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Air Liquide Industrial U.S. LP v. Butterball, LLC

United States District Court, Third Circuit

July 3, 2013

AIR LIQUIDE INDUSTRIAL U.S. LP, Plaintiff,
v.
BUTTERBALL, LLC, Defendant.

OPINION

JOEL H. SLOMSKY, J.

I. INTRODUCTION

Before the Court is Defendant Butterball, LLC’s Motion to Transfer Venue to the United States District Court for the Eastern District of North Carolina under 28 U.S.C. § 1404(a).[1](Doc. No. 5.)

On November 13, 2012, Plaintiff Air Liquide Industrial U.S. LP (“Plaintiff”) filed a Complaint against Defendant Butterball, LLC (“Defendant”) in the Eastern District of Pennsylvania. (Doc. No. 1.) In the Complaint, Plaintiff alleges that Defendant breached a 1999 contract that required Plaintiff to deliver liquid nitrogen to Defendant. (Id.)

On March 11, 2013, Defendant filed the Motion to Transfer Venue contending that the public and private interest factors set forth in Jumara v. State Farm Insurance Co., 55 F.3d 873 (3d Cir. 1995), support the transfer of this case to the United States District Court for the Eastern District of North Carolina. (Doc. No. 5.)

The central issue in dispute is whether the facts support such a transfer under the Jumara factors. For reasons that follow, Defendant’s Motion to Transfer Venue to the United States District Court for the Eastern District of North Carolina will be denied.

II. FACTUAL BACKGROUND

Plaintiff is a Delaware LLC with its principal place of business in Houston, Texas. (Doc. No. 1 at 2.) Plaintiff supplies industrial gases, including liquid nitrogen, and associated services to various industries, including food manufacturers. (Id.) Plaintiff is a multinational company with over 200 locations in the United States. (Doc. No. 5 at 13.) Plaintiff has offices in Florida, Texas, North Carolina, and Pennsylvania. (Id. at 14.) Plaintiff’s predecessor, Messer Griesheim Industries, Inc. (“Plaintiff’s predecessor”), was a Delaware Corporation with its corporate headquarters in Malvern, Pennsylvania. (Doc. No. 10-1 at 3.)

Defendant is a North Carolina LLC with its principal place of business in Garner, North Carolina. (Id.) Defendant’s offices and plants are located in North Carolina. (Id. at 15.) Defendant is the largest turkey producer in the United States. (Id. at 14.) Defendant’s predecessor was Carolina Turkeys LLC (“Defendant’s predecessor”). (Doc. No. 10 at 3.)

On December 6, 1999, Plaintiff’s predecessor entered into a Bulk Services Agreement (“the Agreement”) with Defendant’s predecessor. (Doc. No. 10-1 at 3.) The Agreement was negotiated and executed in Pennsylvania and provided that it would be governed by Pennsylvania law.[2] (Doc. No. 1 at 4.) It was signed by Charles S. Matasic, the Vice President of Plaintiff’s predecessor and a resident of West Chester, Pennsylvania. (Doc. No. 10-1 at 3.) The Vice President of Operations of Defendant’s predecessor executed the Agreement on behalf of Defendant’s predecessor.[3] (Doc. No. 1-4 at 4.)

The Agreement designated Plaintiff’s predecessor as the liquid nitrogen supplier for the North Carolina facilities of Defendant’s predecessor. (Id.) Under the Agreement, all production and delivery of liquid nitrogen was to occur “in or within close proximity to the state of North Carolina.” (Doc. No. 5 at 12.) The Agreement included an initial expiration date of December 6, 2004, and expressly provided for automatic annual renewal thereafter. (Doc. No. 1 at 3.) With respect to termination, the Agreement provided that either party could terminate “by giving not less than 120 days prior written notice to the other party.”[4] (Doc. No. 1 at 4.) Subsequent to the This instrument constitutes the entire Agreement between the parties and is to be interpreted in accordance with the laws of the Commonwealth of Pennsylvania. No terms and conditions in any purchase order of buyer issued or purported to be issued with respect to the sale of the Product(s) shall vary the terms hereof and all of such provisions are hereby objected to. No modification or waiver of this Agreement shall bind Seller unless in writing and signed and accepted by an executive officer of Seller. execution of the Agreement between the predecessors, Plaintiff and Defendant purchased their predecessors. (Doc. No. 10-1 at 3.) Plaintiff continued to supply Defendant with liquid nitrogen under the Agreement until September 2012. (Doc. No. 1 at 7.)

The Agreement was amended several times since it went into effect in 1999. (Doc. No. 10-1 at 3.) The amendment relevant to the breach of contract alleged here was executed on July 12, 2010. (Id.) This amendment extended the expiration date of the Agreement from August 15, 2011 to October 15, 2012. (Id.) The amendment also modified pricing and stated that all other terms of the Agreement were to remain in effect. (Id. at 4.) Vincent Dominianni, the Northeast Regional Manager at the East Norriton, Pennsylvania office of Plaintiff, executed the July 2010 amendment on its behalf. (Id. at 3.)

While the Agreement was in effect, there were a considerable number of contacts between the North Carolina offices of Defendant and the North Carolina, Florida, and Pennsylvania offices of Plaintiff. (Doc. No. 5-1 at 3.) Since the beginning of the relationship between the parties, Defendant consistently communicated with the Pennsylvania office of Plaintiff regarding the Agreement and related billing invoices.[5] (Doc. No. 10-1 at 5.)

On November 13, 2012, Plaintiff filed the Complaint against Defendant in this Court alleging that Defendant breached the termination and automatic renewal provisions in the Agreement. (Doc. No. 1.) Specifically, Plaintiff contends that Defendant breached the Agreement by failing to provide written notice to Plaintiff at least 120 days prior to termination. (Doc. No. 1 at 7.) The termination date was October 15, 2012. (Id.) On September 17, 2012, Defendant advised Plaintiff that the Agreement would be terminated as of October 14, 2012, which was far less than the required 120 day notice under the Agreement.[6] (Doc. No. 1-8 at 3.)

Subsequent to the alleged breach of the Agreement in September 2012, Defendant repeatedly communicated with the Pennsylvania office of Plaintiff regarding the Agreement and its amendments. (Doc. No. 10-1 at 4.) Judith Shank, Defendant’s Corporate Purchasing Manager, corresponded with two Pennsylvania based employees of Plaintiff concerning the alleged breach.[7] (Id.) Suzanne Griffin, the Vice President and General Counsel of Defendant, also communicated with the Pennsylvania office of Plaintiff regarding the Agreement and its amendments. (Id.)

On March 11, 2013, Defendant filed the instant Motion to Transfer Venue, asserting that the public and private interest factors identified in Jumara v. State Farm Insurance Co., 55 F.3d 873 (3d Cir. 1995), support the transfer of this case to the United States District Court for the Eastern District of North Carolina. (Doc. No. 5.) Defendant argues that the “obvious and natural venue” for this case is the Eastern District of North ...


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