United States District Court, C.D. California
August 21, 2014
Overhill Farms Inc., Plaintiff,
West Liberty Foods LLC, Defendant.
ORDER re: DEFENDANT'S MOTION TO DISMISS OR IN THE ALTERNATIVE TO TRANSFER TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA 
RONALD S.W. LEW, Senior District Judge.
Currently before the Court is Defendant West Liberty Foods LLC's ("Defendant") Motion to Dismiss or in the Alternative to Transfer to the United States District Court for the Southern District of Iowa . The Court, having reviewed all papers submitted pertaining to this Motion, NOW FINDS AND RULES AS FOLLOWS:
The Court hereby GRANTS Defendant's Motion to Dismiss pursuant to 12(b)(2), DENIES as moot Defendant's Motion to Dismiss pursuant to 12(b)(3), and DENIES as moot Defendant's Motion to Transfer.
Plaintiff Overhill Farms Inc. ("Plaintiff") is a corporation incorporated under the laws of the State of Nevada and has its principal place of business in Vernon, California. Compl. ¶ 3. Plaintiff is a manufacturer of food products, including frozen prepared meals, for companies that sell prepared meals and other food products. Id. at ¶ 7. Plaintiff manufactures prepared meals that include ground turkey for "one of Plaintiff's most important... customers, " which then resells the prepared meals to the ultimate consumers of the meals. Id. at ¶ 8.
Defendant is a limited liability company organized under the state of Iowa. Id. at ¶ 4. Plaintiff alleges that since early 2004, it sourced ground turkey from Defendant pursuant to quality specifications, purchase orders, invoices, emails, and related communications. Id. at ¶ 9. Plaintiff also alleges that starting in January 2004, the Parties entered into numerous contracts for Defendant to manufacture, sell, and deliver ground turkey to Plaintiff at its facility in Vernon, California. Id. at ¶ 10. Plaintiff provided its ingredient specifications to Defendant, which require (a) the product to meet all standards for human consumption and to conform to laws and regulations, (b) the product to be manually deboned to eliminate bones and cartilage, and (c) for a bone collector to be used. Id. at ¶ 11. Since 2004, Plaintiff has purchased over 5 million pounds of ground turkey from Defendant. Id. at ¶ 6.
On November 3, 2011, Defendant provided Plaintiff a Continuing Guaranty, Warranty, and Indemnity Agreement ("Guaranty"). Id. at ¶ 13. On or about October 12, 2012, Plaintiff submitted Purchase Order 193375 to Defendant for 27, 500 pounds of ground turkey. Id. at ¶ 14. Upon receipt of the ground turkey, Plaintiff used it to create turkey patties for turkey burger sandwiches for one of its customers. Id. at ¶ 18. Plaintiff shipped the turkey burger to its customer, which distributed the burger to its end-user customers. Id. at ¶ 20. On or about February 5, 2013, Plaintiff received notice from its customer that consumers of the turkey burger sandwiches using Defendant's ground turkey reported finding pieces of bone and bone chips in the turkey patties. Id. at ¶ 21.
As a result of Defendant's actions, Plaintiff asserts claims for (1) breach of sales contract, (2) breach of guaranty, warranty, and indemnity agreement, (3) breach of the implied covenant of good faith and fair dealing, (4) breach of express warranty, (5) breach of the implied warranty of merchantability, (6) breach of the implied warranty of fitness for a particular purpose, and (7) negligence. To date, Plaintiff has incurred no less than $340, 041.27 in damages, and also seeks to recover lost profits and other damages caused by interference with or loss of customer relationship. Id. at ¶ 40.
Plaintiff filed its Complaint on May 7, 2014 . Defendant filed the instant Motion on July 10, 2014 . Plaintiff filed an Opposition on July 30, 2014  and Defendant filed its Reply on August 6, 2014 . This matter was set for hearing on August 20, 2014 and was taken under submission on August 15, 2014.
