Everbank Commercial Finance, Inc. v. Neighbors Global Holdings, Llc

MOTION to Dismiss for Lack of Jurisdiction or in the Alternative, to Transfer Venue to the Southern District of Texas Pursuant to 28 U.S.C. Section 1404

D.N.J.June 8, 2017

Case 2:17-cv-03356-WJM-MF Document 9 Filed 06/08/17 Page 1 of 2 PageID: 119 Case 2:17-cv-03356-WJM-MF Document 9 Filed 06/08/17 Page 2 of 2 PageID: 120 Case 2:17-cv-03356-WJM-MF Document 9-1 Filed 06/08/17 Page 1 of 2 PageID: 121 Case 2:17-cv-03356-WJM-MF Document 9-1 Filed 06/08/17 Page 2 of 2 PageID: 122 1 ME1 24825196v.1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY EVERBANK COMMERCIAL FINANCE, INC., Plaintiff, v. NEIGHBORS GLOBAL HOLDINGS, LLC, Defendant. : : : : : : : : : : : : Civil Action No. 2:17-cv-3356-WJM-MF Honorable William J. Martini Honorable Mark Falk ______________________________________________________________________________ BRIEF IN SUPPORT OF DEFENDANT NEIGHBORS GLOBAL HOLDINGS, LLC’s MOTION TO DISMISS THE COMPLAINT FOR LACK OF PERSONAL JURISDICTION OR, IN THE ALTERNATIVE, TO TRANSFER VENUE TO THE SOUTHERN DISTRICT OF TEXAS PURSUANT TO 28 U.S.C. §1404 ______________________________________________________________________________ Of Counsel and On the Brief David R. Kott On the Brief Christopher A. Rojao McCARTER & ENGLISH, LLP Four Gateway Center 100 Mulberry Street P.O. Box 652 Newark, New Jersey 07101-0652 (973) 622-4444 Attorneys for Defendant Neighbors Global Holdings, LLC Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 1 of 35 PageID: 123 i ME1 24825196v.1 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 STATEMENT OF FACTS AND PROCEDURAL HISTORY ................................ 3 A. Background Information Regarding Neighbors’ Lease of Equipment and Services from 3i ............................................................................................... 3 B. Plaintiff’s District Court of New Jersey Action ................................................................................................... 8 LEGAL ARGUMENT ............................................................................................. 11 POINT I. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED BECAUSE THIS COURT DOES NOT HAVE PERSONAL JURISDICTION OVER NEIGHBORS IN NEW JERSEY .................................... 11 A. Legal Standard on Motion to Dismiss for Lack of Personal Jurisdiction ........................................................ 11 B. The Due Process Clause Limits The Exercise of Personal Jurisdiction ........................................................ 12 C. Plaintiff Cannot Demonstrate Any Facts That Would Support the Exercise of Specific Jurisdiction Over Neighbors ............................................. 15 D. It is Unnecessary for this Court to Consider whether the Exercise of Jurisdiction Comports with Traditional Notions of Fair Play and Substantial Justice because Plaintiff Cannot Satisfy the Other Elements to Establish Establish Jurisdiction over Neighbors ................................................. 18 Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 2 of 35 PageID: 124 ii ME1 24825196v.1 POINT II. IN THE ALTERNATIVE, THIS COURT SHOULD TRANSFER THIS ACTION TO THE SOUTHERN DISTRICT OF TEXAS ............................................................................................ 19 A. Applicable Legal Standard for Motion To Transfer Venue............................................................................... 19 B. This Court Should Exercise its Discretion to Transfer this Action to the Southern District of Texas .................................................................................. 20 (i) This Matter Could and Should Have Been Brought in the Southern District of Texas .......................................................................... 21 (ii) Private Interest Factors ................................................................ 22 a) Parties’ Choice of Forum ....................................................... 22 b) Whether the Claim Arose Elsewhere ..................................... 23 c) Convenience of the Parties ..................................................... 23 d) Convenience of the Witnesses ................................................ 24 e) Location of Books and Records ............................................. 26 (iii) Public Interest Factors ................................................................. 27 a) Practical Considerations ......................................................... 27 b) Local Interests and Public Policies ......................................... 27 c) Judicial Resources .................................................................. 28 CONCLUSION ........................................................................................................ 29 Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 3 of 35 PageID: 125 iii ME1 24825196v.1 TABLE OF AUTHORITIES Page(s) FEDERAL CASES BNSF Ry. Co. v. Tyrrell, 2017 WL 2322834 (U.S. May 30, 2017) ............................................................ 14 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ....................................................................13, 15, 16, 18, 19 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .................................................................................... 13, 14 Devault of Delaware, Inc. v. Omaha Pub. Power Dist., 633 F. Supp. 374 (E.D. Pa. 1986) ....................................................................... 18 Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327 (5th Cir 2004) ......................................................................... 16, 18 Gehling v. St. George’s Sch. Of Med., Ltd., 773 F.2d 539 (3d Cir. 1985) ............................................................................... 11 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) ............................................................................................ 14 Hanson v. Denckla, 357 U.S. 235 (1958) ............................................................................................ 16 Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 409 & 416 (1984)................................................................................. 13 IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998) ................................................................... 11, 12, 15 Janosko v. United of Omaha Life Ins. Co., 2016 WL 4009818 (D.N.J. July 25, 2016) ......................................................... 22 Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) ............................................................... 