The opinion of the court was delivered by: Judge Sara Lioi
MEMORANDUM OPINION AND
This matter comes before the Court upon the motion (Doc. 13) of Defendant Utilities Optimization Group ("Defendant" or "UOG") to dismiss or, in the alternative, to transfer venue. After briefing was complete on the motion to dismiss, Plaintiff Commercial Metal Forming ("Plaintiff" or "CMF") filed a motion for leave to supplement its opposition brief. (Doc. 17). Defendant filed a response (Doc. 19) to Plaintiff's motion to supplement, wherein Defendant basically reiterated its basis for seeking dismissal or transfer of this action in light of the supplemental materials. Plaintiff's motion to supplement is GRANTED and Defendant's motion to dismiss is ripe for disposition. For the reasons that follow, Defendant's motion to dismiss DENIED and its alternative motion to transfer venue is GRANTED.
On February 1, 2011, Plaintiff CMF filed the instant breach of contract action against Defendant UOG seeking damages and declaratory relief. UOG seeks to have this matter dismissed pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure on the basis that this Court lacks personal jurisdiction over it, either general or specific. In the alternative, UOG argues that the matter should be transferred to the United States District Court for the Northern District of Texas under 28 U.S.C. § 1391(a)(2), as it argues that venue in this district is improper.
Plaintiff CMF produces tank heads and tank accessories for different markets, including "air receivers, petrochemical, LP Gas, oil field, construction equipment, rail and truck transportation, oil and gas separation, food processing, and filtration." (Doc. 13-1 at 2.) CMF has its corporate headquarters in Youngstown, Ohio, but operates a satellite office in Saginaw, Texas.*fn1 According to CMF, its Youngstown office has direct control over sales, market pricing, accounting, and all engineering functions.
Defendant UOG entered into a contract (the "Agreement") with CMF for the production of tank heads, which according to CMF were manufactured at its Youngstown headquarters (Compl. ¶ 7.) UOG asserts that it entered into the Agreement with CMF because of its contacts with CMF's representative in Saginaw, Texas, where it claims the tank heads were actually manufactured. (Doc. 13-1 at 2-3.) UOG has provided a declaration by its President and CEO, Joseph D'Amico, attesting that the tank heads were made in Texas and that UOG does not do business or maintain contacts in Ohio. (Doc. 13-2 at 1-2.) Instead, Mr. D'Amico avers that UOG has its corporate headquarters in Pascagoula, Mississippi, and conducts operations in New Orleans, Louisiana. Accordingly, it requests that the Court dismiss this action for want of personal jurisdiction, or, in the alternative, it argues that venue in the Northern District of Ohio is improper, and that the case should be dismissed or transferred to the Northern District of Texas.
CMF asserts in opposition that it routinely did business with UOG
without a written contract, even prior to the transaction at issue in
this matter, and that the governing terms
were set forth on the back of invoices it submitted to UOG. (Doc. 15
at 2.) Those terms, CMF argues, clearly provide that any disputes
between the parties would be governed by Ohio law. Id. UOG responds
that, with respect to this transaction, it did not receive the
invoices from CMF until after the parties had executed the Agreement
and the tank heads (which allegedly did not conform to UOG
specifications) had been delivered; and, therefore, any terms and
conditions on the invoices were not part of the contract.*fn2
(Doc. 16 at 5-6.) Further, UOG argues that a choice of law
provision does not constitute a venue provision.
To support the exercise of jurisdiction over a defendant, a plaintiff must establish that (1) personal jurisdiction is authorized by Ohio state law; and (2) the exercise of jurisdiction is in accordance with the Due Process Clause of the Fourteenth Amendment. Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991). While UOG has moved for the Court to dismiss or transfer this matter, CMF is the party seeking this Court's assertion of personal jurisdiction over UOG.
[T]he party seeking assertion of in personam jurisdiction bears the burden of showing that such jurisdiction exists. [.] When, however, a district court rules on a jurisdictional motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(2) without conducting an evidentiary hearing, the court must consider the pleading and affidavits in a light most favorable to the plaintiff [.].
To defeat such motion, [the party seeking to assert jurisdiction] need only make a prima facie showing of jurisdiction.
Brunner v. Hampson, 441 F.3d 457, 462 (6th Cir. 2006) (quoting CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1261-62 (6th Cir. 1996)) (alterations in Brunner); see also, Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002). The Court, however, is not precluded from considering undisputed factual representations made by the defendant that are consistent with those of the plaintiff. Kerry Steel, Inc. v. Paragon Indus., Inc., 106 F.3d 147, 153 (6th Cir. 1997). In the case at hand, the Court will decide this issue upon the written submissions, and, therefore, will proceed in its analysis by viewing the evidence in a light most favorable to CMF. See Bird, 289 F.3d at 871.
A.Ohio's Long-Arm Statute
Ohio's long-arm statute provides, "A Court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's (1) [t]ransacting any business in this state; [or] (2) contracting to supply services or goods in this state." O.R.C. § 2307.382(A)(1). The phrase "transacting business" has a broader meaning than "contracting," and encompasses prosecuting negotiations, carrying on business, and having dealings. Ky. Oaks Mall Co. v. Mitchell's Formal Wear, 53 Ohio St. 3d 73, 75 (1990). The statute also provides the additional requirement that "only a cause of action arising from acts enumerated in this section may be asserted against [the defendant]." The statute has less reach than the Due Process Clause. Brunner v. Hampson, 441 F.3d 457, 466 (6th Cir. 2007). While a "but-for" relationship between a plaintiff's ...