United States District Court, S.D. Indiana, Indianapolis Division
JOHN M. CONNOR, Plaintiff,
DANIEL A. KOTCHEN, KOTCHEN & LOW, LLP, BOIES, SCHILLER, FLEXNER, LLP, MATTHEW HENKEN, Defendants.
ORDER ON MOTIONS TO DISMISS (DKT. 19) AND TO TRANSFER
EVANS BARKER, UNITED STATES DISTRICT COURT
removed diversity case, Plaintiff sued Defendants for breach
of contract and other wrongs. Now before the Court are
Plaintiff's motion to transfer, see 28 U.S.C.
§§ 1404(a), 1406(a), and Defendants' motion to
dismiss for lack of personal jurisdiction and failure to
state a claim. See Fed. R. Civ. P. 12(b)(2), (6).
For the reasons given below, Plaintiff's motion is
granted and Defendants' motion is granted in part.
First Amended Complaint (FAC), together with its
attachments, alleges as follows. Plaintiff is John Connor
(“Connor”), an Indiana domiciliary and professor
emeritus of economics at Purdue University. Defendants are
the law firms of Kotchen & Low, LLP (“Kotchen &
Low”), and Boies, Schiller, Flexner, LLP
(“Boies”), as well as attorneys Daniel Kotchen
(“Kotchen”), a partner at Kotchen & Low, and
Matthew Henken (“Henken”), a partner at Boies.
Kotchen and Henken are Wisconsin and New Hampshire
domiciliaries, respectively. Kotchen & Low is organized
under the laws of Washington, D.C., and has its principal
office there. Boies has “an office” in New
Hampshire, FAC ¶ 8, and Defendants add in their notice
of removal that it is organized under the laws of Nevada with
its principal office in New York. Dkt. 1 ¶ 6.
2014, Connor entered into a consulting agreement with OnPoint
Analytics, Inc. (“OnPoint”), a California
consulting services firm. Beginning in 2009, Kotchen, Henken,
and their law firms represented the plaintiffs in a
multidistrict litigation captioned In re Wholesale
Grocery Products Antitrust Litigation, No. 09-MD-2090
ADM/TNL, in the United States District Court for the District
of Minnesota. In 2016, Kotchen sought out Connor to engage
him as an expert witness in the case. Connor referred Kotchen
to OnPoint. Kotchen, on behalf of Kotchen & Low, entered
into an agreement with OnPoint for Connor's services.
prepared his expert report from his office in Indiana in
regular consultation with Kotchen and Henken. In February
2017, defendants in the Wholesale Grocery Products
litigation deposed Connor in Indianapolis. Kotchen traveled
to Indiana to prepare Connor and defended the deposition.
Minnesota federal district court, alas, did not deem
Connor's expert report so expert and excluded
“[p]ortions” of it three days after Connor's
deposition. FAC ¶ 46. In November 2017, the
Wholesale Grocery Products plaintiffs secured at
least a partial settlement of their claims, but Kotchen &
Low and Boies refused and continue to refuse to pay Connor
for his services. On November 17, 2017, OnPoint assigned to
Connor “all claims, causes of action and/or demands of
every kind and description” it may have had against
Kotchen and Kotchen & Low arising from their agreement
for Connor's services. Dkt. 15 Ex. 4.
lawsuit followed. Connor filed his original complaint in
Marion Superior Court in Indianapolis on March 13, 2018.
Defendants filed a general appearance, moved for an extension
of time in which to answer, and, on April 12, 2018, removed
the action to this Court, invoking our diversity
jurisdiction. Dkt. 1. Defendants promptly moved to dismiss
the complaint. Dkt. 13. Rather than defend the motion, Connor
filed the now operative FAC on June 4, 2018, Dkt. 15,
see Fed. R. Civ. P. 15(a)(1)(B), and simultaneously
moved to transfer the case under 28 U.S.C. § 1404(a) to
the District of Minnesota. Dkt. 16.
contains claims for breach of contract (Count I), unjust
enrichment or quantum meruit (Count II), and
constructive fraud (Count III). Defendants renewed their
motion to dismiss, Dkt. 19, contending that we lack personal
jurisdiction over each of them, see Fed. R. Civ. P.