20, 21, 22, 26 Kulter Int’l Films Ltd. v. Covent Garden Pioneer, FSP., Ltd., 860 F. Supp. 1055 (D.N.J. 1994) ........................................................................ 25 Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 4 of 35 PageID: 126 iv ME1 24825196v.1 Linwood Trading Ltd. v. Am. Metal Recycling Servs., 2015 WL 5098117 (D.N.J. Aug. 28, 2015) ........................................................ 20 Marten v. Godwin, 499 F.3d 290 (3d Cir. 2007) ................................................................... 13, 14, 15 Patterson by Patterson v. F.B.I., 893 F.2d 595 (3d Cir. 1990) ............................................................................... 12 Provident Nat’l Bank v. California Fed. Sav. & Loan Ass’n, 819 F.2d 434 (3d Cir. 1987) ............................................................................... 13 Seghers v. Executive Risk Indemnification, Inc., 2006 WL 2865494 (D.N.J. Oct. 5, 2006) ........................................................... 20 Smith v. S&S Dundalk Eng’g Works, Ltd., 139 F. Supp. 2d 610 (D.N.J. 2001) ..................................................................... 12 Sulipeck v. Everbank Commercial Fin., Inc., 2012 WL 12872718 (N.D. Tex. Aug. 6, 2012) .................................................. 11 Telebrands Corp. v. Mopnado, 2016 WL 368166 (D.N.J. Jan. 12, 2016) ............................................................ 20 Van Dusen v. Barrack, 376 U.S. 612 (1964) ............................................................................................ 19 Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prod. Co., 75 F.3d 147 (3d Cir. 1996) ................................................................................. 14 Zamudio v. Everbank, 2013 WL 12106882 (S.D. Tex. July 2, 2013) .................................................... 11 STATE CASES Jacobs v. Walt Disney World Co., 309 N.J. Super. 443 (App. Div. 1998) ................................................................ 12 STATUTES 28 U.S.C. § 1332 ...................................................................................................... 21 28 U.S.C. § 1391(b)(1)............................................................................................. 21 Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 5 of 35 PageID: 127 v ME1 24825196v.1 28 U.S.C. § 1391(c)(2) ............................................................................................. 22 28 U.S.C. § 1404 ........................................................................................................ 1 28 U.S.C. § 1404(a) ........................................................................................... 19, 20 OTHER AUTHORITIES Fed. R. Civ. P. Rule 45(c)(3)(A)(ii) ......................................................................... 25 N.J. Ct. R. 4:4-4(b)(1) .............................................................................................. 12 Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 6 of 35 PageID: 128 1 ME1 24825196v.1 PRELIMINARY STATEMENT Defendant, Neighbors Global Holdings, LLC (“Neighbors”), submits this memorandum of law in support of its Motion to Dismiss Plaintiff Everbank’s Complaint for Lack of Personal Jurisdiction or, in the Alternative, to Transfer Venue to the Southern District of Texas Pursuant to 28 U.S.C. § 1404. This Court cannot exercise personal jurisdiction over Neighbors because Neighbors does not have sufficient minimum contacts with New Jersey and Plaintiff’s Complaint does not arise out of or relate to any purported contacts with New Jersey. Neighbors is a Delaware limited liability company that is headquartered in Houston, Texas. On July 15, 2016, Neighbors entered into a Master Equipment Lease Agreement, Schedule No. xxxx5501 (“July 15, 2016 Lease”), with another Texas company, All Points Solution, Inc., d/b/a 3i International (“3i”) for the lease of certain equipment to be used at its headquarters in Houston. According to the allegations in the Complaint, 3i unilaterally assigned the July 15, 2016 Lease to Plaintiff Everbank. Plaintiff’s Complaint alleges claims for breach of the July 15, 2016 Lease that was executed in Texas, as well as replevin for the subject equipment that is also located in Texas. Plaintiff’s unilateral conduct, however, is insufficient to confer personal jurisdiction over Neighbors in New Jersey. Specifically, Neighbors has never purposefully directed any activities Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 7 of 35 PageID: 129 2 ME1 24825196v.1 towards New Jersey or purposefully availed itself of the benefits and privileges of doing business in New Jersey such that it could reasonably expected to be haled into court here. Accordingly, this Court should grant Neighbors’ motion to dismiss the Complaint for lack of personal jurisdiction. In the alternative, if this Court is not inclined to dismiss this matter based on lack of personal jurisdiction, the interests of justice warrant transferring this action to the United States District Court for the Southern District of Texas. Plaintiff can and should have filed this action in that venue. Furthermore, all of the material witnesses, including witnesses from 3i that are outside the subpoena power of this District and who cannot be compelled to testify in the District of New Jersey at trial, are located in Texas. The July 15, 2016 Lease was negotiated and entered into in Texas, and the equipment that is the subject of the Lease is currently located in Houston. There is also related litigation between Neighbors, 3i, and Everbank pending in Texas state court, and Everbank has appeared to defend itself in that action. Accordingly all of the private and public interest factors that courts must consider on a motion to transfer venue weigh in favor of transferring this action to the Southern District of Texas. Therefore, this Court should grant Neighbors’ motion and dismiss the complaint or, in the alternative, transfer this action to the Southern District of Texas, where the defendant, witnesses, documents, and equipment are located. Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 8 of 35 PageID: 130 3 ME1 24825196v.1 STATEMENT OF FACTS AND PROCEDURAL HISTORY A. Background Information Regarding Neighbors’ Lease of Equipment and Services from 3i The following background information regarding Neighbors’ business and its relationship with 3i is highly relevant to the instant matter and place Plaintiff’s claims alleged in the Complaint into appropriate context. Neighbors owns and operates thirty-three free standing emergency centers throughout Texas, Colorado, and Rhode Island (“Centers”), which are staffed with physicians and nurses who provide an alternative to the traditional hospital emergency rooms with shorter wait times. (See Affidavit of T. Gruenert in Support of Defendant’s Motion to Dismiss or Transfer (hereinafter “Gruenert Aff.”) at ¶ 3). Neighbors’ corporate headquarters is located in Houston, Texas, and provides management, accounting, IT and other back office support services to the Centers. (Id. at ¶ 2). Each Center has computers, servers, copiers and other equipment, most of which is subject to rental agreements (the “Agreements”). The Agreements were initially entered into with a Texas company, All Points Solutions, Inc. d/b/a 3i International (“3i”). (See Gruenert Aff., Ex. 1: Original Petition and Application for Temporary Restraining Order (hereinafter “Texas Petition”), at ¶ 34). Neighbors also has several agreements with 3i for its headquarters location. (Id.) Before entering into any Agreement to lease, Neighbors would submit a list of Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 9 of 35 PageID: 131 4 ME1 24825196v.1 equipment to 3i, and 3i would provide a quote for the cost to lease that equipment. The quotes were shared with and approved by Neighbors’ IT department. None of the quotes included a request or quote for software or services. Typically, after the delivery of the equipment to the Centers, 3i would generate a written lease agreement that was delivered to the CFO at Neighbors. (Id. at ¶ 40). Between May 2015 and September 2016, Neighbors entered into at least twenty-nine (29) Agreements with 3i. Eight (8) are for the corporate headquarters and twenty-one (21) are for the Centers. Additionally, the Agreements are subject to three (3) Master Equipment Lease Agreements. The Agreements all greatly exceed the quotes provided by 3i to, and approved by, Neighbors, and include software and services that were not requested by Neighbors nor included in the quotes. (Id. at ¶¶ 42-43). In most instances, on the same day an Agreement was signed, 3i required Neighbors to concurrently sign a “Delivery and Acceptance Certificate,” despite the fact that it appears Neighbors did not actually receive the equipment on that date for various locations. Moreover, Neighbors never received the software or services listed in the Agreements. (Id. at ¶ 44). In early 2017, Neighbors commenced an internal audit because it began to receive invoices on certain Agreements from both 3i and Everbank. This investigation revealed the outrageous costs associated with the 3i Agreements, the Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 10 of 35 PageID: 132 5 ME1 24825196v.1 double billing, the discrepancy between what was quoted and what was provided and other significant issues. (Id. at ¶ 45). For example, the largest of the Agreements was for equipment to be used at Neighbors’ new corporate headquarters in Houston, Texas (Lease No. 41395501). Originally, Neighbors’ IT department compiled the list of equipment contemplated for the headquarters. On June 27, 2016, 3i returned a quote for the lease of the equipment of $223,418.41 total lease cost. (Id. at ¶ 54). The quote covered 930 pieces of equipment and a warranty. On July 15, 2016, an Agreement containing the exact same equipment from the June 27, 2016 quote with additional line items for “professional services” and software was executed. The monthly payment under the lease, however, was $23,614.94 for a term of sixty-three (63) months for a total lease cost of $1,487,741.22. (Id. at ¶ 55). This outrageous increase cannot be justified. It could not have been for additional equipment since the equipment was the same on the June 27, 2016 quote. It also could not have been for professional services because Neighbors did not receive professional services at its headquarters and its IT department performs all professional services itself. (Id. at ¶ 56). Indeed, when Neighbors asked 3i for evidence of what professional services it allegedly rendered under the headquarters lease, 3i only produced a single document titled “Statement of Work” dated June 24, 2016. Yet it provided no time sheets or other evidence that anyone from 3i Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 11 of 35 PageID: 133 6 ME1 24825196v.1 actually performed any services under this Statement of Work. (Id. at ¶ 57). The plan, execution and implementation of the IT equipment was handled entirely by Neighbors' own IT department. Despite this, 3i invoiced Neighbors $1,264,322.81 for three weeks of alleged services (that it did not provide). (Id. at 58). Similarly, before opening a new Center, the Center’s IT department would submit a list of equipment to 3i, and 3i would provide a written estimate showing the cost to lease each piece of equipment on the list. On information and belief the estimate was approved by the Neighbors’ IT department. A review of the Agreements, however, has revealed substantially increased prices on most equipment on each final lease compared to the amount quoted. (Id. at ¶ 58). The equipment costs in the Agreements are exorbitant and unconscionable. For example, Lease No. 41205704 includes a Lenovo ThinkServer RD540 priced at $112,507.23. The retail cost for this item is less than $5,000.00. (Id. at ¶ 59). Furthermore, 3i double invoiced for the same equipment at the same locations. Agreements for equipment and services for five (5) of the twenty-one (21) Centers are duplicative of another agreement for the same Center. (Id. at ¶74- 75). Indeed, Neighbors had been double invoiced to lease the same IT equipment at these five (5) Centers for months, and double invoiced for professional services and technology that were never provided. To date, Neighbors has been double billed in excess of $1,000,000.00. (Id. at ¶ 76). These are just a few of the Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 12 of 35 PageID: 134 7 ME1 24825196v.1 examples of the alleged fraud and misconduct that Neighbors uncovered during its investigation. As a result of 3i’s and Everbank’s purported fraud and misconduct, in early 2017 Neighbors stopped making payments on certain disputed Agreements until an accounting and reconciliation could be completed. (See id. at 50). The Agreements, however, provide in part for immediate repossession of equipment without a Court Order. Repossession would be devastating to Neighbors and its patients as at least two (2) of the Agreements include Cisco network gear, i.e., switches, storage, and software that is fundamental to Neighbors’ ability to operate its network. Tampering with that gear would effectively take down Neighbors’ entire system. (See Gruenert Aff., at ¶¶21-22). Additionally, Neighbors uses a software application called “T-Systems” to prepare