Abid v. Google Inc.

Reply BRIEF re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Pursuant to Rule 12

M.D.N.C.May 22, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA SHAJAR ABID, ) ) PLAINTIFF, ) ) V. ) CASE NO. 1:17CV321 ) GOOGLE INC., ) ) DEFENDANT. ) GOOGLE INC.’S REPLY BRIEF IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO RULE 12(B)(6), OR IN THE ALTERNATIVE, TO TRANSFER VENUE I. Preliminary Statement Plaintiff Shajar Abid (“Abid” or “Plaintiff) asserts various claims against Google, all of which arise out of the same core facts. He alleges that he sought to advertise his “MightyHoney” product on Google’s advertising platform, including a claim that “MightyHoney” is a cure for cancer. When Google cancelled his account for violation of its policies, Abid filed this lawsuit. Abid concedes in various filings with this Court that he has not received approval from the Food and Drug Administration (“FDA”) to market his product as a cure or treatment for cancer. Abid’s claims against Google are a moving target. However, for purposes of this Reply, Google assumes that the claims are those stated in Abid’s original complaint (Dkt #1) and his Motion to Supplement Pleadings (Dkt #6). None of those claims can survive a motion to dismiss, for at least the following reasons: (1) Google is not a government actor, so Abid’s First Amendment claim fails as a matter of law; (2) Abid has not alleged any factual basis for his antitrust claim against Google, and he has failed to allege any unreasonable restraint of trade; (3) Abid’s claim for breach of contract and unfair trade practices based on Google’s alleged Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 1 of 15 2 cancellation of his account fail because, by Abid’s own admission, he violated Google’s policies; and (4) Abid has failed to allege any “egregious or aggravating” conduct that would support a claim against Google under the North Carolina unfair trade practices statute. Thus, the Court should dismiss Abid’s claims with prejudice. Alternatively, should the Court permit any portion of Abid’s complaint to proceed, the Court should transfer this matter to Santa Clara County in California pursuant to the venue provision in the terms of service agreed to by Abid when he signed up for Google’s advertising service on March 17, 2017. There is a strong presumption in favor of enforcement of forum selection clauses, and Abid has failed to overcome this presumption. II. Background A. Procedural History Abid filed his original complaint against Google on April 6, 2017. See Dkt. #1. On April 26, 2017, Abid filed a Motion to Supplement Pleadings, which was added to the docket on April 28. See Dkt. #6. On May 1, 2017, Google filed a Motion to Dismiss Plaintiff’s Complaint Pursuant to Rule 12(b)(6), or in the alternative, to Transfer Venue. See Dkt. #9. On May 9, 2017, Plaintiff filed a response to Google’s Motion. See Dkt. #15 and #16. Plaintiff’s response assumes that the original complaint and the Motion to Supplement combine to form his claims against Google. Thus, for purposes of this Reply Brief, Google will treat these two pleadings -- Dkt. #1 and Dkt #6 -- as the operative complaint. Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 2 of 15 3 B. Summary of Allegations Abid’s original complaint alleges that he is “an independent researcher, inventor and entrepreneur.” Dkt. #1. He contends that he has concocted a honey-based cure for cancer that he calls “MightyHoney.” Id. Abid alleges that he opened a Google Adwords account and proceeded to advertise his product as a “divine cure for cancer.” Id. Abid alleges that Google suspended his account and advised him that he could not make this or similar claims as a Google advertiser because such claims violate Google’s policies. Id.1 Based on these allegations, Abid asserted a claim against Google for violation of his First Amendment rights under 42 U.S.C. §1983, and sought $10 billion in damages. Id. He also made a vague reference to the antitrust laws, and asked that the judge “investigate who is controlling these cancer keywords, and what connections are between the pharma and the knowledge sources” Id. On April 26, 2017, Abid filed a Motion to Supplement Pleadings. See Dkt. #6. The Motion to Supplement seeks to add a claim against LegitScript LLC, “a service provider to Google.” Dkt #6 at ¶2. According to Abid, on April 10, 2017, LegitScript “yellow-flagged” his site (www.mightyhoney.org) because it advertised MightyHoney as a cure for cancer. Id. at ¶¶4, 8 and Ex. 1. Abid acknowledges in his Motion to Supplement that he has not obtained approval from the Food and Drug Administration (“FDA”) to make such health or disease claims. Id. at ¶¶10-11, ¶16. This is further evidenced by Abid’s additional filings, which include a declaration with a copy of “Citizen’s Petition for Health Claim” and a Petition for Writ of Mandamus with 1 See, e.g., Dkt.# 6-1 (email from LegitScript identifying several concerns regarding Plaintiff’s website); Dkt #15 at Gmail-3 (identifying advertisement for MightyHoney as a “natural cancer treatment”). Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 3 of 15 4 Appendix in Support. See Dkt. #17 and #18. These filings relate to Abid’s efforts to obtain approval from the FDA for his claims that MightyHoney can cure cancer. In the Motion to Supplement, Abid continues to assert a First Amendment claim against Google. He also makes conclusory allegations that Google and LegitScript have violated the Sherman Act, 15 U.S.C. §1, by refusing to allow Abid to advertise his MightyHoney product as a cure for cancer. Dkt #6 at ¶2, 12. Abid also attempts to assert a claim for breach of contract and violation of North Carolina’s unfair trade practices statute against Google. Id. at ¶13. Like Abid’s other claims, the allegations are nearly impossible to decipher. To support these claims, Abid relies on an email exchange with Google regarding enhancements to his AdWords account. Id. at ¶13 and Ex. 2. He alleges that, after this email exchange, his Google AdWords account was deleted. Id. However, the email he cites clearly states that Abid must comply with all AdWords’ policies. Those policies prohibit advertisers from making misrepresentations, including “misleading content.” Misleading content is defined to include “claims that entice a user with an improbable result” such as a “miracle cure” for disease. Google’s policies also prohibit the following content: “Non-government approved products that are marketed in a way that implies that they’re safe or effective for use in preventing, curing, or treating a particular disease or ailment.2 2 See https://support.google.com/adwordspolicy/answer/6020955 and https://support.google.com/adwordspolicy/answer/176031(attached as Exhibit 1) Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 4 of 15 5 III. Discussion A. Abid Has Failed To State A Viable Claim And His Complaint Should Be Dismissed 1. Abid has failed to state a claim against Google for violation of his First Amendment rights. As demonstrated in Google’s opening brief, Abid’s claim under 42 U.S.C. §1983 that Google violated his First Amendment rights fails as a matter of law because Google is a corporate citizen -- not a government actor. DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir. 1999). This claim must be dismissed. Abid’s Opposition to Google’s Motion to Dismiss cites N.C.G.S. §99D-1 as a potential basis for his constitutional claim. Dkt. #16 at Argument VI. This statute creates a private cause of action where “[t]wo or more persons, motivated by race, religion, ethnicity, or gender, but whether or not acting under color of law, conspire to interfere with the exercise or enjoyment by any other person or persons of a right secured by the Constitutions of the United States or North Carolina, or of a right secured by a law of the United States or North Carolina that enforces, interprets, or impacts on a constitutional right.” Id. at §99D-1(a). In order to state a claim, the plaintiff must allege and prove that at least one of the conspirators “use[d] force, repeated harassment, violence, physical harm to persons or property, or direct or indirect threats of physical harm to persons or property to commit an act in furtherance of the object of the conspiracy.” Id. at 99D-1(b). Abid’s complaint falls woefully short of stating a claim under N.C.G.S. §99D-1. First, neither the original complaint nor the Motion to Supplement makes any reference to this statute Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 5 of 15 6 whatsoever. Moreover, there are no allegations or plausible basis to believe that Google was “motivated” by “race, religion, ethnicity, or gender” in prohibiting Plaintiff from advertising “MightyHoney” as a cure for cancer. And, there are no allegations that anyone engaged in the sort of threatening conduct to which the statute is directed. Simply put, this statute does not apply to the claims made by Plaintiff, and his belated reference to it cannot save his failed claim for violation of his First Amendment rights. 2. Abid has failed to state an antitrust claim. Abid’s original complaint and Motion to Supplement make only vague references to the Sherman Act, 15 U.S.C. §1, without providing any factual allegations to support a claim against Google for a violation of the antitrust laws. The allegations simply are not sufficient under Iqbal and Twombly. In order to state a claim under §1 of the Sherman Act, a complaint must allege “(1) a contract, combination, or conspiracy; (2) that imposed an unreasonable restraint of trade.” Dickson v. Microsoft Corp., 309 F.3d 193, 202 (4th Cir. 2002). Here, Plaintiff cannot satisfy either element. First, Plaintiff has failed to allege any “agreement” between competitors to restrain trade. Rather, according to Plaintiff’s allegations, LegitScript acted as an agent of Google in identifying concerns related to Plaintiff’s website and related advertisements. Motion to Supplement, Dkt. #6 at ¶2 (characterizing LegitScript as a “service provider” to Google); ¶12 (referring to LegitScript as a “contractual service provider” to Google). Thus, the alleged conspiracy between Google and LegitScript is barred by the intracorporate conspiracy doctrine. See Oksanen v. Page Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 6 of 15 7 Memorial Hospital, 945 F.2d 696, 702-03 (4th Cir. 1991) (medical staff and hospital were not legally distinct entities for purposes of antitrust claim, where staff acted as agent of hospital in peer review process); Fox v. City of Greensboro, 807 F. Supp. 2d 476, 499 (M.D.N.C. 2011) (“The intracorporate conspiracy doctrine bars claims based on an alleged conspiracy among a corporation and its officers, employees, and agents”). Moreover, the complaint is devoid of any allegations of an unreasonable restraint of trade. The complaint simply alleges that Google would not permit Abid to advertise MightyHoney as a cure for cancer on its advertising platform because such advertisement violated Google’s published policies. This is not an “unreasonable restraint of trade” subject to the antitrust laws. Indeed, by Plaintiff’s own admission, he has not obtained government approval to make such health and disease claims. Plaintiff’s complaint should be dismissed. 3. Abid has failed to state a claim for breach of contract or violation of the North Carolina unfair trade practices statute. Abid’s original complaint did not assert any claim for breach of contract or violation of the North Carolina unfair trade practices statute. These claims were raised for the first time in his Motion to Supplement. However, like Abid’s other claims, these claims are fundamentally flawed and should be dismissed. In support of his breach of contract and unfair trade practices claims, Abid relies on an email exchange with Google to support his allegation that Google agreed to run his advertisement for a certain number of days. Motion to Supplement, Dkt. #6 at ¶13. However, the document that Abid cites to and attaches to his pleading specifies that Abid must abide by Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 7 of 15 8 Google’s AdWords policies. Id. at 13 and Ex. 2. Those policies prohibit misleading content promoting “miracle cures” for a disease and “[n]on-government approved products that are marketed in a way that implies that they’re safe or effective for use in preventing, curing, or treating a particular disease or ailment.” See Exhibit 1. Plaintiff’s advertisement of MightyHoney as a cure for cancer violates Google’s policies, and Google had no obligation – contractual or otherwise – to run those advertisements on its platform. Plaintiff’s claims for breach of contract and violation of the North Carolina unfair trade practices statute fail as a matter of law. Abid’s claim for violation of the North Carolina unfair trade practices statute also fails to state a claim because Plaintiff has not alleged any “egregious or aggravating circumstances” sufficient to support such a claim. Dalton v. Camp, 353 N.C. 647, 657 (2001). It is not sufficient for Plaintiff to allege a breach of contract. Rather, “a mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action” under the statute. Campbell v. Apex Imaging Services, Inc., 2013 WL 4039390, *5 (Aug. 7, 2013 M.D.N.C.) (citations omitted) (copy attached as Exhibit 2). Plaintiff’s complaint lacks any allegations of “egregious or aggravating” conduct by Google, and his claim under the North Carolina unfair trade practices statute must be dismissed. 