Greif Packaging, LLC v. Transcend Transit, LLC et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GREIF PACKAGING, LLC,
Plaintiff,
v.
TRANSCEND TRANSIT, LLC, et
al.
Defendants.
Case No. 2:25-cv-345
JUDGE DOUGLAS R. COLE
Magistrate Judge Vascura
OPINION AND ORDER
Defendants Transcend Transit, LLC, Excel Transport, LLC, Robert L. Mack
Jr. (acting collectively through one motion, see Doc. 15), and Deborah A. Davis
(through another, see Doc. 16), move to dismiss Plaintiff Greif Packaging, LLC’s
Complaint (Doc. 1), or alternatively seek to have the Court transfer the case to the
Southern District of Texas. 1 The Complaint alleges that these four Defendants (along
with another defendant, Alexander Silva, who is in default) combined to defraud Greif
out of more than a million dollars. Seeking to recover the funds, Greif asserts a slew
1 Technically, Defendants seek dismissal on forum non conveniens grounds. But forum non
conveniens applies only if the proposed alternative forum is abroad. Zions First Nat’l Bank
v. Moto Diesel Mexicana, S.A. de C.V., 629 F.3d 520, 523 n.1 (6th Cir. 2010). Here, however,
the proposed alternative forum is the Southern District of Texas. Accordingly, the Court
construes Defendants’ motions as requests to transfer under 28 U.S.C. § 1404(a). Id. (“If
another federal district is an alternative forum, dismissal on grounds of forum non
conveniens is inapplicable and § 1404(a) applies.” (emphasis omitted)); Leonard v. Bed, Bath
& Beyond, Inc., No. 2:14-cv-2357, 2015 WL 3440852, at *2 (D.N.J. May 22, 2015) (citation
omitted) (“[W]hen there is another appropriate federal district court forum, the motion for
dismissal on forum non conveniens grounds is best treated as a motion to transfer.” (emphasis
omitted)); Triangle Fastener Corp. v. Connective Sys. & Supply, Inc., No. 2:24-728, 2024 WL
4349234, at *2 (W.D. Penn. Sep. 30, 2024) (quoting Leonard, 2015 WL 3440852, at *2) (same).
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of claims under the Racketeer Influenced and Corrupt Organizations Acts (RICO),
the Ohio Corrupt Practices Act, and numerous other state-law theories. For the
reasons set forth below, the Court DISMISSES Excel WITHOUT PREJUDICE,
and then TRANSFERS the case to the Southern District of Texas, (Docs. 15; 16).
BACKGROUND
Greif Packaging, a Delaware LLC, is an industrial packaging products and
services 	company. 	(Doc. 	1, 	#4). 	Its 	principal 	place 	of 	business 	is 	a 	different
Delaware—the city in Ohio. (Id.). The gist of Greif’s Complaint is that two of its
former 	employees, 	Deborah 	A. 	Davis 	and 	Alexander 	Silva, 	colluded 	with 	two
transportation companies, Transcend Transit LLC and Excel Transport LLC, to
defraud Greif out of more than one million dollars. (Id. at #2–3). Robert L. Mack Jr.,
Davis’s 	brother, 	owns 	both 	companies. 	(Id. 	at 	#23). 	While 	that 	may 	sound
straightforward, describing the various schemes that Greif alleges requires an
understanding of Greif’s operations in Texas, Greif’s relationship with Transcend
and Excel, and the roles that Davis and Silva played at Greif. 2
A. 	Greif’s Texas Operations, Contracts with Transcend and Excel, and
Employment Relationships with Davis and Silva.
Start with Greif’s Texas operations. Greif maintains two facilities, “Houston
Steel 1” (HS1) and “Houston Steel 2” (HS2), in La Porte, Texas. (Id. at #6). Each
2 Because this matter is before the Court on a motion to dismiss, the Court accepts the factual
allegations in the Complaint as true and relies on them to describe the background below.
Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (quotation
omitted). That said, the Court reminds the reader that they are still only allegations at this
point.
