The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Defendant Commerce One, Inc. ("Commerce") has moved pursuant to
28 U.S.C. § 1404(a) to transfer this action brought by plaintiff
Donald Billing ("Billing") to the District of Maryland. For the reasons
set forth below, the motion is granted.
This close question turns on Billing's choice of forum and his
residence, which are not the same. Were it otherwise, the motion would
have been denied.
This action was commenced on June 22, 2001. An amended complaint was
the subject of a stipulation so ordered on October 16, 2001. It alleged
fraudulent misrepresentations in connection with an employment contract
between Billing and AppNet, Inc. in late 1999 and early 2000 and a breach
of that contract for failing to provide stock options, reimbursements,
medical benefits and an incentive bonus.*fn1
Commerce's motion to transfer was heard and marked fully submitted on
November 7, 2001.
The facts as alleged in the amended complaint are set forth below,
together with facts undisputed by the parties.
AppNet was a consulting and business integration enterprise,
specializing in electronic commerce software packages and Internet
services. In the fall of 1999, an executive recruiter contacted Billing
about a position at AppNet and he was invited to interview with AppNet.
On December 8, 1999, Billing met with Toby Tobaccowalla
("Tobaccowalla"), AppNet's Chief Operating Officer, Gina Miller
("Miller"), AppNet's Director of Human Resources, John Berry ("Berry"),
AppNet's Vice President of Marketing, Patricia Davis ("Davis"), AppNet's
Vice President of Human Resources, and Mike Fumani ("Fumani"), AppNet's
Vice President of Sales, at AppNet's corporate headquarters in Bethesda,
On January 14, 2000, Billing met with Randy Wiele ("Wiele"), a Senior
Vice President at AppNet, in New York City. Billing met Ken Bajaj
("Bajaj"), AppNet's CEO, on January 18, 2000 at the Bethesda
headquarters. Bajaj allegedly made several false statements. Billing met
on February 3, 2000, in Bethesda, with Jack Pearlstein ("Pearlstein"),
AppNet's CFO, Wiele, and Carlos Figueroa ("Figueroa"), AppNet's Director
of Business Integration. During these interviews, Pearlstein represented
that AppNet did not permit change of control provisions in executive
contracts and that AppNet was not considering an acquisition or merger.
Following telephone conversations between Billing and Miller, Wiele
sent an offer letter to Billing which Billing subsequently signed and
returned to the Bethesda office, dated February 15, 2000. On March 2,
2000, Billing reported to work in Bethesda and met with Sherry Rhodes
("Rhodes"), AppNet's General Counsel, sometime between March 1 and March
20, 2000 to discuss the terms of his employment.
Billing was hired for the Northeast region and was to operate the New
York office. After he was discharged, he sought to arbitrate his claim in
Section 1404(a) provides:
For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any
civil action to any other district or division where it
might have been brought.
At the time this action was brought, the United States District Court
for the District of Maryland had personal jurisdiction over Commerce and
venue before that court was proper. Maryland has a long-arm statute that
purports to grant jurisdiction over Commerce, a Delaware corporation, with
offices in Maryland. In pertinent part, that statute provides, "[a] court
may exercise personal jurisdiction over a person who directly or by an
agent (1) transacts any business or performs any character of work or
services in the State. . . ." Md. Ann. Code ...