UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
April 27, 1999
WILLIAM GORMLEY, PLAINTIFF,
DOMINO SUGAR CORP., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge
HONORABLE JEROME B. SIMANDLE
SIMANDLE, District Judge
This matter is before the court on the motion of defendant Domino Sugar Corp. ("Domino") to dismiss or transfer this matter to the U.S. District Court for the District of Maryland for lack of personal jurisdiction and for improper venue, under Federal Rule of Civil Procedure 12(b)(2) and (3) and 28 U.S.C. § 1406(a), or, in the alternative, for transfer to the U.S. District Court for the District of Maryland under 28 U.S.C. § 1404(a). The principal issue is whether this personal injury suit, arising out of the New Jersey plaintiff's accident at defendant's premises in Maryland in connection with a planned transport of defendant's product from Maryland to Pennsylvania, should be maintained in New Jersey or in Maryland. Because the court finds that it lacks personal jurisdiction over Domino under the circumstances of this case, the court grants Domino's motion and transfers this matter to the U.S. District Court for the District of Maryland under § 1406(a). *fn1 Alternatively, even if personal jurisdiction over Domino is present in New Jersey, it is abundantly clear that transfer of this case to the U.S. District Court for the District of Maryland is warranted under 28 U.S.C. § 1404(a).
Plaintiff, William Gormley, resides at 11 Pardee Avenue, Browns Mills, New Jersey. At all times relevant to this case, Gormley was employed as a truck driver by Odyssey Trucking of Burlington City, New Jersey.
Domino is a Delaware corporation with a principal place of business at 1114 Avenue of the Americas, New York, New York. Domino also operates a facility at 1100 Key Highway East, Baltimore, Maryland. Domino maintains no offices in New Jersey and is not incorporated in New Jersey, but did sell almost $66 million worth of products in New Jersey during fiscal year 1996-97, representing nearly 8% of its gross domestic sales. (Affidavit of David Philippy at ¶¶ 2-3.)
On January 10, 1996, Gormley was making a pick up at Domino's Baltimore facility for delivery to Allentown, Pennsylvania, when he allegedly slipped and fell on ice in the parking lot. On January 6, 1998, Gormley commenced this civil action against Domino, alleging that Domino is liable for the injuries he suffered as a result of his fall on their premises in Baltimore by virtue of its negligence in maintaining the premises.
Domino filed its Answer and Affirmative Defenses to Gormley's Amended Complaint on March 18, 1998, *fn2 preserving its affirmative defenses of lack of personal jurisdiction and improper venue. Domino now moves to dismiss or transfer this action to the U.S. District Court for the District of Maryland for lack of personal jurisdiction and for improper venue.
Under Federal Rule of Civil Procedure 4(e), a district court sitting in diversity may assert personal jurisdiction over a non- resident defendant to the extent allowed by the applicable statute or rule of the state in which the district court sits. See Bane v. Netlink, Inc., 925 F.2d 637, 639 (3d Cir. 1991). In New Jersey, Rule 4:4-4 has been construed to extend personal jurisdiction "to the uttermost limits permitted by the United States Constitution." Charles Gendler & Co. v. Telecom Equipment Corp., 102 N.J. 460, 469 (1986). Thus, this court may exercise personal jurisdiction over Domino if it is clear that the Delaware corporation has sufficient "minimum contacts" with New Jersey such that the exercise of jurisdiction would not offend the "traditional notions of fair play and substantial justice" contemplated by the Due Process Clause of the Fourteenth Amendment. International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
Minimum contacts exist when a defendant performs certain acts by which he purposefully avails himself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. Hanson v. Denckla, 357 U.S. 235, 253 (1958). The contacts with the forum state must be of a nature such that the non- resident defendant "should reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985) (citing Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 295 (1980)).
A district court may exercise "specific jurisdiction" over a defendant when a controversy is related to or arises out of the defendant's contacts with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1983). When a controversy is not related to and does not arise out of the defendant's contacts with the forum state, a district court may exercise "general jurisdiction" over the defendant only if it determines that the defendant maintains "continuous and systematic" contact with the forum state. Id. at 416.
