdiction over a defendant based on ... thoughts/hopes/dreams of one day" operating in the forum state would be "troublesome." Id. at p. 4. It argues that, to the extent BrightWell focused its search on attorneys licensed in Georgia, this was based on BrightWell's understanding of O'Neill's goals—not any explicit request from O'Neill. Doc. No. [9], pp. 4–5.
BrightWell disputes this and argues that by stating there were no such requests made "at the time of the Agreement," Doc. No. [5-2], ¶ 15, O'Neill admits by implication that such requests were explicitly made as the parties continued to correspond. Doc. No. [7], pp. 2–3, fn. 5.
Should the Court be inclined to grant O'Neill's Motion to Dismiss, BrightWell requests that the Court instead allow jurisdictional discovery into this matter. See Doc. No. [8]. It requests that it be permitted to (1) send O'Neill a "limited number of interrogatories and requests for production," (2) conduct a limited Rule 30(b)(6) deposition of O'Neill, and (3) subpoena Mr. Ogunsola. Id. at pp. 1–2. BrightWell requests that such discovery be expedited. Id.
II. LEGAL STANDARD
A plaintiff must establish a prima facie case of jurisdiction to survive a motion to dismiss. Francosteel Corp. v. M/V Charm, 19 F.3d 624, 626 (11th Cir. 1994). "The district court must accept the facts alleged in the complaint as true, to the extent they are uncontroverted by the defendant's affidavits." Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990) (citations omitted). If "the plaintiff's complaint and the defendant's affidavits conflict, the district court must construe all reasonable inferences in favor of the plaintiff." Id.; see also Aero Toy Store, LLC v. Grieves, 279 Ga. App. 515, 524, 631 S.E.2d 734, 741 (2006) ("Any disputes of fact in the written submissions supporting and opposing the motion to dismiss are resolved in favor of the party asserting the existence of personal jurisdiction."). Therefore, to the extent the parties have made conflicting assertions in their submissions, the Court will construe facts and draw reasonable inferences in favor of BrightWell.
Georgia's long-arm statute confers personal jurisdiction to the maximum extent allowed by the Due Process Clause of the federal Constitution. See Francosteel Corp., Unimetal-Normandy v. M/V Charm, Tiki, Mortensen & Lange, 19 F.3d 624, 627 ; Complete Concepts, Ltd. v. General Handbag Corp., 880 F.2d 382, 388 (11th Cir. 1989) ; First United Bank of Miss. v. First Nat'l Bank of Atlanta, 255 Ga. 505, 340 S.E.2d 597, 599 (1986). Thus, "a determination of personal jurisdiction requires consideration of both the Georgia long-arm statute and the Due Process Clause of the [Fourteenth Amendment]." Paul, Hastings, Janofsky & Walker, LLP v. City of Tulsa, Okla., 245 F. Supp. 2d 1248, 1253 (N.D. Ga. 2002). The Eleventh Circuit reviews denial of a motion to dismiss for lack of personal jurisdiction de novo. Cable/Home Commc'n Corp. v. Network Prods., Inc., 902 F.2d 829, 855 (11th Cir. 1990).
A. Georgia's Long-Arm Statute
The Georgia long-arm statute provides that a court may exercise personal jurisdiction over any nonresident
as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he or she:
(1) Transacts any business within this state ....
O.C.G.A. § 9-10-91. The Georgia Supreme Court has interpreted the "transacts business" prong of the long-arm statute to permit the exercise of jurisdiction to the "maximum extent permitted by procedural due process" in the United States Constitution. Innovative Clinical & Consulting Servs., LLC v. First Nat. Bank, 279 Ga. 672, 620 S.E.2d 352, 355 (2005).
" ‘[T]ransacts any business’ requires that the ‘nonresident defendant has purposefully done some act or consummated some transaction’ " in Georgia. Aero Toy Store, 279 Ga. App. at 517, 631 S.E.2d at 737 (quoting Robertson v. CRI, Inc., 267 Ga. App. 757, 601 S.E.2d 163, 166 (2004) ). However, as the Eleventh Circuit has recognized,
a defendant need not physically enter the state. As a result, a nonresident's mail, telephone calls, and other "intangible" acts, though occurring while the defendant is physically outside of Georgia, must be considered. Therefore, we examine all of a nonresident's tangible and intangible conduct and ask whether it can fairly be said that the nonresident has transacted any business within Georgia.
