Howard Johnson International, Inc. v. Nhs-Grand Forks, Llc et al

MOTION to Dismiss for Lack of Jurisdiction and Improper Venue, or to Transfer Venue

D.N.J.February 7, 2017

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ---------------------------------------------------------- X HOWARD JOHNSON INTERNATIONAL, INC., a Delaware corporation, Plaintiff, – v. – NHS-GRAND FORKS, LLC, a North Dakota limited liability company; and BHARAT I. PATEL, an individual, Defendants. : : : : : : : : : : Case No. 2:16-cv-07881-SDW-LDW NOTICE OF MOTION TO DISMISS OR TO TRANSVER VENUE Motion Day: March 6, 2017 ---------------------------------------------------------- X PLEASE TAKE NOTICE that, on March 6, 2017 at 10:00 a.m. or as soon thereafter as counsel may be heard, counsel for the defendants NHS-Grand Forks, LLC (“NHS”) and Bharat I. Patel (collectively, “Defendants”) shall move before the Honorable Susan D. Wigenton, United States District Judge, United States District Court, District of New Jersey, located at the Martin Luther King Jr. Federal Building and U.S. Courthouse, 50 Walnut Street, Newark, New Jersey 07101, for an Order: (a) dismissing the complaint for lack of personal jurisdiction under Fed R. Civ. P. 12(b)(2); and/or (b) dismissing the complaint for improper venue under Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. §1406(a); and/or (c) transferring this action to the United States District Court, District of North Dakota under 28 U.S.C. §1406(a); and/or (d) transferring this action to the United States District Court, District of North Dakota under 28 U.S.C. §1404(a). In support of this motion, counsel for Defendants relies on the attached Brief, Declaration of Bharat I. Patel, Declaration of Jonathan Montcalm and the exhibits thereto, and all prior pleadings and proceedings in this action. Case 2:16-cv-07881-SDW-LDW Document 14 Filed 02/07/17 Page 1 of 2 PageID: 115 2 Respectfully submitted, Dated: New York, New York February 7, 2017 DORSEY & WHITNEY LLP s/ Bruce R. Ewing By: Bruce R. Ewing (BE-0724) Jonathan Montcalm (pro hac vice) 51 W. 52nd Street New York, New York 10019 (212) 415-9200 ewing.bruce@dorsey.com montcalm.jonathan@dorsey.com Attorneys for Defendants NHS Grand Forks, LLC and Bharat I. Patel. Case 2:16-cv-07881-SDW-LDW Document 14 Filed 02/07/17 Page 2 of 2 PageID: 116 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ---------------------------------------------------------- X HOWARD JOHNSON INTERNATIONAL, INC., a Delaware corporation, Plaintiff, – v. – NHS-GRAND FORKS, LLC, a North Dakota limited liability company; and BHARAT I. PATEL, an individual, Defendants. : : : : : : : : : : Case No. 2:16-cv-07881-SDW-LDW DECLARATION OF BHARAT I. PATEL IN SUPPORT OF MOTION TO DISMISS OR TO TRANSVER VENUE ---------------------------------------------------------- X BHARAT I. PATEL declares under penalty of perjury of the laws of the United States as follows: 1. I am a defendant in this case in my individual capacity, and I am also the managing member of defendant NHS-Grand Forks, LLC (“NHS”) (collectively, “Defendants”). I submit this declaration on behalf of both myself and NHS in support of Defendants’ motion to dismiss or to transfer venue. The following statements are based on my personal knowledge and my review of NHS’s and my records. Brief History of NHS and its Relationship with Plaintiff 2. On or about March 30, 2012, I purchased NHS from its prior owner, and have since been its managing and sole member. 3. Also on or about March 30, 2012, I purchased from Vision Bank a hotel located at 1210 N. 43rd Street, Grand Forks, North Dakota 58203 (the “Hotel”). 4. At the time of these purchases, the Hotel was already being operated as a Howard Johnson facility by NHS under a June 30, 2011 franchise agreement originally between Vision Bank and Plaintiff Howard Johnson International, Inc. (“HJI”) (the “2011 Franchise Case 2:16-cv-07881-SDW-LDW Document 14-1 Filed 02/07/17 Page 1 of 5 PageID: 117 2 Agreement”). Vision Bank, NHS and HJI also had executed an agreement under which Vision Bank assigned its rights and obligations in the 2011 Franchise Agreement to NHS. 5. After I purchased NHS and the Hotel in March 2012, NHS continued to perform its obligations under the 2011 Franchise Agreement. 6. In November 2013, HJI reached out to NHS to begin negotiations regarding a new franchise agreement. 7. Those negotiations, none of which occurred face-to-face, ultimately led to the franchise agreement upon which HJI’s claims in this lawsuit are based (the “2014 Franchise Agreement” or the “Agreement”). I signed the Agreement in North Dakota on behalf of NHS on September 5, 2014. I caused the signed Agreement to be sent to HJI via UPS next day air. 8. The Agreement required NHS to make certain improvements to the Hotel, which NHS completed. HJI sent inspectors to the Hotel in North Dakota to examine these improvements. 9. All payments made to HJI by NHS under both the 2011 Franchise Agreement and the 2014 Franchise Agreement were sent to HJI from North Dakota. 10. Shortly after I signed the Agreement, a dispute arose regarding the amount of fees that NHS owed HJI under the Agreement. NHS and HJI disagree about the date the Agreement went into effect, and the validity of the Agreement. 11. Over the ensuing months, HJI and NHS attempted to resolve these disputes, but no resolution was reached. 12. Around December 2015, NHS notified HJI that NHS had ceased operating the Hotel as a Howard Johnson facility. NHS made this decision and carried it out in North Dakota. Case 2:16-cv-07881-SDW-LDW Document 14-1 Filed 02/07/17 Page 2 of 5 PageID: 118 3 13. HJI responded via the February and March 2016 letters attached to the Complaint as Exhibits C and D. In those letters, HJI claimed that NHS’s decision to cease operating the Hotel as a Howard Johnson facility constituted a premature termination of the 2014 Franchise Agreement. HJI also demanded payment for the fees under the 2014 Franchise Agreement that were the subject of the parties’ dispute, and sought other payments related to the alleged early termination of the Agreement. 14. NHS did not make any of the payments under the 2014 Franchise Agreement that HJI demanded in the February and March 2016 letters. The decision by NHS not to make these payments was made in North Dakota. 15. In the February 2016 and March 2016 letters, HJI also demanded that I either make the payments it sought from NHS or cause NHS to make those payments. HJI invoked the guaranty that I signed as part of the 2014 Franchise Agreement (the “Guaranty”), which is attached as Exhibit D to the Complaint. 16. I did not make any of the payments or cause NHS to make any such payments that HJI demanded under the Guaranty in the February 2016 and March 2016 letters. My decision not to make these payments or cause NHS to make these payments was made in North Dakota. Defendants’ Lack of Connection to New Jersey 17. I currently live in Fargo, North Dakota, and have lived there for 9 years. 18. NHS is a North Dakota limited liability company with its principal place of business located in Fargo, North Dakota. 19. Neither I nor NHS owns any property in New Jersey. 20. Neither I nor NHS maintains any offices in New Jersey. Case 2:16-cv-07881-SDW-LDW Document 14-1 Filed 02/07/17 Page 3 of 5 PageID: 119 4 21. NHS has operated the Hotel since 2011. NHS does not engage in any other business outside of operating the Hotel. 22. All of the books and records relating to NHS and the Hotel are located in North Dakota. 23. I have never travelled to New Jersey in connection with NHS’s business relationship with HJI. To the best of my knowledge, since the 2014 Franchise Agreement was signed, no other employee or person affiliated with NHS has travelled to New Jersey in connection with NHS’s business relationship with HJI. Prior to the signing of the 2014 Franchise Agreement, one NHS employee travelled to New Jersey for training with HJI in or around February 2014. 24. With the exception of one NHS employee travelling to New Jersey for training with HJI in February 2014, all communications with HJI by NHS, its employees, and affiliates have taken place through telephone calls, emails or written correspondence. This includes all communications relating to the 2014 Franchise Agreement. 25. All of my communications with HJI have taken place through telephone calls, emails or written correspondence. This includes all communications relating to the 2014 Franchise Agreement and the Guaranty. 26. HJI provided me with the Guaranty via email. I signed the Guaranty in North Dakota on or about September 16, 2014, and caused it to be sent to HJI via email and regular mail. 27. HJI’s February and March 2016 letters were addressed to John Isaacson of Hometown Hospitality, a company with which NHS contracted to assist in the management of the Hotel. Mr. Isaacson is the person most familiar with the books and records relating to NHS Case 2:16-cv-07881-SDW-LDW Document 14-1 Filed 02/07/17 Page 4 of 5 PageID: 120 Case 2:16-cv-07881-SDW-LDW Document 14-1 Filed 02/07/17 Page 5 of 5 PageID: 121 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ---------------------------------------------------------- X HOWARD JOHNSON INTERNATIONAL, INC., a Delaware corporation, Plaintiff, – v. – NHS-GRAND FORKS, LLC, a North Dakota limited liability company; and BHARAT I. PATEL, an individual, Defendants. : : : : : : : : : : Case No. 2:16-cv-07881-SDW-LDW DECLARATION OF JONATHAN MONTCALM IN SUPPORT OF MOTION TO DISMISS OR TO TRANSFER VENUE ---------------------------------------------------------- X JONATHAN MONTCALM declares under penalty of perjury of the laws of the United States as follows: 1. I am associated with Dorsey & Whitney, LLP, counsel to defendants NHS-Grand Forks, LLC (“NHS”) and Bharat I. Patel, and have been admitted to practice before this Court pro hac vice in the above-captioned action [ECF No. 10]. I submit this declaration in support of Defendants’ motion to dismiss or to transfer venue. I have personal knowledge of the facts set forth herein. 