Once a defendant raises a question about the existence of personal jurisdiction, the burden is on the plaintiff to prove by a preponderance of the evidence sufficient facts to establish personal jurisdiction over the defendant. Carteret Sav. Bank NA v. Shushan, 954 F.2d 141, 146 (3d Cir.), cert. denied. 506 U.S. 817 (1992). In the present case, Gormley concedes that there is no basis for an exercise of specific jurisdiction over Domino, but argues that Domino's contacts with New Jersey are sufficiently "continuous and systematic" to support the exercise of general jurisdiction:
Defendant is a corporation whose core business is the marketing and sale of refined sugar. Its regular sales of hundreds of thousands of bags of sugar in New Jersey each month cannot be characterized as random, isolated, of fortuitous. Defendant's name, Domino Sugar, is a household name in New Jersey; its products can be found at any grocery store. By its actions, defendant has purposefully availed itself to the laws of New Jersey. (Plaintiff's Brief at 6.)
The court finds that these unsupported allegations are not enough to meet Gormley's burden of proving by a preponderance of the evidence sufficient facts to establish general jurisdiction over Domino in New Jersey. Gormley has offered no evidence to counter the Affidavit of David Philippy, Domino's Risk Manager, that Domino's maintains no offices in New Jersey and is not incorporated in New Jersey. (Philippy Aff. at ¶ 2.) Although Philippy acknowledges that Domino's had gross sales of nearly $66 million in New Jersey during fiscal year 1996-97, representing nearly 8% of Domino's gross domestic sales (Id. at ¶ 3), Gormley has offered no evidence regarding Domino's sales, marketing or distribution systems to establish that Domino conducts any of these functions in New Jersey. Gormley has offered no evidence that Domino has employees who work in New Jersey, that Domino advertises in New Jersey, or that Domino has any contractual relationships with New Jersey entities. As this case has been pending for more than a year, Gormley had ample opportunity to marshal such evidence.
Moreover, the shipment Gormley was picking up at Domino's Baltimore facility when he fell was bound for Allentown, Pennsylvania, not New Jersey. The mere facts that Domino sugar is a household name in New Jersey, that Domino sugar can be found on the shelves of virtually every grocery in New Jersey, and that millions of dollars worth of Domino sugar is purchased by New Jersey consumers every year are not enough to support the exercise of jurisdiction over Domino in a civil action arising out of a slip and fall at a Domino facility in Maryland. In this respect, the instant case is similar to Brooks v. Bacardi Rum Corp., 943 F. Supp. 559 (E.D. Pa. 1996), an action arising out of the plaintiff's slip and fall during a tour of the Bacardi rum factory in San Juan, Puerto Rico. Like Domino, Bacardi is a household name in Pennsylvania, Bacardi rum can be found on the shelves of every state store in Pennsylvania, and it is likely that millions of dollars worth of Bacardi rum is purchased by Pennsylvania consumers every year. These facts alone, however, did not support the exercise of jurisdiction over Bacardi in Brooks. See id. at 562-63. The court granted Bacardi's motion to dismiss for lack of personal jurisdiction, finding that the plaintiff had offered no evidence to support her allegation that Bacardi did business in Pennsylvania through its subsidiaries and subdivisions, which sell, market and distribute the rum Bacardi manufactures. Id. *fn3
Alternatively, even if Gormley were deemed to have succeeded in demonstrating Domino's present in New Jersey for purposes of personal jurisdiction, it is quite clear that this case should be transferred to the U.S. District Court for the District of Maryland, where the transaction was centered and the accident occurred, under § 1404(a).
"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). The objective of transfer under § 1404(a) is "to prevent 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)(quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26-27 (1960)). The burden of persuasion on a motion to transfer under § 1404(a)is on the moving party. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995); Ricoh Co., Ltd. v. Honeywell, Inc., 817 F. Supp. 473, 480 (D.N.J. 1993).
