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Professional Courier v. Nica

April 2, 2012

PROFESSIONAL COURIER & LOGISTICS, INC., PLAINTIFF,
v.
NICA, INC., AND THOMAS MCGRATH AND
MARK O'CONNOR AND DOES 1-25,
DEFENDANTS.



The opinion of the court was delivered by: Judge: Hon. John A. Mendez

DATE: March 7, 2012 TIME: 9:30 a.m.

COURTROOM: 6

Complaint Filed: September 26, 2011

ORDER AFTER HEARING GRANTING DEFENDANTS' MOTION TO DISMISS FOR IMPROPER VENUE

Pending before this Court is Defendants NICA, Inc., Thomas McGrath, and Mark O'Connor's motion to dismiss for improper venue and McGrath's motion to dismiss for lack of personal jurisdiction. Having reviewed and considered the moving, opposition, and reply papers, and all papers filed in support thereof, as well as the arguments of counsel, the Court issues this Order.

I. INTRODUCTION

Defendants NICA, Inc., Thomas McGrath, and Mark O'Connor's (collectively "Defendants") move to dismiss this case for improper venue pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. § 1406(a). See Docs. 5 & 6 filed January 18, 2012. Defendants argue that a forum selection clause contained in a contract between NICA, Inc. and Plaintiff Professional Courier & Logistics, Inc. ("Plaintiff" or "PC&L") controls venue. Defendant McGrath moves to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). See Docs. 5 & 6. McGrath asserts that his domicile is outside of California and he does not have the requisite minimum contacts with California for the Court to obtain personal jurisdiction over him.

Plaintiff originally filed this case in El Dorado County Superior Court alleging causes of action for breach of contract and general negligence against NICA and McGrath, and professional negligence against O'Connor. Defendants removed the action to this Court on diversity grounds pursuant to 28 U.S.C. §§ 1441 and 1446. See Doc. 1 filed January 9, 2012.

Defendants filed the present motions on January 18, 2012. See Docs. 5 & 6. Defendants submitted a declaration by McGrath with their moving papers. See Doc. 7. Plaintiff filed an opposition that included a request for judicial notice of three documents concerning McGrath and an alleged criminal conviction in San Diego County. See Docs. 9, 9-2, & 9-3. Plaintiff also submitted the declaration of Mark Carson that related only to McGrath's motion. See Doc. 9-1. Defendants' reply papers included an objection to the Plaintiff's request for judicial notice. See Docs. 10 & 12.

The hearing regarding the motions to dismiss was held on March 7, 2012. Timothy O'Donnell of PattonsWolansCarlise appeared for Defendants. John Pereira of the Law Offices of John David Pereira appeared for Plaintiff.

II. FACTUAL BACKGROUND

The facts relevant to the motions are not in dispute. NICA, Inc. is a company incorporated and headquartered in Massachusetts. McGrath, a Massachusetts resident, is the President of NICA. Defendant O'Connor ("O'Connor"), also a resident of Massachusetts, was employed by NICA as an attorney.

In December, 2000, NICA and PC&L entered into an agreement ("Agreement") that contained a forum selection clause. The form selection clause provided:

20. CHOICE OF FORUM. It is understood and agreed by the parties hereto that the validity of this Agreement and the parties' performance or their respective obligations thereunder shall be governed by the applicable law of the Commonwealth of Massachusetts. Should it become necessary for the parties hereto to litigate their rights, obligations ...


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