Elliott Auto Supply Co., Inc. v. Fisher Auto Parts, Inc.

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Elliott Auto Supply Co., Inc.,         File No. 23-cv-2990 (ECT/DJF)      
d/b/a Factory Motor Parts,                                                

     Plaintiff,                                                      

v.                                       OPINION AND ORDER                

Fisher Auto Parts, Inc.,                                                  

     Defendant.                                                      


Barbara P. Berens and Kari S. Berman, Berens & Miller, PA, Minneapolis, MN, for 
Plaintiff Elliott Auto Supply Co., Inc.                                   

Patrick  Dillard,  Kate  Carolyn  Ashley,  and  Ryan  David  Frei,  McGuireWoods  LLP, 
Richmond, VA, and Thomas H. Boyd and Kyle R. Kroll, Winthrop & Weinstine, P.A., 
Minneapolis, MN, for Defendant Fisher Auto Parts, Inc.                    


The  parties  in  this  diversity  case  are  competing  aftermarket  automotive  parts 
businesses.  Plaintiff Elliott Auto Supply Co., d/b/a Factory Motor Parts—who, following 
the parties’ lead, will be referred to as “FMP”—alleges that Defendant Fisher Auto Parts, 
a Virginia-based corporation, used confidential information obtained through a bankruptcy 
asset  auction  in  Texas  to  poach  FMP’s  employees  and  business  in  Ohio,  Virginia, 
Pennsylvania, and New York.                                               
Fisher has moved to dismiss the suit for lack of personal jurisdiction under Federal 
Rule of Civil Procedure 12(b)(2) and for improper venue under Rule 12(b)(3), and it seeks 
to have venue transferred to the United States District Court for the Western District of 
Virginia.  The Rule 12(b)(2) motion will be granted because the record evidence, construed 
in a light most favorable to FMP, does not show that Fisher had or maintained contacts 
with Minnesota sufficient to warrant the exercise of personal jurisdiction over Fisher in 

this District.  The case will not be transferred as Fisher requests because it is not clear 
whether FMP would pursue the case in the Western District of Virginia.    
                           I                                         
FMP is incorporated under Minnesota law and maintains its principal place of 
business in Eagan, Minnesota.  Compl. [ECF No. 1] ¶ 1.  Before the events leading to this 

dispute, FMP had more than 200 retail store locations in 19 states, including 25 locations 
in Minnesota.  Id. ¶ 8–9; ECF No. 28 ¶ 4.                                 
Fisher is incorporated under Virginia law and maintains its principal place of 
business in Staunton, Virginia.  Compl. ¶ 2.  Fisher has some 423 retail store locations in 
the United States.  Id. ¶ 3.  “Ohio is the state in which Fisher has the greatest number of 

locations, with 73 locations, about 17% of the total number of Fisher’s locations.”  Id.  
Fisher has no employees, stores, warehouses, or offices in Minnesota.  ECF No. 13 ¶ 6. 
In 2023, FMP and Fisher each bid on the assets of IEH Auto Parts Holding LLC in 
an auction held through IEH’s Chapter 11 proceeding in the United States Bankruptcy 
Court for the Southern District of Texas.  ECF No. 28 ¶ 10–11.  To receive due-diligence 

information  about  the  potential  acquisition  of  IEH’s  assets  through  the  auction,  the 
Bankruptcy Court required would-be bidders to provide “an executed [non-disclosure 
agreement] on terms acceptable to [IEH].”  In re IEH Auto Parts Holding LLC, No. 23-
90054 (CML), Dkt. No. 208 at 11 (Ex. A) (Bankr. S.D. Tex. Mar. 10, 2023).  Signatories 
to  the  non-disclosure  agreement  agreed  not  to  use  or  disclose  IEH’s  confidential 
information except in “consideration of whether to enter into” the potential acquisition of 
IEH’s assets.  Id. Ex. A, Schedule 1 ¶ 2.  Signatories also agreed not to directly or indirectly 

solicit or hire IEH’s employees for a certain period after signing the non-disclosure 
agreement.  Id. ¶ 3.                                                      
FMP signed a non-disclosure agreement, see Compl. Ex. 1, and FMP alleges that 
Fisher signed a substantially similar non-disclosure agreement.  Id. ¶ 23; see ECF No. 28 
¶ 10.  FMP alleges that IEH shared confidential information with Fisher that enabled Fisher 

to learn “the identity, current compensation, and positions of employees at . . . IEH’s 
locations being auctioned off,” “sales and revenue information regarding IEH customers,” 
and the “identity of IEH potential customers.”  Compl. ¶¶ 25–26.          
The IEH asset auction occurred on May 10, 2023.  Compl. ¶ 28.  Fisher and its 
co-bidder, Parts Authority, submitted the high bid for 163 non-Minnesota IEH locations; 

FMP was the second-highest bidder.  Id.; ECF No. 28 ¶¶ 11, 14.  Fisher “did not bid on 
any lots that included IEH’s stores or assets in Minnesota.”  ECF No. 13 ¶ 15.   
Fisher’s bid fell through.  At a bid-approval hearing in the Bankruptcy Court on 
May 19, 2023, “IEH’s counsel revealed that it had come to light . . . that Fisher and Parts 
Authority had circumvented the auction bidding process, raising questions about their good 

faith.”  Compl. ¶ 29; ECF No. 28 ¶ 13.  IEH’s counsel reported to the Bankruptcy Court 
that  “requests  and  inside  information  in  connection  with  the  bidding  had  been 
communicated between one or more persons at IEH on one hand, and Fisher and Parts 
Authority on the other hand,” but that this information was not made available to other 
bidders.  Compl. ¶ 30.  As a result, the Bankruptcy Court rejected the Fisher/Parts Authority 
bid, and they were disqualified from participating in the auction.  Id. ¶ 33.   As the second 
highest bidder, FMP was next in line to acquire the IEH locations on which Fisher and 

Parts Authority initially bid.  Id. ¶ 34.1                                
On May 19, 2023, the Bankruptcy Court approved FMP as the winning bidder for 
these 163 IEH locations.  Id. ¶ 35.  FMP closed on these locations on June 12, 2023.  ECF 
No. 28 ¶ 16.  FMP hired former IEH employees who worked at these locations.  Compl. ¶¶ 
36–38; ECF No. 28 ¶ 15.  Once hired, the employees were subject to FMP’s employee 

confidentiality obligations and non-disclosure agreements.  Compl. ¶¶ 39–43. 
After FMP closed on the transaction, Fisher inquired three times about purchasing 
some of FMP’s newly acquired locations, but no call led to an acquisition or agreement: 
(1) On June 12, 2023, Fisher President Herbert Godschalk telephoned FMP’s Executive 
Vice President Todd Heldt.  ECF No. 34 ¶¶ 2–3; ECF No. 28 ¶16.  Godschalk asked “if 

FMP would be willing to sell any of the locations that FMP had acquired,” and Heldt 
declined.  ECF No. 28 ¶16.  (2) On July 14, 2023, Godschalk returned a call he had received 
from FMP Senior Vice President of Sales Clay Johnson.  ECF No. 34 ¶¶ 4–5.  During this 
call, Godschalk asked whether “FMP would be willing to sell any of the locations that FMP 
had acquired in the IEH bankruptcy auction.”  ECF No. 27 ¶ 3; see ECF No. 34 ¶¶ 4–6.  