II. LEGAL STANDARD
A. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2)
Pursuant to Federal Rule of Civil Procedure 12(b)(2), a district court cannot proceed against a defendant over which it lacks personal jurisdiction unless that defendant has waived the requirement. See Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee , 456 U.S. 694, 702-03 (1982). Because no applicable federal statute governs jurisdiction in this case, California personal jurisdiction law applies. See Panavision Int'l, L.P. v. Toeppen , 141 F.3d 1316, 1320 (9th Cir. 1998). The exercise of personal jurisdiction over a nonresident defendant requires the presence of two factors: (1) California's laws must provide a basis for exercising personal jurisdiction, and (2) the assertion of personal jurisdiction must comport with due process. Hirsch v. Blue Cross, Blue Shield of Kansas City , 800 F.2d 1474, 1477 (9th Cir. 1986). California's long arm statute permits the exercise of personal jurisdiction to the fullest extent permitted by due process. See Cal. Civ. Proc. Code § 410.10; Panavision , 141 F.3d at 1320. "Because California's long-arm jurisdictional statute is coextensive with federal due process requirements, the jurisdictional analyses under state law and federal due process are the same." Schwarzenegger v. Fred Martin Motor Co. , 374 F.3d 797, 800-01 (9th Cir. 2004). Thus, only a due process analysis is required here.
Due process requires that a defendant have "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington , 326 U.S. 310, 316 (1945) (internal quotation marks omitted). The plaintiff bears the burden of proving that each defendant has sufficient minimum contacts with the forum state that warrant the court's exercise of personal jurisdiction. Harris Rutsky & Co. Ins. Servs., Inc. v. Bell & Clements Ltd. , 328 F.3d 1122, 1130 (9th Cir. 2003) ("Personal jurisdiction over each defendant must be analyzed separately."); Rio Props., Inc. v. Rio Int'l Interlink , 284 F.3d 1007, 1019 (9th Cir. 2002). Depending on the nature and scope of the defendant's contacts with the forum, jurisdiction may be general or specific to a cause of action. Roth v. Garcia Marquez , 942 F.2d 617, 620 (9th Cir. 1991).
When a defendant's contacts with the forum state are "substantial" or "continuous and systematic, " general jurisdiction may be exercised over that defendant for any cause of action, even if it is unrelated to the defendant's activities within the forum state. Schwarzenegger , 374 F.3d at 801-02; Data Disc, Inc. v. Sys. Tech. Assocs. , 557 F.2d 1280, 1287 (9th Cir. 1977). In cases where a defendant's contacts are insufficient to support an exercise of general jurisdiction, more limited specific jurisdiction may be found where a cause of action arises out of or is related to the defendant's activities in the forum state. Burger King Corp. v. Rudzewicz , 471 U.S. 462, 472-73 (1985); Ballard v. Savage , 65 F.3d 1495, 1498 (9th Cir. 1995). "Specific jurisdiction may be exercised with a lesser showing of minimum contacts than is required for the exercise of general jurisdiction." ACORN v. Household Int'l, Inc. , 211 F.Supp.2d 1160, 1164 (C.D. Cal. 2002). The Ninth Circuit uses a three-part test to determine whether there is specific jurisdiction over a defendant: (1) the defendant either purposefully directed its activities at the forum or purposefully availed itself of the privilege of conducting activities in the forum; (2) the plaintiff's claim arises out of or results from the defendant's forum-related activities; and (3) the court's exercise of personal jurisdiction over the defendant is reasonable. Boschetto v. Hansing , 539 F.3d 1011, 1016 (9th Cir. 2008).