4. Abid’s attempt to raise new claims and bring in additional facts in his opposition brief is not permissible. Abid’s “Brief in Support of Plaintiff’s Opposition to Defendant’s Motion to Dismiss or in the alternate Transfer Venue” raises new facts and claims not stated in Plaintiff’s original Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 8 of 15 9 complaint or Motion to Supplement Pleadings. These new claims include allegations that Google violated various California statutes, including the Cartwright Act, several provisions of the California Business and Professions Code, and the Unruh Civil Rights Act. See Dkt. #16. These allegations and newly asserted claims are not properly before the Court, and should not be considered. Southern Walk at Broadlands Homeowner’s Assoc., Inc. v. Openband at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (“[i]t is well-established that parties cannot amend their complaints through briefing or oral advocacy”); Stewart v. Johnson, 125 F. Supp. 3d 554, 561 (M.D.N.C. 2015) (same). In any event, each of these claims fails for the reasons stated herein. Google was well within its rights to enforce its policy that prohibits advertisers, such as Abid, from making health and disease claims that have the tendency to mislead consumers and that have not been approved by the government. Abid’s claims against Google should be dismissed with prejudice. B. In The Alternative, This Matter Should Be Transferred To The Proper Court. If the Court permits any portion of Abid’s complaint to proceed, Google requests transfer to the Northern District of California pursuant to 28 U.S.C. §1404(a) and the mandatory forum selection clause that governs the parties’ relationship. There is a strong presumption in favor of enforcement of a forum selection clause, and Abid has failed to overcome this presumption. See The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972) (“the forum selection should control absent a strong showing that it should be set aside”). Under federal law, a plaintiff that seeks to invalidate a forum selection clause must demonstrate that the clause is “unreasonable.” Albemarle Corp v. Astrazeneca UK Ltd, 628 F.3d Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 9 of 15 10 643, 649 (4th Cir. 2010), A forum selection clause is unreasonable only if: (1) the clause was “induced by fraud or over-reaching”; (2) the plaintiff “will for all practical purposes be deprived of his day in court” because of the “grave inconvenience or unfairness of the selected forum”; (3) the “fundamental unfairness of the chosen law may deprive the plaintiff of a remedy” or (4) enforcement of the forum selection clause “would contravene a strong public policy of the forum state.” Id. (citations omitted). Here, Abid has failed to establish any basis to avoid the forum selection clause. The evidence before the Court is that, during the process of creating his AdWords account, Plaintiff was advised to “[c]arefully read” the AdWords Agreement, which Google displays through an online interface. Wasserman Decl. at ¶4, Dkt. #11. In order to open the account, Plaintiff was required to click “Yes, I agree to the above terms and conditions.” Id. Google’s records indicate that Plaintiff opened his AdWords account and accepted the terms and conditions on March 17, 2017. Id. at ¶¶4-7. Plaintiff has offered no evidence to rebut these facts. The Adwords Agreement is a two and half page document. Each paragraph is numbered with a heading. The final paragraph is entitled “Miscellaneous.” It states in ALL CAPITAL LETTERS that “ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR THE PROGRAMS WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING CALIFORNIA’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SANTA CLARA COUNTY, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 10 of 15 11 THOSE COURTS.” AdWords Agreement at ¶12 (Dkt. #11-1). The forum selection clause and choice of law provision are tall capitalized, and stand out from the rest of the text. Id. Abid does not contend that he was fraudulently induced to enter into the forum selection clause. However, he attempts to argue that the provision is “unconscionable” or “unfair” because he lacked any bargaining power and the contract as a whole is too one-sided to be enforced. These arguments are insufficient to overcome the strong presumption in favor of enforcing the forum selection clause. Turfworthy, LLC v. Dr. Karl Wetekam & Co, KG, 26 F. Supp.3d 496, 507-08 (M.D.N.C. 2014) (noting that even if plaintiff did not have “actual knowledge” of the forum selection clause, he had “ample opportunity to become informed of the contents of the Terms and Conditions” and stating that “[a]n inability or failure to negotiate concerning the disputed clause does not establish ‘overreaching’ by the drafter”) (citations omitted); Bires v. Waltom, LLC, 2008 WL 2980095 (M.D.N.C. Aug. 1, 2008) (allegation of unequal bargaining power in contract negotiations insufficient to avoid forum selection clause) (copy attached as Exhibit 3); see also Feldman v. Google, Inc., 513 F. Supp. 2d 229 (E.D. Pa. 2007) (enforcing forum selection clause in Google’s AdWords Agreement and rejecting claim that it was unreasonable or unconscionable). Abid also argues that it would be unfair to require him to litigate in a California as opposed to his home forum. However, inconvenience alone does not overcome the presumption in favor of enforcement. This is true particularly where, as here, Google’s headquarters are in the chosen forum, and Google has an interest in having disputes with its advertisers litigated in that forum. Indeed, corporations routinely include such provisions in their contracts to avoid Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 11 of 15 12 litigating in multiple jurisdictions. For his part, Abid makes no showing that he will be deprived of any remedy if this matter is transferred. He simply seeks to avoid the “inconvenience” of litigating in California, despite agreeing to Google’s terms and conditions. Bires at *4, supra (plaintiff must do more than show inconvenience in litigating in chosen forum to overcome the forum selection clause). Abid also argues that the forum selection clause is unenforceable under N.C.G.S. §22B-3. See Plaintiff’s Response in Opposition to Defendant’s Motion, Dkt. #15. This statute has no application here for several reasons. First, the statute -- on its face -- only applies to “a contract entered into in North Carolina.” N.C.G.S. §22B-3. Here, the contract was entered into over the internet. Although Abid was in North Carolina, Google was not. Thus, on the current record, there is no basis to conclude that the contract was “entered into in North Carolina.” Secondly, the contract, by its terms, states that it is governed by California law. Thus, a North Carolina statute cannot be used to invalidate one of its provisions. Moreover, to the extent the North Carolina statute seeks to “regulat[e] the appropriate venue” in a case “filed in federal court,” the statute is preempted by the federal law which favors enforcement of forum selection clauses. Albemarle Corp., 628 F.3d at 652. As the Fourth Circuit has noted, the presumption in favor of enforcing a forum selection clause announced in The Bremen “would have little effect if states could effectively override the decision by expressing disagreement with the decision’s rationale” through a statutory enactment. Id. Thus, the Fourth Circuit and this Court have refused to invalidate a forum selection clause based on statutes such as N.C.G.S. §22-3B. Id.; see also Turfworthy, LLC 28 F. Supp.3d at 509 (North Carolina statute does not preclude enforcement of Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 12 of 15 13 a forum selection clause). Here, Abid has failed to overcome the presumption in favor of enforcing the forum selection clause. The provision was clearly identified in Abid’s contract with Google. He was advised to read the terms and conditions before opening his AdWords account, and he represented to Google that he had done so, and that he agreed to the terms. The subject provision appears in a two-and-a-half page contract, and is set off from the rest of the text because it is in all capital letters. Abid has not shown that he will be deprived of a remedy if this case is transferred to California. To the contrary, his brief cites multiple California statutes that he contends provide him with a remedy against Google. Moreover, Google’s headquarters are located within the chosen forum, and there is nothing unreasonable or unconscionable about Google specifying this forum as the location for any litigation arising out of or relating to the contract. Accordingly, the forum selection clause should be enforced. If any portion of Abid’s complaint survives Google’s motion to dismiss, the case should be transferred to the United States District Court for the Northern District of California. IV. Conclusion For the foregoing reasons, Google requests that the Court grant its Motion to Dismiss and dismiss Abid’s claims against Google -- as stated in the original Complaint or the Motion to Supplement Pleadings -- in their entirety. In the alternative, Google requests that the Court transfer this case to the Northern District of California. Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 13 of 15 14 Respectfully Submitted, GOOGLE INC. By: /s/ Ryan G. Rich Ryan G. Rich (NC Bar #37015) HUNTON & WILLIAMS LLP Bank of America Plaza, Suite 3500 101 South Tryon Street Charlotte, NC 28280 Telephone: (704) 378-4778 Facsimile: (704) 331-5143 rrich@hunton.com Counsel for Google Inc. Gregory N. Stillman (VA. Bar #14308) Wendy C. McGraw (VA Bar #37880) HUNTON & WILLIAMS LLP 500 East Main Street, Suite 1000 Norfolk, VA 23510 Telephone: 757.640.5300 Facsimile: 757.625.7720 gstillman@hunton.com wmcgraw@hunton.com Counsel for Google Inc. Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 14 of 15 15 CERTIFICATE OF SERVICE I hereby certify that on May 22, 2017, I electronically filed the foregoing Google Inc.’s Reply Brief in Support of its Motion to Dismiss Plaintiff’s Complaint Pursuant to Rule 12(b)(6), or in the Alternative, to Transfer Venue, with the Clerk of the Court using the CM/ECF system. On May 22, 2017, a copy of such filing was served by first-class mail on the plaintiff at the following address: Shajar Abid 5317 Roshni Ter. Mcleansville, NC 27301 /s/ Ryan G. Rich Ryan G. Rich (NC Bar #37015) HUNTON & WILLIAMS LLP Bank of America Plaza, Suite 3500 101 South Tryon Street Charlotte, NC 28280 Telephone: (704) 378-4778 Facsimile: (704) 331-5143 rrich@hunton.com Counsel for Google Inc. Case 1:17-cv-00321-UA-JLW Document 20 Filed 05/22/17 Page 15 of 15 EXHIBIT 1 ADWORDS POLICIES Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 1 of 14 Misrepresentation - Advertising Policies Help https://support.google.com/adwordspolicy/answer/6020955?hl=en&ref_topic=1626336[05/22/2017 12:23:17 PM] ADVERTISING POLICIES Advertising Policies Help • • Misrepresentation We don't want users to feel misled by ads that we deliver, and that means being upfront, honest, and providing them with the information that they need to make informed decisions. For this reason, we don't allow the following: promotions that prompt users to initiate a purchase, download, or other commitment without first providing all relevant information and obtaining the user's explicit consent promotions that represent you, your products, or your services in a way that is not accurate, realistic, and truthful Below are some examples of what to avoid in your ads. Learn about what happens if you violate our policies. If you think your ad was incorrectly disapproved, you can request a review through the Disapproved ads and policy questions form . Missing information The following is not allowed: Failure to clearly and conspicuously disclose the payment model and full expense that a user will bear Examples: Price, shipping costs, and other billing related information; interest rates; late payment fines or recurring subscription cost; using premium rate phone numbers in call extensions Failure to display legitimate physical contact information for a financial services business, or omitting material details about short-term loans or loan modification and foreclosure products Examples: A bank that doesn't display its physical address, a loan company that does not disclose the monthly interest rate or the penalty amount for late payment. See requirements for financial services Omitting material information (that is, important and relevant information) when soliciting a charitable or political donation Examples: Failing to display a charity or tax exemption number for charitable donations, failing to disclose whether political donations are tax exempt Unavailable offers The following is not allowed: Promising products, services, or promotional offers that aren't easily found from the landing page Troubleshooter: Missing information Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 2 of 14 Misrepresentation - Advertising Policies Help https://support.google.com/adwordspolicy/answer/6020955?hl=en&ref_topic=1626336[05/22/2017 12:23:17 