2. Attached as Exhibit 1 is a document titled “Addendum to the Franchise Agreement Pursuant to the North Dakota Franchise Investment Law” which was attached by Plaintiff as part of Exhibit A to the Complaint (the “North Dakota Addendum”). The North Dakota Addendum is dated September 5, 2014, and was signed by Mr. Patel on behalf of NHS and Michael Piccola on behalf of Plaintiff. 3. Attached as Exhibit 2 are excerpts from a document titled U.S. District Courts – Federal Court Management Statistics–Case Participations, (the “Federal Case Participation Statistics”) which is available on the website of the United States Courts, www.uscourts.gov. The Federal Case Participation Statistics are part of a Case 2:16-cv-07881-SDW-LDW Document 14-2 Filed 02/07/17 Page 1 of 2 PageID: 122 2 publication titled Federal Court Management Statistics, which is available at www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2016.pdf. (last visited on February 6, 2017). The excerpts attached as Exhibit 2 contain the Judicial Caseload Profiles for the U.S. District Courts for the Districts of New Jersey and North Dakota. Dated: February 7, 2017 s/ Jonathan Montcalm JONATHAN MONTCALM Case 2:16-cv-07881-SDW-LDW Document 14-2 Filed 02/07/17 Page 2 of 2 PageID: 123 Howard Johnson Int’l Inc. v. NHS-Grand Forks, LLC, et ano., Case No. 2:16-cv-07881-SDW-LDW (D.N.J.) Declaration of Jonathan Montcalm in Support of Motion to Dismiss or to Transfer Venue Exhibit 1 Case 2:16-cv-07881-SDW-LDW Document 14-3 Filed 02/07/17 Page 1 of 3 PageID: 124 Case 2:16-cv-07881-SDW-LDW Document 1 Filed 10/26/16 Page 58 of 85 PageID: 58 Case 2:16-cv-07881-SDW-LDW Document 14-3 Filed 02/07/17 Page 2 of 3 PageID: 125 Case 2:16-cv-07881-SDW-LDW Document 1 Filed 10/26/16 Page 59 of 85 PageID: 59 Case 2:16-cv-07881-SDW-LDW Document 14-3 Filed 02/07/17 Page 3 of 3 PageID: 126 Howard Johnson Int’l Inc. v. NHS-Grand Forks, LLC, et ano., Case No. 2:16-cv-07881-SDW-LDW (D.N.J.) Declaration of Jonathan Montcalm in Support of Motion to Dismiss or to Transfer Venue Exhibit 2 Case 2:16-cv-07881-SDW-LDW Document 14-4 Filed 02/07/17 Page 1 of 3 PageID: 127 NEW JERSEY U.S. District Court — Judicial Caseload Profile Sep 30 2011 Sep 30 2012 Sep 30 2013 Sep 30 2014 Sep 30 2015 Sep 30 2016 Overall Caseload Statistics Filings ¹ 8,979 9,693 9,215 9,976 10,781 9,674 Terminations 8,676 9,189 8,562 9,158 10,063 9,265 Pending 7,323 7,919 8,704 9,579 10,308 10,679 Percent Change in Total Filings Current Year Over Earlier Year 7.7 -0.2 5.0 -3.0 -10.3 Number of Judgeships 17 17 17 17 17 17 Vacant Judgeship Months ² 17.8 16.1 0.0 7.9 27.0 39.9 Actions per Judgeship Filings Total 528 570 542 587 634 569 Civil 463 505 482 531 588 527 Criminal Felony 53 53 47 45 35 29 Supervised Release Hearings 12 12 13 10 11 13 Pending Cases 431 466 512 563 606 628 Weighted Filings ² 496 532 503 583 602 494 Terminations 510 541 504 539 592 545 Trials Completed 11 10 8 9 9 11 Median Time (Months) From Filing to Disposition Criminal Felony 11.6 11.7 11.6 12.0 11.0 14.8 Civil ² 6.0 6.0 6.2 7.9 7.9 8.0 From Filing to Trial ² (Civil Only) 43.6 35.6 36.2 35.5 46.9 42.0 Other Number (and %) of Civil Cases Over 3 Years Old ² 328 5.2 321 4.7 402 5.2 462 5.4 601 6.5 617 6.3 Average Number of Felony Defendants Filed per Case 1.2 1.2 1.1 1.2 1.1 1.1 Jurors Avg. Present for Jury Selection 48.5 58.5 79.6 83.0 49.9 82.9 Percent Not Selected or Challenged 27.2 31.4 27.7 43.3 36.5 38.1 12-Month Periods Ending Numerical Standing Within U.S. Circuit 84 5 30 1 13 1 88 4 83 4 24 3 33 3 32 1 78 5 84 6 29 3 60 5 52 2 Type of Total A B C D E F G H I J K L Civil 8,967 275 1,318 1,936 26 66 535 890 800 518 996 85 1,522 Criminal ¹ 486 5 162 27 45 139 23 28 4 16 6 13 18 ¹ Filings in the "Overall Caseload Statistics" section include criminal transfers, while filings by "Nature of Offense" do not. ² See "Explanation of Selected Terms." 2016 Civil Case and Criminal Felony Defendant Filings by Nature of Suit and Offense NOTE: Criminal data in this profile count defendants rather than cases and therefore will not match previously published numbers. Case 2:16-cv-07881-SDW-LDW Document 14-4 Filed 02/07/17 Page 2 of 3 PageID: 128 NORTH DAKOTA U.S. District Court — Judicial Caseload Profile Sep 30 2011 Sep 30 2012 Sep 30 2013 Sep 30 2014 Sep 30 2015 Sep 30 2016 Overall Caseload Statistics Filings ¹ 668 730 908 888 905 1,017 Terminations 643 565 735 819 844 849 Pending 437 595 757 817 950 1,071 Percent Change in Total Filings Current Year Over Earlier Year 52.2 39.3 12.0 14.5 12.4 Number of Judgeships 2 2 2 2 2 2 Vacant Judgeship Months ² 0.0 0.0 0.0 0.0 0.0 0.0 Actions per Judgeship Filings Total 334 365 454 444 453 509 Civil 112 133 136 147 152 214 Criminal Felony 185 200 261 219 225 213 Supervised Release Hearings 38 33 57 79 76 83 Pending Cases 219 298 379 409 475 536 Weighted Filings ² 321 411 500 438 446 487 Terminations 322 283 368 410 422 425 Trials Completed 20 20 23 34 37 28 Median Time (Months) From Filing to Disposition Criminal Felony 6.5 6.3 7.2 8.7 9.0 11.0 Civil ² 9.7 9.3 9.0 12.8 9.8 10.9 From Filing to Trial ² (Civil Only) - - - - - - Other Number (and %) of Civil Cases Over 3 Years Old ² 15 7.2 19 6.9 19 6.2 17 5.3 26 5.5 88 15.3 Average Number of Felony Defendants Filed per Case 1.3 1.4 1.7 1.3 1.4 1.5 Jurors Avg. Present for Jury Selection 34.9 36.0 36.5 41.6 39.6 37.6 Percent Not Selected or Challenged 15.5 14.5 19.8 32.5 24.3 30.4 12-Month Periods Ending Numerical Standing Within U.S. Circuit 23 4 43 6 84 10 6 1 12 5 35 2 34 6 60 10 13 4 60 7 76 8 - - 80 9 Type of Total A B C D E F G H I J K L Civil 427 8 5 171 1 12 29 69 51 4 45 2 30 Criminal ¹ 424 1 201 70 40 8 42 36 - 4 12 4 6 ¹ Filings in the "Overall Caseload Statistics" section include criminal transfers, while filings by "Nature of Offense" do not. ² See "Explanation of Selected Terms." 2016 Civil Case and Criminal Felony Defendant Filings by Nature of Suit and Offense NOTE: Criminal data in this profile count defendants rather than cases and therefore will not match previously published numbers. Case 2:16-cv-07881-SDW-LDW Document 14-4 Filed 02/07/17 Page 3 of 3 PageID: 129 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ---------------------------------------------------- X HOWARD JOHNSON INTERNATIONAL, INC., a Delaware corporation, Plaintiff, – v. – NHS-GRAND FORKS, LLC, a North Dakota limited liability company; and BHARAT I. PATEL, an individual, Defendants. : : : : : : : : : : : Case No. 2:16-cv-07881-SDW- LDW Motion Day: March 6, 2017 ---------------------------------------------------- X BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS OR TO TRANSFER VENUE Dorsey & Whitney LLP 51 W. 52nd Street New York, New York 10019 (212) 415-9200 Attorneys for Defendants NHS- Grand Forks, LLC, and Bharat I. Patel Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 1 of 34 PageID: 130 ii TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 RELEVANT FACTUAL BACKGROUND .............................................................. 3 A. Summary of the allegations in the Complaint. ........................... 3 B. The facts relevant to jurisdiction and venue, all of which occurred in North Dakota. ........................................................... 5 ARGUMENT ............................................................................................................. 7 I. THE COMPLAINT SHOULD BE DISMISSED BECAUSE THERE IS NO PERSONAL JURISDICTION OVER DEFENDANTS. .................................................................................... 7 II. BECAUSE VENUE IS IMPROPER, THE COMPLAINT SHOULD BE DISMISSED OR THE CASE TRANSFERRED TO THE DISTRICT OF NORTH DAKOTA UNDER 28 U.S.C. § 1406(a). ................................................................................. 11 A. Venue is improper because a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred outside this District. ................................................... 11 B. Venue would be proper in the District of North Dakota, so the case should be transferred there if the Complaint is not dismissed. ............................................................................ 17 III. EVEN IF NEW JERSEY IS A PROPER VENUE, THIS ACTION STILL SHOULD BE TRANSFERRED TO NORTH DAKOTA UNDER 28 U.S.C. § 1404(a). ........................................... 18 A. The private interest factors favor transfer to the District of North Dakota. ....................................................................... 20 B. The public interest factors favor transfer to the District of North Dakota. ............................................................................ 