In Gulf Oil v. Gilbert, 330 U.S. 501, 508-09 (1947), the U.S. Supreme Court set forth numerous factors that are relevant to a district court's decision whether to transfer a case under § 1404(a). *fn4 These factors include plaintiff's choice of forum, the ease of access to sources of proof, the availability of compulsory process over unwilling witnesses, the cost of attendance of willing witnesses, the connection between the forum and the events giving rise to the litigation, and the familiarity of the forum court with the applicable law. See id.
Chief among the Gulf Oil factors is plaintiff's choice of forum. "[T]here is ordinarily a strong presumption in favor of the plaintiff's choice of forum, which may be overcome only when the [Gulf Oil] factors clearly point towards trial in the alternate forum." Piper Aircraft v. Reyno, 454 U.S. 234, 255 (1981). "[P]laintiff's choice of forum is a paramount consideration in any determination of a transfer request" and "should not lightly be disturbed." Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970) (citations omitted). The remaining Gulf Oil factors must weigh "strongly in favor" of transfer to overcome the presumption in favor of plaintiff's choice of forum. See Kultur Int'l Films Ltd. v. Covent Garden Pioneer, FSP, Ltd., 860 F. Supp. 1055, 1065 (D.N.J. 1994); Sandvik, Inc. v. Continental Ins. Co., 724 F. Supp. 303, 307 (D.N.J. 1989). However, "[w]hen the central facts of a lawsuit occur outside the forum state, a plaintiff's selection of that forum is entitled to less deference." Ricoh, 817 F. Supp. at 481.
In the present case, Gormley's choice of his home forum is entitled to less deference than usual because the operative facts of this case occurred in Maryland, not New Jersey. Furthermore, the remaining Gulf Oil factors do weigh strongly in favor of transfer to the U.S. District Court for the District of Maryland. Although the relevant "private interests" (i.e., the relative ease of access to sources of proof, the availability of compulsory process of attendance over unwilling witnesses, the cost of obtaining willing witnesses) are more or less in equipoise in this case because the expense and inconvenience Domino would incur if forced to litigate in Camden would simply be shifted to Gormley if the case were transferred to Baltimore, the relevant "public factors" (i.e., placing the burden of jury duty on those having the closest ties to the action, the local interest in having the case adjudicated at home, the familiarity of the forum court with the applicable substantive law) favor transfer to the U.S. District Court for the District of Maryland because that court clearly has a closer connection to the facts giving rise to this litigation. Indeed, other than the fact that Gormley resides in New Jersey, New Jersey has no relationship to this litigation whatsoever. Maryland, on the other hand, has a significant interest in ensuring the safety of business premises in Maryland. It follows that a Maryland jury should decide this case and that Maryland law should be applied.
For the reasons discussed above, the court finds that it lacks personal jurisdiction over Domino under the circumstances of this case. Accordingly, the court grants Domino's motion to dismiss or transfer for lack of personal jurisdiction and transfers this matter to the U.S. District Court for the District of Maryland under § 1406(a). Alternatively, the court grants Domino's motion to transfer this matter to the U.S. District Court for the District of Maryland under § 1404(a). The accompanying Order is entered.
THIS MATTER having come before the court on the motion of defendant Domino Sugar Corp. ("Domino") to dismiss or transfer this matter to the U.S. District Court for the District of Maryland for lack of personal jurisdiction and for improper venue, under Federal Rule of Civil Procedure 12(b)(2) and (3) and 28 U.S.C. § 1406(a), or, in the alternative, for transfer to the U.S. District Court for the District of Maryland under 28 U.S.C. § 1404(a), and the court having considered the submissions of the parties, and for the reasons set forth in the accompanying Opinion;
IT IS on this day of April, 1999, hereby ORDERED that Domino's motion to dismiss or transfer for lack of personal jurisdiction is GRANTED; and
IT IS FURTHER ORDERED, in the alternative, that Domino's motion to transfer this case pursuant to 28 U.S.C. § 1404(a) is GRANTED;
IT IS FURTHER ORDERED that this matter be transferred to the U.S. District Court for the District of Maryland under 28 U.S.C. § 1406(a) and/or 28 U.S.C. § 1404(a).
JEROME B. SIMANDLE U.S. District Judge