Though Johnson told Godschalk he “would get back to him about his inquiry,” ECF No. 

1    Fisher disputes that its Bankruptcy Court conduct was improper.  For purposes of 
this motion, however, the allegation that Fisher obtained information that was not made 
available to other bidders will be accepted as true, and the Bankruptcy Court’s resolution 
of the matter will not be second-guessed or revisited.                    
27 ¶ 3, the record does not show whether this occurred.  (3) On July 18, 2023, Johnson 
called Bo Fisher, one of Fisher’s owners.  ECF No. 33 at 1 & ¶ 7.  During this call, Bo 
Fisher asked Johnson “if FMP would be willing to sell any of the locations that FMP had 

acquired from IEH.”  ECF No. 27 ¶ 4.  Johnson responded that FMP “currently planned to 
operate those locations,” but FMP would “keep Mr. Fisher’s request in mind.”  Id. 
FMP’s core allegation in this case is that Fisher used confidential information 
“obtained  either  in  the  bankruptcy  bidding  process”  or  from  “confidential,  inside 
information that Fisher had otherwise wrongfully obtained from one or more persons inside 

IEH” to “hire away” a significant number of employees from FMP’s newly acquired 
Pennsylvania, New York, and Ohio locations.  Compl. at 2; see id. ¶¶ 45–46.  FMP points 
specifically to Fisher’s hiring of FMP employees Glenn Dawson, a Dayton, Ohio district 
manager, and Dan Robinson, a New York location manager, as examples of this conduct.  
Id. at 2–3.  FMP alleges that Fisher used confidential information Robinson and Dawson 

acquired during their time at FMP, along with information Fisher acquired during the IEH 
bidding process, to “steal” additional FMP employees and customer lists.  Id. ¶¶ 44–59.  
FMP alleges it lost “most or all of [its] customers” and “all of the other FMP employees” 
at its Ohio location, forcing that location to close.  Id. ¶ 48; see ECF No. 28 ¶ 17. 
FMP asserts three claims against Fisher: common-law tortious interference with 

prospective  and  ongoing  economic  advantage,  Compl.  ¶¶  64–75  (Count I); 
misappropriation of trade secrets / confidential information under Minn. Stat. § 325C.01 et 
seq., id. ¶¶ 76–84 (Count II); and common-law tortious interference with FMP’s existing 
and prospective business relations, id. ¶¶ 85–92 (Count III).             
                           II                                        

“Personal jurisdiction . . . is an essential element of the jurisdiction of a district . . . 
court, without which the court is powerless to proceed to an adjudication.”  Ruhrgas AG v. 
Marathon Oil Co., 

 (1999) (second alteration in original) (citation and 
internal  quotation  marks  omitted).    “When  personal  jurisdiction  is  challenged  by  a 
defendant, the plaintiff bears the burden to show that jurisdiction exists.”  Fastpath, Inc. v. 
Arbela  Techs.  Corp.,  

  (8th  Cir.  2014)  (citations  omitted).    “To 
successfully survive a motion to dismiss challenging personal jurisdiction, a plaintiff must 

make a prima facie showing of personal jurisdiction over the challenging defendant.”  

 
(citations omitted).  “But where, as here, the parties submit affidavits to bolster their 
positions on the motion, and the district court relies on the evidence, the motion is in 
substance one for summary judgment.”  Creative Calling Sols., Inc. v. LF Beauty Ltd., 

  (8th  Cir.  2015)  (citation  omitted).    At  this  summary-judgment-

equivalent stage, a case should not be dismissed for lack of personal jurisdiction “if the 
evidence, viewed in the light most favorable to [the plaintiff], is sufficient to support a 
conclusion that the exercise of personal jurisdiction over [the defendant] is proper.”  

 
(citations omitted).                                                      
The issue boils down to determining whether the exercise of personal jurisdiction 

over Fisher would satisfy constitutional due process.  See DURAG Inc. v. Kurzawski, 
No. 17-cv-5325 (ECT/HB), 

, at *3 (D. Minn. May 4, 2020).  Due 
process requires that a defendant have sufficient “minimum contacts” with the forum state 
so that “maintenance of the suit does not offend traditional notions of fair play and 
substantial justice.”  Daimler AG v. Bauman, 

 (2014) (citations and 
internal quotation marks omitted).  This means “actions by the defendant” itself must 
“create a substantial connection with the forum [s]tate” and provide “fair warning” to the 

defendant that it may be subject to jurisdiction there.  Burger King Corp. v. Rudzewicz, 

 (1985) (citations and internal quotation marks omitted); accord, 
e.g., Creative Calling Sols., 

 (defendant’s contacts must permit it to 
“reasonably anticipate being haled into court” in the foreign state (citation omitted)).  The 
“fair warning” requirement will be met if a defendant has “purposefully directed [its] 

activities at residents of the forum, and the litigation results from alleged injuries that arise 
out of or relate to those activities.”  Burger King Corp., 471 U.S. at 472–73 (citations and 
internal quotation marks omitted).                                        
Our Eighth Circuit Court of Appeals has identified five factors that district courts 
are to consider in determining whether a defendant has sufficient minimum contacts with 

the forum state to justify a finding of personal jurisdiction: (1) the nature and quality of 
contacts with the forum state; (2) the quantity of those contacts; (3) the relationship 
between the cause of action and the contacts; (4) the state’s interest in providing a forum 
for its residents; and (5) the convenience to the parties.  Johnson v. Arden, 

 (8th Cir. 2010).  The first three factors are of primary importance.  Burlington Indus., 

Inc. v. Maples Indus., Inc., 

 (8th Cir. 1996) (citation omitted).  “In 
determining whether there is personal jurisdiction, the courts consider the defendant’s 
contacts with the forum in the aggregate, not individually; they look at the totality of the 
circumstances.”    Northrup  King  Co.  v.  Compania  Productora  Semillas  Algodoneras 
Selectas, S.A., 

