The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
Plaintiff James Florczak commenced the instant action asserting claims for breach of contract and related claims arising out of the operation of Defendant Sterling Plaza Management Group, LLC ("Sterling Plaza"). Presently before the Court is Defendants' motion to dismiss for lack of personal jurisdiction or, in the alternative, to transfer or dismiss for improper venue. Plaintiff submitted an untimely response.
According to the Complaint, in 2001, Plaintiff together with Ezio Staffieri, Aldo Staffieri and Defendant Anthony Staffieri, as members of the Staffieri Trust, formed a Connecticut Limited Liability Corporation, Defendant Sterling Plaza. Pursuant to the Sterling Plaza operating agreement, Plaintiff and Anthony Staffieri were to serve as the managers. Sterling Plaza then purchased a shopping plaza in Derby, Connecticut. The parties agreed that Staffieri would oversee the day to day operations, but that any expenditures over $100 would require approval from both Plaintiff and Staffieri.
The Complaint alleges that Staffieri failed and refused to honor the management agreement and undertook certain obligations, including lease arrangements, on behalf of Sterling Plaza without Plaintiff's consent. Plaintiff alleges that Staffieri failed to negotiate leases for space in Sterling Plaza for fair market value, failed to pay fair market value for parking lot space owned by Sterling Plaza but utilized by Staffieri's restaurant (which is located next to Sterling Plaza), wrongfully authorized landscaping services for Sterling Plaza, wrongfully authorized certain garbage removal services for Sterling Plaza, and wrongfully authorized the expenditure of monies to change certain locks pertaining to Sterling Plaza. The Complaint further alleges that Staffieri promised to pay Plaintiff $13,400 after formation of Sterling Plaza, but failed to do so.
Presently before the Court is Defendants' motion to dismiss for lack of personal jurisdiction, improper venue, or to transfer pursuant to 28 U.S.C. § 1404. In response, Plaintiff submitted untimely papers which the Court accepted. Nonetheless, Plaintiff's untimely papers fail to address the issue of personal jurisdiction.
Defendants move to dismiss based on lack of personal jurisdiction pursuant to FED. R. CIV. P. 12(b)(2). In a diversity case under 28 U.S.C. § 1332, personal jurisdiction is determined by the law of the forum in which the court sits. See Omni Capitol Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 108 (1987); Arrowsmith v. United Press International, 320 F.2d 219, 223 (2d Cir. 1963) (en banc); Savin v. Ranier, 898 F.2d 304, 306 (2d Cir. 1990). It is well-established that when motions are made pursuant to Rule 12, the plaintiff's complaint and affidavits are to be construed, and any doubts are to be resolved, in the light most favorable to the plaintiff. See CutCo Inds., Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986). Although the plaintiff benefits from favorable construction of his submissions, it is well settled that the plaintiff also bears the burden of proving a prima facie case of personal jurisdiction. See A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-80 (2d Cir. 1993).
Defendants also move to dismiss based upon improper venue pursuant to FED. R. CIV. P. 12(b)(3) and 28 U.S.C. § 1391. Section 1391 provides in pertinent part that "[a] civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in . . . (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . . ." 28 U.S.C. § 1391(b). Where venue is challenged by a defendant, plaintiff bears the burden of proving that venue is proper in the forum state. See Pocahontas Supreme Coal Co. v. National Mines Corp., 90 F.R.D. 67, 69 (S.D.N.Y. 1981) Alternatively, Defendants move to transfer the case pursuant to 28 U.S.C. § 1404(a). A district court may, for the convenience of parties and witnesses and in the interests of justice, transfer any civil action to any other district or division where it might have been brought. Id. The party seeking to transfer venue in the "interests of justice" bears the significant burden of making a clear and convincing showing that a case should be transferred. See Ford Motor Co. v. Ryan, 182 F.2d 329 (1950). "[M]otions for transfer lie within the broad discretion of the district court and are determined upon notions of convenience and fairness on a case-by-case basis." In re Cuyahoga Equipment Corp., 980 F.2d 110, 117 (2d Cir. 1992).
As the Second Circuit has stated:
"District courts resolving issues of personal jurisdiction must ... engage in a two-part analysis." Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). First, a district court must determine whether, under the laws of the forum state (New York in this case), there is jurisdiction over the defendant. Id. "Second, [it] must determine whether an exercise of jurisdiction under these laws is consistent with federal due process requirements." Id. . . . In opposing a motion to dismiss for lack of personal jurisdiction, "the plaintiff bears the burden of establishing that the court has jurisdiction over the defendant." Id. "Where a court [has chosen] not to ...