Free Stipulation - District Court of Delaware - Delaware

A Case 1 :07-cv—OO346-SLR Document 47 Filed O3/20/2008 Page 1 of 4
A IN THE UNITED STATES DISTRICT COURT
’ FOR THE DISTRICT OF DELAWARE
_' E. I. DU PONT DE NEMOURS AND )
y COMPANY, ) i
Plaintiffi )
) C.A. No. 07-346 SLR
v. )
)
MECHANICAL INTEGRITY, INC., )
Defendant. )
‘ JOINT STIPULATION AND ORDER TO TRANSFER
1 The parties hereto, by and through their undersigned counsel, hereby stipulate and agree,
l subject to the approval of the Court, to the transfer of the above-captioned case from this Court
_g to the U.S. District Court for the Western District of Kentucky (Louisville Division), pursuant to
28 U.S.C. Section l404(a). The grounds upon which the proposed transfer of this case are based
are as follows:
l. This is an action for breach of contract, misrepresentation and fraud which was
brought by plaintiff E. I. du Pont de Nemours & Company ("DuPont") against defendant
it Mechanical Integrity, Inc. ("MI") arising from a pipeline inspection performed at DuPont's
Louisville, Kentucky plant. (D.I. l) Ml tiled a third party complaint against NDT Equipment
Services LTD ("NDT”) and Mike Walker ("Walker") on October 19, 2007, alleging that NDT
and Walker were subcontracted to perform the inspection. (D.I. 20) Walker has been voluntarily
if dismissed from the third party action and NDT has moved to dismiss the third party complaint on
grounds that this Court lacks personal jurisdiction over it. (D.I. 28)
i 2. Section l404(a) provides that, "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

Case 1 :07-cv—OO346-SLR Document 47 Filed O3/20/2008 Page 2 of 4 I
2 where it might have been brought." 28 U.S.C. § l404(a). Section 1404(a) is designed “to avoid }
the waste of time, energy, and money to protect litigants, witnesses, and the public against
unnecessary inconvenience and expense." Var: Duser: v. Barrack, 376 U.S. 612, 616
E (1964)(internal citations omitted). The parties seek the transfer of this action to the U. S. District
Court that will be able to exercise personal jurisdiction over all parties, and potential parties, that
are necessary to the resolution of this case.
3. This case may be transferred to the Western District of Kentucky because it could
have originally been brought there. The Western District of Kentucky (l) can exercise diversity
pp subject matter jurisdiction over the dispute; (2) can exercise personal jurisdiction over all the
` parties and potential parties; and (3) would be a proper venue as the district in which the pipeline
( inspection occurred. See Ajjzmetrix, Inc. v. Synteni, Inc., 28 F. Supp.2d 192, 196 (D. Del. 1998).
4. Moreover, the balance of convenience and interests of justice strongly favor
transfer. The events which led to this lawsuit occurred in Kentucky, and all relevant records and
many of plaintiffs witnesses are located in Kentucky. Most importantly, however, Walker and
NDT may only be available for service of process in Kentucky. See Ajjjzmetrix, 28 F. Supp. 2d at
203 ("[T]he location of potential witnesses, and, thus, their ability to be subject to compulsory.
process has weighed heavily in the `balance of convenience’ analysis")(citations omitted).
_ 5. Another important public interest factor to be considered is the efficient use of
judicial resources. See Kirschrzer Brothers Oil, Inc. v. Parmill, 697 F. Supp. 804, 808 (D. Del.
1988). The Western District of Kentucky also has a significantly greater interest in the outcome
gn of this litigation because the underlying inspection of the Plant occurred there. Finally, transfer
up to the Western District of Kentucky would promote a more efficient use of judicial resources.
Failure to transfer the case to Kentucky would result in multiple lawsuits arising out of the S3.1'1'1€
2

Case 1 :07-cv—OO346-SLR Document 47 Filed O3/20/2008 Page 3 of 4
operative set of facts. lf this case was not transferred, DuPont’s lawsuit against Ml would
continue to be heard by this Court. However, a separate lawsuit against Walker and! or NDT
would have to filed by DuPont in the Western District of Kentucky. Not only would this be
wasteful of important judicial resources where the two actions could be heard by the Western
i District of Kentucky, it would also present the potential for inconsistent judicial outcomes. By
transferring this lawsuit to the Kentucky Court, judicial resources would be conserved and the i
potential for inconsistent judgments would be eliminated. i
_ 6. DuPont originally brought this action before this Court because the contract
-_ between Ml and DuPont contains a provision whereby Ml consented and submitted exclusively
.2 to the jurisdiction and service of process of the courts of the State of Delaware or the courts of
the United States located in Delaware. With DuPont's discovery of l\lDT’s involvement in the
inspection of the Louisville plant, which occurred only after filing this action, DuPont believes
that NDT is a necessary party to this case. By its consent herein, MI has agreed to waive the
Delaware selection provision of its contract with DuPont.
POTTER ANDERSON & CORROON LLP REGER RIZZO KAVULICH &
. DARNALL LLP
Q By: /s/ Kathleen F urey McDonough By: /s/ Louis .1 Rizzo
fj Kathleen Furey McDonough (LD. 2395) Louis J. Rizzo, Jr. (l.D. 3374)
L, Sarah E. DiLuzio (LD. 4085) 1001 North efferson Street
YQ 1313 N. Market Street Suite 202
Hercules Plaza, 6th Floor Wilmington, DE 19801
Wilmington, DE 19899-0951 (302) 652-3611
(302) 984-6000
- Attorneys jbr Dejiindant Mechanical Integrity
- Attorneys for Plaintw
J E. L du Pont de Nemours and Company
Dated: March 20, 2008
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Case 1 :07-cv—OO346-SLR Document 47 Filed O3/20/2008 Page 4 of 4
It is hereby ORDERED this _ day of that:
1. The parties' Joint Stipulation to Transfer is hereby GRANTED, and
2. The above-captioned matter is hereby TRANSFERRED to the United States
District Court for the Western District of Kentucky (Louisville Division). E
The Honorable Sue L. Robinson
United States District Court Judge
855672