1

 At the beginning of its relationship with some of the

defendants in this case, BEI's principal place of business was in

Bala Cynwyd, Pennsylvania. BEI subsequently moved to King of

Prussia, Pennsylvania.

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BANK EXPRESS INTERNATIONAL : CIVIL ACTION

:

 v. :

:

SOO Y. KANG d/b/a BANKCARD :

SERVICE, INC. et al. : NO. 02-4076

 MEMORANDUM

Dalzell, J. January 15, 2003

Since defendants in this diversity case have questioned

personal jurisdiction and venue over them, we begin with a

canvass of pertinent contacts.

Plaintiff Bank Express International ("BEI") is a

Pennsylvania corporation in the business of servicing automated

teller machines ("ATM's"). BEI's clients enter into long-term

service agreements under which BEI monitors the electronic

processing of ATM transactions, accepts telephone calls

concerning technical difficulties, and arranges for the repair of

malfunctioning machines. BEI provides all of these services from

its principal place of business in Pennsylvania.1 

Every month, BEI sends each client a summary of ATM

transactions and a check for the merchant's share of the

surcharges levied on ATM users, and both the check and summary

bear BEI's Pennsylvania address. Because many prospective

clients do not already have an ATM, BEI assists them in leasing

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 1 of 20
-2-

machines from third parties. When BEI renders this service, the

prospective client provides trade references and credit

information on an application bearing BEI's Pennsylvania address. 

These clients generally sign the service agreement with BEI after

BEI arranges the lease of an ATM.

Between 1999 and 2001, BEI agents in California

solicited the business of the eleven merchants named as

defendants in this case (the "Merchant Defendants"), each of whom

entered into a five-year service agreement with BEI. Nine of the

Merchant Defendants also filled in lease applications.

Summarized here are the details of each Merchant

Defendant's relationship with BEI, which we derive from the

amended complaint, the exhibits thereto, and the affidavit of

BEI's chief executive officer, Taek Im Kim:

Defendant Date of Lease

Application

Date Deft. Signed

Service Agreement

Type of Service

Agreement

Soo Y. Yang, t/a

Rancho Market

11/11/99 11/19/99 Long

Doo Young Lee,

t/a Felton Fair

Liquors

1/22/01 2/1/01 Long

Jenny Yu, t/a

Mayfair Market 

3/3/01 3/9/01 Long

Jeoung Kim, t/a

Salomi Video

Not applicable 5/31/01 Long

Jung Soo Kim, t/a

Danny's Market

10/16/99 10/18/99 Short

Jeong Kim, t/a

Club House Café &

Lounge

Not applicable 5/31/01 Long

Young Bin Yu, t/a

West Side Liquor

5/30/01 5/30/01 Long

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 2 of 20
2

 Ha also completed an "ATM Order Form" bearing BEI's Bala

Cynwyd address on September 20, 1999. Am. Compl. Ex. M.

3

 The amended complaint states that BEI procured an ATM

lease for Bill of Fare but does not indicate whether Bill of Fare

completed a lease application. Am. Compl. ¶ 69.

-3-

Karen Ha, t/a

Elcamino

Mongolian BBQ

9/11/992 9/20/99 Long

Ragvinder Sandhu,

t/a Bonfare

Market #24

5/24/00 4/25/00 Short

Hamond Ku, t/a

Bill of Fare

Not in record3 4/27/00 Short

Yeo Jung Lee,

and/or Secatide,

Inc., t/a Hiway

Liquor

4/6/00 5/3/00 Other

According to the amended complaint, BEI performed under

these contracts until 2002, when agents of defendant Soo Y. Kang,

doing business as Bankcard Service, Inc. ("BCS"), who is

apparently a resident of California, induced the Merchant

Defendants to breach their contracts with BEI and receive ATM

services from BCS. BEI alleges that BCS was able to target its

clients so effectively because it either hired or entered into a

business relationship with two former BEI employees, Joone Johe

and Bill Choy, who supplied BCS with BEI customer lists, business

plans, pricing and billing schedules, copies of service

agreements, and other confidential information. 

