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Carolina Underground Solutions, LLC v. Commercial Finance Partners, LLC

United States District Court, D. South Carolina, Greenville Division

September 1, 2017

Carolina Underground Solutions, LLC, a South Carolina Limited Liability Company, Plaintiff and Counter-Defendant,
v.
Commercial Finance Partners, LLC, a Nevada Limited Liability Company, Defendant and Counter-Claimant. Commercial Finance Partners, LLC, a Nevada Limited Liability Company, Counter-Claimant and Counter-Defendant,
v.
Jonathan Carawan, an individual, Counter-Claimant and Counter-Defendant.

          ORDER AND OPINION

         Plaintiff Carolina Underground Solutions, LLC (“Plaintiff” or “CUS”) filed the instant action against Defendant Commercial Finance Partners, LLC (“Defendant” or “CFP”) seeking damages resulting from Defendant's allegedly improper business practices. (ECF No. 1-1 at 4- 14.)

         This matter is before the court by way of Defendant's Motion to Transfer Venue to the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). (ECF No. 10 at 1.) Plaintiff opposes Defendant's Motion in its entirety. (ECF No. 24.) For the reasons set forth below, the court GRANTS Defendant's Motion to Transfer Venue.

         I. RELEVANT BACKGROUND TO PENDING MOTION

         Plaintiff is a provider of boring and drilling services and it alleges that it “attempted to enter into an agreement whereby Defendant would provide accounts receivable factoring services.” (ECF No. 1-1 at 5 ¶¶ 7, 9.) Plaintiff alleges that although their initial attempt at entering a signed written agreement failed, the parties did agree to an arrangement that resulted in Defendant providing accounts receivable factoring services for and on behalf of Plaintiff from December 13, 2016, until April 7, 2017. (Id. at 5 ¶ 10-6 ¶ 13.) Plaintiff alleges that on April 7, 2017, it sent a notice terminating the performance of Defendant's services which should have ended the parties' relationship. (Id. at 6 ¶¶ 13-14.) However, Defendant allegedly did not cease accessing the accounts Plaintiff maintained for its customers and engaged in numerous instances of improper business practices to include accepting payment without authorization, recording a UCC lien against Plaintiff's property, and failing to remit funds to Plaintiff. (Id. at 7 ¶ 18-8 ¶ 25.)

         On June 8, 2017, Plaintiff filed a Complaint against Defendant in the Greenville County (South Carolina) Court of Common Pleas alleging state law claims for tortious interference with existing economic relationships, conversion, slander of title, and violation of the South Carolina Unfair Trade Practices Act (“SCUTPA”), SC Code Ann. § 39-5-10 to -560 (2014). (ECF No. 1-1 at 9 ¶ 29-10 ¶ 56.) On June 14, 2017, Defendant removed the matter to this court pursuant to 28 U.S.C. § 1332 (ECF No. 1) and then on June 29, 2017, filed the instant Motion to Transfer Venue. (ECF No. 10.) Plaintiff filed a Response in Opposition to the Motion to Transfer Venue on July 13, 2017, to which Defendant filed a Reply Memorandum in Support of Motion to Transfer Venue on July 19, 2017. (ECF Nos. 24 & 27.) Additionally, on August 17, 2017, Plaintiff moved to file and filed supplemental materials in opposition to Defendant's Motion to Transfer Venue. (ECF Nos. 40, 40-1 & 40-2.)

         II. JURISDICTION

         The court has subject matter jurisdiction over this action, pursuant to 28 U.S.C. § 1332, based on Defendant's allegations that the parties are citizens of different states and the amount in controversy exceeds $75, 000.00. (ECF No. 1 at 3 ¶ 7-4 ¶ 9.) Specifically, Plaintiff “is a limited liability company organized and existing under the laws of the State of South Carolina, with a principal place of business located in Greenville County, South Carolina.” (ECF No. 1-1 at 4 ¶ 2.) Defendant “is a limited liability company organized and existing under the laws of the State of Nevada, with a principal place of business located in the State of Florida.” (Id. at 5 ¶ 3.) Additionally, the court is satisfied that the amount in controversy exceeds $75, 000.00. (ECF Nos. 1 at 4 ¶ 9 & 1-1 at 13 ¶ 55.)

         III. LEGAL STANDARD

         28 U.S.C. § 1404(a) provides that “[f]or 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.” Id. “The appropriate venue of an action is a procedural matter that is governed by federal rule and statutes.” Albemarle Corp. v. AstraZeneca UK Ltd., 628 F.3d 643, 651 (4th Cir. 2010) (citing Fed.R.Civ.P. 12(b)(3); 28 U.S.C. § 1391; 28 U.S.C. § 1406(a)). “Whether a case should be transferred to an alternative venue rests within the sound discretion of the district court.” Sw. Equip., Inc. v. Stoner & Co., Inc., C/A No. 6:10-1765-HMH, 2010 WL 4484012, at *2 (D.S.C. Nov. 1, 2010) (citing In re Ralston Purina Co., 726 F.2d 1002, 1005 (4th Cir. 1984)).

         “In the typical case not involving a forum-selection clause, a district court considering a § 1404(a) motion (or a forum non conveniens motion) must evaluate both the convenience of the parties and various public-interest considerations.”[1] Atl. Marine Constr. Co. v. U.S. Dist. Ct. W.D. Tex., 134 S.Ct. 568, 581 (2013). However, “[w]hen the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause.” Id. “[A] valid forum-selection clause, which ‘represents the parties' agreement as to the most proper forum[, ]'” should be “‘given controlling weight in all but the most exceptional cases.'” Id. (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 & 33 (1988)).

         A court conducts a two-part analysis in deciding whether to enforce a forum selection clause. First, the court determines whether the forum-selection clause is valid and enforceable. Atl. Marine, 134 S.Ct. at 581. A forum-selection clause is “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable' under the circumstances.” M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10 (1972). A forum-selection clause may be considered unreasonable if “(1) [its] formation was induced by fraud or over-reaching; (2) the complaining party “will for all practical purposes be deprived of his day in court” because of the grave inconvenience or unfairness of the selected forum; (3) the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or (4)[its] enforcement would contravene a strong public policy of the forum state.” Albemarle Corp., 628 F.3d at 651 (quoting Allen v. Lloyd's of London, 94 F.3d 923, 928 (4th Cir. 1996)).

         Second, the court must consider whether “extraordinary circumstances” would hinder the enforcement of the forum-selection clause. Atl. Marine, 134 S.Ct. at 581. In considering whether extraordinary circumstances are present to avoid enforcement of a valid forum selection clause, a court may consider “arguments about public-interest factors only.”[2] Id. at 581-82.

         IV. ANALYSIS

         A. The ...


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