Diamond Crystal Brands, Inc. v. Food Movers Int'l, Inc., 593 F.3d 1249, 1264 (11th Cir. 2010) (internal citations omitted).
B. Due Process
Personal jurisdiction complies with due process when (1) the nonresident defendant has purposefully established minimum contacts with the forum state, and (2) the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. See Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). A nonresident defendant may be subject to personal jurisdiction only when "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).
"Due process contemplates two types of jurisdiction over the person: general and specific jurisdiction." Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 747 (11th Cir. 2002). For general jurisdiction to apply, a nonresident defendant's "contacts with the forum that are unrelated to the litigation must be substantial," in the nature of "continuous and systematic general business contracts between the defendant and the forum state." Meier v. Sun Int'l Hotels, Ltd., 288 F.3d 1264, 1274 (11th Cir. 2002). A court has specific jurisdiction over a defendant if its contacts with the forum state are (1) "related to the plaintiff's cause of action or have given rise to it," (2) have "involve[d] some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum," and (3) are "such that the defendant should reasonably anticipate being haled into court there." Sloss Indus. Corp. v. Eurisol, 488 F.3d 922, 925 (11th Cir. 2007).
Jurisdiction must also comport with "traditional notions of fair play and substantial justice," which involves consideration of: "the burden on the defendant," "the forum State's interest in adjudicating the dispute," "the plaintiff's interest in obtaining convenient and effective relief," "the interstate justice system's interest in obtaining the most efficient resolution of controversies," and "the shared interest of the several States in furthering substantive social policies." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). "[M]inimum requirements inherent in the concept of ‘fair play and substantial justice’ may defeat the reasonableness of jurisdiction even if the defendant has purposefully engaged in forum activities." Burger King, 471 U.S. at 477–78, 105 S.Ct. 2174 (citing World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. 559 )).
III. ANALYSIS
A. Georgia Long-Arm Statute
In Curtis Inv. Co., LLC v. Bayerische Hypo-Und Vereinsbank, one defendant was a law firm with no offices located or partners residing in Georgia. No. 1:06-cv-2752-WSD, 2007 WL 4564133, at *6 (N.D. ). Nevertheless, the district court found that, because the firm sent an opinion letter to a Georgia resident and accepted payment in return, it had "transact[ed] business in Georgia for the purposes of the Georgia long-arm statute." Id. at *7. Furthermore, "[p]hone calls and emails may ... support a finding that a defendant purposely availed itself of a forum state" when "accompanied by other factors" such as "a finding that the intangible contacts were central to the parties' relationship, or the cause of action." O'Malley v. Wire Weld, Inc., 2009 WL 10669355 at *6 (N.D.Ga. Dec. 12, 2007).
Construing the facts in the light most favorable to the non-moving party, O'Neill's contacts in this case far exceed those of the law firm in Curtis. O'Neill solicited and retained BrightWell to conduct an employment search, which BrightWell did in Georgia. Doc. No. [7-1], ¶ 8. The emails and phone calls were central both to the parties' relationship and the cause of action, as they formed the basis of the sourcing deal. BrightWell understood from Mr. O'Neill that the purpose of its search was to locate attorneys licensed in Georgia, as he expressed a desire to open an office in Atlanta. Id. ¶¶ 5, 10. Mr. O'Neill mentioned visiting Atlanta and toured potential office space for that purpose. Id. ¶ 5. Mr. Stewart sent pictures of BrightWell space at Mr. O'Neill's request. Id. O'Neill retained the Attorneys located by BrightWell, including one licensed and located in Georgia, and paid BrightWell a $5,000 fee. Id. ¶ 16. These contacts are sufficient to show that O'Neill "transacted business" in Georgia for purposes of O.C.G.A. § 9-10-91.