"When a district court acts on a defendant's motion to dismiss under Rule 12(b)(2) without holding an evidentiary hearing, the plaintiff need make only a prima facie showing of jurisdictional facts to withstand the motion to dismiss." Ballard , 65 F.3d at 1498. In order to make a prima facie showing, the plaintiff must produce admissible evidence, which, if believed, would be sufficient to establish the Court's personal jurisdiction. Enriquez v. Interstate Grp., LLC, No. 11-CV-05155 YGR, 2012 WL 3800801, at *3 (N.D. Cal. Aug. 31, 2012). Accordingly, a district court is to take uncontroverted allegations in the complaint as true. AT&T Co. v. Compagnie Bruxelles Lambert , 94 F.3d 586, 588 (9th Cir. 1996). However, "mere allegations of the complaint, when contradicted by affidavits, are [not] enough to confer personal jurisdiction of a nonresident defendant. In such a case, facts, not mere allegations, must be the touchstone." Taylor v. Portland Paramount Corp. , 383 F.2d 634, 639 (9th Cir. 1967). See also Chem Lab Prods., Inc. v. Stepanek , 554 F.2d 371, 372 (9th Cir. 1977); Cummings v. W. Trial Lawyers Ass'n , 133 F.Supp.2d 1144, 1154 (D. Ariz. 2001). Parties may go beyond the pleadings and support their positions with discovery materials, affidavits, or declarations. Am. Inst. of Intradermal Cosmetics, Inc. v. Soc'y of Permanent Cosmetic Prof's, No. CV 12-06887 GAF JCGX, 2013 WL 1685558, at *4 (C.D. Cal. Apr. 16, 2013). "[C]onflicts between the facts contained in the parties' affidavits must be resolved in [the plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists." AT&T , 94 F.3d at 588. "At the same time, however, the plaintiff must submit admissible evidence in support of its prima facie case." Id . (emphasis added).
A. Evidentiary Objections
The Parties have each filed objections to certain declarations. See Dkt. ## 17-19. To the extent the Court relies upon the objected to evidence in reaching its conclusions, the Court addresses those objections below. However, to the extent the Court has not relied on the objected to evidence, it need not rule on those evidentiary objections and deems those objections as MOOT.
B. Defendant's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2)
1. General Jurisdiction
"A defendant whose contacts with a state are substantial' or continuous and systematic' can be haled into court in that state in any action, even if the action is unrelated to those contacts." Bancroft & Masters, Inc. v. Augusta Nat'l, Inc. , 223 F.3d 1082, 1086 (9th Cir. 2000) (citing Helicopteros Nacionales de Colombia, S.A. v. Hall , 466 U.S. 408, 415 (1984)). "This is known as general jurisdiction." Id . "The standard for general jurisdiction is an exacting standard, as it should be, because a finding of general jurisdiction permits a defendant to be haled into court in the forum state to answer for any of its activities anywhere in the world.'" Mavrix Photo, Inc. v. Brand Techs., Inc. , 647 F.3d 1218, 1224 (9th Cir. 2011) (quoting Schwarzenegger , 374 F.3d at 801).
"To determine if a defendant's activities within the forum are continuous and systematic' or substantial, ' the court must examine all of its activities impacting the state." Barantsevich v. VTB Bank , 954 F.Supp.2d 972, 983 (C.D. Cal. 2013) (citing Helicopteros , 466 U.S. at 411). "Factors to be taken into consideration are whether the defendant makes sales, solicits or engages in business in the state, serves the state's markets, designates an agent for service of process, holds a license, or is incorporated there." Bancroft , 223 F.3d at 1086 (citing Hirsch , 800 F.2d at 1478).
"[D]etermining whether a corporate defendant's contacts in a particular case are substantial and continuous turns on the economic reality of the defendants' activities rather than a mechanical checklist.'" Tuazon v. R.J. Reynolds Tobacco Co. , 433 F.3d 1163, 1173 (9th Cir. 2006) (citing Gates Learjet Corp. v. Jensen , 743 F.2d 1325, 1331 (9th Cir. 1984)).
Here, Defendant argues that the Court lacks general jurisdiction over it because it is an Iowa limited liability company and its headquarters and two of its processing plants are located in Iowa. Defendant further asserts that it has no facilities, offices, operations, employees, real estate, or bank accounts in California. Mot. 6:25-28.
Plaintiff argues that Defendant is subject to general jurisdiction in California because Defendant is registered to do business in California, has designated an agent for service of process in California, solicits business from California residents, and makes substantial sales from delivering products to California residents. Opp'n 6:20-9:3.
On balance, the Court finds that Plaintiff has failed to meet its burden of establishing a prima facie showing for general jurisdiction as it has failed to demonstrate that Defendant has engaged in "continuous and systematic general business contacts, " that "approximate physical presence" in the forum state. See Mavrix , 647 F.3d at 1224.
