United States District Court, E.D. Kentucky, Northern Division, Covington
TRACY SIMPSON, et al. PLAINTIFFS
CHAMPION PETFOODS USA, INC., et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
L. BANNING, UNITED STATES DISTRICT JUDGE
matter is before the Court on two issues-a potential venue
transfer and a request for certification of interlocutory
appeal. In the Court's previous Memorandum Opinion and
Order, the Court dismissed all of the Kentucky putative class
members' claims (leaving only the Virginia putative class
members' claims viable) and notified the parties that it
was considering a transfer of this action to the Eastern
District of Virginia, Norfolk Division. (Doc. # 37). The
Court accordingly ordered that the parties file simultaneous
briefs addressing whether such a transfer would be
appropriate under 28 U.S.C. § 1404(a). Id. at
39-40. Both parties have briefed the issue. (Docs. # 39 and
40). Therefore, this matter is now ripe. Also pending before
the Court is Plaintiff Tracy Simpson's Motion for
Certification of Interlocutory Appeal and to Stay Proceedings
Pending Appeal. (Doc. # 41). That Motion having been fully
briefed, (Docs. # 44 and 45), it is also now ripe for
TRANSFER OF VENUE
Danika Lolles, a Virginia resident, and Defendants all argue
that the Court should retain jurisdiction based on the
various factors to be weighed in ruling on a motion to
transfer under § 1404(a). See (Docs. # 39 and 40).
The Court concludes that a venue transfer to the proposed
forum is foreclosed by a threshold requirement, only briefly
mentioned by Lolles: the absence of personal jurisdiction
over the Defendants in Virginia. (Doc. # 40 at 2).
applicable federal statute 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 or to any district or division to which all
parties have consented.
28 U.S.C. § 1404(a) (emphasis added). The phrase
“might have been brought” in § 1404(a) is a
threshold requirement that unambiguously limits where a
federal court may transfer an action. See Hoffman v.
Blaski, 363 U.S. 335, 343-344 (1960). That is, a
transfer without consent of the parties is permissible only
if, at the time the action was originally filed, the proposed
transferee district was a forum available to the plaintiff
where venue, subject-matter jurisdiction, and personal
jurisdiction all would have been proper. See id.;
Bunting v. Gray, 2 Fed.Appx. 443, 448 (6th Cir.
2001); see also 15 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 3845 (4th
ed. 2019). At the time this suit was filed here, however, a
court in the Eastern District of Virginia could not have
asserted personal jurisdiction over the Defendants, and
therefore transfer under § 1404(a) would be
courts exercise personal jurisdiction coextensively with the
courts of the forum state. Fed.R.Civ.P. 4(k)(1)(A).
Virginia's long-arm statute permits its courts to assert
personal jurisdiction “to the extent permissible under
the due process clause of the federal Constitution.”
Brown v. Am. Broad. Co., 704 F.2d 1296, 1301 (4th
Cir. 1983) (citing Kolbe, Inc. v. Chromodern Chair
Co., 180 S.E.2d 664, 667 (Va. 1971)).
interpreting the Due Process Clause recognize “two
types of personal jurisdiction: ‘general'
(sometimes called ‘all-purpose') jurisdiction and
‘specific' (sometimes called
Bristol-Myers Squibb Co. v. Superior Court, 137
S.Ct. 1773, 1780 (2017) (citing Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011)).
General jurisdiction is found where a defendant's
affiliations with the forum state “are so continuous
and systematic as to render them essentially at home in the
forum State” and will justify asserting jurisdiction
“over claims unrelated to” those affiliations.
Goodyear, 564 U.S. at 919, 925 (citations and
internal quotation marks omitted). Specific jurisdiction,
however, is warranted even where there is only a
“single” or “occasional” act of the
defendant in the forum state, Daimler AG v. Bauman,
571 U.S. 117, 127 (2014), but “the suit [must] aris[e]
out of or relat[e] to the defendant's contacts with the
forum, ” Bristol-Myers, 137 S.Ct. at 1780
(citation and internal quotation marks omitted).
at the time suit was filed, the Eastern District of Virginia
could not have asserted general jurisdiction over Defendants
because they could not be considered “at home” in
Virginia. A “corporation is fairly regarded as at
home” in the “place of incorporation and [its]
principal place of business.” Daimler, 571
U.S. at 137 (citations and internal quotations omitted). The
same locations appear to be considered when determining where
a limited partnership is “essentially at home.”