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facility produces steel drums. (Id.). Greif’s Shipping Coordinator, the position in
which 	Defendant 	Silva 	worked 	until he resigned in 	February 	2024, 	plays an
“important role” at the company by “(1) managing int[er]-facility 3 transfers between
HS1 and HS2; (2) managing incoming and outgoing shipments; and (3) organizing
shipments to customers through BluJay,” the software Greif uses to track and log its
shipments. (Id. at #5–6). The first of these tasks—inter-facility transfers—involves a
three-step process. First, Greif’s customer-service department receives a sales order
for processing. (Id. at #6). These orders are processed through Greif’s Enterprise
Resource Planning System (ERP), which Greif refers to as “SBP” in its Complaint.
(Id. at #5). That system is “located” in Delaware, Ohio. 4 (Id.). Second, the Shipping
Coordinator (again, Silva) solicits rates from a list of contracted carriers in Greif’s
system, which are then uploaded to BluJay. (Id. at #6). Third, BluJay recommends a
carrier based on the lowest bidder, and the Shipping Coordinator then assigns a
specific carrier to transport the order either from HS1 to HS2 or from HS2 to HS1.
(Id.).
To ensure that it can meet shipping demands, Greif maintains a fleet of trailers
at 	both 	HS1 	and 	HS2. 	(Id.). 	Maintaining 	that 	fleet 	involves 	“recovery 	and
redeployment” of the trailers when they are needed elsewhere. (Id.). Just like it does
3 Greif’s Complaint uses the term “intra-facility” transfer, but the Court notes that “inter-
facility” transfer is a more apt description of the conduct that Greif alleges—moving trailers
between HS1 and HS2, or vice versa. See, e.g., Bryan A. Garner, Garner’s Modern English
Usage 611 (5th ed. 2022) (“Inter- means ‘between, among.’ Intra- means ‘within, in.’” (italics
in original)).
4 The Court adopts this description for purposes of relaying Greif’s allegations. But the Court
also notes that it is not sure what it means to say that a networked electronic system—which
Greif’s SBP system almost certainly is—is “located” in a particular place.
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for inter-facility transfers, Greif also solicits bids from contracted carriers for
recovering and redeploying the trailers. (Id. at #6–7). To assist Greif in its efforts to
keep a close watch on where its trailers are located, Greif’s trailers are often equipped
with a GPS tracking device that both provides real-time tracking and stores the
historical locations of the trailers. (Id. at #7).
All that brings the Court to Greif’s relationship with Transcend and Excel.
They are two of the “contracted carriers” that provide the services described above.
More specifically, in 2018, Greif entered into a Transportation Agreement with
Transcend, a Mississippi company. (Id. at #10; Doc. 1-4 (transportation agreement);
Mack Decl., Doc. 15-1, #408). Mack, Transcend’s owner, executed the Transportation
Agreement on the company’s behalf. (Doc. 1, #10; Doc. 1-4, #81). In the agreement,
Transcend promised to provide motor carriage transportation and related services as
Greif required. (Doc. 1, #10; Doc. 1-4, #75). The Transportation Agreement specifies
that it is governed by Ohio law, and that “[a]ll judicial actions or arbitration
proceedings affecting th[e] agreement shall be conducted in Delaware County, Ohio.”
(Doc. 1, #10; Doc. 1-4, #79). It also says that “[a]ny claim, dispute or controversy
arising out of or relating to this Agreement, the relationship of the parties under this
Agreement, or the breach of this Agreement, shall be determined by arbitration.”
(Doc. 1-4, #79). Separately, the Agreement required Transcend to “adhere” to Greif’s
“Supplier Code of Conduct.” (Id.; Doc. 1, #10). Among other things, the Supplier Code
requires Greif’s suppliers to maintain “the highest standards of ethical conduct” and
refrain from “[a]ll forms of corruption, extortion, fraud, bribery and embezzlement.”
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(Doc. 1, #7; Doc. 1-1, #66 (Supplier Code)). Suppliers must also “[d]ecline to enter into
transactions that create a conflict of interest and report any situations that may
appear as a conflict of interest,” and “comply with all applicable national and local
laws, rules, regulations and requirements.” (Doc. 1, #7; Doc. 1-1, #66).
The following year, in 2019, Greif executed two similar agreements with Excel,
another Mack-owned Mississippi enterprise. (Doc. 1, #10–11; Doc. 15-1, #408; see Doc.