PM] Examples: Promoting products that are not stocked; promoting a deal that is no longer active; promoting a price that is inaccurate; call-to-action in the ad that isn't easily available from the landing page Specific example: Ad reads "Buy tablets from $40," but upon clicking on the ad, the user finds no tablets available for purchase at $40 Note: Avoid creating ads for specific offers unless you can update your ads as your inventory or offers change. For example, if you create an ad for a one-day promotional discount, remember to update or remove the ad the next day when the offer is no longer available. If the inventory or prices on your site change often, consider setting up Dynamic Search Ads , which automatically show your ad based on the content of your website. Learn how to fix a disapproved ad or extension. If your ad was disapproved because of the ad's destination, learn how to fix a suspended site or app. Misleading content The following is not allowed: Making false statements about your identity or qualifications Examples: A college student purporting to be a qualified lawyer, an unlicensed plumber claims to be licensed Using false claims or claims that entice the user with an improbable result (even if this result is possible) as the likely outcome that a user can expect Examples: "Miracle cures" for medical ailments, extreme weight loss products or programs, "get rich quick" schemes or promising large financial return for minimal effort or investment Specific example: A weight loss ad that says you can eat whatever you want and lose 10 pounds in a month Note: If you guarantee certain results, have a clear and easily accessible refund (money-back) policy. Testimonials that claim specific results must include a visible disclaimer stating that there is no guarantee of specific results and that the results can vary. Include links to third-party verification or include relevant and noticeable disclaimers when testimonials and endorsements imply that results are typical. Falsely implying affiliation with, or endorsement by, another individual, organization, product, or service Examples: Misleading use or mimicry of official government sites, stamps, seals, or agency names Specific example: An advertiser mimics the layout and design of an official government agency site Ads that mislead or trick the user into interacting with them Examples: Ads that resemble system or site warnings/error messages; ads that simulate messages, dialog boxes, menus, or request notifications; hosted ads that are indistinguishable from other content; ads depicting features that do not work; ads with a transparent background; images that are segmented; an image that contains multiple copies of itself within the ad; or images that appear to be more than one ad; moving and clicking arrows Note: Animated ads and Ad gallery ads can have mock animated features or icons as long as the functionality works or the purpose of these features can be found on the landing page. Providing a business name that is anything other than the domain, the recognized name of the advertiser, or the promoted downloadable app Competitive claims Troubleshooter: Misleading content Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 3 of 14 Misrepresentation - Advertising Policies Help https://support.google.com/adwordspolicy/answer/6020955?hl=en&ref_topic=1626336[05/22/2017 12:23:17 PM] The following is not allowed: Promotions that contain the superlatives and comparatives "best," "#1," "better than," "faster than," or any other equivalent claims where that claim is not supported by third-party verification on the landing page Examples: Ad text reading "#1 window cleaning service in the world" with no evidence on the landing page to support the claim of being #1. This claim would be permissible if the landing page linked to a third-party industry analysis that showed the company in question to be the most popular, highest quality service, etc. Note: Ads that are written in Simplified or Traditional Chinese and target China can't contain any superlative claims or comparatives, even if such claims are supported by third-party verification. Unclear relevance The following is not allowed: Promotions that are not relevant to the landing page Examples: An ad that uses the keyword insertion feature without a relevant "default" keyword in place; ad title not relevant to ad text; ad doesn't clearly indicate that the resulting landing page is a search results page; ad doesn’t accurately describe what the user will see on the destination page; using overly general keywords or engaging in keyword spam Note: When using keyword insertion , include default ad text that is clear and easy to understand. Learn how to fix a disapproved ad or extension. If your ad was disapproved because of the ad's destination, learn how to fix a suspended site or app. Untrustworthy behavior The following is not allowed: Concealing or misstating information about the business, product, or service Examples: Enticing users to part with money or information under false or unclear pretenses; presenting a false identity, business name, or contact information; charging users for products or services typically available for free; sites that are "phishing" for users' information We take untrustworthy promotions very seriously and consider them to be an egregious violation of our policies. Advertisers or sites that are found to be untrustworthy are not permitted to advertise with us again, so please err on the side of caution in being clear about the product, business, or service that you're promoting. Note that in determining whether an advertiser or site is untrustworthy, we may review information from multiple sources including your ad, website, accounts, and third party sources. We reinstate accounts only if there's compelling evidence that we made an error. If you believe we've made an error, you can submit an appeal with any additional information you can provide. Need help? If you have questions about this policy, let us know: Contact AdWords Support Was this article helpful? YES NO Troubleshooter: Competitive claims Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 4 of 14 Misrepresentation - Advertising Policies Help https://support.google.com/adwordspolicy/answer/6020955?hl=en&ref_topic=1626336[05/22/2017 12:23:17 PM] You're viewing our Advertising Policies. For general AdWords support, visit the AdWords Help Center. Advertising policies Ad formats and features Ad targeting Abusing the ad network Adult content Alcohol Copyrights Counterfeit goods Dangerous products or services Data collection and use Destination requirements Editorial Enabling dishonest behavior Financial services Gambling and games Healthcare and medicines Inappropriate content Legal requirements Misrepresentation Other restricted businesses Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 5 of 14 Misrepresentation - Advertising Policies Help https://support.google.com/adwordspolicy/answer/6020955?hl=en&ref_topic=1626336[05/22/2017 12:23:17 PM] Personalized advertising Political content Technical requirements Trademarks ©2017 Google - Privacy Policy - Terms of Service English Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 6 of 14 Healthcare and medicines - Advertising Policies Help https://support.google.com/adwordspolicy/answer/176031[05/11/2017 8:52:21 AM] ADVERTISING POLICIES Advertising Policies Help • • • • • • • Healthcare and medicines Google restricts the promotion of healthcare-related content such as the following: over-the-counter medication prescription medication and information about prescription medication online and offline pharmacies pregnancy and fertility-related products and services medical services and procedures clinical trial recruitment sexual enhancement treatments The restrictions that apply to this content may vary depending on the product or service that you're promoting and the countries that you're targeting. Some content, such as unapproved substances, can't be promoted anywhere. Depending on the content that you're promoting and the countries where your ads appear, you may need to apply for pre-authorization with Google before advertising healthcare-related content. Below are some examples of healthcare content that we allow in certain circumstances. Some content is only available in specific regions, so be sure to check the list of country-specific restrictions for every country where you plan to advertise. If you think your ad was incorrectly disapproved, you can request a review through the Disapproved ads and policy questions form . Pharmaceutical manufacturers Google allows pharmaceutical manufacturers to advertise in select countries only. Prescription drugs Pharmaceutical manufacturers may promote prescription drugs in the following countries only: Canada, New Zealand, United States Over-the-counter medicines Pharmaceutical manufacturers may promote over-the-counter medicines in the following countries only: Australia, Austria, Brazil, Canada, China, France, Germany, Hong Kong, India, Italy, Japan, Mexico, Netherlands, New Zealand, Norway, Poland, Russia, South Korea, Spain, Sweden, United Kingdom, United States Other manufacturers and suppliers Bulk drug manufacturers, medical professional suppliers, and antibody/peptide/compound suppliers for commercial labs may advertise in the following countries only: Canada, United States Certification Pharmaceutical manufacturers must be certified by Google in order to serve ads. See how to apply below. Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 7 of 14 Healthcare and medicines - Advertising Policies Help https://support.google.com/adwordspolicy/answer/176031[05/11/2017 8:52:21 AM] • • • • • • • • • Prescription drug sale Google restricts the promotion of online pharmacies. To determine whether an advertiser is promoting an online pharmacy, we consider a number of factors such as the content of your ads and site or app, as well as the products or services that you offer. For user safety and other reasons, we err on the side of caution in applying this policy, especially for landing pages that link or refer to content that in any way appears to be the online sale of medicines, whether prescription or over-the-counter medicine. Countries Google allows the promotion of online pharmacies in only these countries: Australia, Austria, Brazil, Canada, China, Germany, Hong Kong, Japan, Mexico, Netherlands, New Zealand, Norway, Sweden, Taiwan, United Kingdom, United States Google does not allow the promotion of online pharmacies in other countries. Keywords Google allows online pharmacy advertisers to bid on keywords containing prescription drug terms in only the following countries: Australia, Canada, Germany, New Zealand, Netherlands, United Kingdom, and United States. Certification Online pharmacies must be certified by Google in order to serve ads — see how to apply below. To be certified with Google, online pharmacies must be registered with the relevant pharmaceutical authorities in the countries that their ad campaign targets. Restricted drug terms In most parts of the world, Google doesn't allow the use of prescription drug terms in ad text, landing pages, or keywords. For campaigns targeting Canada, New Zealand, or the United States, certain businesses such as online pharmacies and pharmaceutical manufacturers may use prescription drug terms in ad text and landing pages. These businesses must be certified by Google in order to serve ads — see how to apply below. If your campaigns do not target Canada, New Zealand, or the United States, you may not use prescription drug terms in ad text or landing pages. In limited cases, and where permitted by local law, Google allows exceptions to this policy for public health and safety awareness campaigns from governmental or well-established non-profit health advocacy organizations. If you would like to apply for such an exception to use prescription drug terms in ad text, landing pages, or keywords, please contact us. See a non-exhaustive list of prescription drugs or active ingredients that are monitored under this policy. Unapproved substances Google doesn't allow the promotion of the following content, irrespective of any claims of legality: All items on this non-exhaustive list of prohibited pharmaceuticals and supplements Products that contain ephedra Products containing human chorionic gonadotropin (hCG) in relation to weight loss or weight control, or when promoted in conjunction with anabolic steroids Herbal and dietary supplements with active pharmaceutical or dangerous ingredients False or misleading health claims, including claims implying that a product is as effective as prescription drugs or controlled substances Non-government approved products that are marketed in a way that implies that they're safe or effective for use in Troubleshooter: Restricted drug term Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 8 of 14 Healthcare and medicines - Advertising Policies Help https://support.google.com/adwordspolicy/answer/176031[05/11/2017 8:52:21 AM] • • preventing, curing, or treating a particular disease or ailment Products that have been subject to any government or regulatory action or warning Products with names that are confusingly similar to an unapproved pharmaceutical or supplement or controlled substance Google does not allow the promotion of DHEA