[Docket No. 81 & 105]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

MAX 10 MARKETING, LLC,

 Plaintiff,

v.

MARKETECH, INC., PAPERLESS 

SOLUTIONS GROUP, INC., AND H. 

THOMAS LANE, JR.,

Defendant.

_

 Civil No. 11-1823 (RMB/AMD)

 MEMORANDUM OPINION

BUMB, United States District Judge:

Introduction:

This matter comes before the Court upon Defendants’, 

Paperless Solutions Group, Inc., (“PSG”) and H. Thomas Lane 

(“Lane”), Motion to Dismiss For Lack of Personal Jurisdiction or 

to Transfer Venue [Docket No. 81]. For the reasons below, the 

motion is granted to the extent it requests that the matter be 

transferred to the United States District Court for the Northern 

District of Florida.1

1 Plaintiff has submitted a Motion to Seal [Docket No. 105] 

in conjunction with its opposition papers. Because Plaintiff 

has satisfied this Court that the motion meets the requirements

of Local Rule 5.3, that motion is GRANTED.

1

 

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Background: 

As stated in a prior Order by this Court, Plaintiff MAX 10 

MARKETING, LLC (“MAX 10") is located in New Jersey and is in the 

business of promoting the sales of “market variance products,” 

including technology services, discount benefits, and energy 

products. [Docket No. 36]. Defendant MARKETech Inc., (“MTI”) is 

located in Florida and is in the business of developing 

electronic business forms for use by businesses that conduct 

business over the internet. MAX 10 alleges that MTI owes it 

unpaid commissions plus any future commissions for business it 

secured for the benefit of MTI. Previously, MTI filed a motion 

to dismiss for lack of personal jurisdiction pursuant to Federal 

Rule of Civil Procedure 12(b)(2), which this Court denied.2 

Following that decision, Plaintiff filed a Second Amended 

Complaint adding two new Defendants, PSG and Lane, and 

additional counts for fraudulent transfer (Count III) and 

successor liability (Count IV).3 It is undisputed that, like 

2 On January 13, 2012, the Court entertained oral argument 

on that motion as well as the Court’s sua sponte question 

regarding transfer pursuant to 28 U.S.C. § 1404(a). After 

examining the relevant factors, this Court held that transfer 

was not appropriate. 

3 This matter has been pending on the Court’s docket for 

some time as the Court has made significant efforts to 

2

 

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MTI, both PSG and Lane are citizens of the State of Florida. 

According to the Plaintiff’s allegations, PSG’s purchase of 

the business assets of MTI left MTI insolvent. Plaintiff 

further alleges that the transfer of assets was completed in an 

attempt by PSG and Lane to avoid liability that MTI had to the 

Plaintiff.4 In addition, Plaintiff alleges that PSG is liable 

for alleged breaches of contract committed by MTI as its 

successor-in-interest and as the assignee of the agreements 

forming the basis of the alleged breaches. With respect to 

Defendant Lane, Plaintiff contends that Lane breached his 

fiduciary duty to the Plaintiff by transferring assets of MTI, 

which was insolvent, to PSG. 

Defendants PSG and Lane have moved pursuant to Federal Rule 

of Civil Procedure 12(b)(2) to dismiss the matter for lack of 

personal jurisdiction or, in the alternative, to transfer venue

under 28 U.S.C. § 1404(a).

Analysis: 

As demonstrated by the parties’ papers, a determination of 

facilitate its settlement. See e.g., Docket No. 88, discussing 

prior Court Order to engage in settlement negotiations. 4 As discussed below, Defendants have shown that there were 

several creditors impacted by MTI’s transfer of assets, most of 

whom are Florida residents. 

3

 

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whether this Court has personal jurisdiction over both PSG and 

Lane requires a significant analysis of whether PSG is, in fact, 

a successor-in-interest to MTI. This, in turn, requires 

significant inquiry into the transfer of assets from MTI to PSG, 

which took place in Florida. In addition, Plaintiff cites 

Florida law for the proposition that Lane can be held liable as 

a director and/or director-stockholder of a corporation. In 

reply, Defendants posit that, absent piercing the corporate 

veil, which Plaintiff does not address, there are no grounds to 

assert jurisdiction over Lane. Plaintiff states that if this 

Court determines that it cannot exercise personal jurisdiction 

over PSG and Lane, then the matter should be transferred to the 

Northern District of Florida. 

In Sinochem International Co. v. Malaysia International 

Shipping Corp., the Supreme Court instructed that the district 

court may consider whether to transfer a case based on forum non

conveniens grounds without having to first address the issue of 

personal jurisdiction. 549 U.S. 422, 425 (2007)(“a district 

court has discretion to respond at once to a defendant’s forum

non conveniens plea, and need not take up first any other 

threshold objection.”).5 See Product Source International v. 