 (8th Cir. 1995) (citation omitted).    
Begin with the parties’ positions.  The Complaint addresses personal jurisdiction 

over Fisher in one paragraph, alleging:                                   
     This Court has personal jurisdiction over Fisher pursuant to    
     Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure and     
     the Minnesota long-arm statute, 

, subd. 1,  
     which permit the Court to exercise personal jurisdiction over   
     Fisher, a foreign corporation, because Fisher has engaged in    
     tortious  conduct  outside  Minnesota  which  has  irreparably  
     harmed and also caused injury and damage in Minnesota to        
     FMP, a Minnesota corporation headquartered in Minnesota.        
     Further, it is reasonably foreseeable that Fisher’s egregious   
     misconduct towards FMP would irreparably harm, injure, and      
     damage FMP in Minnesota.                                        

Compl. ¶ 5.  This allegation tracks the “effects test” described in Calder v. Jones, 

 (1984), see Kendall Hunt Publ’g Co. v. Learning Tree Publ’g Corp., 

 
(8th  Cir.  2023)  (describing  Calder’s  effects  test),  implying  that  FMP’s 
personal-jurisdiction theory depends only on applying Calder’s effects test to Fisher’s 
activities.                                                               
Though the Complaint appears exclusively directed at the Calder effects test, the 
parties’ submissions are directed to both a typical minimum-contacts analysis and the 
Calder effects test.  FMP’s front-line position is that Fisher’s direct Minnesota contacts 
would enable a reasonable factfinder to conclude that a Minnesota court might properly 
exercise  personal  jurisdiction  over  Fisher.    See  ECF  Nos.  26–29.    Fisher  submits 
declarations  and  other  materials  to  show  it  lacks  meaningful  direct  contacts  with 
Minnesota.  ECF Nos. 13, 32–34.                                           
Answering  the  personal-jurisdiction  question  here  thus  begins  with  a  typical 
minimum-contacts  analysis.  If  that  analysis  does  not  show  the  presence  of  personal 
jurisdiction over Fisher, it will be necessary to apply the Calder effects test.  Again, 

Fisher’s motion to dismiss for lack of personal jurisdiction must be granted unless the 
parties’ submissions—construed in a light most favorable to FMP—show that Fisher’s 
actions created a substantial connection with Minnesota and provided fair warning to 
Fisher that it might be subject to jurisdiction here.  Burger King Corp., 471 U.S. at 472–
73; Creative Calling Sols., 799 F.3d at 979–80.                           

(1) The nature and quality of Fisher’s Minnesota contacts cannot reasonably be 
construed to support the exercise of personal jurisdiction over Fisher.  Fisher is a Virginia 
corporation with no employees, offices, stores, warehouses, or distribution centers in 
Minnesota.  ECF No. 13 ¶¶ 5–6.  It is not registered to do business in Minnesota.  Id. ¶ 8.  
It does not regularly ship or deliver products into Minnesota.  Id. ¶ 7.  It has not solicited 

customers, directed marketing efforts, or engaged in recruiting efforts in Minnesota.  Id. 
¶¶ 9–11.  It has not hired or recruited FMP employees who were working in Minnesota.  
Id. ¶¶ 12–13.  By FMP’s account, any dispute-related activities happened outside of 
Minnesota and were related to FMP’s newly acquired locations in New York, Ohio, and 
Pennsylvania.  Compl. at 2–3; ECF No. 28 ¶¶ 17–18.2                       



2    There is no discernible basis to tie Fisher’s involvement in the bankruptcy auction 
to any jurisdiction-related Minnesota contacts.  The evidence is undisputed that Fisher did 
not conduct due diligence or bid on any lots that included IEH locations or assets in 
Minnesota.  ECF No. 13 ¶ 15.                                              
FMP identifies four contacts that it says may be construed to support personal 
jurisdiction: the three telephone calls described above in which Fisher representatives 
Godschalk and Bo Fisher inquired regarding Fisher’s potential acquisition of former IEH 

locations, and one in-person visit Bo Fisher made to FMP’s Minnesota headquarters in 
2017.  Whether considered separately or together, these facts lack a nature or quality that 
might reasonably be construed to justify the exercise of personal jurisdiction over Fisher 
in Minnesota.  It is not clear whether the telephone calls had a Minnesota connection.  
FMP’s participants in the calls do not say that they were in Minnesota when the calls 

occurred.  See ECF No. 27 ¶¶ 3–4; ECF No. 28 ¶ 16.  Regardless, the calls’ substance 
lacked  any  demonstrated  Minnesota  connection.    The  calls  concerned  former  IEH 
locations, but no evidence shows that Fisher inquired about Minnesota locations, and 
Godschalk’s testimony that “Fisher was not interested in purchasing any locations in 
Minnesota, and that [this subject] was never broached or discussed,” ECF No. 34 ¶ 6, is 

unrebutted.  Bo Fisher’s 2017 Minnesota visit doesn’t add anything.  It occurred several 
years before the transactions giving rise to this case.  It was made on behalf of a separate 
entity, Federated Auto Parts Distributors, Inc., a “large buying group and distribution 
network incorporated and headquartered in Virginia,” “to explore whether [FMP] was 
interested in becoming a member of Federated.”  ECF No. 33 ¶¶ 2–6.  And it was quite 

brief.  Bo Fisher was “on the ground in Minnesota for less than six hours.”  Id. ¶ 2.    
(2) The record cannot reasonably be construed to show that Fisher had a substantial 
number of Minnesota contacts.  At most, it was the four contacts just discussed.  By any 
reasonable measure, that is not a substantial number.                     
(3) A relationship between FMP’s causes of action and Fisher’s four Minnesota 
contacts is not apparent.  FMP’s claims arise from Fisher’s participation in the bankruptcy 
court auction in Texas, Fisher’s Virginia-based business activities, and its actions in 

connection  with  FMP’s  operations  in  Ohio,  Pennsylvania,  Virginia,  and  New  York.  
Compl. at 2–3.  It is difficult to understand how Fisher’s Minnesota contacts might 
establish an element, or otherwise feature in FMP’s prosecution, of its claims.       
(4) & (5)  “[T]he better understanding of the Eighth Circuit’s statements that the last 
two factors are ‘not determinative’ or ‘not dispositive’ is that those factors cannot establish 

jurisdiction when there are not otherwise minimum contacts with the forum.”  Blue Cross 
& Blue Shield of N.C. v. Rite Aid Corp., 

, 534 n.3 (D. Minn. 2021).  If 
they could affect the outcome, the last two factors do not favor personal jurisdiction so 
strongly as to overcome the absence of a substantial connection between Fisher and 
Minnesota.                                                                