and Melatonin products anywhere except Australia, Canada, the United Kingdom, and the United States. For additional information on the unapproved or misleading pharmaceuticals and supplements that we monitor, please visit www.legitscript.com . Clinical trial recruitment Google doesn't allow the promotion of clinical trial recruitment except in Australia, Belgium, Canada, China, France, Germany, Indonesia, Ireland, Israel, Italy, Japan, Korea, Malaysia, Netherlands, New Zealand, Philippines, Singapore, Taiwan, Thailand, United Kingdom, United States, and Vietnam. Promotions for clinical trial recruitment may not promote prescription drugs or create misleading expectations or effects of a product being tested, or imply that the product being tested is safe. HIV home tests Google prohibits the promotion of HIV home tests everywhere in the world except in the United States, France, the Netherlands, and the United Kingdom. In the United States, advertisers may promote home HIV tests that are FDA approved. In France, the Netherlands, and the United Kingdom advertisers may promote home HIV tests that meet local regulatory requirements. Abortion Google doesn't allow ads related to abortion in the following countries: Antigua and Barbuda, Argentina, Aruba, Bahamas, Bahrain, Belgium, Belize, Bolivia, Brazil, Cayman Islands, Chile, Columbia, Costa Rica, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, France, Germany, Grenada, Guadeloupe, Guatemala, Haiti, Honduras, Hong Kong, Hungary, India, Indonesia, Iran, Iraq, Italy, Jamaica, Jordan, Korea (South), Kuwait, Lebanon, Libya, Malaysia, Martinique, Mexico, Morocco, Nicaragua, Oman, Pakistan, Palestinian Territory, Panama, Paraguay, Peru, Philippines, Poland, Qatar, Russia, Saint Barthelemy, Saudi Arabia, Singapore, Spain, Sri Lanka, St. Kitts and Nevis, St. Lucia, Suriname, Switzerland, Syria, Taiwan, Thailand, Tunisia, Ukraine, United Arab Emirates, Uruguay, Venezuela, Yemen If your country allows ads related to abortion, your ads will run on the Search Network. However, these ads will be classified as Approved (limited) , meaning they will only show in approved areas, and there may be additional restrictions for your country. See the country-specific sections below for more information about how policies differ by country. Abortion-related ads won't appear on the Google Display Network, even if they are Approved (limited). Troubleshooter: Unapproved substances Troubleshooter: DHEA or Melatonin Troubleshooter: Clinical trial recruitment Troubleshooter: HIV home tests Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 9 of 14 Healthcare and medicines - Advertising Policies Help https://support.google.com/adwordspolicy/answer/176031[05/11/2017 8:52:21 AM] • • • • • • Birth control Google doesn't allow ads related to birth control or fertility products in the following countries: Bahrain, China, Djibouti, Egypt, Hong Kong, Iran, Iraq, Jordan, Kuwait, Malaysia, Lebanon, Libya, Morocco, Oman, Palestinian Territory, Qatar, Saudi Arabia, Syria, Thailand, Tunisia, Ukraine, United Arab Emirates, Yemen Apply for certification to advertise with Google Certain advertisers — such as online pharmacies, pharmaceutical manufacturers, and others looking to use prescription drug terms in ad text or landing pages — need to be certified with Google in order to advertise. If you are such an advertiser, here's how to apply to be certified: 1. Adhere to all country-specific requirements below. If your campaign targets a country that isn't listed, then we don't allow the promotion of prescription drugs or over-the-counter medicines by pharmaceutical manufacturers in that country. 2. Fill out our online application form. Please be sure to include your AdWords customer ID, located at the top of your account pages. To cut down on any unnecessary delays, be sure to fill out all of the requested information. If you are an agency applying on behalf of an advertiser, please send documentation detailing your relationship with the advertiser or license holder. How does this policy differ from country to country? In addition to the content-based restrictions above, there may be further requirements based on the countries that your campaign targets. Choose a country below to see additional requirements that you must meet in order for your ad campaign to target that country. The restrictions below are for ads targeting this country: United States Product Allowed? Online pharmacies Allowed with limitations Google allows online pharmacies if they're accredited by the National Association of Boards of Pharmacy (NABP). Google requires the following NABP accreditation depending on the type of site: VIPPS - Required for pharmacies with full online functionality, including the sale (or facilitation of sale) of prescription drugs or the acceptance of new prescription drug orders through their website. e-Advertiser - Required for pharmacies (including pet pharmacies) with limited online functionality such as prescription refills or transfers. .pharmacy domain - Websites with a ".pharmacy" top-level domain are available to pharmacies with full or Troubleshooter: Abortion Troubleshooter: Birth control United States Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 10 of 14 Healthcare and medicines - Advertising Policies Help https://support.google.com/adwordspolicy/answer/176031[05/11/2017 8:52:21 AM] • limited online functionality, including sale (or facilitation of sale) of prescription drugs or services, acceptance of new prescription drug orders through their website, and prescription refills or transfers. Vet-VIPPS - Required for pet pharmacies with full online functionality, including the sale (or facilitation of sale) of prescription drugs, and the acceptance of new prescription drug orders through their website. Learn more or apply for NABP accreditation . Advertisers must also be certified with Google. See how to apply above. Troubleshooting a disapproval If your ad is disapproved for violating this policy, try reviewing the following tips to help resolve your issue: Disapproval reason What does it mean? What do I do now? Online pharmacy certification required Your ad, website, or app is promoting prescription drugs or related products but your account isn't certified by Google. Remove all references to promoting prescription drugs from your ad and website or app. Alternately, if you're a licensed online pharmacy, you can be certified with Google — see how to apply above. Targeting does not match policy Your ad, website, or app is promoting prescription drugs or related products, and even though your account is certified by Google, your ad is targeting a country outside the country that you were certified for. Remove all references to promoting prescription drugs online from your ad and website or app. Alternatively, you can change your location targeting for your campaigns to match the country where you're certified to advertise your pharmacy. See the section above for more detail around country-specific restrictions for the countries that you're targeting. URL does not match online pharmacy certification Your ad, website, or app is promoting prescription drugs or related products, and even though your account is certified by Google, the website or app that the ad promotes doesn't match the one that's certified by Google. Remove all references to promoting prescription drugs online from your ad and website. Alternatively, you can change your ad to promote the website or app that was submitted in your certification request. If you'd like to use a new website or app as an online pharmacy, it must also be certified with Google — see how to apply above. OTC drugs license number required Your ad, website, or app is promoting over-the-counter drugs without a license number, and that's not allowed for at least one country that your campaign targets. Remove all references to over-the-counter drugs without a license number from your ad and website or app. Alternatively, you can change your location targeting for your campaigns to target only countries where this service is allowed. See the section above for more detail around country-specific restrictions for the countries that you're targeting. Prescription drug targeting Your ad, website, or app is promoting prescription drugs, and that isn't allowed for at least one country that your campaign targets. Remove all references to prescription drugs and steroids from your ad and website or app. Alternatively, you can change your location targeting for your campaigns to target only countries where this service is allowed. See the section above for more detail around country-specific restrictions for the countries that you're targeting. Troubleshooting a suspended site Review the guidelines above and make any necessary changes to your site. Once you've done that, request a review of your site by completing this contact form: Request a review If your site is re-enabled, your ads may resume running. If your ads remain disapproved, resubmit them for approval using the instructions below. We strive to review sites and ads as quickly as possible, usually within three business days. If you've been waiting more than three business days for your site or ads to be reviewed, please contact us. Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 11 of 14 Healthcare and medicines - Advertising Policies Help https://support.google.com/adwordspolicy/answer/176031[05/11/2017 8:52:21 AM] You're viewing our Advertising Policies. For general AdWords support, visit the AdWords Help Center. How do I resubmit my ad for review? If your ad is disapproved, you can resubmit it for review by simply editing your ad and then saving it. To avoid getting disapproved again, make sure that your ad complies with our policies and that you remove any references to unacceptable content before saving your ad. Here's how to edit your ad: 1. Visit your account's Ads tab . 2. Hover over the table row that lists the ad you want to edit. Click the pencil icon next to your ad, and you'll be able to edit your ad right there. 3. Click Save when you're done editing your ad. After editing and saving your ad, the Status column will change from "Disapproved" to another status like "Under review" or "Eligible." We review most ads within 1 business day. Some reviews may take longer because some ads require more complex review. What happens if you violate our policies Ad or extension disapproval: Ads and extensions that don't follow this policy may be disapproved. A disapproved ad won't run until the policy violation is fixed and the ad is approved. Site suspension: We may suspend websites that violate our policies, meaning that the website can no longer be advertised until the problem is fixed. Account suspension: An account may be suspended if you have several violations or a serious violation. If this happens, all ads in the suspended account will stop running, and we may no longer accept advertising from you. Any related accounts may also be permanently suspended and your new accounts may be automatically suspended at setup. Learn more about suspended accounts. To ensure a safe and positive experience for users, Google requires that advertisers comply with all applicable laws and regulations in addition to the Google AdWords policies. It's important to familiarize yourself with and keep up to date on these requirements for the places where your business operates, as well as any other places your ads are showing. When we find content that violates these requirements, we may block it from appearing, and in cases of repeated or serious violations, you may no longer be able to advertise with Google. Contact information If you still have questions about this policy, you can contact us via the link below. You'll be taken to a form where you can write to us about your issue. Contact AdWords Support Tell us what you think Rate how helpful this page is and share your feedback with us below: Was this article helpful? YES NO Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 12 of 14 Healthcare and medicines - Advertising Policies Help https://support.google.com/adwordspolicy/answer/176031[05/11/2017 8:52:21 AM] Advertising policies Ad formats and features Ad targeting Abusing the ad network Adult content Alcohol Copyrights Counterfeit goods Dangerous products or services Data collection and use Destination requirements Editorial Enabling dishonest behavior Financial services Gambling and games Healthcare and medicines Inappropriate content Legal requirements Misrepresentation Other restricted businesses Personalized advertising Political content Technical requirements Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 13 of 14 Healthcare and medicines - Advertising Policies Help https://support.google.com/adwordspolicy/answer/176031[05/11/2017 8:52:21 AM] Trademarks ©2017 Google - Privacy Policy - Terms of Service English Case 1:17-cv-00321-UA-JLW Document 20-1 Filed 05/22/17 Page 14 of 14 EXHIBIT 2 Campbell v. Apex Imaging Services, Inc. 2013 WL 4039390 Case 1:17-cv-00321-UA-JLW Document 20-2 Filed 05/22/17 Page 1 of 7 Campbell v. Apex Imaging Services, Inc., Not Reported in F.Supp.2d (2013) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2013 WL 4039390 Only the Westlaw citation is currently available. United States District Court, M.D. North Carolina. Joe CAMPBELL, d/b/a Campbell Building