BEI filed suit against BCS and the Merchant Defendants

in the Court of Common Pleas of Montgomery County, Pennsylvania,

on May 23, 2002. The defendants removed the case to federal

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 3 of 20
4

 We resolve the defendants' specific personal

jurisdiction challenge by engaging in a tripartite inquiry that

the Supreme Court's landmark decisions mandate in this area. 

-4-

court on June 27, 2002. On August 26, 2002, BEI filed an amended

complaint asserting contract claims against the Merchant

Defendants and a variety of tort claims against BCS. Before us

is the defendants' motion to dismiss the amended complaint for

lack of personal jurisdiction and venue and to strike the amended

complaint under Fed. R. Civ. P. 12(f). In the alternative, the

defendants seek transfer of this case to the Northern District of

California. 

Discussion

A. Personal Jurisdiction

None of the defendants is a resident of Pennsylvania.

Fed. R. Civ. P. 4(e) therefore authorizes personal jurisdiction

over them only to the extent permissible under the law of the

Commonwealth. Pennsylvania's "long-arm" statute, in turn,

provides in relevant part that personal jurisdiction extends "to

the fullest extent allowed under the Constitution of the United

States and may be based on the most minimum contact with this

Commonwealth allowed under the Constitution of the United

States." 42 Pa. Cons. Stat. Ann. § 5322(b) (West 2002). Because

the parties agree that no defendant is subject to general

personal jurisdiction in Pennsylvania, we limit our inquiry to

whether the defendants are subject to specific personal

jurisdiction.4

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 4 of 20
First, we ask whether the defendants have "purposefully

established minimum contacts within the forum State," Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985), such that they may

"reasonably anticipate being haled into court there." World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980). Second,

we determine whether the cause of action arises from or is

related to those forum-based contacts. Burger King, 471 U.S. at

472. Finally, we ask whether the assertion of personal

jurisdiction "comport[s] with 'fair play and substantial

justice.'" Id. at 476, quoting Int'l Shoe Co. v. Washington, 326

U.S. 310, 320 (1945). 

When the defendant challenges the existence of personal

jurisdiction, the plaintiff bears the burden of producing

sufficient facts to establish that jurisdiction is proper, and it

"must sustain its burden of proof in establishing jurisdictional

facts through sworn affidavits or other competent evidence." 

Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61,

66-67 n.9 (3d Cir. 1984). The plaintiff may present a prima

facie case for the exercise of personal jurisdiction, and thereby

defeat a Rule 12 motion, by "establishing with reasonable

particularity sufficient contacts between the defendant and the

forum state." Zubyk v. LPBOC Hotel Ltd. Partnership, No. 00-971,

2000 WL 963168, at * 1 (E.D. Pa. June 27, 2000) (Padova, J.). 

For the purpose of resolving the motion, we accept the

plaintiff's allegations as true and construe disputed facts in

the plaintiff's favor. Carteret Savings Bank, F.A. v. Shushan,

954 F.2d 141, 142 n.1 (3d Cir. 1992). Here, BEI relies on the

affidavit of its chief executive officer, Taek Im Kim, as well as

the Merchant Defendants' lease applications and service

agreements.

-5-

Specific jurisdiction analysis turns on the nature of the claim

asserted against the defendant, Gen. Elec. Co. v. Deutz AG, 270

F.3d 144, 150 (3d Cir. 2001), and we therefore examine the breach

of contract claims against the Merchant Defendants separately

from the tort claims against BCS.

1. The Merchant Defendants

In contract cases, specific jurisdiction exists if "the

defendant's contacts with the forum were instrumental in either

the formation of the contract or its breach." Id., quoting

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 5 of 20
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Phillips Exeter Acad. v. Howard Phillips Fund, 196 F.3d 284, 289

(1st Cir. 1999); see also Burger King, 471 U.S. at 473 (parties

who "reach out beyond [their] state and create continuing

relationships and obligations with citizens of another state" are

subject to that state's regulation and sanctions).