1-5; Doc. 1-6). The first, a “Master Trailer Interchange Agreement,” “allowed trailers
operated by either Greif or Excel to ‘be used in service of the other.’” (Doc. 1, #10; Doc.
1-5 (interchange agreement)). In other words, “it was a trailer-sharing agreement”
between Greif and Excel. (Doc. 1, #10). A few months later, in July 2019, Greif and
Excel executed a “Transportation Brokerage Agreement.” (Id. at #11; Doc. 1-6
(brokerage agreement)). Under the Brokerage Agreement, Greif agreed that it would,
from “time to time,” tender freight to Excel, which would then “arrange for the pick-
up, transport, and delivery of all freight tendered.” (Doc. 1-6, #90). As he had done
with Transcend’s Transportation Agreement, Mack executed both the Interchange
Agreement and the Brokerage Agreement on Excel’s behalf. (Doc. 1, #10–11; Doc. 1-
5, #88; Doc. 1-6, #95). Moreover, the Excel agreements contain forum-selection and
choice-of-law provisions similar to those in Transcend’s Transportation Agreement,
as well as provisions requiring Excel to adhere to Greif’s Supplier Code. (Doc. 1-5,
#87; Doc. 1-6, #94).
Finally, consider Defendants Davis and Silva, who are two former Greif
employees. Davis, Mack’s sister, joined Greif as a Customer Service Specialist in
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2002, many years before Greif’s dealings with Transcend and Excel. (Doc. 1, #7). She
worked at Greif’s HS1 facility. (Id. at #8). Davis’s job duties included, among other
things: “providing support to customers … ; maintaining customer accounts and
records 	of 	customer 	interactions; 	communicating 	pricing, 	shipping 	dates, 	and
appropriate order information to customers; and collecting and entering orders for
new or additional products or services.” (Id.). When she joined Greif, Davis executed
a Confidentiality Agreement that bars her from divulging, or using for the benefit of
herself or a third party, various categories of information outlined in the Agreement.
(Doc. 1, #7–8; Doc. 1-2 (confidentiality agreement)). Although Davis’s Agreement
contains a choice-of-law clause specifying that it “shall be governed by the laws of
Ohio,” it contains no forum-selection, arbitration, or Supplier Code clause. (Doc. 1-2,
#70).
Silva, meanwhile, joined Greif as a Day Dispatcher in 2020. (Doc. 1, #9). Greif
eventually promoted him to Shipping Coordinator. (Id.). In the latter position, Silva’s
job duties included, in addition to the duties already described above, “operating
machinery, maintaining logs and records, inspecting equipment, receiving and
processing 	orders, 	preparing 	documentation 	for 	shipments, 	and 	coordinating
deliveries.” (Id.). Silva signed a Confidentiality and Proprietary Rights Agreement
when 	he 	joined 	Greif. 	(Id.; 	Doc. 	1-3 	(confidentiality 	and 	proprietary 	rights
agreement)). That Agreement contains no choice-of-law, forum-selection, arbitration,
or Supplier Code clause, but it bars Silva from disclosing several categories of Greif’s
proprietary information. (Doc. 1, #9; Doc. 1-3, #72).
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B. 	Greif Launches an Investigation into Silva After a Whistleblower
Reports 	Fraudulent 	Activity, 	and 	Greif 	Uncovers 	a 	Series 	of
Fraudulent Schemes Involving Defendants.
With the various players defined, let’s next discuss the alleged schemes. In
February 2024, Greif received a message from a former Transcend employee. (Doc. 1,
#12; Doc. 1-7 (text message chain)). That message explained that Silva was “operating
a pay to play” racket in which he “required drivers for various carriers to pay him
cash kickbacks … for the ‘right’ to pull loads from Greif facilities.” (Doc. 1, #12; Doc.
1-7, #102–04). That is, Silva was apparently charging shipping carriers on a weekly
basis for access to “easy loads,” and the ability to “recover empty trailers” from Greif.