B. Due Process
O'Neill's contacts with Georgia do not rise to the level of conferring general jurisdiction over it in Georgia. However, the Court finds that they do confer specific jurisdiction over this action.
1. Specific jurisdiction
The Supreme Court has said the following regarding the use of a contract as a basis for personal jurisdiction:
[W]e have emphasized the need for a "highly realistic" approach that recognizes that a "contract" is "ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction." It is these factors—prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing—that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.
Francosteel Corp., 19 F.3d at 627–28 (quoting Burger King, 471 U.S. at 478–79, 105 S.Ct. 2174 ).
Thus, contracting with BrightWell is alone insufficient to confer personal jurisdiction under the Due Process Clause. However, that was not the extent of the parties' course of dealing. O'Neill expressed a desire to operate in Atlanta, and toured office space there. Doc. No. [7-1] ¶ 5. BrightWell located and retained the Attorneys for O'Neill, including one located and licensed in Georgia. Id. ¶¶ 10–11. O'Neill paid BrightWell a $5,000 fee which was deposited into a BrightWell account at the Bank of North Georgia. Id. ¶ 16. Mr. O'Neill corresponded with Mr. Stewart by calling and emailing him at BrightWell's Atlanta office throughout the course of their dealing. Id. ¶ 9.
The first prong of specific jurisdiction is met. O'Neill's contacts with Georgia gave rise to the contractual dispute which is the subject of this action. O'Neill retained and corresponded with BrightWell to conduct an employment search and locate attorney candidates. O'Neill then allegedly failed to pay the placement fees for the Attorneys located by BrightWell and retained by O'Neill.
To analyze the second prong, the Court need not determine whether O'Neill subjectively intended to open an office in Atlanta. O'Neill may have only "hoped" to open an office in Atlanta, but it tangibly acted on those aspirations by approaching and contracting for the services of a Georgia corporation to locate new attorneys for the firm, explicitly expressing an intent to conduct business in Atlanta in the future, and looking at office space in the area. BrightWell understood that it was to look for attorneys licensed to practice in Georgia, and O'Neill hired one such attorney. This is enough to show that O'Neill "purposefully availed" itself of the benefits of transacting business in Georgia.
Such steps toward opening an office in Atlanta far surpass " ‘hopes’ or ‘thoughts,’ " Doc. No. [9], p. 3—and the mere fact that the plans did not come to fruition does not erase the contacts made in preparation.
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Finally, O'Neill's contacts were such that it could reasonably anticipate being "haled into court" here. O'Neill is a law firm, and has a much better understanding of the implications of transacting business out of state than does the average LLC. When it solicited, retained, and then benefitted from and paid for the services of a Georgia placement services corporation, it should have anticipated that a dispute arising from those contacts could expose it to personal jurisdiction here.
2. Fair play and substantial justice
Nor does exercising specific jurisdiction over O'Neill offend notions of fair play and substantial justice. The Court must consider "the burden on the defendant," "the forum State's interest in adjudicating the dispute," "the plaintiff's interest in obtaining convenient and effective relief," "the interstate justice system's interest in obtaining the most efficient resolution of controversies," and "the shared interest of the several States in furthering substantive social policies." World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 292, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).
First, although the Supreme Court "has suggested that inconvenience may at some point become so substantial as to achieve constitutional magnitude," McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), such is not the case here. O'Neill solicited BrightWell's business in Georgia—not the other way around. Though it argues all relevant records are in Maryland, O'Neill has not explained why it would be difficult to scan and send them electronically. Furthermore, relevant witnesses and documents reside in Georgia (Mr. Stewart and Mr. Ogunsola), as well as Maryland (Mr. O'Neill).
Georgia's "interest in adjudicating the dispute" is also significant. BrightWell is a Georgia corporation which was solicited by an out-of-state law firm to provide employment search services in Georgia, for the purpose of potentially opening an office here. Georgia has an interest in seeing that any failure to pay for those services is rectified. See also Burger King, 471 U.S. at 473, 105 S.Ct. 2174 ("A state generally has a ‘manifest interest’ in providing its residents with a convenient forum for redressing injuries inflicted by out-of-state actors.").