See Reitman v. Champion Petfoods USA, Inc., No. CV
18-1736-DOC (JPRx), 2018 WL 4945645, at *4 (C.D. Cal. Oct.
10, 2018) (quoting Daimler, 571 U.S. at 127).
Defendant Champion Petfoods LP is a Canadian partnership with
its principal place of business in Edmonton, Alberta, Canada.
(Doc. # 29 ¶ 9); see also (Doc. # 39 at 3).
That partnership owns Defendant Champion Petfoods USA, Inc.,
which is incorporated in Delaware and has its principal place
of business in Auburn, Kentucky. (Doc. # 29 ¶¶
8-9); see also (Doc. # 39 at 2-3). Although the
Supreme Court has not held that “a corporation may be
subject to general jurisdiction only in a forum
where it is incorporated or has its principal place of
business, ” the Court has also made it clear that an
out-of-state defendant is not amenable to a court's
general jurisdiction simply because the defendant's
“sales are sizable” in the forum state.
Daimler, 571 U.S. at 138-39. Thus, even though
Defendants sell their products in Virginia, (Doc. # 29
¶¶ 1, 10-11), they are not at home in Virginia and
general jurisdiction cannot lie there.
could a federal court in Virginia assert specific
jurisdiction over Defendants. Specific jurisdiction is only
found where, as to a non-resident defendant, there exists:
(1) purposeful availment “of the privilege of acting in
the forum state or causing a consequence in the forum state,
” (2) a “cause of action . . . aris[ing] from
activities” in the state, and (3) a “substantial
enough connection with the forum state to make the exercise
of jurisdiction over the defendant reasonable.”
Schneider v. Hardesty, 669 F.3d 693, 701 (6th Cir.
2012) (quoting S. Mach. Co. v. Mohasco Indus., Inc.,
401 F.2d 374, 381 (6th Cir. 1968)). Here, the first element is
missing, namely, “some act by which the defendant
purposefully avail[ed] itself of the privilege of conducting
activities within the forum State, thus invoking the benefits
and protections of its laws.” Goodyear, 564
U.S. at 924 (quoting Hanson v. Denckla, 357 U.S.
235, 253 (1958)). This requirement “ensures that a
defendant will not be haled into a jurisdiction solely as a
result of random, fortuitous, or attenuated contacts, or of
the unilateral activity of another party or a third
person.” Schneider, 669 F.3d at 701 (citations
and internal quotation marks omitted). The only apparent
contact Defendants have with Virginia is the mere fact that
Defendants' dog food products are sold in various
third-party retail stores. (Doc. # 29 ¶¶ 1, 10-11).
This tenuous affiliation does not constitute
“purposeful availment” in this Circuit.
Sixth Circuit has stated a preference for the “stream
of commerce ‘plus' approach” to purposeful
availament set forth by Justice O'Connor in Asahi
Metal Industry Company. Bridgeport Music, Inc. v. Still N the
Water Publ'g, 327 F.3d 472, 479-80 (6th Cir. 2003)
(discussing Asahi Metal Industry Co. v. Superior Court of
Cal., Solano Cty., 480 U.S. 102, 112 (1987) (plurality
opinion)). Under that standard, “[t]he
placement of a product into the stream of commerce,
without more, is not an act of the defendant
purposefully directed toward the forum State.”
Id. (emphasis added) (quoting Asahi, 480
U.S. at 112); see also J. McIntyre Mach., Ltd. v.
Nicastro, 564 U.S. 873, 882 (2011) (plurality opinion)
(“The defendant's transmission of goods [to the
forum State] ...