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ALLIED VAN LINES, INC. v. AARON TRANSFER AND STORAGE

May 14, 2002

ALLIED VAN LINES, INC., A DELAWARE CORPORATION, PLAINTIFF,
V.
AARON TRANSFER AND STORAGE, INC., A TEXAS CORPORATION, GRANT E. NICHOLS, AN INDIVIDUAL, JINA NICHOLS, AN INDIVIDUAL, NICHOLS TRANSFER, INC., A TEXAS CORPORATION, AND BEST APARTMENT MOVERS, INC., A TEXAS CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Ruben Castillo, United States District Judge

  MEMORANDUM OPINION AND ORDER

In this suit, originally filed in state court, Plaintiff Allied Van Lines, Inc. ("Allied") sues Defendant Aaron Transfer and Storage, Inc. ("Aaron Transfer"), pursuant to 9 U.S.C. § 9, to confirm an arbitration award in favor of Allied (Count I). More importantly, for purposes of this opinion, Allied also sues Defendants Grant E. Nichols ("Grant") and Jina Nichols ("Jina"), Nichols Transfer, Inc. and Best Apartment Movers, Inc. (collectively "Defendants") for breach of guaranty (Counts II-IV). Defendants move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(2) and (b)(3) based on lack of personal jurisdiction and improper venue. In the alternative, Defendants also move for dismissal based on forum non conveniens and for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and for transfer to the United States District Court for the Northern District of Texas, Fort Worth Division. For the following reasons, Defendants' motion to transfer venue is granted, (R. 12-3), and Defendants' motions to dismiss are denied as moot, (R. 12-2).

RELEVANT FACTS

Allied is a Delaware corporation with its principal place of business in Naperville, Illinois. Defendants Aaron Transfer, Nichols Transfer and Best Apartment Movers are Texas corporations, all with their principal places of business in Euless, Texas. None of the three Defendant corporations has maintained a place of business in Illinois. Defendants Grant — President of Aaron Transfer, Nichols Transfer and Best Apartment Movers — and his wife Jina both reside in Texas.

Allied runs an interstate transportation of household goods business through agents. Aaron Transfer has functioned as both an independent moving and storage company and as an agent of Allied. The contact between Allied and Aaron Transfer began in late 1998 or early 1999, when Grant was approached by Paul Zinicki at Aaron Transfer's facility in Euless, Texas. Zinicki represented himself as an agent recruiter for Allied. During the approximately six weeks that followed Zinicki's initial visit, Zinicki visited Aaron Transfer's Texas facility on several occasions. After Grant and the staff of Aaron Transfer expressed interest in learning more about the agency opportunity, Zinicki presented Grant with forms inquiring about Aaron Transfer's financial condition, operation, size and facilities. Grant and his staff completed the forms and gave them to Zinicki during one of his visits to Aaron Transfer.

During this courtship period, Grant and another Aaron Transfer employee were invited to visit Allied's Illinois offices to meet several Allied employees. Grant and the employee made a trip to Chicago, at Allied's expense, on November 23-24, 1998. On November 23, 1998, Zinicki told Grant that it had not yet been decided whether Aaron Transfer would be invited to become an Allied agent. Before leaving Chicago, Grant was not given any indication as to whether Aaron Transfer would receive an invitation and was not given any offer or proposed agency contract.

Following the Chicago trip, Allied representatives made several telephone calls to Aaron Transfer to discuss a possible agency relationship. After the calls, Allied delivered to Grant in Texas a proposed agency contract — accompanied by an equipment lease, other ancillary documents and guaranties to be signed by Grant and Jina individually and by Grant as President of Nichols Transfer and Best Apartment Movers. After reviewing the agency contract*fn1 and the three guaranties,*fn2 Grant signed all four documents on January 21, 1999 and returned them to Allied's Naperville office. Jina also signed the personal guaranty of payment.

Between January 25, 1999 and September 18, 1999, Aaron Transfer acted as an agent of Allied in Texas. Pursuant to the agency contract, Aaron Transfer booked, transported and serviced interstate shipments canied by Allied trucks and equipment. During the course of Allied and Aaron Transfer's agency relationship, representatives from Allied visited Aaron Transfer's Texas facility at least once every two months to train Aaron Transfer employees. Among Aaron Transfer's contacts with Illinois was transmitting business reports to Allied's Illinois office. Allied maintains that Aaron Transfer also registered its interstate shipments via computer in Allied's Illinois-based information technology infrastructure. (R. 16, Merchant Aff. ¶ 4.) In addition, Allied collected amounts due from Aaron Transfer's interstate shipment clients and maintained Aaron Transfer's agency account. Aaron Transfer's payments to Allied were to be made to Allied's Naperville, Illinois offices. Allied contends, however, that Aaron Transfer never made any payments on the balance due to Allied. (Id. at ¶ 5.) In September 1999, the agency relationship between Allied and Aaron Transfer ceased. Allied contends that Aaron Transfer was terminated as an Allied agent, whereas Grant maintains that he elected to terminate the agency contract pursuant to its terms. (Id.; R. 18, Grant Nichols Aff. ¶ 17.)

On October 15-16, 2001, Allied and Aaron Transfer arbitrated their dispute before the American Arbitration Association ("AAA") in Chicago, in accord with the arbitration provision contained in the agency contract. On November 5, 2001, the arbitrator ordered Aaron Transfer to pay Allied a sum of $129,415.16 and denied Aaron Transfer's counterclaim. The AAA provided Aaron Transfer with notice of the award, via its attorney, on November 9, 2001. Aaron Transfer — as well as guarantors Grant, Jina. Nichols Transfer and Best Apartment Movers — have failed to pay Allied the arbitration award amount.

As such, Allied has brought the present action to confirm the arbitration award against Aaron Transfer pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et. seq. (Count I), and to hold Grant and Jina, Nichols Transfer and Best Apartment Movers liable for the arbitration award pursuant to their guaranties (Counts II-IV). Defendants responded with motions to dismiss for lack of personal jurisdiction, Fed. R. Civ. P. 12(b)(2), and improper venue, Fed. R. Civ. P. 12(b)(3), or, in the alternative, motions to dismiss based on forum non conveniens and failure to state a claim, Fed. R. Civ. P. 12(b)(6), or transfer to the United States District Court for the Northern District of Texas, Fort Worth Division.

ANALYSIS

I. Venue*fn3

A. Motion to Dismiss under Fed. R. Civ. P. 12(b)(3)

Defendants move for dismissal on the grounds of improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). Defendants argue that if Allied had originally filed suit in this Court, venue would not have been proper under the general venue statute, 28 U.S.C. § 1391. Allied contends that 28 U.S.C. § 1441, not § 1391, governs the venue of removed actions and, furthermore, that Defendants waived their ...


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