So too does "the plaintiff's interest in obtaining convenient and effective relief" support specific jurisdiction here. BrightWell originally brought this action in Fulton County Superior Court. See Doc. No. [1]. Defendant removed to this Court. Id. BrightWell has an interest in litigating in Georgia, its principal place of business and state of incorporation, and the forum in which it originally chose to bring this action.
IV. TRANSFER VENUE
If the Court finds, as it has, that O'Neill is subject to specific jurisdiction in Georgia, O'Neill alternatively argues for dismissal on the grounds that venue is not proper. If the Court finds that venue is proper, it requests transfer to the District of Maryland under 28 U.S.C. § 1404(a). See Doc. No. [21], pp. 21–29.
A. Improper Venue
Federal Rule of Civil Procedure 12(b)(3) states that a party may move to dismiss a case for "improper venue." Rule 12(b)(3) authorizes dismissal "only when venue is ‘wrong’ or ‘improper’ in the forum in which it was brought." Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 55, 134 S.Ct. 568, 187 L.Ed.2d 487 (2013).
The question of whether venue is "wrong" or "improper" "is generally governed by 28 U.S.C. § 1391." Id. That provision provides that a civil action may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b). When venue is challenged, the court "must determine whether the case falls within one of the three categories set out in § 1391(b)." Atl. Marine, 571 U.S. at 56, 134 S.Ct. 568. "If it does, venue is proper; if it does not, venue is improper, and the case must be dismissed or transferred under § 1406(a)." Id.
The Court finds that this case falls into the second category. BrightWell's Atlanta office is in Fulton County, Georgia. Doc. No. [7-1], ¶ 2. O'Neill solicited BrightWell's business by contacting Mr. Stewart at its Atlanta office, and called and emailed Mr. Stewart at that location throughout the course of their dealing. Id. ¶¶ 4, 9. BrightWell performed all services contracted for by O'Neill in Fulton County. Id. ¶ 8. Mr. Stewart "specifically searched for and referred candidates licensed to practice law in Georgia," and "Mr. O'Neill knew this ...." Id. ¶ 10. O'Neill allegedly failed to pay for those services provided in Fulton County. Therefore, a "substantial part of the events or omissions giving rise to the claim occurred" in Fulton County, and venue is proper.
B. Transfer of Venue
A district court may transfer a case "for the convenience of the parties and witnesses, and in the interest of justice." 28 U.S.C. § 1404(a). The purpose of 1404(a) is to "prevent waste of time, energy, and money to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (citations omitted). The district court's refusal to change venue will only be disturbed for a clear abuse of discretion. Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 255 (11th Cir. 1996) (citation omitted).
Other than Mr. O'Neill himself, the other potential witnesses appear to reside in Georgia, including Mr. Stewart and Mr. Ogunsola. Furthermore, "[t]he plaintiff's choice of forum should not be disturbed unless it is clearly outweighed by other considerations." Robinson, 74 F.3d at 260. For similar reasons so those set forth in its Due Process analysis, see discussion supra in Section III.B, the Court finds that "transferring the case to [Maryland] would merely shift inconvenience from the defendant[ ] to the plaintiff." Robinson, 74 F.3d at 260 (finding refusing to transfer venue in such circumstances was not an abuse of discretion). Therefore, transfer is not appropriate here.
V. JURISDICTIONAL DISCOVERY
BrightWell argues that, "if the Court is at all inclined to dismiss this action for lack of jurisdiction over Defendant's person, the Court should allow BrightWell to conduct limited jurisdictional discovery." Doc. No. [16], p. 2. Because it finds that personal jurisdiction over O'Neill exists, the Court need not address its Motion for Jurisdictional Discovery.
VI. CONCLUSION
Defendant's Motion to Dismiss, or in the Alternative, to Transfer Venue (Doc. No. [5] ) is DENIED . Plaintiff's Motion for Leave to Conduct Jurisdictional Discovery and to Deny Defendant's Motion Without Prejudice (Doc. No. [8] ) is DENIED as MOOT .
IT IS SO ORDERED this 14th day of November, 2019.