5 “Congress codified the doctrine of forum non conveniens

4

 

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Leonid Nahshin, No. 13-4997, 2014 U.S. Dist. LEXIS 87664 (D.N.J. 

June 27, 2014)(addressing request to transfer first and 

declining to make a determination regarding personal 

jurisdiction); Axxa Commerce v. Digital Realty Trust, No. 09-

653, 2009 U.S. Dist. LEXIS 94103 (D.N.J. Oct. 8, 

2009)(determining whether case should be transferred without 

addressing issue of personal jurisdiction). 

In this case, discussion of the appropriateness of transfer 

in the first instance is appropriate because a determination of 

whether this Court has personal jurisdiction over PSG and Lane 

would require an in depth review of the ownership of shares of 

PSG in an attempt to determine whether PSG is, in fact, MTI’s 

successor-in-interest as alleged by Plaintiff. Similarly, this 

Court would need to first determine the basis of Plaintiff’s 

claim against Lane before even embarking on a personal 

jurisdiction analysis – i.e., whether a veil piercing analysis 

is needed. As such, an initial determination of whether the 

matter should be transferred is appropriate. See Axxa Commerce, 

2009 U.S. Dist. LEXIS 94103 at *6-9 (finding that first 

considering a motion to transfer was appropriate where 

in §§ 1404(a) and 1406(a).” Lafferty v. Gito St. Riel, 495 F.3d 

72, 78, n.8 (3d Cir. 2007). 

5

 

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determination of personal jurisdiction involved a complicated 

analysis of the corporate structure of the defendants). 

Defendants have asked that this case be transferred 

pursuant to Section 1404(a).6 Section 1404(a) provides that: 

“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.” 28 U.S.C. § 1404(a). This action could have been 

filed in Florida, where MTI, PSG, and Lane are located. Because 

the proposed alternative forum, Florida, is appropriate, it is 

within the Court’s discretion to transfer the action.

6 The Court notes that, as with personal jurisdiction, it 

makes no finding as to whether venue is proper here. Even if 

venue was not proper, the Court could engage in a transfer 

analysis pursuant to 28 U.S.C. § 1406(a)(“The district court of 

a district in which is filed a case laying venue in the wrong 

division or district shall dismiss, or if it be in the interest 

of justice, transfer such case to any district or division in 

which it could have been brought.”). The purposes of § 1404(a) 

and § 1406(a) overlap. See United States v. Berkowitz, 328 F.2d 

328 F.2d 358 (3d Cir. 1964)(noting that 1404(a) and 1406(a) “are 

companion sections, remedial in nature, enacted at the same 

time, and both dealing with the expeditious transfer of an 

action from one district or division to another.”); Kelly v. 

Yeager, No. 13-2493, 2014 U.S. Dist. LEXIS 73784, at *7 n.1 

(D.N.J. May 30, 2014)(noting that the Court would transfer the 

matter under either § 1404(a) or § 1406(a)); Axxa Commerce, 2009 

U.S. Dist. LEXIS 94103 at *8-9 n.5 (making no finding as to 

venue and noting that transfer could be accomplished under 

either § 1404(a) or § 1406(a)). 

6

 

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In deciding a transfer motion under § 1404(a), courts in 

the Third Circuit consider both private and public interests, as 

delineated in Jumara v. State Farm Ins. Co., 55 F.3d 873, 888 

(3d Cir. 1995).7 The private interest factors include: 

1) the plaintiff’s forum preference; 2) the 

defendant’s forum preference; 3) where the claim 

arose; 4) the convenience of the parties as indicated 

by their relative physical and financial condition; 5) 

the convenience of the witnesses, but only to the 

extent they may be unavailable for trial in one of the 

fora; and 6) the location of books and records 

(similarly limited to the extent that they could not 

be produced in the alternative forum). 

Id. at 879. The public interest factors to be considered 

include: 

1) the enforceability of the judgment; 2) practical 

considerations that could make the trial easy, 

expeditious, or inexpensive; 3) the relative 

administrative difficulty in the two fora resulting 

from court congestion; 4) the local interest in 

deciding local controversies at home; 5) the public 

policies of the fora; and 6) the familiarity of the 

trial judge with the applicable state law in diversity 

cases. 

Id. at 879-880. 

7 In determining whether to transfer an action pursuant to § 

1406(a), a court is not required to balance private or public 

interest factors (as under § 1404), rather, the court must 

simply decide if there is a venue where the action “could have 

been brought” that serves the interest of justice. Rojas v. 

Trans States Airlines, Inc., 204 F.R.D. 265, 269 (D.N.J. 2001). 

For the reasons set forth infra, the Court finds that a transfer 

to the Northern District of Florida serves the interests of 

justice. 