As is usually the case, measuring Minnesota’s interest in providing a forum for FMP 
is an inexact science.  FMP is incorporated in and maintains its principal place of business 
in Minnesota, Am. Compl. ¶ 1, and Minnesota has an interest in providing a litigation 
forum for FMP.  See K-V Pharm. Co. v. J. Uriach & CIA, S.A., 

 (8th Cir. 
2011).  That interest may not be so strong when, as here, the litigation-provoking activities 

occurred in four other states.  But whatever its precise extent here, Minnesota’s interest 
“cannot make up for the absence of minimum contacts.”  Digi-Tel Holdings, Inc. v. Proteq 
Telecomms. (PTE), Ltd., 

 (8th Cir. 1996).                 
Likewise, the convenience to the parties of a Minnesota forum does not justify 
concluding there is personal jurisdiction over Fisher.  Minnesota is a convenient forum for 
FMP, but not in every respect.  As pleaded, FMP’s claims stemmed from Fisher’s actions 

in Virginia and all occurred outside of Minnesota, at FMP’s newly acquired locations in 
Ohio, Pennsylvania, Virginia, and New York.  Compl. at 2–3.  Thus, discovery must occur 
in those states, and trial witnesses and exhibits would come from there as well.  Minnesota 
is not a convenient forum for Fisher.                                     
(5) The Calder “effects test” is an “additional factor” to be considered in intentional-

tort cases.  Kendall Hunt Publ’g Co. v. The Learning Tree Publ’g Corp., 

 
(8th Cir. 2023).  As our Eighth Circuit Court of Appeals has described it, the Calder effects 
test requires a plaintiff to show the presence of three elements: (1) that a defendant’s acts 
were intentional; (2) that the acts “were uniquely or expressly aimed at the forum state”; 
and (3) that the acts “caused harm, the brunt of which was suffered—and which the 

defendant knew likely was to be suffered—[in the forum state].”  

 (quoting Brothers and 
Sisters in Christ, LLC v. Zazzle, Inc., 

 (8th Cir. 2022)).  The Eighth Circuit 
“construe[s] the Calder effects test narrowly” in the sense that “mere effects in the forum 
state are insufficient to confer personal jurisdiction.”  Johnson v. Arden, 

 
(8th Cir. 2010).                                                          

Here, the record cannot reasonably be construed to show anything more than “mere 
effects” in Minnesota.3  Calder’s second element requires that a defendant deliberately 

3    It  appears  undisputed  that  FMP’s  tortious  interference  and  misappropriation 
allegations fall in the intentional-tort category, satisfying the first Calder element. 
create “contacts with the forum State itself,” not merely “contacts with persons who reside 
there.”  Walden v. Fiore, 

 (2014).  “To be sure, a defendant’s contacts 
with the forum State may be intertwined with his transactions or interactions with the 

plaintiff or other parties.  But a defendant’s relationship with a plaintiff or third party, 
standing alone, is an insufficient basis for jurisdiction.”  

; see also WTAS, LLC v. 
West Tenn. Air Serv., LLC, No. 23-cv-2015 CJW-MAR, 

, at *4, 6–7 
(N.D. Iowa Apr. 24, 2023).  Here, FMP has not shown that Fisher deliberately created 
Minnesota  contacts  to  carry  out  its  alleged  misappropriation  of  FMP’s  confidential 

information or tortious interference with FMP’s business relations or ongoing economic 
advantage.  By all accounts, Fisher’s suit-provoking activities all occurred in states other 
than Minnesota, and nothing was “uniquely or expressly aimed” at Minnesota.  Kendall 
Hunt Publ’g Co., 

; Ecolab Inc. v. IBA, Inc., No. 22-cv-479 (ECT/DTS), 

, at *7 (D. Minn. Oct. 26, 2023).  All that remains is FMP’s argument 

that Fisher knew FMP was located in Minnesota and knew FMP would be injured in 
Minnesota as a result of Fisher’s outside-of-Minnesota acts.  This is insufficient to confer 
jurisdiction.  See Walden, 

, (“[M]ere injury to a forum resident is not a 
sufficient connection to the forum.”); see also Ecolab, 

, at *7. 
                           *                                         

When  a  federal  district  court  determines  it  lacks  personal  jurisdiction  over 
defendants and the “plaintiff seriously intends to press [its] claim,” the result should be an 
order transferring the case to an appropriate judicial district rather than outright dismissal. 
Thompson v. Ecological Sci. Corp., 

, 470 n.4 (8th Cir. 1970); see also Am. 
Registry of Radiologic Technologists v. Bennett, 

 (D. Minn. 2009) 
(“Although the Court lacks personal jurisdiction over Defendants, it may transfer this 
action to any other district in which it could have been brought, if justice so requires.”); 

Ready 4 A Change, LLC v. Sourcis, Inc., No. 18-cv-1341 (ECT/ECW), 

, 
at *5 (D. Minn. Jan. 17, 2019).  Consistent with these rules, Fisher requested that the case 
be transferred to the Western District of Virginia, the state in which it is incorporated and 
where its principal place of business is located.                         
The problem is that FMP’s litigation intentions at this point are not clear.  No doubt 

FMP believes it has suffered substantial damages and possesses viable legal claims.  
However, in response to Fisher’s motion, FMP only defended its right to bring this case in 
Minnesota.  FMP did not, for example, identify a judicial district to which it would prefer 
the  case  be  transferred,  and  its  objections  to  the  Western  District  of  Virginia  left 
considerable doubt regarding whether FMP would prosecute the case if that were its only 

venue option.  In this circumstance, the better choice is to dismiss the case outright, leaving 
FMP the option to re-commence the case, if at all, in a forum of its choosing.  If FMP 
pursues that course in a forum other than the Western District of Virginia, Fisher obviously 
retains the ability to object on personal jurisdiction and venue grounds or to seek a 
convenience- and interest-of-justice-based transfer under 

(a).   

Therefore, based on the foregoing, and on all the files, records, and proceedings 
herein, IT IS ORDERED THAT:                                               

1.   Defendant  Fisher  Auto  Parts,  Inc.’s  Motion  to  Dismiss  for  Lack  of 
Jurisdiction and Improper Venue, or, in the Alternative, Motion to Transfer/Change Venue 
[ECF No. 9] is GRANTED.                                                   
2.   This action is DISMISSED WITHOUT PREJUDICE for lack of personal 
jurisdiction.                                                             

       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated: February 12, 2024           s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court           

             UNITED STATES DISTRICT COURT                            
                DISTRICT OF MINNESOTA                                


Elliott Auto Supply Co., Inc.,         File No. 23-cv-2990 (ECT/DJF)      
d/b/a Factory Motor Parts,                                                

     Plaintiff,                                                      

v.                                       OPINION AND ORDER                

Fisher Auto Parts, Inc.,                                                  

     Defendant.                                                      


Barbara P. Berens and Kari S. Berman, Berens & Miller, PA, Minneapolis, MN, for 
Plaintiff Elliott Auto Supply Co., Inc.                                   