The Court acknowledges that, while it is relevant that Defendant may be registered to do business and has designated an agent for service of process in California, these acts alone are insufficient to support a finding of general jurisdiction over Defendant. See Flame S.A. v. Pasha Fin., Inc., No. CV 10-5245-GW (MANx), 2010 WL 2902774, at *3 (C.D. Cal. July 26, 2010); See Beijing Automotive Indus. Import and Export Corp. v. Indian Indus., Inc., 2013 WL 4040072, at *2 n.1 (C.D. Cal. Aug. 7, 2013); Gray Line Tours v. Reynolds Elec. & Eng'g Co. , 193 Cal.App.3d 190, 193-95 (1987) (holding that designation of an agent for service of process and qualification to do business in California alone did not constitute grounds for general jurisdiction); see also DVI, Inc. v. Superior Court , 104 Cal.App.4th 1080, 1095 (2002) (holding that personal jurisdiction did not exist even though the defendant company registered to do business in California, had a California agent for service of process, and had two officers residing in California).
The Court thus turns to Plaintiff's allegation that Defendant received millions of dollars from sales of products to California residents. Plaintiff alleges that Defendant delivered more than 5 million pounds of ground turkey to Vernon, California, which totaled more than $6.7 million sold to Plaintiff. Devore Decl. ¶ 5. Plaintiff submits that Defendant has seventy-five California customers. Id . Plaintiff further submits that, based upon Defendant's assertion that California customers were responsible for 3.8% of its overall revenue for the limited time frame of eight years, Defendant's overall revenue from California during the 2005-2013 time period was over $25 million. Opp'n 8:2-7 (citing Devore Decl. ¶ 5).
Defendant, on the other hand, provides evidence that the 5 million pounds of ground turkey that were processed and shipped to Plaintiff during the period referred to in the Complaint represented only approximately.11% of the overall pounds of meat that Defendant processed during that time period. Hansen Decl. ¶ 4.
The percentage of a company's sales in a given state is generally irrelevant. Lakin v. Prudential Sec., Inc. , 348 F.3d 704, 709 (8th Cir. 2003). Instead, the focus is on whether a defendant's activity in the forum state is "continuous and systematic." Id . (citing Helicopteros , 466 U.S. at 414). "Many companies conduct millions of dollars in sales worldwide yet only do a small percentage of their sales in any one state." Id . (citing Gator. Com Corp. v. L.L. Bean, Inc. , 341 F.3d 1072, 1074 (9th Cir. 2003)). The relevant inquiry is "not whether a percentage of the company's contacts is substantial for that company; rather, the inquiry focuses on whether the company's contacts are substantial for the forum. " Id.
Thus, the fact that Defendant's sales to California customers may have constituted only 3.8% of its overall revenue over an eight year period is irrelevant. Nonetheless, the Court finds that it lacks general jurisdiction over Plaintiff.
As an initial matter, engaging in commerce with residents of the forum state is not in and of itself the kind of activity that approximates physical presence within the state's borders. Glencore Grain , 284 F.3d at 1125 (citing Bancroft , 223 F.3d at 1086). And, while Plaintiff alleges that Defendant sold $25 million in ground turkey sales to all of its California customers, Plaintiff provides no argument or support that $25 million is substantial for California. In fact, other courts have found that, even where a nonresident defendant sells millions of dollars worth of products to the forum, this activity can still be insufficient to support a finding of general jurisdiction where the contracts at issue were negotiated outside of the forum. See Bearry v. Beech Aircraft Corp. , 818 F.2d 370, 375-76 (5th Cir. 1987) (no general jurisdiction where nonresident corporation selling millions of dollars of products to the forum when such sales were negotiated, executed, and performed outside the forum). Here, though not explicitly stated in either Party's papers, the Parties appear to have negotiated the relevant Purchase Orders via phone, email, or other interstate communication given that they were located in different states for the duration of the negotiations. See Porter Decl. ¶¶ 5-6. Thus, while Defendant may have made $25 million in ground turkey sales to California residents, this assertion alone is insufficient to confer general jurisdiction over Defendant.