(Doc. 1, #12; Doc. 1-7, #102). The specific amount Silva charged a given carrier was a
function of how many trucks the carrier maintained. (Doc. 1, #12; Doc. 1-7, #102). To
substantiate the allegation, the whistleblower provided a video that allegedly shows
Silva grabbing the cash the whistleblower provided to pull one of Greif’s loads. (Doc.
1, #12; Doc. 1-7, #104). The whistleblower also suggested that Silva was splitting
these ill-gotten gains with Davis. (Doc. 1, #12; Doc. 1-7, #103).
So 	Greif 	launched 	an 	investigation 	into 	Silva. 	(Doc. 	1, 	#13). 	And 	that
investigation 	revealed 	several 	allegedly 	fraudulent 	schemes 	involving 	the
Defendants Greif names in its Complaint.
1. 	The Beaumont Yard Scheme.
The first scheme that Greif uncovered involved a rental yard in Beaumont,
Texas, which Transcend subleased to Greif. According to Greif, Transcend began
leasing the yard in April 2020. (Id. at #14). Transcend then subleased the yard to
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Greif for a monthly price of $2,000 from June 2020 to October 2023. (Id.; Doc. 1-9
(Beaumont Yard invoices)). Transcend invoiced Greif through a software application
called Coupa, (Doc. 1, #14), which Greif uses to track its indirect spending, i.e.,
“expenses not directly related to Greif’s production of materials,” (id. at #6). Like
BluJay, Coupa interacts with SBP, Greif’s centralized ERP system, which is located
in Delaware, Ohio. (Id. at #5–6). The Beaumont Yard was apparently used to
facilitate transfers to a nearby client (which Greif does not identify in its Complaint).
(Id. at #14). As Shipping Coordinator, Silva organized incoming and outgoing
shipments from this yard. (Id.).
The distance between the yard and the client was some five-and-a-half miles.
(Id.). And per Greif’s estimation, delivery from the yard to the client should take
approximately 90 minutes. 5 (Id.). But it turns out that Transcend was fraudulently
“overcharging Greif for transportation services between the Beaumont [Y]ard and the
client” by logging excessive hours for these trips. (Id.). For example, in an invoice
dated August 11, 2023, Transcend billed Greif for a total of 47 hours supposedly
worked between July 28, 2023, and August 3, 2023, at a total cost of $2,930. (Id. at
#15; Doc. 1-10 (August 11, 2023 invoice and travel logs)). By Greif’s estimation, these
hours (and therefore the bill based on those hours) exceeded what was reasonably
necessary for the services rendered.
5 Consistent with what the Complaint suggests, the Court assumes that this figure includes,
for example, the time it normally takes to unload the freight. (See Doc. 1, #14 (“Greif
estimates that it should take approximately 90 minutes to deliver goods for this route.”
(emphasis added)).
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The excessive time that Transcend billed is also reflected in trip logs that
Manuel Morales and Ezequel Navarrete, two Transcend employees, produced in
connection with their trips. (Doc. 1, #14, 16). For example, in his August 3, 2023, trip
log, Navarette wrote that it took a total of five hours to complete two five-and-a-half-
mile trips shuttling trailers from the Beaumont Yard to the client. (Id. at #16; Doc.
1-10, #191). The log is consistent with a pattern reflected in several of Navarrete’s
logs, (Doc. 1, #16; Doc. 1-10, #192–97), including those submitted in connection with
different invoices and billing cycles, (see Doc. 1, #17; Doc. 1-11 (March 27, 2023 invoice
and travel logs); Doc. 1-12 (September 26, 2022 invoice and travel logs)). In total,
Morales and Navarrete billed nearly 4,000 hours to Greif, averaging 2.3 hours per
round trip between the Beaumont Yard and the client. (Doc. 1, #17). By contrast,
other drivers averaged 1.4 hours for a trip using the same route (about what Greif
has estimated). (Id. at #18). Take, for example, Frank Young, another Transcend
driver. In a July 17, 2020, travel log, Young performed three round trips between the
Beaumont Yard and the client, plus a trip to La Porte, Texas, in 3.5 hours. (Id.; Doc.
1-13, #222 (Young travel log)).
