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G4S Technology LLC v. WCC Cable, Inc.

United States District Court, D. Nebraska

October 10, 2017

G4S TECHNOLOGY, LLC, a Delaware limited liability company; Plaintiff,
v.
WCC CABLE, INC., a Virginia corporation; and IRONSHORE INDEMNITY, INC., a Minnesota corporation; Defendants.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Chief United States District Judge

         This matter is before the Court on the Motion to Dismiss, ECF No. 6, filed by Defendants WCC Cable, Inc., and Ironshore Indemnity, Inc. (Defendants). For the reasons stated below, the motion will be granted in part, and the case will be transferred to the United States District Court for the Western District of Virginia.

         BACKGROUND

         The following facts are those alleged in the Complaint, ECF No. 1-1, Page ID 6- 9, and assumed true for purposes of the Motions to Dismiss.

         Plaintiff G4S Technology LLC (G4S) is a Delaware limited liability corporation with its principal office located in Omaha, Nebraska. Id. ¶ 1, Page ID 6. WCC Cable, Inc. (WCC), is a Virginia corporation with its principal office located in Fredericksburg, Virginia. Id. ¶ 2. Ironshore Indemnity, Inc. (Ironshore), is a Minnesota corporation with its principal office in New York, New York. Id. ¶ 3. In September of 2014, G4S entered into a subcontract agreement (the Subcontract) with WCC to perform work related to the I-64 Active Traffic and Safety Management System Project (the Project), located in Afton, Virginia. Id. ¶ 6, Page ID 7. Section 37 of the Subcontract stated that any “dispute arising . . . from this Subcontract shall be resolved solely and exclusively in a state or federal court located in Douglas County, Nebraska. Id. ¶ 8. As required by the Subcontract, WCC obtained a performance and payment bond from Ironshore. Id. ¶ 7.

         G4S alleges that WCC failed to meet the Project schedule and failed to perform in accordance with the terms of the Subcontract. As a result, G4S sent WCC a formal notice to cure (Notice to Cure). Id. ¶ 9. On September 25, 2015, G4S sent Defendants a formal notice of default and claim against the bond, due to WCC's failure to remedy the deficiencies in performance described in the Notice to Cure. Id. ¶ 10, Page ID 8. Due to WCC's failure to perform under the Subcontract, G4S had to hire a supplemental subcontractor and incurred liquidated damages imposed by the owner of the Project. Id. ¶¶ 11-13.

         On March 6, 2017, G4S filed this action in the District Court of Douglas County, Nebraska, asserting two claims for breach of contract. Id. ¶¶ 15-20, Page ID 13-14. Defendants removed the action to this Court and filed the present motion, seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(2) and (3). Because the Court will grant the motion due to improper venue under Rule 12(b)(3), it will not analyze the issue of personal jurisdiction under Rule 12(b)(2).

         STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b)(3) permits a party to raise the defense of “improper venue” by motion. “[V]enue of all civil actions brought in district courts of the United States” is governed by 28 U.S.C. § 1391, which states:

A civil action may be brought in-
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal ...

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