Plaintiff cites to LSI Indus. v. Hubbel Lighting, Inc. , 232 F.3d 1369, 1375 (Fed. Cir. 2000) to support the proposition that general jurisdiction exists where the defendant generated several millions of dollars in annual sales in the forum state. However, the defendant in that case had a "broad distributorship network in [the forum state]." Id . Defendant here has no facilities, offices, operations, employees, real estate, or bank accounts in California (Hansen Decl. ¶ 3), nor does it appear that Defendant maintains a network of distribution in California. See Glencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain Co. , 284 F.3d 1114, 1124-25 (9th Cir. 2002) (holding that the presence of a sales agent in California, sales through California, and shipments through California ports did not confer general jurisdiction, when "[t]here is no evidence that [the defendant] owns property, keeps bank accounts, has employees, solicits business, or has designated an agent for service of process in California")). And, while Plaintiff argues that Defendant's solicitation of business from California residents supports a finding of general jurisdiction, Plaintiff only cites to evidence supporting that Defendant may have solicited business from Plaintiff. See Opp'n 7:8-17. Plaintiff fails to show that Defendant solicited business from other California businesses. As such, the Court disregards Plaintiff's argument on this point.
The standard for general jurisdiction is stringent. Bancroft , 223 F.3d at 1086. Here, in examining all of Defendant's activities impacting the forum state, the Court finds that Plaintiff has failed to meet the high standard of showing that Defendant's contacts approximate physical presence in the forum. The Court thus finds that it lacks general jurisdiction over Defendant.
2. Specific Jurisdiction
To determine whether to exercise specific jurisdiction over a nonresident defendant, this Court must consider the test adopted by the Ninth Circuit to ensure that the exercise of specific jurisdiction satisfies the requirements of due process. Cubbage v. Merchent , 744 F.2d 665, 668 (9th Cir. 1984). Specific jurisdiction is proper only when (1) the defendant has performed some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; (2) the claim arises out of, or results from, the defendant's forum-related activities; and (3) the exercise of jurisdiction is "reasonable." Terracom v. Valley Nat'l Bank , 49 F.3d 555, 560 (9th Cir. 1995) (citing Shute v. Carnival Cruise Lines , 897 F.2d 377, 381 (9th Cir. 1990)).
The plaintiff bears the burden of satisfying the first two prongs of the test. Schwarzenegger , 374 F.3d at 802 (citing Sher v. Johnson , 911 F.2d 1357, 1361 (9th Cir. 1990)). If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the forum state. Id . If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to "present a compelling case" that the exercise of jurisdiction would not be reasonable. Id.
a. Purposeful Availment
The plaintiff may satisfy the first prong by demonstrating that the defendant either purposefully availed itself of the privilege of conducting activities in the forum, or purposefully directed its activities at the forum. Wash. Shoe Co. v. A-Z Sporting Goods Inc. , 704 F.3d 668, 672 (9th Cir. 2012). The Ninth Circuit has explained that although courts have sometimes used these two terms in shorthand fashion as a single concept, they "are, in fact, two distinct concepts." Id . (citing Schwarzenegger , 374 F.3d at 802). A purposeful availment analysis is most often used in suits sounding in contract. A purposeful direction analysis, on the other hand, is most often used in suits sounding in tort. Schwarzenegger , 374 F.3d at 802.
Plaintiff's Complaint alleges that Defendant breached certain contracts by delivering ground turkey that contained bone pieces and chips that failed to conform to the Parties' contracts and course of dealing. See, e.g., Compl. ¶¶ 41-92. Plaintiff also relies on Purchases Orders and the Guaranty between the Parties as the basis for many of its claims. See id. at ¶¶ 42, 54, 76, 85. As Plaintiff's Complaint is grounded upon a breach of sales contracts between the Parties, the Court finds that this case "sounds in contract" and thus, a purposeful availment analysis is appropriate here.