Greif alleges that this chicanery resulted in some $100,000 in overpayments to
Transcend in connection with trips from the Beaumont Yard to the unidentified
client. (Doc. 1, #18). Silva, as Shipping Coordinator, approved Transcend’s allegedly
fraudulent invoices, thus allowing the conspirators to profit. (Id.). Like the Beaumont
Yard sublease, Transcend billed Greif for these transfers through Coupa. (Id. at #14).
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After it became wise to Transcend’s alleged shenanigans, Greif terminated the
Beaumont Yard lease in December 2023. (Id. at #19). And after that, Greif never
again heard from the client regarding transportation needs. (Id.). Greif regards that
as an indication that “the Beaumont [Y]ard lease was completely unnecessary and
served no purpose other than to subject Greif to high charges and padded hours for
short trips.” (Id.).
2. 	The Trailer-Retrieval Scheme.
Greif’s investigation into Silva revealed another Transcend-related scheme,
this time involving Greif’s trailer-retrieval process. (Id.). Transcend became Greif’s
principal shipping provider in July 2021. (Id. at #20). This marked a shift in the
allocation of Greif’s shipping business. For example, in January 2021, “four separate
shipping providers performed a total of 70 trailer retrievals,” with Transcend
accounting for only 3% of the retrievals for a total price of $260. (Id.). But seven
months later, in July 2021, Transcend performed 96% of Greif’s 107 trailer retrievals
that month, costing Greif something on the order of $28,000. (Id.). Then, from July
2021 to December 2023, Transcend was responsible for 75% or more of Greif’s
monthly trailer retrievals. (Id. at #22). And for 24 of those 30 months, Transcend was
the carrier for 90% or more of the retrievals. (Id.).
Why the sudden shift? Greif’s explanation is that Silva interfered in BluJay’s
ordinary bidding-and-award process. (Id. at #6). BluJay, recall, is the software that
Greif 	uses 	to 	process 	shipping 	bids 	from 	its 	list 	of 	contracted 	carriers. 	(Id.).
Ordinarily, 	BluJay 	recommends 	a 	shipping 	carrier 	based 	on 	the 	carrier 	that
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submitted the lowest bid, and the Shipping Coordinator then awards the job to that
bidder. (Id.). But, starting in July 2021, Silva began bypassing the bidding process
and awarding jobs to Transcend, regardless of whether that decision was cost-
justified. (Id. at #20). Greif says that some of Silva’s manual entries were for trips
that Greif did not need, while others were for jobs that Transcend never performed
at all. (Id.). Of the nearly 6,800 manual overrides that Silva performed, 5,500
awarded jobs to Transcend, and at least 4,700 of those were awarded in connection
with trailer retrievals or purported trailer retrievals. (Id.). As to the latter, Greif says
that the data collected from its GPS tracking devices reveal that, in many cases, the
trailers supposedly in need of transport either never moved or moved in a manner
inconsistent with the documentation that Transcend submitted. (Id.).
Greif’s Complaint offers several examples. On April 1, 2022, Transcend
purportedly moved three trailers from La Porte to Houston, billing Greif some $780.
(Id. at #21–22). Yet Greif’s GPS data indicates that all three trailers remained
stationary during the pertinent time frame. (Id. at #21). Nonetheless, Silva approved
the invoice submitted for these three retrievals. (Id.). All of this is consistent with a
pattern of hundreds, if not thousands, of similar “phantom trailer movements” that
Silva approved. (Id.).
3. 	The Inter-Facility-Transfer Scheme.
Greif 	uncovered 	a 	similar 	scheme 	involving 	its 	inter-facility-transfer
operations, which Davis principally orchestrated. Greif says that, starting in early
2021, Davis began manually awarding loads in need of transport between Greif’s HS1
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and HS2 facilities on a manual basis, overriding BluJay’s ordinary bid-selection
process, just like Silva did in connection with Greif’s trailer-retrieval operations. (Id.
at #22).
One example involves a bill of lading dated March 5, 2021. (Id.). The bill
specified a transfer of two steel coils from HS1 to HS2. (Id.; Doc. 1-14 (March 5, 2021
bill of lading)). Instead of uploading this bill to BluJay only once (i.e., on March 5,
2021), Davis allegedly uploaded it nearly 50 more times to justify awarding jobs to
either Transcend or Excel. (Doc. 1, #22). In just one of those instances, which occurred
on March 13, 2021, Greif ended up paying some $1,620. (Id.). Greif describes several
other examples of the same pattern, including a June 14, 2021, bill of lading uploaded
three separate times, and a January 31, 2022, bill of lading uploaded 53 times. (Id.
at #22–23). Many of these uploads were for jobs that never actually occurred. (Id.).
