United States District Court, D. Maine
ORDER ON DEFENDANT’S MOTION TO DISMISS AND
MOTION TO TRANSFER VENUE
TORRESEN, UNITED STATES DISTRICT JUDGE
me is the Defendant’s motion to dismiss the
Plaintiff’s Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(2) or, alternatively, to transfer the action
to the United States District Court for the Southern District
of Texas, Houston Division, pursuant to 28 U.S.C. §
1404(a). (“Def.’s Mot.”) (ECF No. 6). For
the reasons stated below, the motion to dismiss is
DENIED, and the motion to transfer is
Furniture, Mattresses & More LLC
(“FMM” or the
“Plaintiff”), is a retail
furniture store organized and operated in Bangor, Maine.
Compl. ¶¶ 1, 5 (ECF No. 1). FMM’s sole member
is Kathy Harvey. Id. ¶ 7. Defendant, Texas
Rustic, Inc. (“Texas Rustic” or
the “Defendant”), is a wholesale
furniture seller incorporated and with its principal place of
business in Madisonville, Texas. Id. ¶¶ 2,
6. Texas Rustic has two shareholders: Carolyn Davis, who also
serves as president, and her husband. Carolyn Davis Decl.
¶ 2, Def.’s Mot. Ex. 1 (ECF No. 6-1). Shane Davis
serves as a sales representative for Texas Rustic. Shane
Davis Decl. 1, Def.’s Reply Pl.’s Opp’n
Mot. Dismiss Ex. 1 (“Def.’s Reply”) (ECF
Nos. 9 & 9-1).
April 2018 furniture show in North Carolina, Ms. Harvey was
introduced to Shane Davis through Michael Butter, allegedly
Texas Rustic’s independent sales representative. Compl.
¶¶ 7, 8. At that initial meeting, Ms. Harvey viewed
samples of the furniture that Texas Rustic was offering for
sale. Id. ¶ 8. Mr. Davis allegedly made several
representations to Ms. Harvey, including that there had been
no customer complaints about the furniture and that the
furniture carried a 1-year warranty against defects.
Id. ¶¶ 10–12. Shortly thereafter,
FMM placed its first order for Texas Rustic’s
furniture, which was shipped to Maine on April 20, 2018.
Id. ¶ 13, Ex. 1 at 2 (ECF No. 1-1). Between
April and December of 2018, Texas Rustic supplied furniture
to FMM with a total product cost of $437, 594.50 and a
shipping cost of $157, 835.00. Compl. ¶ 14; Def.’s
October of 2018, FMM began receiving complaints from
customers that the wooden furniture supplied by Texas Rustic
was cracking and splitting at normal room temperatures.
Compl. ¶ 16. FMM notified Texas Rustic of the problem on
November 5, 2018, stating that the furniture did not conform
to the samples provided at the North Carolina show.
Id. ¶¶ 17–19. FMM subsequently
informed Texas Rustic on December 4, 2018, not to manufacture
any additional furniture for FMM. Id. ¶ 20.
Later in December of 2018, Mr. Davis and another Texas Rustic
employee traveled to Bangor to inspect the furniture.
Id. ¶ 21. Mr. Davis allegedly assured Ms.
Harvey that Texas Rustic would cure the nonconforming
furniture in FMM’s warehouse and authorized a nominal
credit to FMM for the nonconforming models he observed.
Id. ¶¶ 21–25. Texas Rustic later
informed FMM that it would change the terms of payment to a
“factor of 30 days” to allow necessary time to
cure. Id. ¶ 27. Based on these assurances, FMM
received three shipments of furniture from Texas Rustic in
December of 2018. Id. ¶¶ 28–30. FMM
ultimately canceled all orders on December 24. Id.
¶ 29. On December 28, within thirty days of the
alteration of the payment agreement, a collection agency
contacted FMM and stated that its account with Texas Rustic
was delinquent, a characterization that FMM says was false.
Id. ¶¶ 31, 34.
January 24, 2019, FMM sent Texas Rustic a Notice of Rejection
of Defective Goods and a Notice of Revocation of Acceptance
of Defective Goods. Id. ¶ 38. In the following
weeks, attorneys for both parties communicated via email and
telephone regarding a possible out-of-court resolution of the
dispute. Aff. of Gregory P. Dorr ¶¶ 5–10,
Exs. C–F, Pl.’s Ex. 2 (ECF No. 8-2). In the
course of these communications, the Plaintiff’s
attorney provided the Defendant with a draft of the
Complaint. Id. ¶ 8.
April 11, 2019,  the Plaintiff filed this action, which
contains nine claims: (1) breach of contract, (2) breach of
sales contract, (3) breach of express warranty, (4) breach of
implied warranties, (5) rejection of goods, (6) revocation of
acceptance of goods, (7) unjust enrichment, (8) defamation,
and (9) punitive damages. Compl. ¶¶ 44–84.
9, 2019, the Defendant filed suit against the Plaintiff in
Texas State Court for declaratory judgment and breach of
contract. The Plaintiff removed that case to the United
States District Court for the Southern District of Texas,
where it is currently pending.
motion to dismiss under 12(b)(2), the plaintiff bears the
burden of establishing that personal jurisdiction exists over
the defendant. PREP Tours, Inc. v. Am. Youth Soccer
Org., 913 F.3d 11, 16 (1st Cir. 2019). Absent an
evidentiary hearing,  I apply the “prima facie
standard” to determine if the plaintiff has met this
burden. Id. Under this “least taxing”
standard, the plaintiff must “proffer evidence that,
if credited, is enough to support findings of all facts
essential to personal jurisdiction.” Id.