(a) Minimum contacts

In determining whether the party to a contract has

purposefully established minimum contacts within the other

party's home forum, the Supreme Court has directed us to examine

"prior negotiations and contemplated future consequences, along

with the terms of the contract and the parties' actual course of

dealing." Id. at 479.

Each Merchant Defendant signed a standard-form contract

with BEI, but the terms of those contracts varied in a manner

that affects our minimum contacts analysis. We therefore cluster

the defendants by the type of contract they signed and examine

each group of defendants separately.

(1) "Long" Contract Signatories

Seven defendants signed what we term, for want of a

more elegant phrase, the "long" contract. This detailed contract

states that BEI is a Pennsylvania corporation located in King of

Prussia and provides that the contract shall be governed,

constructed, and enforced in accordance with the laws of the

Commonwealth. See, e.g., Am. Compl. Ex. B ¶ 12 (Service

Agreement of defendant Soo Y. Kang). 

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 6 of 20
-7-

We do not hesitate to conclude that each of these seven

defendants purposefully directed business activity toward

Pennsylvania by entering into a long-term contractual

relationship with BEI. Five of them initiated the relationship

by completing a lease application bearing BEI's Pennsylvania

address. All of them signed a contract providing them with ample

notice that BEI's principal place of business is in Pennsylvania. 

And their subsequent course of dealing with BEI consisted of an

ongoing flow of electronic data to Pennsylvania and the monthly

receipt of checks and activity reports sent from Pennsylvania and

bearing BEI's Pennsylvania address. These contacts extend well

beyond mere "informational communications" and are a sufficient

basis for personal jurisdiction. See Vetrotex Certainteed Corp.

v. Consol. Fiber Glass Prods. Co., 75 F.3d 147, 152 (3d Cir.

1996).

 (2) "Short" Contract Signatories 

Three defendants signed a less detailed, one-page

contract that neither identifies BEI as a Pennsylvania

corporation nor contains a Pennsylvania choice-of-law provision. 

We nevertheless conclude that these defendants also purposefully

established minimum contacts with Pennsylvania such that they may

reasonably anticipate being haled into court here. 

The "short" contract prominently displays BEI's

Pennsylvania address at the bottom of the first page, thereby

putting these defendants on notice that they were embarking on a

long-term contractual relationship with a firm whose place of

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 7 of 20
5

 The amended complaint states that "Yeo Jung Lee and/or

Secatide, Incorporated is an individual and/or is a corporation

trading as Hiway Liquor," Am. Compl. ¶ 74. For the sake of

brevity, we refer to this defendant simply as "Lee."

-8-

business is in Pennsylvania. Like the Merchant Defendants who

signed "long contracts," these defendants engaged in extensive

contacts with BEI in Pennsylvania after executing their service

agreements. See Mesalic v. Fiberfloat Corp., 897 F.2d 696, 700

(3d Cir. 1990) (post-sale contacts, coupled with notice that

plaintiff was a New Jersey resident, constituted sufficient

minimum contacts to establish personal jurisdiction). We

additionally note that two of the three completed lease

applications provided the signatories with even earlier notice of

BEI's Pennsylvania ties before those defendants executed service

agreements. 

For all of these reasons, we conclude that the "short"

contract signatories purposefully directed business activity

toward Pennsylvania.

(3) Defendant Yeo Jung Lee

Defendant Yeo Jung Lee5 signed a form contract unlike

the others. Lee's contract does not bear BEI's address, does not

mention that BEI is a Pennsylvania corporation, contains a fillin-the-blank choice-of-law provision that was never completed,

and designates the Superior Court of Cuyahoga County, Ohio, as

the venue for any dispute relating to the lessor's right to

access or remove the machine. Am. Compl. Ex. T ¶¶ 6, 22. 

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 8 of 20
-9-

Despite these contractual lacunae and the eyebrow-raising venue

provision, we find that defendant Lee is also subject to specific

personal jurisdiction in Pennsylvania. 