Patrick  Dillard,  Kate  Carolyn  Ashley,  and  Ryan  David  Frei,  McGuireWoods  LLP, 
Richmond, VA, and Thomas H. Boyd and Kyle R. Kroll, Winthrop & Weinstine, P.A., 
Minneapolis, MN, for Defendant Fisher Auto Parts, Inc.                    


The  parties  in  this  diversity  case  are  competing  aftermarket  automotive  parts 
businesses.  Plaintiff Elliott Auto Supply Co., d/b/a Factory Motor Parts—who, following 
the parties’ lead, will be referred to as “FMP”—alleges that Defendant Fisher Auto Parts, 
a Virginia-based corporation, used confidential information obtained through a bankruptcy 
asset  auction  in  Texas  to  poach  FMP’s  employees  and  business  in  Ohio,  Virginia, 
Pennsylvania, and New York.                                               
Fisher has moved to dismiss the suit for lack of personal jurisdiction under Federal 
Rule of Civil Procedure 12(b)(2) and for improper venue under Rule 12(b)(3), and it seeks 
to have venue transferred to the United States District Court for the Western District of 
Virginia.  The Rule 12(b)(2) motion will be granted because the record evidence, construed 
in a light most favorable to FMP, does not show that Fisher had or maintained contacts 
with Minnesota sufficient to warrant the exercise of personal jurisdiction over Fisher in 

this District.  The case will not be transferred as Fisher requests because it is not clear 
whether FMP would pursue the case in the Western District of Virginia.    
                           I                                         
FMP is incorporated under Minnesota law and maintains its principal place of 
business in Eagan, Minnesota.  Compl. [ECF No. 1] ¶ 1.  Before the events leading to this 

dispute, FMP had more than 200 retail store locations in 19 states, including 25 locations 
in Minnesota.  Id. ¶ 8–9; ECF No. 28 ¶ 4.                                 
Fisher is incorporated under Virginia law and maintains its principal place of 
business in Staunton, Virginia.  Compl. ¶ 2.  Fisher has some 423 retail store locations in 
the United States.  Id. ¶ 3.  “Ohio is the state in which Fisher has the greatest number of 

locations, with 73 locations, about 17% of the total number of Fisher’s locations.”  Id.  
Fisher has no employees, stores, warehouses, or offices in Minnesota.  ECF No. 13 ¶ 6. 
In 2023, FMP and Fisher each bid on the assets of IEH Auto Parts Holding LLC in 
an auction held through IEH’s Chapter 11 proceeding in the United States Bankruptcy 
Court for the Southern District of Texas.  ECF No. 28 ¶ 10–11.  To receive due-diligence 

information  about  the  potential  acquisition  of  IEH’s  assets  through  the  auction,  the 
Bankruptcy Court required would-be bidders to provide “an executed [non-disclosure 
agreement] on terms acceptable to [IEH].”  In re IEH Auto Parts Holding LLC, No. 23-
90054 (CML), Dkt. No. 208 at 11 (Ex. A) (Bankr. S.D. Tex. Mar. 10, 2023).  Signatories 
to  the  non-disclosure  agreement  agreed  not  to  use  or  disclose  IEH’s  confidential 
information except in “consideration of whether to enter into” the potential acquisition of 
IEH’s assets.  Id. Ex. A, Schedule 1 ¶ 2.  Signatories also agreed not to directly or indirectly 

solicit or hire IEH’s employees for a certain period after signing the non-disclosure 
agreement.  Id. ¶ 3.                                                      
FMP signed a non-disclosure agreement, see Compl. Ex. 1, and FMP alleges that 
Fisher signed a substantially similar non-disclosure agreement.  Id. ¶ 23; see ECF No. 28 
¶ 10.  FMP alleges that IEH shared confidential information with Fisher that enabled Fisher 

to learn “the identity, current compensation, and positions of employees at . . . IEH’s 
locations being auctioned off,” “sales and revenue information regarding IEH customers,” 
and the “identity of IEH potential customers.”  Compl. ¶¶ 25–26.          
The IEH asset auction occurred on May 10, 2023.  Compl. ¶ 28.  Fisher and its 
co-bidder, Parts Authority, submitted the high bid for 163 non-Minnesota IEH locations; 

FMP was the second-highest bidder.  Id.; ECF No. 28 ¶¶ 11, 14.  Fisher “did not bid on 
any lots that included IEH’s stores or assets in Minnesota.”  ECF No. 13 ¶ 15.   
Fisher’s bid fell through.  At a bid-approval hearing in the Bankruptcy Court on 
May 19, 2023, “IEH’s counsel revealed that it had come to light . . . that Fisher and Parts 
Authority had circumvented the auction bidding process, raising questions about their good 

faith.”  Compl. ¶ 29; ECF No. 28 ¶ 13.  IEH’s counsel reported to the Bankruptcy Court 
that  “requests  and  inside  information  in  connection  with  the  bidding  had  been 
communicated between one or more persons at IEH on one hand, and Fisher and Parts 
Authority on the other hand,” but that this information was not made available to other 
bidders.  Compl. ¶ 30.  As a result, the Bankruptcy Court rejected the Fisher/Parts Authority 
bid, and they were disqualified from participating in the auction.  Id. ¶ 33.   As the second 
highest bidder, FMP was next in line to acquire the IEH locations on which Fisher and 

Parts Authority initially bid.  Id. ¶ 34.1                                
On May 19, 2023, the Bankruptcy Court approved FMP as the winning bidder for 
these 163 IEH locations.  Id. ¶ 35.  FMP closed on these locations on June 12, 2023.  ECF 
No. 28 ¶ 16.  FMP hired former IEH employees who worked at these locations.  Compl. ¶¶ 
36–38; ECF No. 28 ¶ 15.  Once hired, the employees were subject to FMP’s employee 

confidentiality obligations and non-disclosure agreements.  Compl. ¶¶ 39–43. 
After FMP closed on the transaction, Fisher inquired three times about purchasing 
some of FMP’s newly acquired locations, but no call led to an acquisition or agreement: 
(1) On June 12, 2023, Fisher President Herbert Godschalk telephoned FMP’s Executive 
Vice President Todd Heldt.  ECF No. 34 ¶¶ 2–3; ECF No. 28 ¶16.  Godschalk asked “if 

FMP would be willing to sell any of the locations that FMP had acquired,” and Heldt 
declined.  ECF No. 28 ¶16.  (2) On July 14, 2023, Godschalk returned a call he had received 
from FMP Senior Vice President of Sales Clay Johnson.  ECF No. 34 ¶¶ 4–5.  During this 
call, Godschalk asked whether “FMP would be willing to sell any of the locations that FMP 
had acquired in the IEH bankruptcy auction.”  ECF No. 27 ¶ 3; see ECF No. 34 ¶¶ 4–6.  