7

 

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Previously, this Court raised the issue of whether a 

transfer under Section 1404(a) was appropriate sua sponte. At 

that time, MTI was the only Defendant in this case, and this

Court held that the matter should not be transferred. The 

filing of the Second Amended Complaint, with the addition of new 

Defendants and new causes of action presents a sea change in 

this litigation. Thus, and for the reasons set forth below, 

this Court finds that the addition of PSG and Lane as Defendants 

in this action and new counts asserted by Plaintiff result in a 

determination that a transfer to the Northern District of 

Florida is appropriate. 

With regard to the private interest factors, MAX 10 prefers 

New Jersey, and MTI, PSG and Lane prefer Florida. However, MAX 

10 has indicated that if this Court lacked personal jurisdiction 

over PSG and Lane, “the matter should be transferred to the 

United States District Court for the Northern District of 

Florida.” [Pl.’s Opp. Br. Docket No. 100 at 16]. Plaintiff has 

submitted no other arguments with respect to the issue of 

transfer. 

It is clear from the Second Amended Complaint and the 

Defendants’ briefs that the operative facts in this case 

occurred both in New Jersey and Florida. However, Plaintiff’s 

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new claims of fraudulent transfer and successor liability are 

based on facts that took place only in Florida. Thus, while 

documents and witnesses are located in both New Jersey and 

Florida, the addition PSG and Lane and the new counts make clear 

that the majority of operative facts that this matter is based 

on and related documents and witnesses are located in Florida. 

For example: 

• The asset purchase agreement between MTI and PSG was 

entered into in the state of Florida and states that it 

shall be construed in accordance with the laws of the State 

of Florida. [Docket No. 100-1, Ex. C]

• Plaintiff claims that the fraudulent transfer of assets 

took place so that MTI could avoid liability Plaintiff. 

However, almost all other creditors impacted by the 

transfer of assets from MTI to PSG are Florida residents, 

including:

o Arthur Dunscombe

o Linda English 

o Paragon Wholesale, Inc.

o Mary Catherine Parrish

o James and Pamela Pearce 

o Thomas and Karen Berry

o Michael and Kathryn Holloway

o Ravindra Kolaventy

o Anthony and Rebecca Mendola

o Donald Stewart

o Joseph Vorwerk

o August Vorwerk

o Bonnie Vorwerk

o Joseph Vorwerk 

o William and Elizabeth Futch

o Odest Frank Cannon

o Kenneth H. Mackay III

o Magdalena Giebl 

o Mark and Sharon Jank

o Raquel and Kevin Chun

o Tracey M. Jenkins Trust

9

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[Docket No. 106-1 ¶¶ 9(a)-(y)].

• PSG’s majority shareholders are Florida residents:

o Less Paper Holding, LLC -47.2% of shares

o H. Thomas Lane – 19.5% of shares 

• Lane has stated in his declaration that “documents and 

witnesses with information relevant to the formation and 

corporate structures of MTI and PSG . . . the nature and 

structure of the transactions through which MTI’s business 

assets were sold to PSG, and similar matters relevant to 

Plaintiff’s apparent veil-piercing and successor liability 

claims . . . [and] MTI’s and PSG’s corporate records, 

employees and agents . . . are located in Florida. [Docket 

No. 81-2 at ¶ 46]. 

The Court also considers the convenience of the parties. 

While MAX 10 would likely incur additional costs as a result of 

litigating in the Northern District of Florida, additional costs 

would inure to all three Defendants if they were forced to 

litigate in New Jersey, especially in light of the number of 

documents and witnesses relevant to this matter that are located 

in Florida. On balance, the foregoing private interest factors 

therefore weigh in favor of a transfer.

With regard to the public factors, this Court is ready and 

available to bring this matter to trial as soon as discovery is 

completed. However, the new Complaint, which significantly 

changes the landscape of this case, now contains the issue of 

whether PSG is MTI’s successor-in-interest and may require a 

veil-piercing analysis, issues which would be analyzed pursuant 

to Florida law. (See Pl.’s Opp. Br. Docket No. 100 at 15 citing 

10

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Florida case law). While this Court is certainly capable of 

applying the laws of Florida, as clearly stated in this Court’s 

prior Order, the legal questions now presented are far more 

complex with the addition of PSG and Lane, and a Florida judge 

would be far more familiar with the applicable standards. In 

addition, the presence of three Florida citizens as Defendants 

in this case along with many Florida based creditors means that 

this case is of more local interest to Florida. Finally, moving 

this matter to Florida better serves practical considerations of 

making the trial easy, expeditious, or inexpensive. Therefore, 

on balance, the public interest factors weigh in favor of 

transfer. 

Conclusion:

In sum, upon consideration of both the private and public 

interest factors set forth in Jumara, supra, the Court finds 

that a transfer of this action to Florida is warranted and in 

the interests of justice. For the foregoing reasons, PSG and 

Lane’s motion is granted to the extent the Defendants seek a 

transfer to the Northern District of Florida pursuant to 28 

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U.S.C. § 1404(a). An appropriate Order will issue this date. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: September 26, 2014

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