Like the other Merchant Defendants, Lee received notice

of BEI's ties to Pennsylvania when he filled in a lease

application bearing BEI's former address in Bala Cynwyd,

Pennsylvania. After signing the service agreement a few weeks

later, he engaged in what the Supreme Court has termed contacts

that "create a 'substantial connection' with the forum state,"

Mesalic, 897 F.2d at 701, quoting Burger King, 471 U.S. at 475-

76, by authorizing the transmittal of electronic data from his

ATM to BEI's Pennsylvania offices and then receiving checks and

monthly activity reports from BEI.

(b) Relatedness

In addition to determining whether the Merchant

Defendants established minimum contacts with Pennsylvania, we

must examine whether BEI's cause of action arises from or is

related to those contacts. Under the terms of the service

agreements, the Merchant Defendants directed a flow of ATM data

to BEI in Pennsylvania. The breach occurred when they ended

those transmittals of information and redirected them to BCS. 

We therefore conclude that the Merchant Defendants'

breaches of contract were wholly intertwined with their

Pennsylvania contacts. 

(c) "Fair play and substantial justice"

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 9 of 20
-10-

Finally, we examine whether the assertion of specific

personal jurisdiction over the Merchant Defendants comports with

"fair play and substantial justice." Burger King, 471 U.S. at

476, quoting Int'l Shoe, 326 U.S. at 320. Defendants who have

purposefully directed their activities at forum residents "must

present a compelling case that the presence of some other

considerations would render jurisdiction unreasonable." Id. at

477. The Merchant Defendants have declined to challenge personal

jurisdiction on this ground. We therefore conclude that this

Court can assert specific personal jurisdiction over the Merchant

Defendants. 

2. BCS

The amended complaint asserts claims against BCS for

disparagement, misuse of confidential information, and

interference with contract. Am. Compl. ¶¶ 92-120. Because these

causes of action are intentional torts, the three-part test that

our Court of Appeals articulated in Imo Industries, Inc. v.

Kiekert AG, 155 F.3d 254 (3d Cir. 1998), governs our minimum

contacts inquiry. Under the Imo test, the plaintiff can

establish the defendant's minimum contacts with the forum by

showing that:

(1) The defendant committed an intentional tort;

(2) The plaintiff felt the brunt of the harm in the

forum such that the forum can be said to be the focal

point of the harm suffered by the plaintiff as a result

of that tort; 

(3) The defendant expressly aimed his tortious conduct

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 10 of 20
-11-

at the forum such that the forum can be said to be the

focal point of the tortious activity.

Id. at 265-66. 

We begin with the most difficult question: Whether Kang

expressly aimed his tortious conduct at Pennsylvania within the

meaning of Imo Industries. We resolve it by examining each tort

claim separately. 

(a) Interference with Contract

The amended complaint alleges that Kang's firm, BCS,

induced customers to cancel their contracts with BEI and

authorize BCS to provide ATM monitoring services. Kim's

affidavit substantiates this claim with specific examples of

customers who defected from BEI to BCS. See Kim's Aff. ¶¶ 97-98. 

The affidavit also states that Joone Johe and Bill Choy, the

former BEI employees who either worked for or formed a business

relationship with BCS, knew that BEI would directly feel the

effect of BCS's tortious conduct in Pennsylvania and shared this

knowledge with BCS. Id. at 20. 

In Remick v. Manfredy, 238 F.3d 248, 260 (3d Cir.

2001), our Court of Appeals held that residents of Indiana and

Illinois were subject to personal jurisdiction in Pennsylvania

for tortiously interfering with a contract under which the

plaintiff had rendered most of his services from offices in

Philadelphia. Because BEI has averred that it performed all of

its services for clients from its Pennsylvania offices, we

similarly conclude that BCS's alleged interference with contracts

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 11 of 20
6 Based on this averment, we also conclude that BEI has

satisfied the second prong of the Imo Industries test.

7

 We can find no reason why the assertion of specific

personal jurisdiction as to this claim would violate principles

of fair play and substantial justice, nor has BCS objected to

personal jurisdiction on this ground.