Services, Plaintiff and Counterclaim Defendant, v. APEX IMAGING SERVICES, INC., Defendant and Counterclaim Plaintiff. Apex Imaging Services, Inc., Plaintiff, v. Joe Campbell, d/b/a Campbell, Building Services, Defendant. Nos. 1:12CV1366, 1:12CV1365. | Aug. 7, 2013. Attorneys and Law Firms B. Ervin Brown, II, Law Firm Of B. Ervin Brown, II, Winston–Salem, NC, for Defendant/Plaintiff and Counterclaim Defendant. Greg K. Hafif, Michael G. Dawson, Law Offices of Herbert Hafif, Claremont, CA, William L. Hill, Frazier Hill & Fury, RLLP, Greensboro, NC, for Plaintiff/ Defendant and Counterclaim Plaintiff. MEMORANDUM OPINION AND ORDER BEATY, District Judge. *1 The above-captioned cases are before the Court on a number of Motions. In both cases listed above, Joe Campbell, doing business as Campbell Building Services (“Campbell”), has filed a Motion to Consolidate Case Nos. 12–CV–01365 and 12–CV–01366 and to Stay or Dismiss Case No. 12–CV–01365 (“Motions to Consolidate”) [Doc. # 20 in case number 1:12–CV–1365 & Doc. # 37 in case number 1:12–CV–1366]. In addition, in case number 1:12–CV–1366, Apex Imaging Services, Inc. (“Apex”) has filed a Motion to Transfer Venue to the Southern District of Illinois (“Motion to Transfer”) [Doc. # 28 in case number 1:12–CV–1366], Campbell has filed a Motion to Strike Defendant's Reply in Support of its Motion to Transfer (“Motion to Strike”) [Doc. # 41 in case number 1:12–CV–1366], and Apex has filed a Motion to Dismiss the Second Claim for Unfair and Deceptive Acts or Practices (“Motion to Dismiss”) [Doc. # 20 in case number 1:12–CV–1366]. All Motions are fully briefed and ready for the Court's review. I. FACTUAL AND PROCEDURAL BACKGROUND Campbell filed his Complaint [Doc. # 14 in case number 1:12–CV–1366] on October 15, 2012, in the Superior Court of Davie County, North Carolina, asserting claims against Apex for breach of contract and unfair and deceptive trade practices. In his Complaint, Campbell alleges that in April of 2012, Apex contracted with Campbell to perform construction work on existing buildings belonging to Home Depot and Pilot Gamerooms in Illinois, Ohio, Indiana, Nebraska, and Pennsylvania. Campbell further alleges that he performed all work contracted for during the months of May through September, 2012, but that Apex “failed and refused to make full payment for the contracted jobs.” (Campbell Compl. [Doc. # 14 in case number 1:12–CV–1366], ¶ 6.) Campbell alleges that Apex owes Campbell a total of $96,940.00 for contracted work. In addition, Campbell alleges that Apex's conduct in this case is part of a “pattern and practice” that constitutes unfair and deceptive trade practices in violation of the North Carolina General Statutes Section § 75–1.1. (Campbell Compl. [Doc. # 14 in case number 1:12–CV–1366], ¶¶ 10 & 11.) On October 24, 2012, Apex filed a Complaint [Doc. # 1 in case number 1:12–CV–1365] against Campbell in the United States District Court for the Central District of California, asserting claims for breach of contract and negligence. In its Complaint, Apex alleges that in June and July of 2012, Apex issued written purchase orders to Campbell for remodeling projects in various Home Depot and Pilot locations. Apex alleges that for the projects addressed in the Complaint, “Campbell poorly performed services on [the] project, and/or failed to pay his subcontractors, who then threatened to place a mechanic's lien on the project.... Apex was required to expend monies to remedy [Campbell's] poor performance and satisfactorily complete the project.” (Apex Compl. [Doc. # 1 in case number 1:12–CV–1365], ¶¶ 21, 26, 31, 36, 41, & 46.) Apex further alleges that it performed all “conditions, convenants, and promises” required under the written contracts. (Apex Compl. [Doc. # 1 in case number 1:12– CV–1365], ¶¶ 22, 27, 32, 37, 42, & 47.) Apex alleges that it incurred a total of $320,155.24 in backcharges Case 1:17-cv-00321-UA-JLW Document 20-2 Filed 05/22/17 Page 2 of 7 Campbell v. Apex Imaging Services, Inc., Not Reported in F.Supp.2d (2013) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 due to Campbell's allegedly poor performance under the contracts. In addition, Apex alleges that Campbell owed a duty to Apex to provide adequate construction services and that Campbell breached that duty by performing poorly on the projects and by failing to pay his subcontractors. Apex further alleges that Campbell's breach of duty caused Apex to lose its reputation and goodwill with Pilot and caused Pilot to terminate its contracts with Apex. As such, Apex alleges consequential damages in excess of $1,000,000.00. *2 On November 26, 2012, Apex improperly removed Campbell's case, as originally filed in Davie County, North Carolina, to the United States District Court for the Central District of California. 1 On December 26, 2012, based on a stipulation by the parties, 2 Apex's case, as originally filed in the United States District Court for the Central District of California, and Campbell's case, as originally filed in the Superior Court of Davie County, North Carolina, both were transferred to this Court and docketed as case numbers 1:12–CV–1365 and 1:12–CV– 1366, respectively. Thereafter, Apex answered Campbell's Complaint and filed Counterclaims in case number 1:12– CV–1366. Apex also filed its present Motion to Dismiss and Motion to Transfer in case number 1:12–CV–1366. In addition, Campbell filed Motions to Consolidate in both cases and his present Motion to Strike in case number 1:12–CV–1366. The Court will address each of the pending Motions in turn. II. MOTIONS TO CONSOLIDATE As noted above, after Apex's and Campbell's cases were transferred to this Court, Apex filed Counterclaims in response to Campbell's Complaint in case number 1:12–CV–1366. Such Counterclaims restate, verbatim, the claims and allegations of Apex's Complaint in case number 1:12–CV–1365. Because Campbell filed his Complaint first in time, 3 and because Apex's Complaint is identical to its Counterclaims, Campbell moves to consolidate the two cases and proceed only in case number 1:12–CV–1366. In addition, Campbell moves to dismiss case number 1:12–CV–1365 in the interests of efficiency and avoiding confusion. Apex consents to consolidating the two cases and proceeding at this time in case number 1:12–CV–1366. However, Apex asks that the Court stay, rather than dismiss, case number 1:12–CV–1365 until after resolution of all matters in case number 1:12–CV–1366. Given that the two cases at issue, case numbers 1:12–CV– 1365 and 1:12–CV–1366, involve the exact same parties, facts, and claims, and given that both parties consent to consolidation, the Court will grant Campbell's Motions to Consolidate [Doc. # 20 in case number 1:12–CV1365 & Doc. # 37 in case number 1:12–CV–1366] and will consolidate case number 1:12–CV1365 with case number 1:12–CV–1366. As such, the present dispute between Campbell and Apex shall proceed in case number 1:12– CV–1366 only. Furthermore, the Court finds no reason to have two cases with identical parties, facts, and claims pending on the docket at this time. Therefore, the Court will dismiss without prejudice case number 1:12–CV– 1365. III. MOTION TO TRANSFER Apex moves to transfer case number 1:12–CV–1366 4 from the Middle District of North Carolina to the Southern District of Illinois pursuant to Title 28, United States Code, Section 1404, “[f]or the convenience of parties and witnesses” and “in the interest of justice.” 5 28 U.S.C. § 1404(a). Section 1404 “ ‘is intended to place discretion in the district court to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness.’ “ Republic Mortg. Ins. Co. v. Brightware, Inc., 35 F.Supp.2d 482, 484 (M.D.N.C.1999) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2244, 101 L.Ed.2d 22 (1988) (internal quotations omitted)). The exercise of such discretion involves the weighing and consideration of a number of factors, including: *3 (1) the plaintiff's initial choice of forum; (2) relative ease of access to sources of proof; (3) availability of compulsory process for attendance of unwilling witnesses; (4) possibility of a view of the premises, if appropriate; (5) enforceability of a judgment, if one is obtained; (6) relative advantage and obstacles to a fair trial; (7) other practical problems that make a trial easy, expeditious, and inexpensive; (8) administrative difficulties of court congestion; (9) local interest in having localized controversies settled at home; (10) appropriateness in having a trial of a diversity case in a forum that is at home with the state law that must govern the action; and (11) avoidance of unnecessary problems with conflicts of laws. Case 1:17-cv-00321-UA-JLW Document 20-2 Filed 05/22/17 Page 3 of 7 Campbell v. Apex Imaging Services, Inc., Not Reported in F.Supp.2d (2013) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 IHFC Props., LLC v. APA Mktg., Inc., 850 F.Supp.2d 604, 622 (M.D.N.C.2012) (quoting Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F.Supp. 519, 527 (M.D.N.C.1996)). The moving party, in this case Apex, bears the burden of proving that the balance of these factors favors transfer of venue. Rebel Debutante LLC v. Forsythe Cosmetic Grp., Ltd., 799 F.Supp.2d 558, 565 (M.D.N.C.2011). In addition, “ ‘[w]hen deciding a motion to transfer, it is important to bear in mind that such a motion should not be granted if it simply shifts the inconvenience from the defendant to the plaintiff.’ “ Netalog, Inc., v. Tekkeon, Inc., No. 1:05CV980, 2007 WL 534551, at *5 (M.D.N.C. Feb. 15, 2007) (quoting Plant Genetic Sys., N.V., 933 F.Supp. at 527). Moreover, in considering a motion to transfer venue based on the convenience of the parties and witnesses, the plaintiff's choice of forum “is accorded great weight, particularly where the plaintiff has brought suit in its home forum.” Netalog, Inc., 2007 WL 534551, at *5. A defendant seeking to transfer venue away from the plaintiff's choice of forum “must demonstrate that the balance of the factors weighs ‘strongly in [his] favor.’ “ IHFC Props., LLC, 850 F.Supp.2d at 623 (quoting Mamani v. Bustamante, 547 F.Supp.2d 465, 469 (D.Md.2008)). Courts should afford less weight to the plaintiff's choice of forum, however, if “the suit is filed in a foreign forum or the cause of action bears little relation to the chosen forum.” Id. In support of its Motion to Transfer, Apex first contends that Campbell is the only witness who resides in North Carolina, and that North Carolina otherwise has no relation to the facts and circumstances of this case. In that regard, Apex contends that six (6) of thirteen (13) projects relevant to this case took place within the Southern District of Illinois, that none of the projects took place in North Carolina, and that sixteen (16) of twenty- two (22) witnesses identified by Apex live closer to the Southern District of Illinois than to the Middle District of North Carolina. In addition, Apex contends that it will be easier for its eleven (11) partywitnesses to travel to the Southern District of Illinois than to the Middle District of North Carolina. Specifically, Apex, which is located in California, contends that its employee-witnesses can travel in less time and at a lower cost from the Los Angeles International Airport (“LAX”) to the Lambert– St. Louis International Airport in St. Louis, Missouri, 6 as compared to the travel required from LAX to the Piedmont Triad International Airport in Greensboro, North Carolina. *4 In contrast, Campbell contends that, in addition to himself, three non-party witnesses reside in the Middle District of North Carolina. In addition, Campbell contends that although some of the non-party witnesses identified by Apex may live somewhat closer to the Southern District of Illinois than to the Middle District of North Carolina, no witnesses currently identified by either party reside within the Southern District of Illinois. Furthermore, Campbell contends that both parties will be forced to incur additional costs associated with hiring local counsel in Illinois should venue be transferred to the Southern District of Illinois, thereby potentially negating any savings in travel costs for Apex. Moreover, Campbell contends that the parties already expended a great deal of time and money stipulating to the transfer of the cases at issue to the Middle District of North Carolina from the Central District of California after Apex improperly removed Campbell's Complaint to California from Davie County, North Carolina. After considering the appropriate factors in light of the information presented by both parties, the Court concludes that Apex has failed to meet his burden of showing that the balance of these factors weighs strongly in favor of transferring venue from the Middle District of North Carolina to the Southern District of Illinois. In so concluding, the Court notes that Campbell chose to file this case in Davie County, North Carolina, which is the County of his residence. Although both parties agree that none of the underlying construction projects took place in North Carolina, the Court notes that three non-party witnesses, in addition to Campbell, reside in this District. In addition, the Court notes that only five (5) of the eleven (11) non-party witnesses identified by Apex live closer to the Southern District of Illinois than to the Middle District of North Carolina. Therefore, the information presently before the Court indicates that more non-party witnesses, three (3) for Campbell and six (6) for Apex, for a total of nine (9), live closer to the Middle District of North Carolina than to the Southern District of Illinois. In addition, Apex has not identified any witness who lives within the Southern District of Illinois. Furthermore, the Court notes that both parties likely will face additional costs associated with hiring local counsel in Illinois if this case is transferred. Such information does not strongly weigh in favor of a transfer. Rather, the Court finds that, Case 1:17-cv-00321-UA-JLW Document 20-2 Filed 05/22/17 Page 4 of 7 Campbell v. Apex Imaging Services, Inc., Not Reported in F.Supp.2d (2013) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 overall, Apex has shown only that the Southern District of Illinois may prove to be a slightly more convenient forum for Apex's eleven (11) employee-witnesses who must travel from California. The Court will not, however, transfer this case to an alternate venue simply to shift the conveniences in Apex's favor, particularly where Campbell filed this action in his home forum. Therefore, the Court concludes that venue is proper in the Middle District of North Carolina and that considerations of convenience do not favor transfer of venue to the Southern District of Illinois. As such, the Court will deny Apex's Motion to Transfer. 