In the contract context, the fact that the defendant entered into a contract with a forum resident is not sufficient, standing alone, to establish purposeful availment. Amini Innovation Corp. v. JS Imports, Inc. , 497 F.Supp.2d 1093, 1103 (C.D. Cal. 2007) (citing Burger King , 471 U.S. at 478). Rather, the Court must utilize "a highly realistic' approach that recognizes that a contract' is ordinarily but an intermediate step serving to tie up prior business negotiations with future consequences which themselves are the real object of the business transaction.'" Id . (citing Burger King , 471 U.S. at 479). Thus, the Court should evaluate "prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing" in determining "whether the defendant purposefully established minimum contacts within the forum." Id . (citing Burger King , 471 U.S. at 479).
Here, the Court finds that Plaintiff has failed to show that Defendant has purposefully availed itself of the privilege of conducting activities in the forum. In looking at the Parties' actual course of dealing, it appears that the Plaintiff would make orders for raw ground turkey products via written Purchase Orders Defendant received at its offices in Iowa or Utah. Porter Decl. ¶ 5. Defendant would then deliver those turkey products to Plaintiff's facility in Vernon, California. See Devore Decl. ¶ 10. As noted above, the Parties appear to have negotiated the Purchase Orders via phone, email, or other interstate communication given that they were located in different states for the duration of the negotiations. Defendant also claims that the business between the Parties was almost exclusively done through Purchase Orders. Porter Decl. ¶ 7. Plaintiff makes no showing that the negotiations regarding the Purchase Orders took place in California, that the Parties anticipated that the Purchase Orders would impact California, or that during the course of the Parties' nine-year relationship, they have ever met to conduct business in California. See Beijing, 2013 WL 4040072, at *2; Porter Decl. ¶ 6.
Plaintiff alleges that Defendant solicited business from Plaintiff by promoting its products and prices through sales calls and regular communications to Plaintiff's employees and provides a declaration from its Senior Vice President, Aleen Devore. However, Ms. Devore does not attach any evidence of written communications or solicitations directed to Plaintiff by Defendant, nor does Ms. Devore identify which of Defendant's employees solicited Plaintiff. Because Plaintiff only makes a bare allegation that Defendant continually solicited business from Plaintiff, the Court is hard pressed to conclude that those communications warrant a finding of specific jurisdiction over Defendant. See Thomas P. Gonzalez Corp. v. Consejo Nacional De Produccion De Costa Rica , 614 F.2d 1247, 1254 (9th Cir. 1980) ("[Defendant] validly argues that use of the mails, telephone, or other international communications simply do not qualify as purposeful activity invoking the benefits and protection of the state."). Moreover, Defendant appears to clarify that it only periodically made sales calls to Plaintiff to advise it about changes or updates in the price of Defendant's products. Porter Decl. ¶ 6. In looking at the Parties' course of dealing as a whole, the Court reiterates that the business between the Parties was almost exclusively done through Purchase Orders and that Defendant never signed any agreement or met with Plaintiff's representatives in California or elsewhere.
Plaintiff alleges that the Guaranty specifically mentions that all products delivered are to conform to California standards. Opp'n 12:2-4. However, Plaintiff fails to cite a single case suggesting that such facts, without more, would confer specific jurisdiction over Defendant. Indeed, the Guaranty was signed by Defendant in Iowa (Porter Decl. ¶ 7), and Plaintiff provides no evidence that the Guaranty or the Purchase Orders are governed by California law.
Accordingly, because Plaintiff fails to provide evidence supporting that negotiations regarding the Purchase Orders took place in California, that the Parties anticipated that the Purchase Orders would impact California, or that they have ever met to conduct business here in California, the Court finds that it lacks specific jurisdiction over Defendant.
Because Plaintiff has not met its burden of proving that personal jurisdiction over Defendants exists, the Court GRANTS Defendant's Motion to Dismiss for lack of personal jurisdiction. Because the Court GRANTS Defendant's Motion to Dismiss for lack of personal jurisdiction, the Court DENIES as moot Defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(3) and DENIES as moot Defendant's Motion to Transfer.
For the reasons set forth above, this Court GRANTS without prejudice Defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(2). As such, the Court DENIES as moot Defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(3) and DENIES as moot Defendant's Motion to Transfer.The Clerk shall close this case.
IT IS SO ORDERED.