-12-

was "expressly aimed" at Pennsylvania.6 

Kang is therefore subject to specific personal

jurisdiction in Pennsylvania on this claim.7

(b) Misuse of Confidential Information

BEI claims, and Kim has averred, that Johe and Choy

appropriated confidential information, including information

directly concerning the Merchant Defendants, during their

employment with BEI and are now using it to BCS's commercial

advantage and to BEI's commercial detriment. Am. Compl. ¶ 113;

Kim's Aff. ¶ 94-95. However, Kim has not averred that BCS's aim

in misusing the confidential information is to injure BEI;

instead, we surmise from the affidavit that BCS is misusing the

information to further a profit-seeking stratagem in California

that only collaterally harms BEI in Pennsylvania. See, e.g.,

Kim's Aff. ¶ 96 (averring that BCS has targeted a BEI customer,

T.K. Noodle, "due to the value of the account"). Accord Remick,

238 F.3d at 259 (harm resulting from misappropriation of

plaintiff's image by posting photograph on website caused

"incidental" harm in Pennsylvania but was not expressly aimed

there). 

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 12 of 20
-13-

While BEI has satisfactorily established for the

purposes of this motion that BCS knows BEI is bearing the brunt

of this harm in Pennsylvania, our Court of Appeals has expressly

held that such knowledge is not a sufficient basis for specific

personal jurisdiction. Imo Industries, 155 F.3d at 265. We

therefore conclude that BEI has failed to sustain its burden of

showing that BCS's alleged misuse of confidential information is

"'intentionally targeted at and focused on'" Pennsylvania. Id.,

quoting ESAB Group, Inc. v. Centricut, 126 F.3d 617, 625 (4th

Cir. 1997). 

(c) Disparagement

Finally, BEI claims in Count IV of the amended

complaint that BCS "has willfully, repeatedly and without

justification made untrue comments to the clients and perspective

[sic] clients of Bank Express for the sole purpose of causing

injury to the business reputation and good will of Bank Express." 

It seeks legal and equitable relief from BCS for "disparaging the

reputation and goodwill of Bank Express." Am. Compl. ¶¶ 111-112. 

More specifically, Kim has averred that BCS agents have told BEI

clients that it is a "bad" company, that it is out of business,

and that it is unable to service malfunctioning ATM's. Kim's

Aff. ¶ 96. 

At the threshold, we note that it is not immediately

apparent what theory of liability BEI invokes in Count IV. 

Pennsylvania law recognizes the tort of "commercial

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 13 of 20
8

 The disparaging statements were apparently verbal. Kim's

Aff. ¶ 100.

-14-

disparagement," sometimes called "slander of title," which

imposes liability for the publication of a false disparaging

statement concerning the business of another where, inter alia,

the publisher either intends the publication to cause pecuniary

loss or reasonably should recognize that publication will result

in pecuniary loss. Pro Golf Mfg. v. Tribune Review Newspaper,

809 A.2d 243, 246 (Pa. 2002). Commercial disparagement differs

from slander and libel in that the former protects economic

interests and property against pecuniary loss while the latter

protect against damage to reputation. Id. at 246-47

(acknowledging this distinction but concluding that the statute

of limitations for libel and slander nevertheless applies to

claims for commercial disparagement). 

We need not decide whether BEI has brought a claim for

commercial disparagement resulting in harm to its reputation and

goodwill or a claim for garden-variety slander8 because, in

either case, BEI has not satisfied the stringent third prong of

the Imo Industries test. 

A defendant expressly aims a defamatory statement at a

particular state if he has in some fashion "entered" the state,

for example by broadcasting or distributing the statement there. 