electronic medical records. All patient charting, including physician notes, is done digitally in this system. Removal or tampering with the hardware at any of the centers would make it impossible to see patients at the Centers and impossible to maintain the privilege nature of the medical information. Accordingly, on May 11, 2017, Neighbors filed an Original Petition and Application for Temporary Restraining Order, Temporary Injunction and Permanent Injunction in the District Court of Harris County, Texas against 3i and Everbank seeking a declaratory judgment and injunctive relief related to their Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 13 of 35 PageID: 135 8 ME1 24825196v.1 misconduct. (See Gruenert Aff., at ¶ 24). That action is presently pending in the Texas state court. (Id.) B. Plaintiff’s District Court of New Jersey Action The instant dispute before the Court is based on 3i unilaterally assigning one of its Master Equipment Lease Agreements, Schedule No. xxxx5501, dated July 15, 2016 to Plaintiff. (See Gruenert Aff., at ¶ 11). This Lease was for equipment used at Neighbors’ headquarters in Houston, Texas. (Id.) Neighbors was not notified, consulted or involved in any decision to assign the July 15, 2016 Lease to Everbank. (Id.) Sometime thereafter, Everbank notified Neighbors that it was the present holder of 3i’s interests in the July 15, 2016 Lease, but did not provide any documentary evidence of the assignment or purchase agreement pursuant to which it may have acquired such interest. (Id. at ¶ 12). Concerned about the proper identity of the owner of the July 15, 2016 Lease, and in an effort to preempt any improper action for replevin or other methods of self-help, Neighbors asked to see the assignments or proof of Everbank’s interest in the July 15, 2016 Lease. However, 3i likewise failed to provide the assignment or ownership information. To date, Neighbors has never seen any evidence of Everbank’s purported interest. (Id. at ¶ 13). Neighbors began receiving invoices from Everbank directing Neighbors to send payments on the July 15, 2016 Lease to a P.O. Box in Denver, Colorado. (Id. Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 14 of 35 PageID: 136 9 ME1 24825196v.1 at ¶ 14). Thereafter, a representative from Everbank unilaterally contacted Neighbors and requested that payment on the July 15, 2016 Lease be sent to Everbank in New Jersey. (Id. at ¶ 15). Neighbors made payments to Everbank in New Jersey on the Lease pursuant to Everbank’s request. These payments are the only postage that Neighbors sent to Everbank in New Jersey. (Id. at ¶ 16). However, based on Neighbors’ discovery of 3i’s and/or Everbank’s purported fraud and misconduct, as well as Everbank’s complete failure to provide any evidence demonstrating that it is the present holder of 3i’s interest in the July 15, 2016 Lease, Neighbors stopped payment to 3i and Everbank pending an accounting and reconciliation. (See Gruenert Aff., Ex. 1: Texas Petition, at ¶ 50). Plaintiff has indicated that it considers Neighbors in default, and instituted the present action in the Superior Court of New Jersey alleging breach of contract, unjust enrichment, and replevin. (See Pl.’s Compl., at pp. 6-9). Everbank’s conduct is concerning because certain Agreements provide in part for immediate repossession of equipment without a Court Order. As noted above, repossession would be detrimental to Neighbors and its patients as tampering with its equipment and software would take down Neighbors’ entire system, and place protected health information at risk of unauthorized disclosure. (See Gruenert Aff., at ¶¶21-22). Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 15 of 35 PageID: 137 10 ME1 24825196v.1 Plaintiff, however, has improperly instituted this action in the United States District Court for the District of New Jersey, which does not have personal jurisdiction over Neighbors. Neighbors is a limited liability company formed under the laws of Delaware with its principal place of business in Houston, Texas. Neighbors’ sole member is a Texas corporation with its principal place of business in Houston, Texas. (See Gruenert Aff., at ¶ 2). Neighbors does not regularly conduct business in New Jersey and does not maintain a place of business in New Jersey. (Id. at ¶ 3). Neighbors does not lease or own any real or personal property located in New Jersey. Neighbors does not have, nor has it ever had, a New Jersey telephone number, mailing address, bank account, or taxpayer identification number, and it has never held or maintained any New Jersey licenses. (Id. at ¶ 4). In addition, Neighbors has never maintained or been required to maintain a registered agent for service of process in New Jersey and has never been registered to do business in New Jersey. (Id. at ¶ 6). Neighbors does not have and has never had any employees, servants or agents in New Jersey. (Id. at ¶ 7). Neighbors has never solicited business from or targeted advertisements to any person or entity in New Jersey. (Id. at ¶ 8). Moreover, aside from the instant lawsuit, Neighbors has never filed a lawsuit or been sued in New Jersey. Neighbors has never sought to avail itself of the privileges of doing business in New Jersey, and has never been found by any court to have sufficient minimum contacts to establish personal Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 16 of 35 PageID: 138 11 ME1 24825196v.1 jurisdiction over Neighbors in New Jersey. (Id. at ¶ 17). On the other hand, Everbank has filed numerous lawsuits in Texas and has been sued several times in Texas. 1 (Id. at ¶ 18). Accordingly, this Court should grant Neighbors’ motion to dismiss the complaint for lack of personal jurisdiction or, in the alternative, transfer this matter to the United States District Court for the Southern District of Texas. LEGAL ARGUMENT POINT I. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED BECAUSE THIS COURT DOES NOT HAVE PERSONAL JURISDICTION OVER NEIGHBORS IN NEW JERSEY. A. Legal Standard on Motion to Dismiss for Lack of Personal Jurisdiction The legal principles governing Neighbors’ Motion to Dismiss are both well- established and clear. When a defendant challenges personal jurisdiction in a motion to dismiss, “the plaintiff bears the burden of proving that personal jurisdiction is proper.” IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d Cir. 1998) (citing Cateret Savings Bank v. Shushan, 954 F.2d 141, 146 (3d Cir. 1992)). To sustain its burden, the plaintiff must demonstrate “with reasonable particularity the extent and nature of the [defendant’s] contacts with [the forum].” See Gehling v. St. George’s Sch. Of Med., Ltd., 773 F.2d 539, 542 (3d Cir. 1985). This burden 1 See, e.g., Zamudio v. Everbank, 2013 WL 12106882, at *3 (S.D. Tex. July 2, 2013); Sulipeck v. Everbank Commercial Fin., Inc., 2012 WL 12872718, at *1 (N.D. Tex. Aug. 6, 2012). Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 17 of 35 PageID: 139 12 ME1 24825196v.1 must be proven “through sworn affidavits or other competent evidence.” Patterson by Patterson v. F.B.I., 893 F.2d 595, 603-604 (3d Cir. 1990). “Once the motion is made, plaintiff must respond with actual proofs, not mere allegations.” Id. at 604. This is a burden Plaintiff simply cannot sustain here. B. The Due Process Clause Limits The Exercise of Personal Jurisdiction In a diversity action such as this one, a federal district court typically will employ a two-pronged analysis when addressing a motion to dismiss for lack of personal jurisdiction. “First, the court must apply the relevant state long-arm statute to see if it permits the exercise of personal jurisdiction; then, the court must apply the precepts of the Due Process Clause of the Constitution.” IMO Indus., 155 F.3d at 259; Smith v. S&S Dundalk Eng’g Works, Ltd., 139 F. Supp. 2d 610, 616 (D.N.J. 2001). In New Jersey, however, this analysis “is collapsed into a single step because the New Jersey long-arm statute permits the exercise of personal jurisdiction to the fullest limits of due process.” Id. (citing DeJames v. Magnificence Carriers, Inc., 654 F.2d 280, 284 (3d Cir. 1981)); N.J. Ct. R. 4:4- 4(b)(1); see also Jacobs v. Walt Disney World Co., 309 N.J. Super. 443, 452 (App. Div. 1998). New Jersey courts thus “look to federal law for the interpretation of the limits on in personam jurisdiction.” Id. (citing Mesalic v. Fiberfloat Corp., 897 F.2d 696, 698 n. 5 (3d Cir. 1990)). Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 18 of 35 PageID: 140 13 ME1 24825196v.1 Under the Due Process Clause of the Fourteenth Amendment, a nonresident defendant must have “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Marten v. Godwin, 499 F.3d 290, 296 (3d Cir. 2007) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal citation and punctuation omitted)). These minimum contacts must be such that the defendant “should be reasonably able to anticipate being haled into court in the forum state.” Provident Nat’l Bank v. California Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987) (citing World-wide Volkswagen Corp. v. Woodsen, 444 U.S. 286, 297 (1980)). Jurisdiction will be proper only when “the defendant purposefully avails itself of the privilege of conducting activities within the forum State,” ensuring that “a defendant will not be haled into a jurisdiction solely as a result of random, fortuitous, or attenuated contacts.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). A non-resident defendant’s contacts with the forum state may give rise to either general or specific jurisdiction. Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 409, 414 n. 9 & 416 (1984). “A court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State.” Daimler Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 19 of 35 PageID: 141 14 ME1 24825196v.1 AG v. Bauman, 134 S. Ct. 746, 769 (2014); see also Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011). The “paradigm” forums, in which a corporate defendant is “at home,” are the corporation’s place of incorporation and its principal place of business. See BNSF Ry. Co. v. Tyrrell, No. 16-405, 2017 WL 2322834, at *9 (U.S. May 30, 2017) (citing Daimler, 134 S. Ct. at 760). In the exceptional case, a corporate defendant’s operations in another forum “may be so substantial and of such a nature as to render the corporation at home in that State.” Daimler, 134 S. Ct., at 761, n. 19. The Supreme Court has recently reaffirmed that only under these limited circumstances will a corporate defendant be subject to general jurisdiction in a forum state. See BNSF Ry. Co., 2017 WL 2322834, at *9. By contrast, a defendant may be subject to specific jurisdiction where “the cause of action arises from the defendant’s forum related activities.” Vetrotex Certainteed Corp. v. Consol. Fiber Glass Prod. Co., 75 F.3d 147, 151 (3d Cir. 1996) (citations omitted). Courts engage in a three-part inquiry to determine whether specific jurisdiction exists over a non-resident defendant. Marten, 499 F.3d at 296. “First, the defendant must have purposefully directed his activities at the forum.” Id. (internal citations and quotations omitted). “Second, the plaintiff’s claim ‘must arise out of or relate to’ at least one of those specific activities.” Id. (quoting Helicopteros, 466 U.S. at 414). Last, courts consider whether the exercise Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 20 of 35 PageID: 142 15 ME1 24825196v.1 of jurisdiction comports with notions of “fair play and substantial justice.” Id. (quoting Burger King, 471 U.S. at 476) (internal citation and quotations omitted)). Application of these well-settled legal principles to the facts alleged in Plaintiff’s complaint makes clear that Neighbors is not subject to personal jurisdiction in New Jersey. C. Plaintiff Cannot Demonstrate Any Facts That Would Support the Exercise of Specific Jurisdiction Over Neighbors In this case, no good faith argument can be made that Neighbors is subject to general jurisdiction in New Jersey. As such, Plaintiff’s complaint can only be read to allege that this Court may exercise specific jurisdiction over Neighbors. The Third Circuit has held that specific jurisdiction may be exercised only when a non- resident defendant has “minimum contacts” with the forum, when the complaint arises out of or relates to such contacts, and when the exercise of jurisdiction will not offend “traditional notions of fair play and substantial justice.” IMO Indus., 155 F.3d at 26. Plaintiff, cannot show that any of these prerequisites is satisfied here. To demonstrate that Neighbors possesses the required “minimum contacts” necessary for the exercise of personal jurisdiction, Neighbors must have purposefully availed itself of the privilege of acting within New Jersey, invoking “the benefits and protections” of the forum, such that it could reasonably anticipate being haled into court here. See Burger King Corp., 471 U.S. at 476. The focus of Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 21 of 35 PageID: 143 16 ME1 24825196v.1 the analysis is on the defendant’s conduct. Id. Indeed, a defendant may not be subjected to a state’s jurisdiction solely as a result of “random”, “fortuitous”, or “attenuated” contacts. Id. “The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State.” Hanson v. Denckla, 357 U.S. 235, 253 (1958). Moreover, “[i]t is well established that merely contracting with a resident of the forum state is insufficient to subject the nonresident to the forum’s jurisdiction.” Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 344 (5th Cir 2004). In Freudensprung, the court explicitly noted that this Court has repeatedly held that the combination of mailing payments to the forum state, engaging in communications related to the execution and performance of the contract, and the existence of a contact between the nonresident defendant and a resident of the forum are insufficient to establish the minimum contacts necessary to support the exercise of specific personal jurisdiction over the nonresident defendant. Id. at 344. Accordingly, the Freudensprung court dismissed the complaint for lack of personal jurisdiction against the defendant. In this case, Neighbors is a limited liability company formed under the laws of Delaware with its principal place of business in Houston, Texas. (See Gruenert Aff., at ¶ 2). Neighbors does not regularly conduct business in New Jersey and does not maintain a place of business in New Jersey. (Id. at ¶ 3). Neighbors does not lease or own any real or personal property located in New Jersey. Neighbors Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 22 of 35 PageID: 144 17 ME1 24825196v.1 does not have, nor has it ever had, a New Jersey telephone number, mailing address, bank account, or taxpayer identification number, and it has never held or maintained any New Jersey licenses. (Id. at ¶ 4). In addition, Neighbors has never maintained or been required to maintain a registered agent for service of process in New Jersey and has never been registered to do business in New Jersey. (Id. at ¶ 6). Neighbors does not have and has never had any employees, servants or agents in New Jersey. (Id. at ¶ 7). Neighbors has never solicited business from or targeted advertisements to any person or entity in New Jersey. (Id. at ¶ 8). Moreover, aside from the instant lawsuit, Neighbors has never filed a lawsuit or been sued in New Jersey. Neighbors has never sought to avail itself of the privileges of doing business in New Jersey, and has never been found by any court to have sufficient minimum contacts to establish personal jurisdiction over Neighbors in New Jersey. (Id. at ¶ 17). Furthermore, 3i’s unilateral assignment of the July 15, 2016 Lease to Everbank is not a “purposeful activity” on the part of Neighbors directed at New Jersey. Neighbors was not notified, consulted or involved in any decision to assign the July 15, 2016 Lease to Everbank. (Id. at 11). After the Lease was assigned, Everbank initiated contact with Neighbors in Texas. (Id.) The only potential “attenuated,” “fortuitous” contacts that Neighbors could have with New Jersey is the payments on this Lease that were sent to Everbank, at the direction of Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 23 of 35 PageID: 145 18 ME1 24825196v.1 Everbank. These payments, however, are wholly insufficient to confer jurisdiction over Neighbors in New Jersey. The payments were solely the result of the unilateral activity of 3i and Everbank, and not of any purposeful conduct on the part of Neighbors to direct activities toward New Jersey. Accordingly, neither 3i’s assignment of the Lease to Everbank, nor Neighbors’ continued payments on the Lease constitute any basis for establishing personal jurisdiction over Neighbors. See, e.g., Burger King, 471 U.S. at 476, Freudensprung, 379 F.3d at 344; see also Devault of Delaware, Inc. v. Omaha Pub. Power Dist., 633 F. Supp. 374, 377 (E.D. Pa. 1986) (holding that defendant’s entering into a contract with plaintiff only as a result of assignment of the contract was insufficient to confer specific jurisdiction over defendant). Therefore, since Neighbors has not engaged in any activity with respect to New Jersey constituting the necessary minimum contacts, the exercise of personal jurisdiction over Neighbors would be inconsistent with constitutional due process. D. It is Unnecessary for this Court to Consider whether the Exercise of Jurisdiction Comports with Traditional Notions of Fair Play and Substantial Justice because Plaintiff Cannot Satisfy the Other Elements for Establishing Jurisdiction over Neighbors In light of the absence of any basis upon which to exercise specific jurisdiction over Neighbors, it is unnecessary to reach the third prong of the analysis – whether asserting personal jurisdiction would “comport with ‘fair play and substantial justice’” as it is only reached when the first two prongs are Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 24 of 35 PageID: 146 19 ME1 24825196v.1 satisfied. See Burger King Corp., 471 U.S. at 476 (quoting Int’l Shoe Co., 326 U.S. at 320); J. McIntyre Mach., Ltd., 131 S. Ct. at 2787 (“[I]t is the defendant’s purposeful availment that makes jurisdiction consistent with “traditional notions of fair play and substantial justice.”); Oticon Inc., 865 F. Supp. 2d 501 at 517 (“Given that Plaintiff has failed to demonstrate sufficient minimum contacts with New Jersey, the Court need not engage in ‘notions of fair play and substantial justice’ analysis.”). Accordingly, it is unnecessary for this Court to analyze whether the exercise of jurisdiction comports with fair play and substantial justice since Plaintiff cannot satisfy the first two requirements of the analysis. POINT II. IN THE ALTERNATIVE, THIS COURT SHOULD TRANSFER THIS ACTION TO THE SOUTHERN DISTRICT OF TEXAS A. Applicable Legal Standard for Motion to Transfer Venue “For the convenience of parties and witnesses, and in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). The purpose of Section 1404(a) “is to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal citations and quotations omitted). Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 25 of 35 PageID: 147 20 ME1 24825196v.1 B. This Court Should Exercise its Discretion to Transfer this Action to the Southern District of Texas. It is well-settled that Courts have “broad discretion in making determinations with respect to transfer under Section 1404(a), and convenience and fairness are considered on a case-by-case basis.” Linwood Trading Ltd. v. Am. Metal Recycling Servs., 2015 WL 5098117, at *1 (D.N.J. Aug. 28, 2015). The Court should use its broad discretion to transfer this matter to the Souther District of Texas, which is a far more appropriate and convenient venue than the District of New Jersey. As a threshold matter, in deciding a motion to transfer, courts must determine “whether the transferee district has proper jurisdiction and venue, such that the case could have been brought in the transferee district in the first instance.” Telebrands Corp. v. Mopnado, 2016 WL 368166, at *10 (D.N.J. Jan. 12, 2016). Next, courts conduct a balancing test, which takes a number of private and public interest factors into consideration. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). The private interest factors include: (1) plaintiff’s choice of forum; (2) defendant’s choice of forum; (3) whether the claim arose elsewhere (4) convenience of the parties as indicated by their relative physical and financial condition; (5) availability of compulsory process over unwilling witnesses; and (6) the location of books and records. Id.; Seghers v. Executive Risk Indemnification, Inc., 2006 WL 2865494, at *6 (D.N.J. Oct. 5, Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 26 of 35 PageID: 148 21 ME1 24825196v.1 2006). The public interest factors include: (1) enforceability of the judgment; (2) practical considerations that could make the trial easy, expeditious, or inexpensive; (3) local interest in deciding local controversies at home; (4) public policies of the fora; and (4) familiarity of the trial judge with the applicable state law. Jumara, 55 F.3d at 879. In this case, application of the public and private interest factors weigh in favor of transferring this matter to the United States District Court for the Southern District of Texas, where Neighbors and 3i are located and conduct business. (i) This Matter Could and Should Have Been Brought in the Southern District of Texas It is indisputable that this matter could and should have been brought in the United States District Court for the Southern District of Texas. Here, as noted above, this Court does not have personal jurisdiction over Neighbors with respect to Plaintiff’s complaint. Neighbors, however, does not contest personal jurisdiction in the Southern District of Texas. Further, Plaintiff’s allegations contained in the complaint satisfy the requirements for diversity jurisdiction under 28 U.S.C. § 1332, which is why Neighbors properly removed the instant action to federal court. In a civil action founded on diversity of citizenship, venue is appropriate in a judicial district in which any defendant resides, 28 U.S.C. § 1391(b)(1), and a corporate defendant such as Neighbors resides in “any judicial Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 27 of 35 PageID: 149 22 ME1 24825196v.1 district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” 28 U.S.C. § 1391(c)(2). Thus, because the Southern District of Texas can assert personal jurisdiction over Neighbors and venue is appropriate there, the matter could have been brought there. Accordingly, because this preliminary requirement is met, the Court must weigh the requisite public and private interest factors articulated in Jumara. (ii) Private Interest Factors a) Parties’ Choice of Forum This Court has held that although weight is afforded to the plaintiff’s forum choice, “when the central dispute in a lawsuit arose from events that occurred almost exclusively in another forum . . . courts give substantially less weight to the plaintiff's forum choice.” Janosko v. United of Omaha Life Ins. Co., 2016 WL 4009818, at *3 (D.N.J. July 25, 2016) (citing Nat'l Prop. Inv'rs VIII v. Shell Oil Co., 917 F. Supp. 324, 327 (D.N.J. 1995)). In this case, all of the underlying factual circumstances giving rise to Everbank’s lawsuit occurred in Texas. Specifically, 3i and Neighbors communicated and negotiated regarding the July 15, 2016 Lease in Texas. Additionally, the equipment that is the subject of the Lease was delivered to Neighbors headquarters in Houston, Texas. The equipment is presently located in Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 28 of 35 PageID: 150 23 ME1 24825196v.1 Texas. Accordingly, Plaintiff’s decision to file this action in New Jersey is of no moment, and this factor does not weigh in favor of maintaining the action here. b) Whether the Claim Arose Elsewhere This factor likewise weighs in favor of transfer. Nearly all of the facts at issue in this matter arose in Texas. As noted above, all of the communications regarding entering into the July 15, 2016 Lease, as well as 3i’s alleged misconduct with respect to the Lease, occurred in Texas. The equipment is in Texas. Indeed, this is why there is a related litigation pending in the Harris County District Court in Texas that Neighbors instituted against 3i and Everbank. Accordingly, any claim alleging a breach of the Texas Agreement or replevin of the equipment located in Houston arose in Texas. c) Convenience of the Parties Texas is a far more convenient forum for Neighbors than New Jersey. (See Gruenert Aff. ¶¶ 3, 7.) Neighbors’ headquarters and key personnel are based in Texas; including the relevant employees who negotiated, reviewed, analyzed and evaluated the equipment under the Lease at issue. (Id.) Similarly, all of Neighbors’ records relating to the Lease, equipment, and software are in Texas; none are in New Jersey. (Id. at 2, 19). Further, Neighbors has no material connection to New Jersey and requiring Neighbors’ witnesses to travel to New Jersey for trial will have more of a disruptive effect on Neighbors’ and its Centers’ Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 29 of 35 PageID: 151 24 ME1 24825196v.1 medical operations than allowing these witnesses to testify in their home forum. See Tischio, 16 F. Supp. 2d at 525 (noting that denial of transfer would “disrupt the [defendant's] normal business workings”). Plaintiff, a resident of New Jersey, presumably will argue that New Jersey is a more convenient forum. However, Plaintiff has filed numerous lawsuits in Texas and has been sued several times in Texas. (See Gruenert Aff., at ¶ 17). In addition, there is related litigation pending between Neighbors, 3i and Plaintiff in Harris County District Court, in which Plaintiff will have to appear and defend. Plaintiff has retained Texas counsel in that action. Therefore, it is evident that Plaintiff is subject to personal jurisdiction in Texas and that Plaintiff is familiar with that forum. Neighbors, on the other hand, has never been sued in New Jersey, is less familiar with the local practices, and has never been found to be subject to personal jurisdiction in New Jersey. Accordingly, this factor also weighs in favor of transfer to the Southern District of Texas. d) Convenience of the Witnesses Most importantly, the critical witnesses that are essential to the claims and defenses at issue in Plaintiff’s instant action reside in or are located in Texas. All of Neighbors’ witnesses, current and former employees, IT personnel, and other individuals who may have knowledge relevant to the claims and defenses with Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 30 of 35 PageID: 152 25 ME1 24825196v.1 respect to Plaintiff’s complaint are located in Texas. In addition, 3i and its officers, agents and employees that negotiated the Lease, generated invoices, and itemized and inventoried equipment and services that are the subject of the July 15, 2016 Lease are located in Texas. 