7 IV. MOTION TO DISMISS *5 Based on the Complaint filed by Campbell in case number 1:12–CV–1366, Apex moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Campbell's Second Claim for Relief, that is, Campbell's Unfair and Deceptive Trade Practices Act (“UDTPA”) claim, for failure to state a claim upon which relief can be granted. In reviewing a Motion to Dismiss for failure to state a claim pursuant to Rule 12(b)(6), the Court must “ ‘take the facts in the light most favorable to the [non-moving party],’ but ‘[it] need not accept the legal conclusions drawn from the facts,’ and ‘[it] need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.’ “ Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.2008) (quoting Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir.2000)). The Supreme Court, in Ashcroft v. Iqbal, noted that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ “ 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). In this regard, the Iqbal Court noted that Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” but Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 677–78, 678– 79, 129 S.Ct. at 1949, 1950. Pleadings containing “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “ ‘naked assertion[s]’ devoid of ‘further factual enhancement,’ “ will not survive a motion to dismiss. Id. at 678, 129 S.Ct. at 1949. Thus, dismissal of a complaint is proper where a plaintiff's factual allegations fail to “produce an inference of liability strong enough to nudge the plaintiff's claims ‘across the line from conceivable to plausible.’ “ Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir.2009) (citing Iqbal, 556 U.S. at 683, 129 S.Ct. at 1952 (internal quotation omitted)). For purposes of his UDTPA claim, Campbell alleges the following: Upon information and belief, [Apex] has engaged in a pattern and practice of contracting with small local contractors such as [Campbell], paying them for only a fraction of the total work done. When the local contractor refuses to perform work on new jobs until he is paid for the work done on earlier jobs, [Apex] terminates the local contractor's services, and hires another contractor to complete the work left unfinished by the original contract, or hires yet another to begin work on new jobs. (Campbell Compl. [Doc. # 14 in case number 1:12– CV–1366], ¶ 10.) Campbell further alleges that such conduct, “constitutes unfair and deceptive trade practices in violation of N.C.G.S. § 75–1.1 et. seq.” (Campbell Compl. [Doc. # 14 in case number 1:12–CV–1366], ¶ 11.) Under North Carolina law, “[a]n act or practice is unfair if it ‘is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.’ “ Bob Timberlake Collection, Inc. v. Edwards, 176 N.C.App. 33, 41, 626 S.E.2d 315, 322–23 (2006) (quoting Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981)). Furthermore, “[a]n act or practice is deceptive if it ‘has the capacity or tendency to deceive.’ “ Id. (quoting Marshall, 302 N.C. at 548, 276 S.E.2d at 403). However, “[i]t is well recognized ... that actions for unfair and deceptive trade practices are distinct from actions for breach of contract ... and that a mere breach of contract, even if intentional, is not sufficiently unfair or deceptive to sustain an action under N.C.G.S. § 75–1–1.” Hardin v. York Mem'l Park, 730 S.E.2d 768, 778 (N.C.Ct.App.2012) (internal quotations and citations omitted) (alterations in original), rev. denied, 738 S.E.2d 376 (N.C.2013); see also Ellis v. Louisiana– Pacific Corp., 699 F .3d 778, 787 (4th Cir.2012) (“ ‘[I]t is unlikely that an independent tort could arise in the course of contractual performance, since those sorts of claims are Case 1:17-cv-00321-UA-JLW Document 20-2 Filed 05/22/17 Page 5 of 7 Campbell v. Apex Imaging Services, Inc., Not Reported in F.Supp.2d (2013) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 most appropriately addressed by asking simply whether a party adequately fulfilled its contractual obligations.’ “ (quoting Eastover Ridge L.L.C. v. Metric Constructors, Inc., 139 N.C.App. 360, 368, 533 S.E.2d 827, 833 (2000))). Rather, “[s]ubstantial aggravating circumstances must attend a breach of contract to permit recovery as an unfair or deceptive trade practice.” Burrell v. Sparkkles Reconstruction Co., 189 N.C.App. 104, 111, 657 S.E.2d 712, 717 (2008). *6 In its Motion to Dismiss, Apex contends that Campbell “simply alleges a contract dispute” between the parties and fails to allege any facts that Apex engaged in unfair or deceptive practices. (Apex's Br. in Support of Mot. to Dismiss [Doc. # 21 in case number 1:12– CV–1366], at 9.) In contrast, Campbell contends that the allegations in his Complaint give rise to a “reasonable inference” that Apex “had in place a practice where they established contracts in which [Apex] intentionally deceived and mislead contractors into providing unilateral partial performance in anticipation of receiving payment for the completed job, and then cancell[ed] the contract when the contractors demanded that they be paid for the work performed to date.” (Campbell's Br. in Opposition to Mot. to Dismiss [Doc. # 31 in case number 1:12– CV–1366], at 3.) As such, Campbell contends that he has alleged “more than adequate facts of aggravating circumstances in order to maintain a case for unfair or deceptive trade practices.” (Campbell's Br. in Opposition to Mot. to Dismiss [Doc. # 31 in case number 1:12–CV– 1366], at 4.) Based on the allegations set forth in the Complaint, the Court finds that Campbell has failed to allege substantial aggravating circumstances that would elevate the breach of contract claim against Apex to a claim arising under the UDTPA. In so finding, the Court notes that although Campbell attempts to elaborate on his UDTPA claim within his briefing in opposition to Apex's Motion to Dismiss, Campbell's complaint contains no more than “labels and conclusions” and, therefore, fails to meet the threshold requirements for surviving a Motion to Dismiss under Iqbal and Twombly. 8 Moreover, to the extent that Campbell has made any factual allegations at all with respect to his UDTPA claim, such allegations appear to be based upon information provided by an unnamed source without any apparent connection to the circumstances at issue in this case. The Court finds such allegations speculative at best and insufficient to survive Apex's Motion to Dismiss at this time. For the foregoing reasons, the Court will grant Apex's Motion to Dismiss and will dismiss Campbell's UDTPA claim. However, to the extent that Campbell may be able to provide additional factual support for his UDTPA claim, the Court will dismiss such claim without prejudice to Campbell filing a Motion Seeking Leave to Amend his Complaint within fourteen (14) days of the date of this Memorandum Opinion and Order. V. CONCLUSION For the foregoing reasons, IT IS ORDERED that Campbell's Motions to Consolidate Case Nos. 12–CV– 01365 and 12–CV–01366 and to Stay or Dismiss Case No. 12–CV–01365 [Doc. # 20 in case number 1:12– CV–1365 & Doc. # 37 in case number 1:12–CV– 1366] are hereby GRANTED and the present dispute between Campbell and Apex shall proceed in case number 1:12–CV–1366 only. IT IS FURTHER ORDERED that case number 1:12–CV–1365 is hereby DISMISSED WITHOUT PREJUDICE. *7 IT IS FURTHER ORDERED the Apex's Motion to Transfer Venue to the Southern District of Illinois [Doc. # 28 in case number 1:12–CV–1366] is hereby DENIED. IT IS FURTHER ORDERED that Campbell's Motion to Strike Defendant's Reply in Support of its Motion to Transfer [Doc. # 41 in case number 1:12–CV–1366] is hereby DENIED AS MOOT. FINALLY, IT IS ORDERED that the Motion to Dismiss the Second Claim for Unfair and Deceptive Acts or Practices [Doc. # 20 in case number 1:12– CV–1366] is hereby GRANTED and Campbell's Unfair and Deceptive Trade Practices Act claim is hereby DISMISSED WITHOUT PREJUDICE to Campbell filing a Motion Seeking Leave to Amend his Complaint within fourteen (14) days of the date of this Memorandum Opinion and Order. All Citations Not Reported in F.Supp.2d, 2013 WL 4039390 Case 1:17-cv-00321-UA-JLW Document 20-2 Filed 05/22/17 Page 6 of 7 Campbell v. Apex Imaging Services, Inc., Not Reported in F.Supp.2d (2013) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 Footnotes 1 Pursuant to Title 28, United States Code, Section 1441, “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a) (emphasis added). Because Campbell originally filed his Complaint in the Superior Court of Davie County, North Carolina, the proper District for removal would be the Middle District of North Carolina, which embraces Davie County, and not the Central District of California. 2 According to Campbell's Response in Opposition to Apex's Motion to Transfer, Campbell initially considered moving to remand his case back to state court and for sanctions against Apex based on the improper removal. See 28 U.S.C. § 1447(c) (“An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”). In lieu of proceeding with a remand, however, Campbell agreed to have both cases at issue transferred to the Middle District of North Carolina. 3 The Court notes that although the case number in which Campbell's Complaint is filed, that is case number 1:12–CV– 1366, has a later sequential number than the case in which Apex's Complaint is filed, that is, case number 1:12–CV– 1365, Campbell originally filed his Complaint in Davie County, North Carolina on October 15, 2012. Apex did not file its Complaint in the United States District Court for the Central District of California until October 24, 2012. 4 Given that the Court will consolidate case numbers 1:12–CV–1365 and 1:12–CV–1366, and will dismiss case number 1:12–CV–1365, the remaining discussion in this Memorandum Opinion and Order relates only to the motions filed in case number 1:12–CV–1366. 5 Apex concedes that the Middle District of North Carolina is a proper venue for the present case. As such, the Court addresses Apex's Motion to Transfer in the context of the convenience of the parties and witnesses and the interest of justice pursuant to 28 U.S .C. § 1404(a). 6 It appears that Apex contends that the Lambert–St. Louis International Airport in St. Louis, Missouri, would be the most convenient airport for travel between Los Angeles, California, and the District Court in the Southern District of Illinois. 7 The Court notes that Campbell filed a Motion to Strike Apex's Reply to the Motion to Transfer, primarily contending that Apex raised new issues and facts in its Reply which were not raised in Campbell's Response. Campbell contends that raising new issues violates Local Rule 7.3(h) and, therefore, the Court should strike Apex's Reply from the record. See L.R. 7.3(h) (“A reply brief is limited to discussion of matters newly raised in the response.”). In considering Campbell's Motion to Strike, the Court notes that because the Court will deny Apex's Motion to Transfer for the reasons set forth above, Campbell's Motion to Strike is rendered moot and will be denied as such. 8 Although the Court acknowledges that Campbell attempts to provide additional information in his briefing solely for the purpose of responding to Apex's Motion to Dismiss, the Court takes no position at this time as to whether such additional information, as provided, would be sufficient to survive a Motion to Dismiss if included in the present Complaint or an Amended Complaint. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:17-cv-00321-UA-JLW Document 20-2 Filed 05/22/17 Page 7 of 7 EXHIBIT 3 Bires v. Waltom, LLC 2008 WL 2980095 Case 1:17-cv-00321-UA-JLW Document 20-3 Filed 05/22/17 Page 1 of 7 Bires v. Waltom, LLC, Not Reported in F.Supp.2d (2008) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 2008 WL 2980095 Only the Westlaw citation is currently available. United States District Court, M.D. North Carolina. Kelly BIRES, Plaintiff, v. WALTOM, LLC d/b/a Waltom Racing, LLC, Defendant. No. 1:07CV00959. | Aug. 1, 2008. Attorneys and Law Firms Shannon L. Vandiver, William Parks Bray, The Bray Law Firm, PLLC, Charlotte, NC, for Plaintiff. Christopher Carlisle Lam, K & L Gates, LLP, Charlotte, NC, for Defendant. MEMORANDUM OPINION BEATY, Chief Judge. *1 This case arises out of a contract dispute between Plaintiff Kelly Bires (“Bires” or “Plaintiff”) and Defendant WalTom, LLC d/b/a WalTom Racing, LLC (“WalTom” or “Defendant”). The contract at issue is a Professional Driving and Sponsorship Agreement (the “Agreement”) entered into by the parties on February 9, 2006. Plaintiff filed suit in the General Court of Justice, Superior Court Division in Rowan County, North Carolina, seeking a declaratory judgment that the “purported contract is null, void, invalid and unenforceable and that, therefore, Plaintiff has not [sic] duties or obligations thereunder.” [Doc. # 3] In December 2007, Defendant removed the action to this Court based on diversity jurisdiction. On January 25, 2008, Defendant filed a Motion to Transfer Venue [Doc. # 9] to the United States District Court for the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, Defendant's Motion to Transfer Venue [Doc. # 9] will be GRANTED. I. FACTUAL BACKGROUND Defendant is a limited liability company organized under the laws of the State of Illinois with its principal place of business in Riverside, Cook County, Illinois. Defendant is managed in, and both of its Managing Members, Walter and Tom Gleitsman, reside in Illinois. Defendant was formed in Illinois in 2000 to field an auto racing team in The American Speed Association (“ASA”) Series. Defendant has two race shops: one in Burr Ridge, Illinois, and one in Pewaukee, Wisconsin. In 2004, Defendant began a Driver Development Program to educate and train young drivers who demonstrated superior ability and talent in motor sports. According to the facts as alleged by Plaintiff in the Complaint, in October, 2005, Plaintiff applied for a position with Defendant's ASA Late Model team. Shortly thereafter in November, 2005, Defendant hosted a driving test in Hudson, North Carolina, to find its next Development Driver, in which Plaintiff participated. Plaintiff further alleges that “after Plaintiff's successful driving performance in Hudson, North Carolina, Defendant contacted Plaintiff and demanded that he participate in additional testing in Pensacola, Florida, in order to have an opportunity to race for Defendant in 2006.” (Complaint ¶ 10) The Complaint further alleges that after the Pensacola, Florida testing, Defendant offered Plaintiff a position as the driver of an ASA late model racecar. Plaintiff then leased an apartment near Defendant's race shop in Wisconsin and began training for Defendant. 1 Defendant's counsel, an Illinois lawyer, subsequently prepared a draft of a written agreement with the managing partners in Illinois. Defendant presented Plaintiff with the draft agreement at an ASA banquet in Indiana. With the assistance of a Wisconsin attorney, Plaintiff requested and received several changes to the terms of the contract. Plaintiff signed the draft agreement that resulted from the negotiations in Wisconsin on February 7, 2006, and sent it to Defendant in Illinois. Defendant counter-signed the Agreement in Illinois on February 9, 2006. *2 At the conclusion of the 2006 season, Plaintiff ceased working for Defendant and began driving for another company. While Plaintiff now seeks to have the entire Agreement declared unenforceable, his dispute is essentially with the section of the Agreement entitled “Royalties.” That section requires that Plaintiff pay royalties to Defendant from all future race-related Case 1:17-cv-00321-UA-JLW Document 20-3 Filed 05/22/17 Page 2 of 7 Bires v. Waltom, LLC, Not Reported in F.Supp.2d (2008) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 earnings for ten years after he ceases driving for Defendant in consideration for the salary, the substantial costs and expenses advanced, and the advice, counsel, training, and mentoring provided by Defendant for the benefit of Plaintiff. The Agreement also contains a forum-selection/choice- of-law clause which Defendant in its Motion to Transfer Venue now seeks to enforce. That provision reads: Illinois Law Applies: This Agreement shall be deemed to be executed in the State of Illinois and shall be construed in accordance with the laws of said State, and any action to enforce or interpret the terms hereof shall be brought exclusively in the courts of Cook County, IL. In the event any provision hereof shall for any reason be found invalid, illegal or unenforceable, then, and in any such event, the same shall not affect the validity of the remaining portion and portions hereof. II. DISCUSSION Under 28 U.S.C. § 1404(a), a district court may transfer any civil action to any other district where it might have been brought “[for] convenience of the parties, in the interest of justice.” 28 U.S.C. § 1404(a). As the Supreme Court has noted: Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness. A motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2244, 101 L.Ed.2d 22 (1988) (internal quotation and citation omitted). There can be no dispute that this action could have been brought in the Northern District of Illinois pursuant to 28 U.S.C. § 1391(a)(1), because Defendant is organized under the laws of the State of Illinois and has its principal place of business there. What the parties dispute here is whether a transfer of venue in this case would be in the interest of justice. “Ordinarily the burden to show that a transfer of venue would be in the interest of justice is on the party seeking the transfer.” Price v. Leasecomm Corp., No. 1:03CV685, 2004 WL 727028, *3 (M.D.N.C. Mar. 31, 2004) (citing Cable-La, Inc. v. Williams Commc'ns, Inc., 104 F.Supp.2d 569, 574 (M.D.N.C.1999)). “However, a valid forum- selection clause shifts the burden from the party seeking transfer to the party opposing enforcement of the clause.” Id. With this standard in mind, the Court now turns to address the merits of Defendant's Motion to Transfer Venue. A. Forum-Selection Clause *3 Before the “case-specific factors” are balanced under § 1404(a) and before the forum-selection clause can shift the burden of proof, the Court must first determine whether the forum-selection clause is valid. Id. at 4; Republic Mortgage Ins. Co. v. Brightware, Inc ., 35 F.Supp.2d. 482, 484 (M.D.N.C.1999). On a motion to transfer venue under § 1404(a), the validity of a forum- selection clause is determined with reference to federal law. Stewart, 487 U.S. at 28, 108 S.Ct. at 2243. Under federal common law, forum-selection and choice-of-law clauses are presumptively valid and should be enforced unless the opposing party clearly shows that enforcement is unreasonable under the circumstances. Allen v. Lloyd's of London, 94 F.3d 923, 928 (4th Cir.1996) (citing M/ S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). Forum-selection and choice-of-law clauses may be found unreasonable if: (1) their formation was induced by fraud or overreaching; (2) the complaining party “will for all practical purposes be deprived of his day in court” because of the grave inconvenience or unfairness of the selected forum; (3) the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or (4) their enforcement would contravene a strong public policy of the forum state. Allen, 94 F.3d at 928 (citing Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 595, 111 S.Ct. 1522, 1528, 113 L.Ed.2d 622 (1991); M/S Bremen, 407 U.S. at 12-13). 1. Fraud and Overreaching Plaintiff, as the party opposing transfer of venue, first argues that the entire contract is unconscionable and resulted from overreaching, and that therefore, the forum- Case 1:17-cv-00321-UA-JLW Document 20-3 Filed 05/22/17 Page 3 of 7 Bires v. Waltom, LLC, Not Reported in F.Supp.2d (2008) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 selection clause must also be found to be unconscionable and induced by overreaching. However, “[t]he party seeking to avoid enforcement of the clause may not succeed by alleging fraud in the inducement of the contract itself. Instead, [he] must show that the inclusion of that particular clause was the product of fraud or coercion.” Price, 2004 WL 727028, at *4 (citing Sherk v. Alberto- Culver Co., 417 U.S. 506, 519 n. 14, 94 S.Ct. 2449, 2457, 41 L.Ed.2d 270 (1974); Allen, 94 F.3d at 928 (agreeing without discussion that the district court properly found no evidence of fraud where there was no fraud in the inclusion of the forum clauses)); see also Bassett Seamless Guttering, Inc. v. GutterGuard, LLC, No. 1:05CV00184, 2006 WL 156874, *4 (M.D.N.C. Jan. 20, 2006) (“To show that the forum-selection clause is unreasonable based on fraud, Plaintiff would need to show that inclusion of the forum-selection clause itself was the product of fraud or coercion” (emphasis in original)). Plaintiff objects that he was “forced to sign a document that he was able to provide very little negotiation on” and claims that the parties' unequal bargaining power resulted in an “overreaching and unconscionable contract.” (Pl. Mem. Opp. at 9) The Court finds that Plaintiff's allegations of overreaching go only to the inducement of the contract; he has not alleged any fraud or overreaching in the inclusion of the forum- selection clause itself. Plaintiff was represented by an attorney in the negotiations and was able to request and receive some changes to the Agreement. Defendant contends that Plaintiff never made any objection to the forum-selection clause and Plaintiff does not dispute this assertion. Furthermore, upon examination of the Agreement which Plaintiff attached to his Complaint, Plaintiff's handwritten name and address appears directly above the forum-selection and choice-of-law clause along with Plaintiff's initials directly below it. Consequently, the Court concludes that Plaintiff has not established that the forum-selection clause was induced by fraud or overreaching. 2. Inconvenience of the Forum *4 In opposing Defendant's Motion to Transfer Venue, Plaintiff further argues that by transferring this action to the Northern District of Illinois, he will be deprived of his day in court because of “grave inconvenience or unfairness.” The Court finds that Plaintiff will not be deprived of his day in court by a transfer of venue. The Court recognizes that litigating in Illinois instead of North Carolina would likely be more inconvenient and more costly for Plaintiff. However, “[a] party seeking to avoid a forum selection clause must prove more than the inconvenience of litigating in a distant forum ...” Price, 2004 WL at *5. Plaintiff has not done so here. Further, the Court notes that it would be equally inconvenient for Defendant and its witnesses to travel to North Carolina to litigate this dispute. Thus, the Court concludes that Plaintiff has not met his burden to show the “grave inconvenience or unfairness” of the forum- selection clause. 3. Unfairness of the Chosen Law Plaintiff also argues that applying Illinois law in this case in accordance with the forum-selection clause would be unfair. Plaintiff's argument, however, is based upon his allegation that an oral agreement was formed in North Carolina after a driver test in November 2005. To that end, Plaintiff contends that North Carolina law should be applied. However, the Court finds that Illinois law would govern the parties' dispute even if the Agreement did not contain forum-selection and choice-of-law provisions. If this Court retains this case, sitting in diversity it would apply the choice-of-law rules of North Carolina. Burris Chem. v. USX Corp., 10 F.3d 243, 245 n. 7 (4th Cir.1993); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1983). Under North Carolina law, the interpretation of a contract is governed by the law of the state where the contract was made. Fried v. N. River Ins. Co., 710 F.2d 1022, 1024 (4th Cir.1983); See also, Tanglewood Land Co., Inc. v. Byrd, 299 N.C. 260, 261 S.E.2d 655, 656 (1980) (observing the presumption that interpretation of a contract is governed by the law of the place where the contract was made). Under North Carolina law, a contract is formed where the final act of acceptance takes place. Goldman v. Parkland of Dallas, Inc., 176 S.E.2d 784, 787 (N.C.1970); Kohler Co. v. McIvor, 628 S.E.2d 817, 820 (N.C.Ct.App.2006). Plaintiff contends that because the “real agreement” was orally formed in North Carolina in November 2005, the final act of acceptance took place in North Carolina. However, Plaintiff's contentions in opposition to Defendant's motion are in direct contradiction to his Complaint. In the Complaint, Plaintiff alleges that he was invited to participate in a test race in North Carolina and that “after Plaintiff's successful driving performance ... Defendant contacted Plaintiff and demanded that he participate in additional testing in Pensacola, Florida, in Case 1:17-cv-00321-UA-JLW Document 20-3 Filed 05/22/17 Page 4 of 7 Bires v. Waltom, LLC, Not Reported in F.Supp.2d (2008) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 order to have an opportunity to race for the Defendant in 2006.” By Plaintiff's own admission, “after the Pensacola, Florida testing, Defendant offered Plaintiff a position as the driver of Defendant's # 89 ASA Late Model racecar ...” (emphasis added). The Florida driver test did not take place until December 3, 