United States District Court, District of Colorado
T. Varholak, United States Magistrate Judge
Judge Scott T. Varholak This matter comes before the Court on
Defendants' Motion to Dismiss for Lack of Personal
Jurisdiction or, in the Alternative, to Transfer Proceeding
to the Northern District of Texas (the "Motion"),
filed February 28, 2017. [#8] This Court has carefully
considered the Motion and related briefing, the entire case
file, and the applicable case law, and has determined that
oral argument would not materially assist in the disposition
of the instant Motion. For the following reasons, the Motion
is GRANTED to the extent it seeks transfer to the Northern
District of Texas.
alleged in the Complaint, Plaintiff is a Colorado corporation
specializing in the production and wholesale distribution of
specialty cheeses and preserved meats. [#4, ¶ 1]
Defendant Jana Food Services, Inc. ("Jana") is a
Texas corporation with its principal place of business in
Texas, El Campesino Food, LLC ("ECF") is a Texas
limited liability company, and Nader Ahmad is a Texas
resident. [Id. at ¶¶ 2-4] Defendant Ahmed
is the owner and principal officer/manager of both JANA and
[Id. at ¶ 4] Jana and ECF are distributors of
food products to retail outlets. [Id. at
instant dispute arises out of a Distributor Agreement (the
"Agreement") originally entered into by Plaintiff
and Jana. [Id. at ¶ 9] Pursuant to the
Agreement, Jana was granted the "exclusive and
non-assignable right" to sell Plaintiffs products
"in the Dallas-Fort Worth metroplex" for a term of
two years. [Id. at ¶ 10] Mr. Ahmad signed a
Personal Guarantee ("Personal Guarantee One")
whereby he guaranteed payment of any sums Jana owed
Plaintiff. [Id. at ¶ 16]
a few weeks of signing the Agreement, Mr. Ahmad approached
Plaintiff with a request that he be allowed to operate as a
distributor through a different company that he had recently
established, ECF, without having to sign a new Agreement.
[Id. at ¶ 19] Plaintiff agreed, but required
Mr. Ahmad to sign a second Personal Guarantee for the debts
of ECF. [Id. at ¶ 21(b)] Mr. Ahmad agreed and
signed a Personal Guarantee of any sums ECF owed Plaintiff
("Personal Guarantee Two"). [Id. at ¶
January 10, 2017, Plaintiff filed its Complaint in Denver
District Court, alleging that Jana and ECF currently owe
Plaintiff $125, 202.96 pursuant to the Agreement.
[Id. at ¶ 35] The Complaint brings actions for
breach of the Agreement, breach of the Personal Guarantees,
breach of implied obligations and covenants of good faith and
fair dealing, alter ego, fraud and unjust enrichment. [#4] On
February 21, 2017, Defendants removed the action to this
Court. [#1] One week later, Defendants filed the instant
Motion seeking dismissal for lack of personal jurisdiction
or, in the alternative, transfer of the proceedings to the
Northern District of Texas. [#8]
support of the Motion, Defendants submitted a Declaration of
Nader Ahmad. [#8-1] In it, Mr. Ahmad explains that Jana and
ECF operate exclusively in Texas and have never sold any
products to any customers in Colorado. [Id. at
¶¶ 2-3] Mr. Ahmad further declares that neither
Jana nor ECF has any employees or offices in Colorado, and
that none of Defendants owns any property in Colorado.
[Id. at ¶¶ 4-5] Aside from distributing
products for Plaintiff, all of which is distributed in Texas,
neither Jana nor ECF have ever conducted business in
Colorado. [Id. at ¶¶ 6, 8] As part of
Defendants' dealings with Plaintiff, Mr. Ahmad traveled
to Colorado on one occasion, to sign the Agreement.
[Id. at ¶ 9]
contrast to Defendants' limited contacts with Colorado,
Mr. Ahmad declares that Plaintiff employs personnel in Texas
to conduct demonstrations of Plaintiff's products at
retail outlets. [Id. at ¶ 12] Jana and ECF
"routinely coordinated their marketing efforts in Texas
outlets with these Texas-based representatives."
[Id. at ¶¶ 12-13] Mr. Ahmad also has often
met with Plaintiff's representatives in Texas.
[Id. at ¶ 11] Mr. Ahmad asserts that one of the
areas of dispute between Plaintiff and Defendants involves
Plaintiff's alleged attempts to sell directly to
retailers in the Dallas-Fort Worth area, contrary to the
exclusive distribution rights set forth in the Agreement.
[Id. at ¶¶ 16-17] According to Mr. Ahmad,
these exclusive distribution disputes are the reason why
Defendants have not paid Plaintiff the amounts allegedly due.
[Id. at ¶ 19]
March 28, 2017, Plaintiff filed its Opposition to the Motion.
[#17] In support of its Opposition, Plaintiff submitted an
Affidavit of Gabriel Robles, Plaintiffs President and
majority owner. [#17-1] Mr. Robles explains that in September
2014, he was contacted by a Jana representative about Jana
becoming a distributor for Plaintiff.[#17-1 at ¶ 7] From
September 2014 through December 2014, Jana representatives
made numerous calls to Plaintiff and "mounted a
campaign" to convince Plaintiff to work through Jana in
the Dallas-Fort Worth market. [Id. at ¶ 9] Mr.
Robles traveled to Texas to meet with Mr. Ahmad.
[Id. at ¶ 11] During the week of February 22,
2015, Mr. Ahmad came to Denver, received training and
ultimately signed the Agreement. [Id. at 14]
According to Mr. Robles, "[h]ad Mr. Ahmad not made the
repeated attempts to convince [Plaintiff] to allow it to be a
distributor, with what we now know to be false
representations and promises, [Plaintiff] would never have
entered into any business relationship with Mr. Ahmad or his
companies." [Id. at ¶ 22]
filed their Reply in Support of Defendants' Motion on
April 21, 2017. [#20] This Court had previously entered a
Scheduling Order on March 28, 2017. [#16] Pursuant to that
Scheduling Order, the discovery cut-off is November 13, 2017,
and the dispositive motions deadline is November 20, 2017.
[Id. at 10] Trial has not yet been set.
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). Section
1404(a) gives "discretion [to] the district court to
adjudicate motions for transfer according to an
individualized, case-by-case consideration of convenience and
fairness." Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 29 (1988) (internal quotations and citations
omitted). The statute was intended to revise the forum
non conveniens doctrine and "[c]ourts therefore
enjoy greater discretion to transfer a cause pursuant to
§ 1404(a) than to dismiss the action based upon
forum non conveniens." Chrysler Credit Corp. v.
Country Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir.
1991). Nonetheless, Section 1404 "does not allow a court
to transfer a suit to a district which lacks personal
jurisdiction over the defendants, even if they consent to
suit there." Id. The party moving to transfer a
case pursuant to Section 1404 bears the burden of
establishing that the existing forum is inconvenient.
there is no dispute that the case could have been brought in
the Northern District of Texas as that district has personal
jurisdiction over all Defendants. As a result, the only issue
is whether Defendants have met their burden of showing that
the existing forum is inconvenient such that the interests of
justice support transferring the case to the ...