3i has not been named as a party in Plaintiff’s District of New Jersey action, and thus neither Neighbors nor Plaintiff can compel these witnesses to give testimony at trial. See Kulter Int’l Films Ltd. v. Covent Garden Pioneer, FSP., Ltd., 860 F. Supp. 1055, 1067-68 (D.N.J. 1994). Pursuant to Fed. R. Civ. P. Rule 45(c)(3)(A)(ii), a person who is not a party or an officer of a party cannot be required to travel more than 100 miles from his residence or regular place of employment or business to testify at trial. If any of the above witnesses refuse to appear at a trial voluntarily, this Court would be unable to enforce a subpoena for their appearance. “[T]o fix the place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on deposition, is to create a condition not satisfactory to court, jury or most litigants.” Gulf Oil, 330 U.S. at 511. If this case proceeds in New Jersey, several key witnesses may not testify live, thus creating conditions that even the United States Supreme Court recognizes are not appropriate. Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 31 of 35 PageID: 153 26 ME1 24825196v.1 e) Location of Books and Records The last of the private interest factors, the location of relevant books and records, also weighs in favor of transferring this matter to the Southern District of Texas. As detailed above in Neighbors’ statement of facts, all of the computers, servers, copiers, and other equipment that is the subject of the July 15, 2016 Lease are located in Neighbors’ headquarters in Houston, Texas. In addition, the quotes and estimates for the equipment, including the initial quotes and final delivery confirmations, are all located in Texas. Tischio, 16 F. Supp. 2d at 525 (bulk of relevant materials in Virginia strongly favors transfer there); Wm. H. McGee, 6 F. Supp. 2d at 291 (bulk of evidence in transferee forum); National Micrographics, 825 F. Supp. at 681 (transfer warranted where virtually all documents related to the litigation were outside New Jersey, most witnesses resided outside New Jersey, and the defendant's corporate headquarters was in the transferee district). Any purported assignment or proof of interest that Plaintiff may have in the lease (which Plaintiff has failed to provide) can also be obtained from 3i in Texas. In short, all of the private factors in Jumara instruct that this matter should be transferred to the Southern District of Texas. Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 32 of 35 PageID: 154 27 ME1 24825196v.1 (iii) Public Interest Factors a) Practical Considerations In addition to the private factors which weigh heavily in favor of transfer, practical considerations that could make trial easy, expeditious, and inexpensive all warrant transfer as well. Again, the most significant factor under this analysis is the fact that non-party 3i and its officers, agents, and employees that communicated with Neighbors regarding the July 15, 2016 Lease and delivered equipment purportedly pursuant to that Lease are located in Texas. The pending related litigation regarding many of the Agreements between Neighbors and 3i – not just the July 15, 2016 Lease that is the subject of this action – militates against continuing this parallel proceeding. b) Local Interests and Public Policies The local interest in deciding this matter is the strongest in Texas, where its companies, employees, and citizens can all be potentially affected by a ruling or judgment regarding the matters at issue here. At core this action is of great local concern to Texas, where Neighbors operates its medical centers, providing care and treatment to the citizens of Texas. The Lease was entered into between two Texas companies, Neighbors and 3i. Further, in the event a Court orders replevin, or in the event 3i or Plaintiff improperly invoke self-help, the protected health information of all of Neighbors’ Texas patients will be at risk. Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 33 of 35 PageID: 155 28 ME1 24825196v.1 In sum, the only connection this case has to this Court is that the Plaintiff resides in New Jersey. That is not enough to maintain venue, where, as here, the defendant is based in Texas, the evidence is based in Texas, and related litigation is proceeding in Texas. c) Judicial Resources Finally, it must be noted that the Southern District of Texas has a faster docket, with less civil cases being filed and more judicial resources presently available to it than the District Court of New Jersey. Indeed, according to U.S. Court statistics, the Southern District of Texas is a faster forum by a wide margin. D.N.J. S.D. Tex. Median Time From Filing to Trial 38.8 months 22.5 months Percent Change in Total Filings Over Last Year +7.3% -0.4% Percent Change in Total Filings over Last 5 Years +23.4% -8.4% Civil Filings per Judgeship 626 328 Number of Civil Cases over 3 Years Old 660 387 See U.S. District Courts – Combined Civil and Criminal Federal Court Management Statistics (Dec. 31, 2016), available at http://www.uscourts.gov/statistics-reports/analysis-reports/federal-judicial- caseload-statistics. Here, Plaintiff will also benefit from transfer because it will be Case 2:17-cv-03356-WJM-MF Document 9-2 Filed 06/08/17 Page 34 of 35 PageID: 156 29 ME1 24825196v.1 able to obtain a speedier resolution of the claims alleged in this action. Accordingly, the availability of judicial resources in the District of New Jersey and the Southern District of Texas warrant transferring this matter. CONCLUSION The exercise of personal jurisdiction over Neighbors would be inconsistent with constitutional due process because Neighbors’ only connection to New Jersey is that 3i unilaterally assigned certain Equipment Leases to Everbank, a New Jersey company, and Neighbors made some payments to Everbank. This type of tenuous connection is insufficient to permit the exercise of personal jurisdiction over a foreign defendant such as Neighbors. Accordingly, this Motion should be granted, and Neighbors should be dismissed from this action with prejudice. In the event the Court is not inclined to dismiss the Complaint for lack of personal jurisdiction, this Court should transfer this matter to the United States District Court for the Southern District of Texas. McCARTER & ENGLISH, LLP Attorneys for Defendant Neighbors Global Holdings, LLC By: s/David R. Kott David R. 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