WILLIAM Q. HAYES, District Judge.
The matter before the Court is the Motion to Dismiss or to Transfer Venue to Western District of Virginia filed by Defendants Edward F. Couvrette, E.F. Couvrette Company, Inc. ("EFCC"), EFCC 401(k) Retirement Plan, and Valerie Goad. (ECF No. 19).
On November 16, 2012, Plaintiff Joanne Couvrette initiated this action with a Complaint against Defendants Edward F. Couvrette, EFCC, EFCC 401(k) Retirement Plan, Valerie Goad, Principal Financial Group, and Does 1-10. (ECF No. 1). Plaintiff alleges that Defendants failed to follow proper procedures and make payments to Plaintiff pursuant to a San Diego Superior Court Qualified Domestic Relations Order issued against Defendant Edward Couvrette, the sole owner and shareholder of EFCC. Plaintiff alleges that the Qualified Domestic Relations Order mandates payments of delinquent spousal support to Plaintiff from the EFCC 401(k) Retirement Plan. Plaintiff alleges three claims for breach of fiduciary duties and recovery of benefits pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA") (29 U.S.C. §§ 1001, et seq. ), and one claim for negligence.
On January 23, 2013, Defendants Edward F. Couvrette, EFCC, EFCC 401(k) Retirement Plan, and Valerie Goad ("Defendants") filed the Motion to Dismiss or to Transfer Venue pursuant to Federal Rule of Civil Procedure 12(b)(3). (ECF No. 19). On February 15, 2013, Plaintiff filed an opposition. (ECF No. 22).
Defendants move to dismiss this action for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) on the grounds that "the claims were not initiated in accordance with ERISA Section 1132(e)(2)." (ECF No. 19-1 at 2).
When venue in a particular district is improper, the court "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." 28 U.S.C. § 1406(a). Plaintiff brings her claims under ERISA, 29 U.S.C. § 1001, et seq. Pursuant to the ERISA venue provision, an action may be filed "in the district where the plan is administered, where the breach took place, or where a Defendant resides or may be found." 29 U.S.C. § 1132(e)(2). A Defendant is "found" in any district where personal jurisdiction can be properly asserted. Varsic v. U.S. Dist. Court for Centr. Dist. of Cal., 607 F.2d 245, 248 (9th Cir. 1979).
In considering personal jurisdiction in the context of an ERISA action, the Court of Appeals for the Ninth Circuit has held that, where a defendant's activities in the forum are unrelated to the cause of action, the defendant is "found" within a forum under section 1132(e)(2) if defendant's activities within the forum are "substantial" or "continuous and systematic." Varsic, 607 F.2d at 249 (quoting Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 1287 (9th Cir. 1977)). Factors to consider in this analysis include "whether the defendant makes sales, solicits or engages in business within the state, serves the state's markets, designates an agent for service of process, holds a licence, or is incorporated there." Bancroft & Masters, Inc., v. Augusta Nat'l, Inc., 223 F.3d 1082, 1086 (9th Cir. 2000). In analyzing ERISA's legislative history, the Ninth Circuit found that Congress "clearly struck the balance in favor of liberal venue." Varsic, 607 F.2d at 248.
Defendants contend that venue is improper under 29 U.S.C. § 1132(e)(2) on the following grounds:
The plan in question is administered in Salem, Virginia. Any alleged breach took place there and that is where the defendant plan administrator and employees of the corporate defendant reside. This Court's personal jurisdiction over Defendant Edward Couvrette and Valerie Goad is tenuous because they are not present in this State, ... committed no act complained of in this State, and committed no acts outside of the State of Virginia by agent or otherwise, allegedly causing harm within this State, or by engaging in activities in this State which would otherwise confer jurisdiction.
(ECF No. 19-1 at 4).
Plaintiff contends that venue is proper under 29 U.S.C. § 1132(e)(2) on the grounds that Defendant EFCC "resides" and "may be found" in the Southern District of California. Plaintiff asserts that EFCC is a California corporation and maintains a branch office in Santee, California. Plaintiff also contends that venue is proper on the grounds that Defendants breached their fiduciary duties pursuant to the Qualified Domestic Relations Order issued in the Southern District of California.
Defendants submit the declaration of their counsel, Harry W. Brown, who states that Defendant EFCC maintains a branch office in Santee, California, within the Southern District of California. Brown states that the Defendant EFCC 401(k) Retirement Plan "covers and includes certain ...