Imo Industries, 155 F.3d at 265, quoting Indianapolis Colts, Inc.

v. Metropolitan Baltimore Football Club, 34 F.3d 410, 412 (7th

Cir. 1994). If the statement circulates nationally, the

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 14 of 20
-15-

defendant can be said to have expressly aimed the statement at a

particular state where there is a unique relationship between the

state and the plaintiff's industry or business. See id. at 264 &

n.7, comparing Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414

(9th Cir. 1997) with Panavision Int'l, L.P. v. Toeppen, 141 F.3d

1316 (9th Cir. 1999); Remick, 238 F.3d at 259 (noting that

plaintiff has "not asserted that Pennsylvania has a unique

relationship with the boxing industry," as distinguished from the

longstanding, special relationship between California and the

film industry that figured in Calder v. Jones, 465 U.S. 783

(1984)). 

Here, BEI has not asserted that there is a unique

relationship between the ATM servicing industry and Pennsylvania,

nor does it claim that BCS's agents have ever made disparaging

remarks about BEI in Pennsylvania or published those comments

here. To the contrary, Mr. Kim's affidavit leaves us with the

strong impression that BCS's agents have made all of the

disparaging comments in California to potential California

clients. 

We therefore conclude that, whether BEI means to state

a claim for commercial disparagement or slander, it has not shown

that BCS expressly aimed the alleged harm to its reputation and

goodwill at Pennsylvania.

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 15 of 20
9

 In Renner, the defendant moved for dismissal a scant 

three days after the case had been removed, and the plaintiffs

had less than a month to respond. Moreover, the district court

dismissed the case several days later. Renner, 33 F.3d at 283.

-16-

3. BEI's Request for Limited Discovery

We have found that this Court can assert specific

personal jurisdiction over the Merchant Defendants on all claims

and over BCS for the interference with contract claim. However,

BEI has not presented a prima facie case for specific

jurisdiction over BCS on the misuse of confidential information

and disparagement claims because it has failed to satisfy the

third prong of the Imo Industries test.

BEI argues that, if we find that the facts are not yet

sufficiently developed to sustain personal jurisdiction over BCS,

it is entitled to a period of limited discovery on jurisdictional

issues. Limited discovery is available on jurisdictional issues

under the appropriate circumstances. In Renner v. Lanard Toys

Ltd., 33 F.3d 277, 283 (3d Cir. 1994), our Court of Appeals

confirmed that a district court should authorize limited

discovery on jurisdictional issues to resolve ambiguities in the

record. However, BEI's position in this case differs materially

from that of the plaintiffs in Renner, who had virtually no

opportunity to develop the factual basis for jurisdiction.9 In

this case, by contrast, the defendants filed their motion almost

four months ago, and we both authorized BEI to satisfy its burden

on the jurisdictional issue by submitting affidavits and granted

additional time to prepare them. See Order of Dec. 6, 2002. 

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 16 of 20
10

 Section 1631 permits transfer of less than all of the

claims comprising the action. See Miller v. United States, 753

F.2d 270, 275-76 (3d Cir. 1985) (allowing transfer of part of an

appeal to the Federal Circuit); see also United States v. County

of Cook, Illinois, 170 F.3d 1084, 1087-89 (Fed. Cir. 1999)

(examining this question in depth and concluding that transfer of

less than all claims is proper under § 1631).

-17-

Given the fact that we have given BEI ample opportunity to

present a prima facie case, we do not find that additional

discovery is warranted.

B. Venue and Transfer

The defendants also assert that venue is not proper in

the Eastern District of Pennsylvania under 28 U.S.C. § 1391. 

However, § 1391 does not apply to this case because it was

removed from state court. Polizzi v. Cowles Magazines, Inc., 345

U.S. 663, 665 (1953). Instead, the removal statute, 28 U.S.C. §

1441, provides the basis for venue in this district as to all

claims. See Gallant v. Trustees of Columbia University in the

City of New York, 111 F.Supp.2d 638, 645 (E.D. Pa. 2000). 

Nevertheless, because we have found that BCS is not subject to

personal jurisdiction on the disparagement and misuse of

confidential information claims, we must decide what is the

fairest and most efficient disposition of this case in its

entirety. 