24 CONCLUSION ........................................................................................................ 28 Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 2 of 34 PageID: 131 iii TABLE OF AUTHORITIES Page(s) Cases Al-Ghena Int'l Corp. v. Radwan, 957 F. Supp. 2d 511 (D.N.J. 2013) ..................................................................... 13 B-Jays USA, Inc. v. Red Wing Shoe Co., 2015 U.S. Dist. LEXIS 136588 (D.N.J. Oct. 6, 2015) ....................................... 24 Bayway Ref. Co. v. State Utils., Inc., 755 A.2d 1204 (N.J. Super. Ct. App. Div. 2000) ................................................. 9 Bockman v. First Am. Marketing Corp., 459 Fed. Appx. 157 (3d Cir. Jan. 23, 2012) ................................................... 2, 11 Budget Rent a Car Sys. v. Missoula Acceptance Co., 2009 U.S. Dist. LEXIS 55393 (D.N.J. June 30, 2009) ......................................... 9 Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ........................................................................................ 8, 10 C.O. Truxton, Inc. v. Blue Caribe, Inc., 2014 U.S. Dist. LEXIS 168457 (D.N.J. Dec. 5, 2014) ....................................... 16 Cancer Genetics, Inc. v. Kreatech Biotechnology, B.V., 2007 U.S. Dist. LEXIS 90857 (D.N.J. Dec. 11, 2007) ....................................... 28 CLP Packaging Sols. v. Sports Pouch Bev. Co., 2008 U.S. Dist. LEXIS 39868 (D.N.J. May 15, 2008) ................................. 16, 17 Cottman Transmission Sys. v. Martino, 36 F.3d 291 (3d Cir. 1994) ............................................................... 13, 14, 15, 16 Days Inn Worldwide, Inc. v. Inv. Props. of Brooklyn Ctr., LLC, 2009 U.S. Dist. LEXIS 88710 (D.N.J. Sep. 25, 2009) ................................passim Days Inns Worldwide, Inc. v. Ram Lodging, LLC, 2010 U.S. Dist. LEXIS 37790 (D.N.J. Apr. 14, 2010) ................................passim Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962) ............................................................................................ 11 Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 3 of 34 PageID: 132 iv United States ex rel Groundwater Technologies, Inc. v. Sevenson Envtl. Servs., Inc., 2000 U.S. Dist. LEXIS 20779 (D.N.J. 2000) ..................................................... 24 HAB Carriers, Inc. v. Arrow Truck Sales, Inc., 2009 U.S. Dist. LEXIS 74265 (D.N.J. Aug. 19, 2009) ...................................... 28 IMO Indus. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998) ................................................................................. 7 J.F. Lomma, Inc. v. Stevenson Crane Servs., 2011 U.S. Dist. LEXIS 10998 (D.N.J. Feb. 3, 2011) ....................... 11, 13, 16, 17 Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) ..................................................................... 19, 20, 24 KaeRen Accommodations, Inc. v. Country Hosp. Corp., 243 F. Supp. 2d 993 (D.N.D. 2002).................................................................... 27 LG Elecs. Inc. v. First Int'l Comput., 138 F. Supp. 2d 574 (D.N.J. 2001) ..................................................................... 26 McNulty v. J.H. Miles & Co., 913 F. Supp. 2d 112 (D.N.J. 2012) ............................................................... 15, 17 Mellon Bank (East) PSFS Nat. Ass’n v. Farino, 960 F.2d 1217 (3d Cir. 1992) ............................................................................... 7 Melone v. Boeing Co., 2008 U.S. Dist. LEXIS 25367 (D.N.J. Mar. 28, 2008) ................................ 20, 21 Metro. Life Ins. Co. v. Bank One, N.A., 2012 U.S. Dist. LEXIS 137119 (D.N.J. Sep. 25, 2012) ..............................passim Myers v. Am. Dental Ass’n, 695 F.2d 716 (3d Cir. 1982) ............................................................................... 11 NCR Credit Corp. v. Ye Seekers Horizon, Inc., 17 F. Supp. 2d 317 (D.N.J. 1998) ....................................................................... 27 Potluri v. Yalamanchili, 2006 U.S. Dist. LEXIS 95644 (D.N.J. July 28, 2006) ................................. 12, 13 Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 4 of 34 PageID: 133 v Ricoh Co. v. Honeywell, Inc., 817 F. Supp. 473 (D.N.J. 1993) .......................................................................... 27 Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir.1970) .................................................................................. 18 Stalwart Capital, LLC v. Warren St. Partners, LLC, 2012 U.S. Dist. LEXIS 59872 (D.N.J. Apr. 30, 2012) ................................. 15, 17 Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61 (3d Cir. 1984) ................................................................................... 7 Travelodge Hotels, Inc. v. Perry Developers, Inc., 2011 U.S. Dist. LEXIS 134478 (D.N.J. Nov. 22, 2011) ........................ 14, 22, 23 Van Cauwenberghe v. Biard, 486 U.S. 517 (1988) ............................................................................................ 22 Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Prods. Co., 75 F.3d 147 (3d Cir. 1996) ................................................................................... 9 Statutes 28 U.S.C. § 1391(b)(1)................................................................................. 12, 13, 18 28 U.S.C. § 1391(b)(2)......................................................................................passim 28 U.S.C. § 1391(b)(3)....................................................................................... 12, 13 28 U.S.C. § 1391(c)(2) ............................................................................................. 12 28 U.S.C. § 1404(a) ..........................................................................................passim 28 U.S.C. § 1406(a) ..........................................................................................passim Other Authorities Fed. R. Civ. P. 12(b)(2) .............................................................................................. 1 Fed. R. Civ. P. 12(b)(3) ........................................................................................ 1, 18 Fed. R. Civ. P. 45(c)(1) ............................................................................................ 23 N.D.R. Civ. P. 4 ....................................................................................................... 18 Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 5 of 34 PageID: 134 Defendants NHS-Grand Forks, LLC (“NHS”) and Bharat I. Patel (collectively, “Defendants”), submit this brief in support of their motion under Rules 12(b)(2) and (b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 1404(a) and 1406(a) for an order: (1) dismissing the Complaint of Plaintiff Howard Johnson International, Inc. (“HJI” or “Plaintiff”) [ECF No. 1] for lack of personal jurisdiction and/or improper venue; or, alternatively (2) transferring this action to the District of North Dakota for improper venue, or for the convenience of the parties and witnesses and in the interest of justice. PRELIMINARY STATEMENT There was no legitimate reason for Plaintiff to have filed this case in the District of New Jersey. Defendants are both residents of North Dakota, who do business solely in North Dakota, and who do not have sufficient contacts with New Jersey. Plaintiff’s claims arise from agreements relating to the operation of a hotel in North Dakota, signed by Defendants in North Dakota, performed by Defendants in North Dakota, that were allegedly breached by Defendants in North Dakota, and that are governed by North Dakota law. If this case is to be tried anywhere, it should be in North Dakota. Plaintiff and NHS entered into an agreement for the continued operation of a hotel located in Grand Forks, North Dakota, as a Howard Johnson facility (the “Franchise Agreement” or “Agreement”). Under the Agreement, NHS was Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 6 of 34 PageID: 135 2 obligated to make periodic payments to Plaintiff (the “Recurring Fees”). As is required by Plaintiff, Mr. Patel also signed a guaranty of NHS’s obligations (the “Guaranty”). A dispute arose regarding the amount of Recurring Fees due because Plaintiff took a position inconsistent with the parties’ intent. NHS later ceased operating the hotel as a Howard Johnson facility. Plaintiff declared the Agreement prematurely terminated, and sued Defendants seeking recoupment of the allegedly unpaid Recurring Fees and over $750,000 in damages for the payments Plaintiff claims it would have received over the life of the Agreement. All of Plaintiff’s claims are based upon alleged actions or omissions of Defendants in North Dakota: (1) NHS’s alleged premature termination by way of ceasing to operate the Hotel as a Howard Johnson facility; (2) NHS’s alleged failure to pay Recurring Fees or the damages for the premature termination; and (3) Mr. Patel’s alleged failure under the Guaranty to satisfy NHS’s contractual obligations. Accordingly, none of these claims should have been asserted in this Court. First, personal jurisdiction over Defendants is lacking, so the Complaint should be dismissed. Defendants have no relevant contacts with New Jersey other than