Though Johnson told Godschalk he “would get back to him about his inquiry,” ECF No. 

1    Fisher disputes that its Bankruptcy Court conduct was improper.  For purposes of 
this motion, however, the allegation that Fisher obtained information that was not made 
available to other bidders will be accepted as true, and the Bankruptcy Court’s resolution 
of the matter will not be second-guessed or revisited.                    
27 ¶ 3, the record does not show whether this occurred.  (3) On July 18, 2023, Johnson 
called Bo Fisher, one of Fisher’s owners.  ECF No. 33 at 1 & ¶ 7.  During this call, Bo 
Fisher asked Johnson “if FMP would be willing to sell any of the locations that FMP had 

acquired from IEH.”  ECF No. 27 ¶ 4.  Johnson responded that FMP “currently planned to 
operate those locations,” but FMP would “keep Mr. Fisher’s request in mind.”  Id. 
FMP’s core allegation in this case is that Fisher used confidential information 
“obtained  either  in  the  bankruptcy  bidding  process”  or  from  “confidential,  inside 
information that Fisher had otherwise wrongfully obtained from one or more persons inside 

IEH” to “hire away” a significant number of employees from FMP’s newly acquired 
Pennsylvania, New York, and Ohio locations.  Compl. at 2; see id. ¶¶ 45–46.  FMP points 
specifically to Fisher’s hiring of FMP employees Glenn Dawson, a Dayton, Ohio district 
manager, and Dan Robinson, a New York location manager, as examples of this conduct.  
Id. at 2–3.  FMP alleges that Fisher used confidential information Robinson and Dawson 

acquired during their time at FMP, along with information Fisher acquired during the IEH 
bidding process, to “steal” additional FMP employees and customer lists.  Id. ¶¶ 44–59.  
FMP alleges it lost “most or all of [its] customers” and “all of the other FMP employees” 
at its Ohio location, forcing that location to close.  Id. ¶ 48; see ECF No. 28 ¶ 17. 
FMP asserts three claims against Fisher: common-law tortious interference with 

prospective  and  ongoing  economic  advantage,  Compl.  ¶¶  64–75  (Count I); 
misappropriation of trade secrets / confidential information under Minn. Stat. § 325C.01 et 
seq., id. ¶¶ 76–84 (Count II); and common-law tortious interference with FMP’s existing 
and prospective business relations, id. ¶¶ 85–92 (Count III).             
                           II                                        

“Personal jurisdiction . . . is an essential element of the jurisdiction of a district . . . 
court, without which the court is powerless to proceed to an adjudication.”  Ruhrgas AG v. 
Marathon Oil Co., 

 (1999) (second alteration in original) (citation and 
internal  quotation  marks  omitted).    “When  personal  jurisdiction  is  challenged  by  a 
defendant, the plaintiff bears the burden to show that jurisdiction exists.”  Fastpath, Inc. v. 
Arbela  Techs.  Corp.,  

  (8th  Cir.  2014)  (citations  omitted).    “To 
successfully survive a motion to dismiss challenging personal jurisdiction, a plaintiff must 

make a prima facie showing of personal jurisdiction over the challenging defendant.”  

 
(citations omitted).  “But where, as here, the parties submit affidavits to bolster their 
positions on the motion, and the district court relies on the evidence, the motion is in 
substance one for summary judgment.”  Creative Calling Sols., Inc. v. LF Beauty Ltd., 

  (8th  Cir.  2015)  (citation  omitted).    At  this  summary-judgment-

equivalent stage, a case should not be dismissed for lack of personal jurisdiction “if the 
evidence, viewed in the light most favorable to [the plaintiff], is sufficient to support a 
conclusion that the exercise of personal jurisdiction over [the defendant] is proper.”  

 
(citations omitted).                                                      
The issue boils down to determining whether the exercise of personal jurisdiction 

over Fisher would satisfy constitutional due process.  See DURAG Inc. v. Kurzawski, 
No. 17-cv-5325 (ECT/HB), 

, at *3 (D. Minn. May 4, 2020).  Due 
process requires that a defendant have sufficient “minimum contacts” with the forum state 
so that “maintenance of the suit does not offend traditional notions of fair play and 
substantial justice.”  Daimler AG v. Bauman, 

 (2014) (citations and 
internal quotation marks omitted).  This means “actions by the defendant” itself must 
“create a substantial connection with the forum [s]tate” and provide “fair warning” to the 

defendant that it may be subject to jurisdiction there.  Burger King Corp. v. Rudzewicz, 

 (1985) (citations and internal quotation marks omitted); accord, 
e.g., Creative Calling Sols., 

 (defendant’s contacts must permit it to 
“reasonably anticipate being haled into court” in the foreign state (citation omitted)).  The 
“fair warning” requirement will be met if a defendant has “purposefully directed [its] 

activities at residents of the forum, and the litigation results from alleged injuries that arise 
out of or relate to those activities.”  Burger King Corp., 471 U.S. at 472–73 (citations and 
internal quotation marks omitted).                                        
Our Eighth Circuit Court of Appeals has identified five factors that district courts 
are to consider in determining whether a defendant has sufficient minimum contacts with 

the forum state to justify a finding of personal jurisdiction: (1) the nature and quality of 
contacts with the forum state; (2) the quantity of those contacts; (3) the relationship 
between the cause of action and the contacts; (4) the state’s interest in providing a forum 
for its residents; and (5) the convenience to the parties.  Johnson v. Arden, 

 (8th Cir. 2010).  The first three factors are of primary importance.  Burlington Indus., 

Inc. v. Maples Indus., Inc., 

 (8th Cir. 1996) (citation omitted).  “In 
determining whether there is personal jurisdiction, the courts consider the defendant’s 
contacts with the forum in the aggregate, not individually; they look at the totality of the 
circumstances.”    Northrup  King  Co.  v.  Compania  Productora  Semillas  Algodoneras 
Selectas, S.A., 