12(b)(2), and that Plaintiff's complaint, with one narrow
exception, fails to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). Defendants
also filed a brief in opposition to Connor's transfer
motion under 28 U.S.C. § 1404(a) (transfer for
convenience when venue is proper in transferor court), though
they do not object to transfer under 28 U.S.C. § 1406(a)
(transfer because venue is improper in transferor court).
Defs.' Br. Opp. 2.
parties have not asked us to address their pending motions in
any particular order. Because Connor's motion to transfer
is unopposed in substance, and because transfer under either
Section 1404(a) or Section 1406(a) may be ordered in the
absence of personal jurisdiction under functionally the same
standard, Cote v. Wadel, 796 F.2d 981, 985 (7th Cir.
1986), judicial restraint arguably counsels ordering transfer
without decision as to personal jurisdiction (which courts of
this circuit have treated as a defect in venue for transfer
purposes, see, e.g., Smith v. Windy Hill Foliage,
Inc., 17-cv-895-wmc, 2018 WL 1747915, at *3 (W.D. Wis.
Apr. 11, 2018), perhaps imprecisely, see Ross v. Colo.
Outward Bound Sch., Inc., 822 F.2d 1524, 1526-28 (10th
Cir. 1987)), or failure to state a claim. See, e.g.,
Tomchuck v. Union Tr. Co., 875 F.Supp. 242, 243
(S.D.N.Y. 1995) (“[I]t is unnecessary to resolve th[e]
[personal jurisdiction] issue in the context of the pending
motion because the Court has the power to transfer the case,
if appropriate, regardless of whether it has personal
jurisdiction over the defendant.”).
District of Minnesota, however, “[w]hen a diversity
case is transferred from one federal court to another, the
choice of law depends” on whether venue was proper in
the transferor court. Wisland v. Admiral Beverage
Corp., 119 F.3d 733, 735 (8th Cir. 1997). A Section
1404(a) transferee court applies the law of the transferor
court (here, Indiana); a Section 1406(a) transferee court
applies its own (here, Minnesota). Id. at 736.
“If the law of the transferor court were applied, a
plaintiff could deliberately file in a jurisdiction with
favorable law but clearly improper venue and benefit from its
choice.” Id. Because Minnesota's
choice-of-law rules in contract cases differ markedly from
Indiana's, compare Milkovich v. Saari, 203
N.W.2d 408 (Minn. 1973), with W.H. Barber Co. v.
Hughes, 63 N.E.2d 417 (Ind. 1945), the nature of the
transfer is likely material to the case. Accordingly, it is
appropriate here to decide the personal jurisdiction issue,
which is the only defect in “venue” Defendants
point to (and the only defect they could point to in a case
properly removed under 28 U.S.C. § 1441, see Polizzi
v. Cowles Magazines, Inc., 345 U.S. 663, 665 (1953)).
failure to state a claim, comity counsels against
transferring a facially worthless case, or so much of a case
as is facially worthless, no matter which transfer statute
applies. To forestall this possibility, our adjudication of
Defendants' Rule 12(b)(6) motion is in order as well.
that procedural ground cleared, we proceed to the merits of
the pending motions. We conclude that the complaint fails to
state a claim against Henken or Boies. Connor's claims
against these Defendants are therefore dismissed with
prejudice without regard to personal jurisdiction. Finding
that the complaint does state a claim against Kotchen and
Kotchen & Low, we next conclude that these Defendants are
subject to this Court's personal jurisdiction. Finally,
finding transfer to be in the interest of justice, we
transfer the balance of the case to the District of
MOTION TO DISMISS FOR ...