the agreements with Plaintiff, which are insufficient by themselves. Defendants did not initiate the relationship with Plaintiff, they do not reside here, they did not perform under the Agreement here, they did not sign the Agreement or Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 7 of 34 PageID: 136 3 the Guaranty here, they did not allegedly breach the Agreement or the Guaranty here, and they do not conduct business here. The Agreement and the Guaranty are governed by North Dakota law, and Plaintiffs could not reasonably expect to have been haled into court here. Second, venue in this District is improper because Plaintiff’s claims are based on actions or omissions of Defendants in North Dakota. Thus, under 28 U.S.C. § 1406(a), the Complaint should be dismissed or the case transferred to the District of North Dakota, where Defendants reside. Third, even if venue were proper in this District (which it is not) the case still should be transferred to the District of North Dakota under 28 U.S.C. § 1404(a), because the relevant private and public interests favor North Dakota as the more appropriate forum for this dispute. For these reasons and those discussed below, the Complaint should either be dismissed or, in the alternative, transferred to the District of North Dakota. RELEVANT FACTUAL BACKGROUND A. Summary of the allegations in the Complaint. In September 2014 HJI and NHS entered into the Franchise Agreement under which NHS would continue to operate the hotel located at 1210 North 43rd Street, Grand Forks, North Dakota (the “Hotel”) as a Howard Johnson facility. As is relevant here, the Franchise Agreement provided for a 15-year term, and also Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 8 of 34 PageID: 137 4 required NHS to remit Recurring Fees to HJI. Mr. Patel also signed a Guaranty of NHS’s obligations under the Franchise Agreement. (Compl. ¶¶ 6-8, 15-16.) HJI and NHS also executed an addendum to the Franchise Agreement “pursuant to The North Dakota Franchise Investment Law” (the “North Dakota Addendum”). (Id. ¶ 13.) This Addendum provided that “[t]he Franchise Agreement will be governed and construed under the laws of the State of North Dakota. Any provision in the Franchise Agreement which designates jurisdiction or venue . . . in a forum outside of North Dakota, is deleted from any Franchise Agreement issued in the State of North Dakota.” (Declaration of Jonathan Montcalm, dated February 7, 2017 (“Montcalm Decl.”) ¶ 2, Ex. 1 (hereinafter, “North Dakota Addendum”) at p. 1.) According to Plaintiffs, NHS breached the Franchise Agreement through a premature termination in December 2015, when NHS ceased operating the Hotel as a Howard Johnson facility. At the time of this allegedly premature termination, Plaintiff asserts that NHS was already in breach of the Franchise Agreement, because it purportedly owed HJI over $200,000 in Recurring Fees. HJI notified NHS of these alleged breaches in writing in February 2016 and March 2016, and demanded payment for the Recurring Fees and damages of over $750,000 for the alleged premature termination. HJI also demanded payment from Mr. Patel under the Guaranty. (Compl. ¶¶ 17-19, 28, 31-32, 39; see also id., Exhs. C, D.) Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 9 of 34 PageID: 138 5 HJI asserts five causes of action based on this alleged conduct: (1) an accounting of NHS’s books and records (which are located in North Dakota); (2) breach of the Franchise Agreement for the allegedly premature termination; (3) breach of the Franchise Agreement for the Recurring Fees allegedly due; (4) a duplicative claim for unjust enrichment for the Recurring Fees allegedly due; and (5) breach of the Guaranty against Mr. Patel. (Id. ¶¶ 20-40.) B. The facts relevant to jurisdiction and venue, all of which occurred in North Dakota. NHS is a North Dakota limited liability company with its principal place of business in Fargo, North Dakota. Mr. Patel is a longtime resident of Fargo, North Dakota. Neither NHS nor Mr. Patel owns any property in New Jersey, maintains any offices in New Jersey, or conducts any business activities in New Jersey. The Hotel is located in Grand Forks, North Dakota. The books and records relating to NHS and the business of the Hotel are also located in North Dakota. (Declaration of Bharat I. Patel, dated February 7, 2017 (“Patel Decl.”) ¶¶ 3, 17-22.) Plaintiff initiated the negotiations with NHS regarding the Franchise Agreement. All communications involving HJI, NHS and/or Mr. Patel regarding the Franchise Agreement took place remotely via telephone conversations, email, and other written correspondence; there were no face-to-face meetings in New Jersey, or anywhere else. Mr. Patel never travelled to New Jersey in connection with the business relationship between HJI and NHS, nor did any employees of Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 10 of 34 PageID: 139 6 NHS, with the exception of one training visit in February 2014 by one employee, months prior to the signing of the Agreement. (Id. ¶¶ 6, 23-26.) Mr. Patel signed the Franchise Agreement on behalf of NHS and the Guaranty on his own behalf in North Dakota. NHS performed its obligations under the Agreement in North Dakota, where the Hotel was located. To that end, all of the payments made by NHS to HJI were sent from North Dakota. NHS also made improvements to the Hotel in North Dakota that were required by the Agreement, and that were inspected by HJI in North Dakota. (Id. ¶¶ 7-9.) A dispute arose between HJI and NHS regarding the amount of Recurring Fees due under the Agreement, which was based on the parties’ differing interpretations of when the Franchise Agreement took effect. Over the ensuing months, NHS and HJI remotely engaged in discussions to resolve these disputes, but no resolution was reached. Later, NHS decided to cease operating the Hotel as a Howard Johnson facility; a decision it made from North Dakota. (Id. ¶¶ 10-12.) Plaintiff responded by declaring breaches of the Franchise Agreement and the Guaranty, and by demanding payment from NHS and Mr. Patel. Neither NHS nor Mr. Patel made the payments demanded by HJI, and both were in North Dakota when they decided not to make these payments. (Id. ¶¶ 12-16.) Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 11 of 34 PageID: 140 7 ARGUMENT I. THE COMPLAINT SHOULD BE DISMISSED BECAUSE THERE IS NO PERSONAL JURISDICTION OVER DEFENDANTS. Plaintiff bears the burden to make a prima facie showing of personal jurisdiction. Mellon Bank (East) PSFS Nat. Ass’n v. Farino, 960 F.2d 1217, 1223 (3d Cir. 1992). It must do so “through sworn affidavits or other competent evidence[;]” [it] cannot “rely on the bare pleadings alone . . . .” Time Share Vacation Club v. Atl. Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). As illustrated by Plaintiff’s failure to plead any jurisdictional facts, and underscored by Defendants’ additional evidence, Defendants do not have sufficient contacts with New Jersey to support the exercise of personal jurisdiction. That they have contracted with Plaintiff1 and remotely communicated with Plaintiff under that contract is insufficient under the circumstances present here. Because New Jersey’s long-arm statute permits the exercise of personal jurisdiction to the limits of due process, the personal jurisdiction inquiry in this District is reduced to a single step, defined by federal law. See, e.g., IMO Indus. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998). For this Court to exercise personal jurisdiction over NHS and Mr. Patel, neither of whom reside in New Jersey, they 1 For reasons that are not pertinent to this motion, NHS disputes the validity of the Franchise Agreement. (See Patel Decl. ¶ 10.) Assuming, arguendo, the validity of the Franchise Agreement, Defendants still lack sufficient contacts to support the exercise of personal jurisdiction over them. Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 12 of 34 PageID: 141 8 must have “purposefully [availed themselves] of the privilege of conducting activities within [New Jersey], thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985). As an initial matter, the Complaint contains no allegations connecting either NHS or Mr. Patel to New Jersey outside of their allegedly having entered into agreements with Plaintiff, who is located in New Jersey. (See Compl. ¶¶ 1, 6, 15.) But entering into a franchise agreement does not, by itself, confer personal jurisdiction over the franchisee in the forum where the franchisor is located. 2 See Burger King, 471 U.S. at 478. Instead, courts must evaluate “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing” to determine “whether the defendant purposefully established minimum contacts with the forum” Id. at 479. Analyzing these factors compels the conclusion that Defendants’ other miniscule contacts with New Jersey attendant to their relationship with Plaintiff are insufficient to confer jurisdiction. The entire contractual arrangement involves a Hotel located in North Dakota. Neither NHS nor Mr. Patel conducts any business nor owns any property in New Jersey. They have not been required to perform 2 Indeed, franchisors (including HJI) implicitly acknowledge as much by including forum selection clauses in their franchise agreements. Notably, the New Jersey forum selection clause contained in Plaintiff’s form franchise agreement was deleted by operation of the North Dakota Addendum. (See North Dakota Addendum at p. 1.) Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 13 of 34 PageID: 142 9 under the Franchise Agreement or the Guaranty in New Jersey. Payments made by NHS to Plaintiff were sent from North Dakota, and improvements required by the Agreement were made in North Dakota and inspected by Plaintiff in North Dakota. (Patel Decl. ¶¶ 8-9, 19-25.) Simply put, Defendants have done nothing to avail themselves of the privilege of conducting business in New Jersey outside of entering the Franchise Agreement and the Guaranty with Plaintiff. Furthermore, the Franchise Agreement resulted from initial efforts by Plaintiff aimed at NHS, and not the other way around. (Id. ¶ 6.) Accordingly, Defendants did not reach into New Jersey to initiate their relationship with Plaintiff, which counsels against a finding of the requisite purposeful availment. See Bayway Ref. Co. v. State Utils., Inc., 755 A.2d 1204, 1210 (N.J. Super. Ct. App. Div. 2000) (finding no purposeful availment based in part on fact that defendant’s initial contacts with New Jersey plaintiff were the result of solicitation by the plaintiff). Also, the negotiations and discussions that led to the Franchise Agreement and the Guaranty were all conducted remotely (Patel Decl. ¶¶ 24-25), and thus cannot form the basis for the exercise of personal jurisdiction. See Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Prods. Co., 75 F.3d 147, 152 (3d Cir. 1996). Similarly, any communications regarding the performance of the Agreement are also insufficient. Budget Rent a Car Sys. v. Missoula Acceptance Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 14 of 34 PageID: 143 10 Co., 2009 U.S. Dist. LEXIS 55393, at *19 (D.N.J. June 30, 2009) (“Merely because the defendant subfranchisees may have communicated with BRACS in New Jersey does not mean that these defendants reached into New Jersey much less ever expected to be haled into Court there.”). Finally, Defendants cannot be said to have “purposefully invoked the benefits and protections of [New Jersey’s] laws for jurisdictional purposes” given that a specific addendum was added to the Franchise Agreement in part to mandate that North Dakota law governed the Franchise Agreement and the Guaranty. (See North Dakota Addendum, at p. 1.) This serves as further evidence that Defendants would not have reasonably expected to be haled into court in New Jersey. Compare Burger King, 471 U.S. at 481-82 (Florida choice of law provision and other provisions stating the agreement was considered to have been made in Florida counseled towards a finding of the requisite minimum contacts because the franchisee reasonably should have been expected to be haled into court there). For all of these reasons, Defendants do not have sufficient minimum contacts in New Jersey to be subjected to personal jurisdiction, and the Complaint should be dismissed. Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 15 of 34 PageID: 144 11 II. BECAUSE VENUE IS IMPROPER, THE COMPLAINT SHOULD BE DISMISSED OR THE CASE TRANSFERRED TO THE DISTRICT OF NORTH DAKOTA UNDER 28 U.S.C. § 1406(a). Even if the Court had personal jurisdiction over Defendants, this case still should not proceed in New Jersey because venue here is improper. Accordingly, under Section 1406(a), the Court should either dismiss the case for improper venue, or transfer it to the District of North Dakota, where it could have been brought originally.3 A. Venue is improper because a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred outside this District. Defendants bear the burden under Rule 12(b)(3) of establishing that venue is improper. Myers v. Am. Dental Ass’n, 695 F.2d 716, 724-25 (3d Cir. 1982). The Court must accept as true the allegations pleaded in the Complaint, but only to the extent they are not contradicted by competent evidence submitted by the Defendants. Bockman v. First Am. Marketing Corp., 459 Fed. Appx. 157, 158 n.1 (3d Cir. Jan. 23, 2012). 3 The Court may decide the venue issue prior to personal jurisdiction. The authority to transfer under Section 1406(a) does not require the transferor court to have personal jurisdiction over the defendants. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962). And, although personal jurisdiction is typically decided before venue, courts may decide venue first “when there is a sound prudential justification for doing so . . . .” J.F. Lomma, Inc. v. Stevenson Crane Servs., 2011 U.S. Dist. LEXIS 10998, at *14 (D.N.J. Feb. 3, 2011) (Wigenton, J.) (citation and quotation marks omitted). Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 16 of 34 PageID: 145 12 When a court determines that venue is improper, it must either dismiss the case or transfer it to a district where it could have been brought. 28 U.S.C. § 1406(a). The applicable venue statute provides that civil actions may be brought in: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. 28 U.S.C. § 1391(b). Neither NHS nor Mr. Patel resides in New Jersey, so venue cannot be based on Section 1391(b)(1).4 See, e.g., Potluri v. Yalamanchili, 2006 U.S. Dist. LEXIS 95644, at *8 (D.N.J. July 28, 2006) (venue in New Jersey improper under Section 1391(b)(1) where all defendants resided in Michigan). Venue also cannot be based on Section 1391(b)(3), which applies only when “there is no district in which an 4 Limited liability companies like NHS are deemed to be residents of any district where they are subject to personal jurisdiction. See 28 U.S.C. § 1391(c)(2). Even if NHS were subject to personal jurisdiction here (which, as discussed supra, it is not), venue in New Jersey would still be improper under Section 1391(b)(1) because Mr. Patel does not reside in New Jersey. 28 U.S.C. § 1391(b)(1); Days Inns Worldwide, Inc. v. Ram Lodging, LLC, 2010 U.S. Dist. LEXIS 37790, at *9 (D.N.J. Apr. 14, 2010) (Wigenton, J.). Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 17 of 34 PageID: 146 13 action may otherwise be brought as provided in this section . . . .” 28 U.S.C. § 1391(b)(3). Here, there is a district in which an action may otherwise be brought under Section 1391(b)(1), because both Defendants reside in North Dakota. Id. § 1391(b)(1); see also J.F. Lomma, 2011 U.S. Dist. LEXIS 10998, at *13; Potluri, 2006 U.S. Dist. LEXIS 95644, at *8. This leaves Section 1391(b)(2). For venue to be proper under this section, “a substantial part of the events or omissions giving rise to the claim” must have occurred in New Jersey. 28 U.S.C. § 1391(b)(2).5 In making this determination, courts must not focus “on the defendant’s ‘contacts’ with a particular district, but rather the location of those events or omissions giving rise to the claim.” Cottman Transmission Sys. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994). The location of the events and omissions giving rise to HJI’s claims all occurred in North Dakota—where the Hotel is located—not in New Jersey. To reach this conclusion, the Court need look no further than to similar hotel franchise cases in this District (and before this Court). In those cases, courts applying 5 Section 1391 was amended in late 2011. Prior to that amendment, courts in diversity cases analyzed venue under Section 1391(a), and courts in federal question cases analyzed venue under Section 1391(b). Under the amended version, the venue provisions for all civil actions are now located in Section 1391(b). Al- Ghena Int'l Corp. v. Radwan, 957 F. Supp. 2d 511, 519 n.6 (D.N.J. 2013) (describing the 2011 revisions to Section 1391). The current Section 1391(b)(2) is identical to the former Section 1391(a)(2). Thus, cases filed before January 7, 2012 that analyze venue under Section 1391(a)(2) are directly applicable here to the analysis under Section 1391(b)(2). Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 18 of 34 PageID: 147 14 Section 1391(b)(2) consistently have found that where franchisors seek payments under franchise agreements or assert improper termination of those agreements, the substantial events and omissions occur where the franchisee and hotel are located. See, e.g., Travelodge Hotels, Inc. v. Perry Developers, Inc., 2011 U.S. Dist. LEXIS 134478, at *3, 10 (D.N.J. Nov. 22, 2011) (substantial events occurred in Missouri in action based on failure to remit recurring fees and improper termination against franchisee located in Missouri); Ram Lodging, 2010 U.S. Dist. LEXIS 37790, at *9-10 (substantial events occurred in Indiana in action based on failure to remit fees and for breach of guaranty of obligations to remit fees against franchisee of hotel located in Indiana); Days Inn Worldwide, Inc. v. Inv. Props. of Brooklyn Ctr., LLC, 2009 U.S. Dist. LEXIS 88710, at *3, 5-6 (D.N.J. Sep. 25, 2009) (substantial events occurred in Minnesota in action based on early termination of license agreement for operation of hotel in Minnesota).6 The specific circumstances surrounding this dispute further reveal that a substantial part of the events or omissions giving rise to HJI’s claims did not occur in New Jersey. Cottman, 36 F.3d at 295 (“In assessing whether events or omissions giving rise to the claims are substantial, it is necessary to look at the nature of the dispute.”). Courts applying Section 1391(b)(2) in breach of contract 6 Although these hotel franchise cases involved application of Section 1404(a), not Section 1406(a), all three analyzed Section 1391(b)(2) in the context of determining whether venue in the transferee court would be proper. Thus, they provide persuasive guidance on the application of Section 1391(b)(2) here. Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 19 of 34 PageID: 148 15 actions examine “where the contract was negotiated, executed, performed, and breached” to determine the location of the substantial events or omissions giving rise to those claims. Stalwart Capital, LLC v. Warren St. Partners, LLC, 2012 U.S. Dist. LEXIS 59872, at *13 (D.N.J. Apr. 30, 2012). Here, the analysis should begin with the location of Defendants’ alleged breaches, because that is the most important inquiry in cases like this involving payments allegedly due under contracts. Id. at *18 (“Breach, however, is the core of this dispute and clearly occurred in Virginia. [Plaintiff’s] claim is about [defendant’s] failure to pay its due.”); see also, e.g., McNulty v. J.H. Miles & Co., 913 F. Supp. 2d 112, 119 (D.N.J. 2012) (the alleged failure to make minimum purchases required by contract—and to pay for those purchases—“is the heart of Plaintiffs’ entire lawsuit”). There are three breaches identified in the Complaint: (1) NHS’s alleged premature termination by way of ceasing to operate the Hotel as a Howard Johnson facility; (2) NHS’s failure to pay Recurring Fees; and (3) Mr. Patel’s alleged failure to satisfy NHS’s contractual obligations under the Guaranty. (Compl. ¶¶ 25-40.) None of these alleged breaches occurred in New Jersey. Instead, they all occurred in North Dakota, because that is where all of the decisions that caused these alleged breaches were made. (Patel Decl. ¶¶ 12, 14, 16.); Cottman, 36 F.3d at 295 (finding that omission to “remit payments” was made in Michigan where the Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 20 of 34 PageID: 149 16 franchisee was located and that this omission gave rise to claim for breach of the franchise agreement); J.F. Lomma, 2011 U.S. Dist. LEXIS 10998, at *13 (alleged breach based on failure to pay outstanding invoices occurred in Illinois, where decision not to pay invoices was made). Stated differently, “in a situation where a party has allegedly failed to make a payment, the locus of the action is where the party failed to take that action rather than where the result is felt.” C.O. Truxton, Inc. v. Blue Caribe, Inc., 2014 U.S. Dist. LEXIS 168457, at *16 (D.N.J. Dec. 5, 2014).7 The events or omissions relating to the negotiation, execution and performance of the Agreement and the Guaranty are no more related to New Jersey than the events or omissions relating to Defendants’ alleged breaches of the Agreement. All of the negotiations were conducted remotely; there were no face- to-face meetings. The Agreement was executed separately, with Mr. Patel signing in North Dakota on behalf of NHS, and Plaintiff presumably signing in New Jersey. The Guaranty was signed only by Mr. Patel in North Dakota. In addition, 7 Indeed, this is a well-settled area of the law in this Circuit. See also, e.g., Cottman, 36 F.3d at 295 (“Even though the result [of the omission to remit payment] was [plaintiff’s] non-receipt of those items in Pennsylvania, the omissions bringing about this result actually occurred in Michigan.”); Ram Lodging, LLC, 2010 U.S. Dist. LEXIS 37790, at *9; CLP Packaging Sols. v. Sports Pouch Bev. Co., 2008 U.S. Dist. LEXIS 39868, at *10 (D.N.J. May 15, 2008) (finding venue improper under Section 1391(b)(2) in contract case based on failure to pay invoices and concluding that “the event on which the failure to pay decision is based occurred in California [where defendants were located] . . . .”). Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 21 of 34 PageID: 150 17 NHS’s performance under the Agreement occurred in North Dakota. It made payments to HJI from North Dakota, and made improvements to the Hotel in North Dakota that were inspected by HJI in North Dakota. (Patel Decl. ¶¶ 7-9, 24-26.) Under these circumstances, no substantial events or omissions giving rise to Plaintiff’s claims occurred in New Jersey. See, e.g., McNulty, 913 F. Supp. 2d at 118 (that defendant executed contract in Virginia was “an additional relevant connection” to Virginia under Section 1391(b)(2) analysis); Stalwart Capital, 2012 U.S. Dist. LEXIS 59872, at *17 (concluding that no substantial events relating to negotiation or execution occurred in New Jersey where “the evidence demonstrates that [negotiation and execution] mostly occurred by telephone and email in both New Jersey and Virginia”); CLP Packaging Sols., 2008 U.S. Dist. LEXIS 39868, at *3 (finding no venue in New Jersey where email and telephone negotiations occurred in New Jersey and Pennsylvania). Putting this all together, it is clear that the substantial events or omissions that give rise to Plaintiff’s claims took place in North Dakota, not New Jersey. Accordingly, venue in this District is improper under Section 1391(b)(2). B. Venue would be proper in the District of North Dakota, so the case should be transferred there if the Complaint is not dismissed. When venue is improper, courts have the discretion under Section 1406(a) either to dismiss the case or transfer it to a district in which it could have been brought. 28 U.S.C. § 1406(a); J.F. Lomma, 2011 U.S. Dist. LEXIS 10998, at *14. Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 22 of 34 PageID: 151 18 There are two requirements for a transferee district to qualify as a district in which a case could have been brought: (1) venue must be proper in the transferee district; and (2) the transferee court must have personal jurisdiction over all of the defendants. See Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir.1970). Because Mr. Patel and NHS both reside in North Dakota, the District of North Dakota easily satisfies this test. See 28 U.S.C. § 1391(b)(1) (venue proper in “a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located”);8 N.D.R. Civ. P. 4 (North Dakota courts have personal jurisdiction over persons and other legal entities domiciled there or organized under its laws). Accordingly, if the Court does not dismiss the case for improper venue, it should transfer it to the District of North Dakota. III. EVEN IF NEW JERSEY IS A PROPER VENUE, THIS ACTION STILL SHOULD BE TRANSFERRED TO NORTH DAKOTA UNDER 28 U.S.C. § 1404(a). If the Court determines that venue is proper here, it should nevertheless transfer this case to the District of North Dakota under Section 1404(a), which states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). Section 1404(a) thus “[p]rovides 8 Not only is venue in the District of North Dakota proper under Section 1391(b)(1), but it is also proper under Section 1391(b)(2) because the substantial events and omissions giving rise to Plaintiff’s claims occurred in North Dakota. Supra, at Section II.A. Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 23 of 34 PageID: 152 19 for the transfer of a case where both the original and the requested venue are proper.” Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995). As a threshold matter, the Court must determine whether the action could have been brought in the District of North Dakota. See, e.g., Metro. Life Ins. Co. v. Bank One, N.A., 2012 U.S. Dist. LEXIS 137119, at *8 (D.N.J. Sep. 25, 2012) (Wigenton, J.). The test is the same as under Section 1406(a): the transferee court must have personal jurisdiction over all of the defendants and venue must be proper there. See, e.g., Ram Lodging, 2010 U.S. Dist. LEXIS 37790, at *8. And, as with Section 1406(a), that test is easily satisfied here because NHS and Mr. Patel both reside in North Dakota. See supra, Section II.B. Next, the Court must determine whether the District of North Dakota is a more appropriate forum; i.e., whether the interest of justice and the convenience of parties and witnesses favor transfer to North Dakota.9 See 28 U.S.C. § 1404(a); Metro. Life Ins., 2012 U.S. Dist. LEXIS 137119, at *8. “While there is no definitive formula or list of the factors to consider . . . courts have considered many variants of the private and public interests protected by the language of 9 Typically, after a court determines whether an action might have been brought in the transferee forum, it next analyzes the validity of any disputed forum selection clause. See Jumara, 55 F.3d at 879. This is particularly true in the hotel franchise cases, because such agreements almost always contain a New Jersey forum selection clause. No such inquiry is required here, however, because the North Dakota Addendum preempts the New Jersey forum selection clause contained in Plaintiff’s standard franchise agreement. (See North Dakota Addendum at p. 1.) Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 24 of 34 PageID: 153 20 § 1404(a).” Jumara, 55 F.3d at 879. A consideration of those private and public factors here demonstrates that the District of North Dakota is the more appropriate forum for this case, and thus that transfer is warranted under Section 1404(a). A. The private interest factors favor transfer to the District of North Dakota. The private interest factors often analyzed by courts in the context of Section 1404(a) motions include (1) plaintiff’s choice of venue, (2) defendant’s preferred venue, (3) whether the claim arose elsewhere, (4) the convenience of the parties as indicated by relative physical and financial condition, (5) the convenience of the witnesses to the extent they may be unavailable at trial in one of the districts at issue, and (6) the location of books and records to the extent they could not be produced in one of the districts at issue. See Jumara, 55 F. 3d at 879; Metro. Life, 2012 U.S. Dist. LEXIS 137119, at *9-10. An analysis of the factors relevant here conclusively demonstrates that North Dakota is the more appropriate forum. 10 (1) Plaintiff’s choice of forum. Typically, a plaintiff’s choice of New Jersey as the forum “should not be lightly disturbed.” Jumara, 55 F.3d at 879. However, the importance of this factor is diminished here because the central facts relevant to this case—including Defendants’ alleged breaches—occurred outside New Jersey. See Metro. Life, 2012 U.S. Dist. LEXIS 137119 at *15; Melone v. 10 The sixth private interest factor relating to the location of books and records is relevant only if those books or records may be unavailable at trial. Here, there is no indication of such unavailability, so this factor is irrelevant. Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 25 of 34 PageID: 154 21 Boeing Co., 2008 U.S. Dist. LEXIS 25367, at *5 (D.N.J. Mar. 28, 2008) (“A plaintiff’s choice of forum is simply a preference; it is not a right.”) (citations and quotation marks omitted). Accordingly, Plaintiff’s choice of forum should be accorded little weight. See, e.g., RAM Lodging, 2010 U.S. Dist. LEXIS 37790, at *13-14 (weight given to plaintiff’s choice of New Jersey forum was “slight” because the central facts occurred in Indiana, including the failure to remit payment under hotel license agreement); Brooklyn Ctr., 2009 U.S. Dist. LEXIS 88710, at *9-10 (plaintiff’s choice of forum accorded less deference because the claims centered around alleged acts in Minnesota, including defendant’s termination of hotel license agreement); Melone, 2008 U.S. Dist. LEXIS 25367, at *6 (concluding that “Plaintiff’s choice of forum holds little weight” because “[n]one of the central facts . . . occurred in New Jersey”). (2) Defendants’ preferred forum. Because Defendants’ prefer to litigate this case in North Dakota (Patel Decl. ¶ 28), this factor favors transfer. Ram Lodging, 2010 U.S. Dist. LEXIS 37790, at *14. (3) Whether the claim arose elsewhere. This is the most critical of all of the private interest factors. See Metro. Life, 2012 U.S. Dist. LEXIS 137119 at *16. The “inquiry turns on which forum contains the center of gravity of the dispute, its events, and transactions.” Id. (citations and quotation marks omitted). The goal is “to identify the forum in which the operative facts giving rise to the litigation Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 26 of 34 PageID: 155 22 occurred.” Travelodge Hotels, 2011 U.S. Dist. LEXIS 134478, at *14; accord Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988) (courts determine the origin of a claim by examining the “locus of the alleged culpable conduct”).11 Here, the operative facts giving rise to Plaintiff’s claims all occurred in North Dakota where: (1) the Hotel is located; (2) NHS was obligated to perform under the Agreement and Mr. Patel under the Guaranty; (3) the revenue sought by Plaintiff was generated; (4) NHS made the decision not to remit the Recurring Fees allegedly due under the agreement; (5) Mr. Patel made the decision not to make payments allegedly due under the Guaranty; and (6) NHS made the decision to cease operating the Hotel as a Howard Johnson facility. See, e.g., Travelodge Hotels, 2011 U.S. Dist. LEXIS 134478, at *14 (center of gravity located in Missouri where sale of hotel, the consequent premature termination, and the failure to pay fees all occurred); Ram Lodging, 2010 U.S. Dist. LEXIS 37790, at *15-17 (D.N.J. Apr. 14, 2010) (center of gravity located in Indiana from where defendants failed to remit recurring fees and from where all but one guarantor failed to remit payment under guaranty); Brooklyn Ctr., 2009 U.S. Dist. LEXIS 88710, at *9-10 (claims centered in Minnesota where hotel was located and where decision to 11 The facts relevant to determining the center of gravity of the dispute are essentially the same as the facts relevant to the Section 1391(b)(2) analysis for determining the location of the substantial events and omissions giving rise to the claims asserted. Compare e.g., RAM Lodging, 2010 U.S. Dist. LEXIS 37790, at *9-10, with id. at *15-16. Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 27 of 34 PageID: 156 23 terminate license agreement was made). Accordingly, the claims arose in North Dakota, and this critical factor favors transfer. (4) Convenience of the parties as per their relative physical and financial condition. Plaintiff is indirectly owned by the Wyndham Worldwide Corporation [see ECF No. 2], which, in addition to Plaintiff, also owns or controls many other well-known hotel brands such as Ramada, Days Inn, Super 8, and Wyndham Hotels and Resorts. There is little doubt that Plaintiff can more easily bear the costs of litigating this case outside its home state. By contrast, NHS is a small business that operates one hotel in North Dakota, and Mr. Patel is an individual. They cannot bear the costs of litigation in a distant, more expensive forum as easily as Plaintiff. (Patel Decl. ¶ 29.) For these reasons, the fourth factor favors transfer. See, e.g., RAM Lodging, 2010 U.S. Dist. LEXIS 37790, at *17-18. (5) Convenience of the witnesses to the extent they may be unavailable at trial. This factor also weighs in favor of transfer because Mr. Isaacson, who is most familiar with the books and records of NHS and the Hotel, and to whom Plaintiff directed its February 2016 and March 2016 letters (Patel Decl. ¶ 27), is not employed by NHS, and resides outside the compulsory process of this Court. See Fed. R. Civ. P. 45(c)(1); Travelodge Hotels, 2011 U.S. Dist. LEXIS 134478, at *19 (“To the extent that identified key witnesses are beyond the compulsory Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 28 of 34 PageID: 157 24 process of this court, this factor weighs in favor of transfer to the alternative forum.”). B. The public interest factors favor transfer to the District of North Dakota. The public interest factors often analyzed by courts regarding Section 1404(a) include (1) the enforceability of a judgment, (2) any practical considerations that could make trial easy, expeditious, or inexpensive, (3) the relative administrative difficulty in the two districts as a result of court congestion, (4) the local interest in deciding local controversies at home, (5) the public policies of the districts, and (6) the familiarity of the trial judge with the applicable state law in diversity cases. See Jumara, 55 F. 3d at 879; Metro. Life, 2012 U.S. Dist. LEXIS 137119, at *9-10. Consideration of these factors also conclusively demonstrates that that North Dakota is the more appropriate forum. (1) Enforceability of a judgment. The first factor favors transfer because, should Plaintiff prevail, it will be easier to enforce a judgment against Defendants in North Dakota, where they are both located. B-Jays USA, Inc. v. Red Wing Shoe Co., 2015 U.S. Dist. LEXIS 136588, at *14 (D.N.J. Oct. 6, 2015) (finding that first public interest factor favored transfer to Minnesota); see also United States ex rel Groundwater Technologies, Inc. v. Sevenson Envtl. Servs., Inc., 2000 U.S. Dist. LEXIS 20779, at *5 (D.N.J. 2000) (acknowledging that judgments obtained in a defendant’s home state are easier to enforce). Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 29 of 34 PageID: 158 25 (2) Practical considerations related to an easy, expeditious or inexpensive trial. This factor also favors transfer. Not only are defendants located in North Dakota, but so are other witnesses, including the person having the most familiarity with NHS’s books and records, and with whom Plaintiff corresponded about NHS’s alleged breaches. (Patel Decl. ¶ 27.) Also, Plaintiff seeks an accounting of these books and records, which are located in North Dakota, to confirm the accuracy of the very damages it seeks. (Compl. ¶ 23.) Under these circumstances, it would be less expensive and more efficient for this case to be transferred to, and to proceed in, North Dakota. Cf. Brooklyn Ctr., 2009 U.S. Dist. LEXIS 88710, at *9 (finding that it would be more efficient for case to proceed in Minnesota in context of analyzing private factor regarding location of witnesses and books). (3) Court congestion in the two districts. This factor also favors transfer, because the District of North Dakota appears to be less congested than this District. To that end, the federal judiciary publishes various statistics concerning the caseloads of the district courts. The most recent set of statistics, titled U.S. District Courts – Federal Court Management Statistics–Case Participations, shows that in the twelve-month period ending September 30, 2016, the District of North Dakota had 214 civil filings per judgeship. (Montcalm Decl. ¶ 3, Ex. 2.) During that same period in the District of New Jersey, there were 527 civil filings per judgeship. Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 30 of 34 PageID: 159 26 (Id.) These figures suggest that there would be fewer administrative difficulties in the District of North Dakota as a result of court congestion. See, e.g., RAM Lodging, 2010 U.S. Dist. LEXIS 37790, at *19-20 (third public interest factor weighed in favor of transfer to Indiana where caseload statistics showed that the District of Indiana was less congested than this District). (4) The local interest in deciding local controversies at home. This factor is “intertwined” with the third private-interest factor, which focuses on where the claim arose. LG Elecs. Inc. v. First Int'l Comput., 138 F. Supp. 2d 574, 592 (D.N.J. 2001). “The location where the claim arose is also a public interest factor because local judges and juries are preferred arbiters of events in their jurisdiction and community.” Id. As discussed at length above, the pertinent events and omissions giving rise to Plaintiff’s claims all occurred in New Jersey. See supra, Sections II.A, III.A(3). Accordingly, this factor also favors transfer.12 See LG Elecs., 138 F. Supp. 2d at 592 (because the center of gravity of the dispute was in California, the fourth public interest factor favored transfer); see also Metro. Life, 2012 U.S. Dist. LEXIS 137119, at *22-23 (because “New York [was] the center of gravity for Plaintiffs’ claims[,] New York [had] a compelling interest in 12 Defendants acknowledge that “New Jersey has an interest in trying a case involving allegations that one of its citizens was the victim of a breach of contract.” RAM Lodging, 2010 U.S. Dist. LEXIS 37790, at *20. However, as in RAM Lodging, that interest is outweighed by the fact that the center of gravity of the dispute is located outside New Jersey. See id. Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 31 of 34 PageID: 160 27 adjudicating this controversy and regulating the conduct of its corporations . . . .”); Ricoh Co. v. Honeywell, Inc., 817 F. Supp. 473, 486 (D.N.J. 1993) (“Because Minnesota is the locus of the majority of alleged culpable conduct, Minnesota has a strong public interest in adjudicating this dispute.”). (5) The public policies of the districts. The title to the North Dakota Addendum specifically references the North Dakota Franchise Investment Law. That law “is designed to protect potential franchisees in North Dakota from unfair contracts and other prevalent and previously unregulated abuses in the growing national franchise industry.” KaeRen Accommodations, Inc. v. Country Hosp. Corp., 243 F. Supp. 2d 993, 995 (D.N.D. 2002). In line with this purpose, the North Dakota Addendum mandates that North Dakota law govern the Franchise Agreement. (North Dakota Addendum, at p. 1.) This provision illustrates North Dakota’s public policy in favor of protecting its franchisees. Accordingly, this factor also should favor transfer. (6) Familiarity of the trial judge with the applicable state law in diversity cases. “Justice requires that, whenever possible, a diversity case should be decided by the court most familiar with the applicable state law.” NCR Credit Corp. v. Ye Seekers Horizon, Inc., 17 F. Supp. 2d 317, 323 (D.N.J. 1998) (citations omitted). Here, that court is the District of North Dakota, because North Dakota law governs this dispute by virtue of the North Dakota Addendum. Because North Dakota law Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 32 of 34 PageID: 161 28 is to be applied to this dispute, the sixth public interest factor also favors transfer. See, e.g., HAB Carriers, Inc. v. Arrow Truck Sales, Inc., 2009 U.S. Dist. LEXIS 74265, at *12 (D.N.J. Aug. 19, 2009); Brooklyn Ctr., 2009 U.S. Dist. LEXIS 88710, at *11 (“judges in the District of Minnesota will have greater familiarity with Minnesota contract law”); Cancer Genetics, Inc. v. Kreatech Biotechnology, B.V., 2007 U.S. Dist. LEXIS 90857, at *16 (D.N.J. Dec. 11, 2007) (applying public interest factors and concluding that a court in New York would be “better positioned, and more familiar with New York law” where contract contained mandatory choice of law clause for application of New York law). Because the private and the public interest factors weigh heavily in favor of transferring the case to the District of North Dakota, the Court should exercise its discretion under Section 1404(a) and transfer the case to the District of North Dakota. CONCLUSION This case does not belong in New Jersey. The Court lacks personal jurisdiction over Defendants, and all of the relevant activity occurred in North Dakota. For these and all of the foregoing reasons, Defendants respectfully request that the Court dismiss the complaint for lack of personal jurisdiction and/or improper venue or, in the alternative, transfer this case to the District of North Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 33 of 34 PageID: 162 29 Dakota under either 28 U.S.C. §§ 1406(a) or 1404(a), along with any other relief the Court deems just and proper. Dated: New York, New York February 7, 2017 DORSEY & WHITNEY LLP s/ Bruce R. Ewing By: Bruce R. Ewing (BE-0724) Jonathan Montcalm (pro hac vice) 51 W. 52nd Street New York, New York 10019 (212) 415-9200 ewing.bruce@dorsey.com montcalm.jonathan@dorsey.com Attorneys for Defendants NHS Grand Forks, LLC, and Bharat I. Patel. Case 2:16-cv-07881-SDW-LDW Document 14-5 Filed 02/07/17 Page 34 of 34 PageID: 163 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ---------------------------------------------------------- X HOWARD JOHNSON INTERNATIONAL, INC., a Delaware corporation, Plaintiff, – v. – NHS-GRAND FORKS, LLC, a North Dakota limited liability company; and BHARAT I. PATEL, an individual, Defendants. : : : : : : : : : : Case No. 2:16-cv-07881-SDW-LDW [PROPOSED] ORDER ---------------------------------------------------------- X WHEREAS, defendants NHS-Grand Forks, LLC and Bharat I. Patel (collectively, “Defendants”) filed a motion on February 7, 2017 seeking dismissal of the complaint in this proceeding under either Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction, or Fed. R. Civ. P. 12(b)(3) for improper venue, or, in the alternative, seeking transfer of this case to the District of North Dakota under either 28 U.S.C. § 1406(a) or 28 U.S.C. § 1404(a); WHEREAS, the Court has considered the motion papers submitted by the parties and the arguments set forth therein; and WHEREAS the Court has concluded that Defendants’ motion should be granted; IT IS HEREBY ORDERED that: [ ] the motion of Defendants to dismiss the complaint under Fed. R. Civ. P. 12(b)(2) for lack of personal jurisdiction is hereby GRANTED, and the complaint is hereby dismissed, with prejudice; and/or [ ] the motion of Defendants to dismiss the complaint under Fed. R. Civ. P. 12(b)(3) for improper venue is hereby GRANTED, and the complaint is hereby dismissed, with prejudice; or [ ] the motion of Defendants to transfer this case for improper venue under 28 U.S.C. § 1406(a) is hereby GRANTED, and the case is hereby transferred to the United States District Court for the District of North Dakota; or [ ] the motion of Defendants to transfer this case for the convenience of the parties and witnesses and in the interest of justice under 28 U.S.C. § 1404(a) is hereby GRANTED, and the case is hereby transferred to the United States District Court for the District of North Dakota. Case 2:16-cv-07881-SDW-LDW Document 14-6 Filed 02/07/17 Page 1 of 2 PageID: 164 2 IT IS FURTHER ORDERED that the Clerk of the Court is hereby directed to administratively transfer this case to the United States District Court for the District of North Dakota. IT IS SO ORDERED this _____ day of ___________________, 2017. Hon. Susan D. Wigenton, U.S.D.J. Case 2:16-cv-07881-SDW-LDW Document 14-6 Filed 02/07/17 Page 2 of 2 PageID: 165 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY ---------------------------------------------------------- X HOWARD JOHNSON INTERNATIONAL, INC., a Delaware corporation, Plaintiff, – v. – NHS-GRAND FORKS, LLC, a North Dakota limited liability company; and BHARAT I. PATEL, an individual, Defendants. : : : : : : : : : : Case No. 2:16-cv-07881-SDW-LDW CERTIFICATE OF SERVICE Motion Day: March 6, 2017 ---------------------------------------------------------- X I certify that on February 7, 2017, I caused the below documents to be served on all counsel of record under L. Civ. R. 5.2, by filing using the CM/ECF system: 1. Defendants’ Notice of Motion to Dismiss or to Transfer Venue; 2. Declaration of Bharat I. Patel in Support of Defendants’ Motion to Dismiss or to Transfer Venue; 3. Declaration of Jonathan Montcalm in Support of Defendants’ Motion to Dismiss or to Transfer and the exhibits thereto; 4. Brief in Support of Defendants’ Motion to Dismiss or to Transfer Venue; and 5. Proposed Order granting Defendants’ Motion to Dismiss or to Transfer Venue. Dated: New York, New York February 7, 2017 DORSEY & WHITNEY LLP s/ Bruce R. Ewing By: Bruce R. Ewing (BE-0724) Jonathan Montcalm (pro hac vice) 51 W. 52nd Street New York, New York 10019 (212) 415-9200 ewing.bruce@dorsey.com montcalm.jonathan@dorsey.com Attorneys for Defendants NHS Grand Forks, LLC and Bharat I. Patel. Case 2:16-cv-07881-SDW-LDW Document 14-7 Filed 02/07/17 Page 1 of 1 PageID: 166