 (8th Cir. 1995) (citation omitted).    
Begin with the parties’ positions.  The Complaint addresses personal jurisdiction 

over Fisher in one paragraph, alleging:                                   
     This Court has personal jurisdiction over Fisher pursuant to    
     Rule 4(k)(1)(A) of the Federal Rules of Civil Procedure and     
     the Minnesota long-arm statute, 

, subd. 1,  
     which permit the Court to exercise personal jurisdiction over   
     Fisher, a foreign corporation, because Fisher has engaged in    
     tortious  conduct  outside  Minnesota  which  has  irreparably  
     harmed and also caused injury and damage in Minnesota to        
     FMP, a Minnesota corporation headquartered in Minnesota.        
     Further, it is reasonably foreseeable that Fisher’s egregious   
     misconduct towards FMP would irreparably harm, injure, and      
     damage FMP in Minnesota.                                        

Compl. ¶ 5.  This allegation tracks the “effects test” described in Calder v. Jones, 

 (1984), see Kendall Hunt Publ’g Co. v. Learning Tree Publ’g Corp., 

 
(8th  Cir.  2023)  (describing  Calder’s  effects  test),  implying  that  FMP’s 
personal-jurisdiction theory depends only on applying Calder’s effects test to Fisher’s 
activities.                                                               
Though the Complaint appears exclusively directed at the Calder effects test, the 
parties’ submissions are directed to both a typical minimum-contacts analysis and the 
Calder effects test.  FMP’s front-line position is that Fisher’s direct Minnesota contacts 
would enable a reasonable factfinder to conclude that a Minnesota court might properly 
exercise  personal  jurisdiction  over  Fisher.    See  ECF  Nos.  26–29.    Fisher  submits 
declarations  and  other  materials  to  show  it  lacks  meaningful  direct  contacts  with 
Minnesota.  ECF Nos. 13, 32–34.                                           
Answering  the  personal-jurisdiction  question  here  thus  begins  with  a  typical 
minimum-contacts  analysis.  If  that  analysis  does  not  show  the  presence  of  personal 
jurisdiction over Fisher, it will be necessary to apply the Calder effects test.  Again, 

Fisher’s motion to dismiss for lack of personal jurisdiction must be granted unless the 
parties’ submissions—construed in a light most favorable to FMP—show that Fisher’s 
actions created a substantial connection with Minnesota and provided fair warning to 
Fisher that it might be subject to jurisdiction here.  Burger King Corp., 471 U.S. at 472–
73; Creative Calling Sols., 799 F.3d at 979–80.                           

(1) The nature and quality of Fisher’s Minnesota contacts cannot reasonably be 
construed to support the exercise of personal jurisdiction over Fisher.  Fisher is a Virginia 
corporation with no employees, offices, stores, warehouses, or distribution centers in 
Minnesota.  ECF No. 13 ¶¶ 5–6.  It is not registered to do business in Minnesota.  Id. ¶ 8.  
It does not regularly ship or deliver products into Minnesota.  Id. ¶ 7.  It has not solicited 

customers, directed marketing efforts, or engaged in recruiting efforts in Minnesota.  Id. 
¶¶ 9–11.  It has not hired or recruited FMP employees who were working in Minnesota.  
Id. ¶¶ 12–13.  By FMP’s account, any dispute-related activities happened outside of 
Minnesota and were related to FMP’s newly acquired locations in New York, Ohio, and 
Pennsylvania.  Compl. at 2–3; ECF No. 28 ¶¶ 17–18.2                       



2    There is no discernible basis to tie Fisher’s involvement in the bankruptcy auction 
to any jurisdiction-related Minnesota contacts.  The evidence is undisputed that Fisher did 
not conduct due diligence or bid on any lots that included IEH locations or assets in 
Minnesota.  ECF No. 13 ¶ 15.                                              
FMP identifies four contacts that it says may be construed to support personal 
jurisdiction: the three telephone calls described above in which Fisher representatives 
Godschalk and Bo Fisher inquired regarding Fisher’s potential acquisition of former IEH 

locations, and one in-person visit Bo Fisher made to FMP’s Minnesota headquarters in 
2017.  Whether considered separately or together, these facts lack a nature or quality that 
might reasonably be construed to justify the exercise of personal jurisdiction over Fisher 
in Minnesota.  It is not clear whether the telephone calls had a Minnesota connection.  
FMP’s participants in the calls do not say that they were in Minnesota when the calls 

occurred.  See ECF No. 27 ¶¶ 3–4; ECF No. 28 ¶ 16.  Regardless, the calls’ substance 
lacked  any  demonstrated  Minnesota  connection.    The  calls  concerned  former  IEH 
locations, but no evidence shows that Fisher inquired about Minnesota locations, and 
Godschalk’s testimony that “Fisher was not interested in purchasing any locations in 
Minnesota, and that [this subject] was never broached or discussed,” ECF No. 34 ¶ 6, is 

unrebutted.  Bo Fisher’s 2017 Minnesota visit doesn’t add anything.  It occurred several 
years before the transactions giving rise to this case.  It was made on behalf of a separate 
entity, Federated Auto Parts Distributors, Inc., a “large buying group and distribution 
network incorporated and headquartered in Virginia,” “to explore whether [FMP] was 
interested in becoming a member of Federated.”  ECF No. 33 ¶¶ 2–6.  And it was quite 

brief.  Bo Fisher was “on the ground in Minnesota for less than six hours.”  Id. ¶ 2.    
(2) The record cannot reasonably be construed to show that Fisher had a substantial 
number of Minnesota contacts.  At most, it was the four contacts just discussed.  By any 
reasonable measure, that is not a substantial number.                     
(3) A relationship between FMP’s causes of action and Fisher’s four Minnesota 
contacts is not apparent.  FMP’s claims arise from Fisher’s participation in the bankruptcy 
court auction in Texas, Fisher’s Virginia-based business activities, and its actions in 

connection  with  FMP’s  operations  in  Ohio,  Pennsylvania,  Virginia,  and  New  York.  
Compl. at 2–3.  It is difficult to understand how Fisher’s Minnesota contacts might 
establish an element, or otherwise feature in FMP’s prosecution, of its claims.       
(4) & (5)  “[T]he better understanding of the Eighth Circuit’s statements that the last 
two factors are ‘not determinative’ or ‘not dispositive’ is that those factors cannot establish 

jurisdiction when there are not otherwise minimum contacts with the forum.”  Blue Cross 
& Blue Shield of N.C. v. Rite Aid Corp., 

, 534 n.3 (D. Minn. 2021).  If 
they could affect the outcome, the last two factors do not favor personal jurisdiction so 
strongly as to overcome the absence of a substantial connection between Fisher and 
Minnesota.                                                                