2005. Considering Plaintiff's own allegations, the Court finds that Plaintiff had not yet been offered a position as driver for the Defendant when in North Carolina for the driver test. Therefore, the final act of acceptance could not have taken place in North Carolina immediately following the November 2005 test. *5 Furthermore, a separate written contract entered into between the parties reveals that the parties had merely opened negotiations in North Carolina, and had not yet entered into a final agreement. On December 2, 2005, following the November 2005 driver test in North Carolina and the December 2005 driver test in Florida, Plaintiff and WalTom entered into a separate written agreement, a “stand-still” agreement, whereby Plaintiff and another driver agreed not to enter into negotiations with another race team for 45 days. The “stand-still” agreement provided that on or before January 14, 2006, “WalTom agrees to notify Driver of their intentions via formal driving contract or a release of responsibility allowing Driver to then pursue other driving opportunities. The actual terms and conditions of the formal driving contract shall be subject to the mutual agreement of WalTom and Driver.” (Def. Reply Mem. at 3) The “stand-still” agreement further demonstrates that Plaintiff and Defendant were still in the negotiation stage after the driver test in North Carolina, and that any offer to drive for WalTom would be in the form of a formal contract subject to the mutual agreement of both parties. A formal agreement, the Agreement at issue in this dispute, was signed by Plaintiff on February 7, 2006, in Wisconsin. WalTom counter-signed the agreement on February 9, 2006, in Illinois. The Court finds that this counter-signing was the final act of acceptance. Consequently, because the contract was made in Illinois, Illinois law would govern this dispute even if the action were heard by this Court in North Carolina. Finally, under North Carolina choice-of-law rules, the presumption that interpretation of the contract is governed by the law of the place where the contract was made may be overcome by the presence of a choice- of-law provision in a contract. Vovlo Const. Equipment N. Amer., Inc. v. CLM Equip. Co., Inc., 386 F.3d 581 (4th Cir.2004)(citing Buetel v. Lumber Mut. Ins. Co., 134 N.C.App. 626, 518 S.E.2d 205, 209 (1999)). In this case, the choice-of-law provision at issue states that Illinois law will apply. Consequently, North Carolina choice-of-law rules leave no doubt that Illinois law will apply to this dispute. Therefore, Plaintiff's contention that applying Illinois law would in this case be unfair is without merit. 4. Public Policy Finally, in opposition to Defendant's motion, Plaintiff argues that enforcing the forum-selection clause would be contrary to North Carolina public policy as set forth in N.C. Gen.Stat. § 22B-3. Under Section 22B-3, a forum- selection clause per se contravenes North Carolina public policy if it was entered into in North Carolina and requires the prosecution of the action to be instituted or heard in another state. Id. Forum-selection clauses entered into in other states, however, are given effect. See Price at *15 (citing Key Motorsports, Inc. v. Speedvision Network, L.L.C., 40 F.Supp.2d 344, 349 (M.D.N.C.1999) as “finding N.C.G .S. § 22B-3 inapplicable where contract negotiated in North Carolina was counter-signed in another state”); Szymczyk, 168 N.C.App. at187, 606 S.E.2d at 733. The Court has determined that the Agreement was entered into in Illinois. Thus, N.C. Gen.Stat. § 22B-3 is inapplicable. Therefore, the Court finds that enforcing the forum-selection clause would not contravene public policy. 2 *6 Having considered each of the four factors the Court must consider in determining the validity of the forum- selection clause, the Court concludes that the forum- selection clause in the Agreement at issue in this dispute is valid. The Court will now consider the additional factors in deciding whether to transfer this action pursuant to § 1404. B. Transfer of Venue Having determined that the forum-selection clause is valid, the burden shifts to Plaintiff to show “exceptional facts” which would demonstrate that transfer of venue would be unjust or unreasonable. Cable-La, 104 F.Supp.2d at 575 (citing Nizam's Inst. of Med. Scis. v. Exchange Techs., Inc., 28 F.3d 1210, No. 93-2196, 1994 WL 319187, *2 (4th Cir. July 5, 1994). While the valid forum-selection clause should not be afforded dispositive Case 1:17-cv-00321-UA-JLW Document 20-3 Filed 05/22/17 Page 5 of 7 Bires v. Waltom, LLC, Not Reported in F.Supp.2d (2008) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 weight, Stewart, 487 U . S. at 31, it is a “significant factor that figures centrally” in a § 1404(a) analysis. Id. at 29. When ruling on a § 1404(a) motion to transfer, courts consider and weigh the following factors: (1) the plaintiff's initial choice of forum; (2) the residence of the parties; (3) relative ease of access to sources of proof; (4) availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing and unwilling witnesses; (5) possibility of a view of the premises, if appropriate; (6) enforceability of a judgment, if one is obtained; (7) relative advantage and obstacles to a fair trial; (8) other practicable problems that make a trial easy, expeditious, and inexpensive; (9) administrative difficulties of court congestion; (10) local interest in having localized controversies settled at home; and (11) appropriateness in having a trial of a diversity case in a forum that is at home with the state law that must govern the action. Rice v. Bellsouth Adver. & Pub. Corp., 240 F.Supp.2d 526, 529 (W.D.N.C.2002). The parties have agreed that the fifth factor is neutral. Moreover, the Court finds that the second and eighth factors are also not determinative in this matter. These factors relate to the cost of adjudicating this dispute in a distant forum, where evidence and witnesses may not be easily accessible. In this case, one party will inevitably have to bear the cost of traveling to another state to litigate this dispute. The sixth factor, the enforceability of judgment, does not impact the Court's decision in any significant manner as neither party has argued that it would be more difficult to enforce a judgment in either jurisdiction. Finally, having found no particular difficulties concerning court congestion in either district, the Court concludes that the ninth factor is also neutral. Thus, having determined that the second, fifth, sixth, eighth, and ninth factors do not weigh in favor of either transferring or retaining this matter, the Court will turn to consider the factors one, three, four, seven, ten, and eleven-all of which the Court ultimately finds weigh in favor of transfer. 1. Plaintiff's Choice of Forum *7 First, with regard to Plaintiff's initial choice of forum, “[t]he federal courts traditionally have accorded a plaintiff's choice of forum considerable deference.” Republic Mortgage, 35 F.Supp.2d at 486. To that end, the Court notes that Plaintiff's choice of forum would seemingly favor North Carolina, since Plaintiff filed suit in North Carolina state court. “However, these factors must be viewed with reference to ‘the parties' expressed preference’ for [Illinois] and ‘in light of the forum- selection clause.’ “ Republic Mortgage, 35 F.Supp.2d at 486 (quoting Stewart, 487 U.S. at 29, 108 S.Ct. at 2244). “When a forum-selection clause is part of the balancing, as Stewart requires, it is more logical to consider the plaintiff's initial choice of forum to be the forum that is contractually agreed upon.” Republic Mortgage, 35 F.Supp. at 486. Therefore, Plaintiff's initial choice of forum was agreed upon when the Agreement was executed. That forum, according to the agreement, is Illinois. Consequently, Plaintiff's choice of forum actually weighs in favor of transferring this action. 2. Relative Ease of Access of Proof This factor, with respect to the ease of access of proof, weighs in favor of transferring the action to Illinois. All of Defendant's corporate records are in Illinois and all of the documents in Defendant's possession relevant to the negotiations and execution of the Agreement are in Illinois. WalTom's principal place of business is in Illinois, where its Managing Members reside. John Mulvenna, the general manager of WalTom, likewise resides in Illinois. Defendant's employees live in Illinois or Wisconsin. Finally, the persons who negotiated the Agreement, including Plaintiff's attorney, are in Illinois and Wisconsin. Therefore, considering the ease of access of proof, these facts weigh in favor of transferring this case to the Northern District of Illinois. 3. Availability of Compulsory Process for Attendance of Witnesses By Plaintiff's own admission, Plaintiff and WalTom's managing partners may well be the only necessary witnesses to this action. Plaintiff further admits that the only issues will be whether there was adequate consideration or whether the contract was otherwise unconscionable and/or the subject of overreaching and unequal bargaining power, and that those issues can be fully litigated without the need for additional unidentified witnesses. Consequently, Plaintiff has not identified any relevant witnesses that would be within the subpoena power of this Court. While Plaintiff's initial pleading and opposition to Defendant's motion to transfer indicate a preference for the hearing of this matter in North Carolina, Plaintiff has not indicated any unwillingness to travel to Illinois to prosecute this action. Further, Case 1:17-cv-00321-UA-JLW Document 20-3 Filed 05/22/17 Page 6 of 7 Bires v. Waltom, LLC, Not Reported in F.Supp.2d (2008) © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 if Plaintiff chooses to call witnesses on his behalf, he may bring them to Illinois without a compulsory process. Therefore, the Court finds that the availability of a compulsory process for attendance of unwilling witnesses weighs in favor of transferring this action to Illinois. 4. Advantages and Obstacles to a Fair Trial *8 Defendant has argued that considering the origin and history of NASCAR, a North Carolina jury may be more sympathetic to an up-and-coming NASCAR driver. Plaintiff argues that Defendant would gain a “great advantage” by having this matter litigated in the Northern District of Illinois because that is where Defendant has its principal place of business. The Court finds that this factor weighs more heavily in favor of transferring the matter than retaining it here in North Carolina, where the litigation may perhaps be unduly influenced by an industry factor unrelated to the real issues of the contract dispute. 5. Interest in Having Local Controversies Settled at Home and Appropriateness of Forum and State Applying Law With regard to the interest in having local controversies settled at home, and the appropriateness in having a trial of a diversity case in a forum that is at home with the state law that must govern the action, these factors favor transfer of this case to the Northern District of Illinois. As the Court has previously explained, Illinois law will apply and as such, a district court there with more experience and expertise in applying Illinois contract law would be better suited to oversee this litigation. Further, the only connection this case has with North Carolina is Plaintiff's current residence and the November 2005 driver test. Accordingly, these factors-the interest in having local controversies settled at home, and the appropriateness in having a trial of a diversity case in a forum that is at home with the state law that must govern the action, also weigh in favor of transferring the matter to Illinois. Having determined that the aforementioned case-specific balancing factors are either neutral, or weigh in favor or transferring this matter, the Court concludes that this matter should be transferred to the United States District Court for the Northern District of Illinois. III. CONCLUSION The Court finds that the forum-selection clause at issue in the Agreement is not unjust or unreasonable, and is therefore valid. Further, having weighed the case-specific factors to determine if a transfer pursuant to 28 U.S.C. § 1404(a) is warranted, the Court finds that this matter should be transferred to the United States District Court for the Northern District of Illinois in accordance with the forum-selection clause. Therefore, Defendant's Motion to Transfer Venue [Doc. # 9] will be GRANTED and this action will be transferred to the United States District Court for the Northern District of Illinois. An Order consistent with this Memorandum Opinion will be filed contemporaneously herewith. All Citations Not Reported in F.Supp.2d, 2008 WL 2980095 Footnotes 1 Plaintiff is a Wisconsin native and lived in Wisconsin before and during the time he drove for Defendant. He did not move to North Carolina until after he stopped driving for Defendant. (Def. Mem. at 3-4.) 2 Likewise, for the reasons previously discussed in this Memorandum Opinion, the Court notes that the forum-selection clause is valid and enforceable regardless of whether the royalty provision challenged by Plaintiff may ultimately be found to be unconscionable. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 1:17-cv-00321-UA-JLW Document 20-3 Filed 05/22/17 Page 7 of 7