The defendants seek transfer of venue under 28 U.S.C. §

1631. We begin by examining whether the claims against BCS are

transferable under § 1631.10 Our Court of Appeals has suggested

in dictum that, when personal jurisdiction is lacking, a court

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 17 of 20
11 Section 1631 provides in relevant part: 

Whenever a civil action is filed in a [federal] court .

. . and that court finds that there is a want of

jurisdiction, the court shall, if it is in the interest

of justice, transfer such action . . . to any other

such court in which the action . . . could have been

brought at the time it was filed or noticed . . . .

12

 Although no party has requested it, we may transfer venue

under § 1404(a) sua sponte. See, e.g., Chukwu v. Air France, 218

F.Supp. 2d 979, 990 (N.D. Ill. 2002). Courts often give parties

an opportunity to brief the transfer issue before entry of the

transfer order. See Library Publications v. Heartland Samplers,

825 F.Supp. 701, 705 n.3 (E.D. Pa. 1993); Starnes v. McGuire, 512

F.2d 918, 934 (D.C. Cir. 1974). We decline to provide the

parties with this opportunity given the strong weight we accord

to avoiding the waste of judicial resources that would inevitably

result from the bifurcation of claims in this case.

13

 While the plaintiff's choice of venue is usually entitled

to deference, it has minimal significance when the events at

issue occurred elsewhere. Lindley v. Caterpillar, Inc., 93

F.Supp.2d 615, 617 (E.D. Pa. 2000). As we have noted above,

virtually all of the actual conduct in this case giving rise to

these claims (as opposed to the defendants' "contacts" with

Pennsylvania) took place in California.

-18-

may transfer an action under 28 U.S.C. § 1631.11 Renner, 33 F.3d

at 284; see also Gallant, 111 F.Supp.2d at 647. Rather than

dismiss the disparagement and misuse of confidential information

claims, we conclude that it is in the interest of justice to

transfer these claims to the Northern District of California,

where BCS is subject to personal jurisdiction and where venue is

unquestionably proper.

We further conclude that transfer of all other claims

to that district is proper under 28 U.S.C. § 1404(a).12 The

Northern District of California is without question more

convenient for the defendants.13 Transfer is even more clearly

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 18 of 20
-19-

in the interest of justice, as Justice Black remarked over forty

years ago:

To permit a situation in which two cases involving

precisely the same issues are simultaneously pending in

different District Courts leads to the wastefulness of

time, energy and money that § 1404(a) was designed to

prevent.

Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26 (1960).

This case is a textbook illustration of the concerns

that prompted Justice Black's comments. Bifurcation of the

claims will result in the litigation of essentially the same

facts in two district courts. Transfer under § 1404(a) is

therefore warranted despite any inconvenience BEI may suffer.

C. Motion for a More Definite Statement

The defendants assert that BEI's amended complaint is

so vague and ambiguous that it should be stricken under Fed. R.

Civ. P. 12(f), and they argue in the alternative that we should

order BEI to file another complaint pursuant to Fed. R. Civ. P.

12(e). Because this case will be transferred to the Northern

District of California, it is more appropriate for that court to

address the merits of this motion. We therefore deny it without

prejudice to its reassertion after transfer. 

Conclusion

For the foregoing reasons, we conclude that this Court

can assert specific personal jurisdiction over the Merchant

Defendants and that venue lies in this district on the claims

against them. Although this Court can assert specific

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 19 of 20
-20-

jurisdiction over BCS as to the tortious interference with

contract claim, there is no jurisdiction here as to the

disparagement and misuse of confidential information claims.

Venue in this district is proper as to the breach of

contract claims against the Merchant Defendants but not as to the

disparagement and misuse of confidential information claims

against BCS. We transfer the latter claims to the Northern

District of California pursuant to 28 U.S.C. § 1631, and we

conclude that a transfer of all other claims to that district is

appropriate under 28 U.S.C. § 1404(a). Finally, we deny without

prejudice the defendants' motion for a more definite statement. 

Case 2:02-cv-04076-SD Document 11 Filed 01/15/2003 Page 20 of 20