As is usually the case, measuring Minnesota’s interest in providing a forum for FMP 
is an inexact science.  FMP is incorporated in and maintains its principal place of business 
in Minnesota, Am. Compl. ¶ 1, and Minnesota has an interest in providing a litigation 
forum for FMP.  See K-V Pharm. Co. v. J. Uriach & CIA, S.A., 

 (8th Cir. 
2011).  That interest may not be so strong when, as here, the litigation-provoking activities 

occurred in four other states.  But whatever its precise extent here, Minnesota’s interest 
“cannot make up for the absence of minimum contacts.”  Digi-Tel Holdings, Inc. v. Proteq 
Telecomms. (PTE), Ltd., 

 (8th Cir. 1996).                 
Likewise, the convenience to the parties of a Minnesota forum does not justify 
concluding there is personal jurisdiction over Fisher.  Minnesota is a convenient forum for 
FMP, but not in every respect.  As pleaded, FMP’s claims stemmed from Fisher’s actions 

in Virginia and all occurred outside of Minnesota, at FMP’s newly acquired locations in 
Ohio, Pennsylvania, Virginia, and New York.  Compl. at 2–3.  Thus, discovery must occur 
in those states, and trial witnesses and exhibits would come from there as well.  Minnesota 
is not a convenient forum for Fisher.                                     
(5) The Calder “effects test” is an “additional factor” to be considered in intentional-

tort cases.  Kendall Hunt Publ’g Co. v. The Learning Tree Publ’g Corp., 

 
(8th Cir. 2023).  As our Eighth Circuit Court of Appeals has described it, the Calder effects 
test requires a plaintiff to show the presence of three elements: (1) that a defendant’s acts 
were intentional; (2) that the acts “were uniquely or expressly aimed at the forum state”; 
and (3) that the acts “caused harm, the brunt of which was suffered—and which the 

defendant knew likely was to be suffered—[in the forum state].”  

 (quoting Brothers and 
Sisters in Christ, LLC v. Zazzle, Inc., 

 (8th Cir. 2022)).  The Eighth Circuit 
“construe[s] the Calder effects test narrowly” in the sense that “mere effects in the forum 
state are insufficient to confer personal jurisdiction.”  Johnson v. Arden, 

 
(8th Cir. 2010).                                                          

Here, the record cannot reasonably be construed to show anything more than “mere 
effects” in Minnesota.3  Calder’s second element requires that a defendant deliberately 

3    It  appears  undisputed  that  FMP’s  tortious  interference  and  misappropriation 
allegations fall in the intentional-tort category, satisfying the first Calder element. 
create “contacts with the forum State itself,” not merely “contacts with persons who reside 
there.”  Walden v. Fiore, 

 (2014).  “To be sure, a defendant’s contacts 
with the forum State may be intertwined with his transactions or interactions with the 

plaintiff or other parties.  But a defendant’s relationship with a plaintiff or third party, 
standing alone, is an insufficient basis for jurisdiction.”  

; see also WTAS, LLC v. 
West Tenn. Air Serv., LLC, No. 23-cv-2015 CJW-MAR, 

, at *4, 6–7 
(N.D. Iowa Apr. 24, 2023).  Here, FMP has not shown that Fisher deliberately created 
Minnesota  contacts  to  carry  out  its  alleged  misappropriation  of  FMP’s  confidential 

information or tortious interference with FMP’s business relations or ongoing economic 
advantage.  By all accounts, Fisher’s suit-provoking activities all occurred in states other 
than Minnesota, and nothing was “uniquely or expressly aimed” at Minnesota.  Kendall 
Hunt Publ’g Co., 

; Ecolab Inc. v. IBA, Inc., No. 22-cv-479 (ECT/DTS), 

, at *7 (D. Minn. Oct. 26, 2023).  All that remains is FMP’s argument 

that Fisher knew FMP was located in Minnesota and knew FMP would be injured in 
Minnesota as a result of Fisher’s outside-of-Minnesota acts.  This is insufficient to confer 
jurisdiction.  See Walden, 

, (“[M]ere injury to a forum resident is not a 
sufficient connection to the forum.”); see also Ecolab, 

, at *7. 
                           *                                         

When  a  federal  district  court  determines  it  lacks  personal  jurisdiction  over 
defendants and the “plaintiff seriously intends to press [its] claim,” the result should be an 
order transferring the case to an appropriate judicial district rather than outright dismissal. 
Thompson v. Ecological Sci. Corp., 

, 470 n.4 (8th Cir. 1970); see also Am. 
Registry of Radiologic Technologists v. Bennett, 

 (D. Minn. 2009) 
(“Although the Court lacks personal jurisdiction over Defendants, it may transfer this 
action to any other district in which it could have been brought, if justice so requires.”); 

Ready 4 A Change, LLC v. Sourcis, Inc., No. 18-cv-1341 (ECT/ECW), 

, 
at *5 (D. Minn. Jan. 17, 2019).  Consistent with these rules, Fisher requested that the case 
be transferred to the Western District of Virginia, the state in which it is incorporated and 
where its principal place of business is located.                         
The problem is that FMP’s litigation intentions at this point are not clear.  No doubt 

FMP believes it has suffered substantial damages and possesses viable legal claims.  
However, in response to Fisher’s motion, FMP only defended its right to bring this case in 
Minnesota.  FMP did not, for example, identify a judicial district to which it would prefer 
the  case  be  transferred,  and  its  objections  to  the  Western  District  of  Virginia  left 
considerable doubt regarding whether FMP would prosecute the case if that were its only 

venue option.  In this circumstance, the better choice is to dismiss the case outright, leaving 
FMP the option to re-commence the case, if at all, in a forum of its choosing.  If FMP 
pursues that course in a forum other than the Western District of Virginia, Fisher obviously 
retains the ability to object on personal jurisdiction and venue grounds or to seek a 
convenience- and interest-of-justice-based transfer under 

(a).   

Therefore, based on the foregoing, and on all the files, records, and proceedings 
herein, IT IS ORDERED THAT:                                               

1.   Defendant  Fisher  Auto  Parts,  Inc.’s  Motion  to  Dismiss  for  Lack  of 
Jurisdiction and Improper Venue, or, in the Alternative, Motion to Transfer/Change Venue 
[ECF No. 9] is GRANTED.                                                   
2.   This action is DISMISSED WITHOUT PREJUDICE for lack of personal 
jurisdiction.                                                             

       LET JUDGMENT BE ENTERED ACCORDINGLY.                          

Dated: February 12, 2024           s/ Eric C. Tostrud                     
                              Eric C. Tostrud                        
                              United States District Court