(quoting Boit v. Gar-Tec Prods., Inc., 967 F.2d 671,
675 (1st Cir. 1992)); Phillips v. Prairie Eye Ctr.,
530 F.3d 22, 26 (1st Cir. 2008). The plaintiff
“ordinarily cannot rest upon the pleadings, but is
obliged to adduce evidence of specific facts.” PREP
Tours, 913 F.3d at 16 (internal quotations omitted).
However, I must “accept the plaintiff’s (properly
documented) evidentiary proffers as true . . . and construe
them in the light most congenial to the plaintiff’s
jurisdictional claim.” Prairie Eye Ctr., 530
F.3d at 26 (internal quotations omitted); see also
Baskin-Robbins Franchising LLC v. Alpenrose Dairy, Inc.,
825 F.3d 28, 34 (1st Cir. 2016).
motion to transfer venue, the burden of proof falls upon the
party seeking the transfer. Coady v. Ashcraft &
Gerel, 223 F.3d 1, 11 (1st Cir. 2000). Venue is
appropriate in a district in which “a substantial part
of the events or omissions giving rise to the claim occurred,
” or “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)(2)–(3).
“[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). In doing so,
the district court may consider “the convenience of
parties and witnesses, ” as well as “the interest
of justice.” 28 U.S.C. § 1404(a). However, there
is a strong presumption in favor of the plaintiff's
choice of forum, and, if “identical actions are
proceeding concurrently in two federal courts, . . . the
first filed action is generally preferred.”
Coady, 223 F.3d at 11 (citing Cianbro Corp. v.
Curran-Lavoie, Inc., 814 F.2d 7, 11 (1st Cir. 1987)).
Defendant raises two arguments as part of these pending
motions: (1) that this Court lacks personal jurisdiction over
it and (2) that this case should be transferred to the United
States District Court for the Southern District of Texas
where a related action is pending. The Plaintiff counters
that personal jurisdiction is present here and that transfer
is improper because this action preceded the Texas case.
may have two types of personal jurisdiction over a defendant:
general or specific. See Cossaboon v. Maine Med.
Ctr., 600 F.3d 25, 31 (1st Cir. 2010). Specific
jurisdiction “may only be relied upon where the cause
of action arises directly out of, or relates to, the
defendant’s forum-based contacts.” Id.
(internal quotations omitted). General jurisdiction is
broader and encompasses actions unrelated to such contacts.
Id. The Plaintiff asserts that both general and
specific jurisdiction are present here.
type of jurisdiction must comport with the forum
state’s long-arm statute and with the Due Process
Clause of the Fourteenth Amendment. See LP Solutions
LLC v. Duchossois, 907 F.3d 95, 102 (1st Cir. 2018);
Cossaboon, 600 F.3d at 32. Maine’s long-arm
statute specifically identifies the “transaction of any
business within this State” as conduct conferring
personal jurisdiction. 14 M.R.S.A. § 704-A(2).
Maine’s statute also provides that,
to insure maximum protection to citizens of this State, [this
section] shall be applied so as to assert jurisdiction over
nonresident defendants to the fullest extent permitted by the
due process clause of the United States Constitution, 14th
Id. § 704-A(1); see also LP Solutions,
907 F.3d at 102. Under the Due Process Clause, a court may
“exercise jurisdiction over an out-of-forum defendant
only if, with respect to the claims at issue, the defendant
has certain minimum contacts with the forum such that the
maintenance of the suit does not offend traditional notions
of fair play and substantial justice.” PREP
Tours, 913 F.3d at 17 (quoting Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945)) (internal
alterations and quotations omitted).
may exercise general jurisdiction over a foreign corporation
“only when the corporation’s affiliations with
the State in which suit is brought are so constant and
pervasive as to render it essentially at home in the forum
State.” Daimler AG v. Bauman, 571 U.S. 117,
122 (2014) (internal quotations omitted); see also Copia
Commc’ns, LLC v. AMResorts, L.P., 812 F.3d 1, 4
(1st Cir. 2016). This test is “considerably more
stringent than that applied to specific jurisdiction
questions.” United States v. Swiss Am. Bank,
Ltd., 274 F.3d 610, 619 (1st Cir. 2001) (citing
Noonan v. Winston Co., 135 F.3d 85, 93 (1st Cir.
1998)). Because I find below that specific jurisdiction over
the Defendant exists, it is unnecessary for me to decide
whether general jurisdiction also exists.
finding of specific jurisdiction “depends on an
affiliation between the forum and the controversy underlying
the plaintiff’s claims.” PREP Tours, 913
F.3d at 17 (quoting Goodyear Dunlop Tire Operations, S.A.
v. Brown, 564 U.S. 915, 919 (2011)) (internal
alterations and quotations omitted). The First Circuit
applies a three-part test to determine whether this
“minimum contacts” requirement is met.
Id. First, the plaintiff’s claim must be
sufficiently related to the defendant’s in-forum
activities; second, the defendant must have purposefully
availed itself of the privilege of doing business in the
forum state; and third, assertion of jurisdiction over the
defendant must be reasonable. Scottsdale Capital Advisors
Corp. v. The Deal, LLC, 887 F.3d 17, 20 (1st Cir. 2018).
First Circuit has made clear that the mere existence of a
contract is insufficient to establish minimum contacts.
See Swiss Am. Bank, 274 F.3d at 621. Rather, the
court must apply a “contract-plus” analysis.
See Phillips Exeter Acad. v. Howard Phillips Fund,
Inc., 196 F.3d 284, 289 (1st Cir. 1999). Under this
approach, I focus on “the parties’ prior
negotiations and contemplated future consequences, along with
the terms of the contract and the parties’ actual
course of dealing.” Daynard v. Ness, Motley,
Loadholt, Richardson & Poole, P.A., 290 F.3d 42, ...