What’s more, Davis should not have been uploading bills of lading at all. As a
Customer Service Specialist, awarding loads to carriers fell outside Davis’s job duties.
(Id. at #23). So she needed Silva, the Shipping Coordinator, to look the other way
when she uploaded the documentation for the allegedly fraudulent transfers, which
he did. (Id.). From July 2021 to December 2023, Davis performed 592 manual
overrides, awarding 580 jobs to Transcend and 12 to Excel. (Id.).
C. 	Greif’s Investigation Reveals Several Falsehoods Told to Cover Up the
Conspiracy and Illicit Communications Between the Defendants.
There’s more. In addition to uncovering the three schemes detailed above,
Greif’s 	investigation 	revealed 	several 	pieces 	of 	evidence 	indicating 	that 	the
Defendants lied to Greif in order to keep their various plots secret.
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For example, Greif alleges it found out that Davis lied during an interview
Greif did during its investigation, the date of which is not specified in the Complaint.
Specifically, Greif asked Davis whether she had ever performed any work for
Transcend. (Id. at #24). According to Greif, she said no, which was a “lie to conceal
the fraudulent scheme” that the Defendants were undertaking. (Id.). Davis had, in
fact, overridden Greif’s bidding process numerous times to manually award jobs to
Transcend and Excel. (Id.). She also never disclosed that her brother, Mack, owned
both companies. (Id.).
Greif’s investigation led to a second revelation: a pattern of suspicious activity
in Davis’s company email account. (Id.). It turns out that Davis was using her work
email account to send company documents to her personal email account. (Id.). Those
documents included, for example, customer lists. (Id.; Doc. 1-17 (email with customer
list)). 	Greif 	also 	discovered 	that 	Davis 	was 	apparently 	transacting 	Transcend
business using her Greif email account. For example, on February 20, 2023, Becca
Owens, an account manager at the Thomas Wilson Group, LLC, emailed both Davis
(at her Greif email account) and Davis’s husband (who is a member at Transcend) to
inquire about former Transcend driver David Flores’s driver’s license status—a
question involving internal information from Transcend, not Greif. (Doc. 1, #25; Doc.
1-18 (Owens email)). Davis wrote back explaining that Flores had not been a
Transcend driver for over a year. (Doc. 1, #26; Doc. 1-18, #239). That same day, Owens
asked whether an attached Driver and Equipment list was current. (Doc. 1, #26; Doc.
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1-18, #238). And that list contained information for Transcend, not Greif, employees.
(Doc. 1, #27).
Davis also used her Greif email account to correspond with Silva about
Transcend company matters while on the clock for Greif. (Id. at #28). For example, in
a December 22, 2023, email, Davis asks Silva to execute documents on behalf of
Transcend, one of which was a lease termination agreement between Transcend and
Ezequiel Navarrete—one of the Transcend employees involved in the Beaumont Yard
scheme detailed above. (Id. at #28–29; Doc. 1-19). Likewise, in February 2023, Silva
emailed Davis regarding a motor vehicle lease agreement for Manuel Morales—the
other driver implicated in the Beaumont scheme. (Doc. 1, #30; Doc. 1-20 (Morales
email and motor lease agreement)).
Mack 	is 	also 	a 	frequent 	interlocuter 	in 	Davis’s 	and 	Silva’s 	email
communications. On April 24, 2023, for example, Silva emailed Mack and Davis a
time sheet and W-4 form for a Transcend employee, which Davis then forwarded to
her personal email account. (Doc. 1, #32; Doc. 1-21 (April 24, 2023, email)). Other
emails that Davis forwarded to her personal email account using her Greif account
include emails containing Greif’s shipments with Transcend, Greif’s proof of delivery,
Greif’s 	bills 	of 	lading, 	copies 	of 	Greif’s 	order 	acknowledgements, 	and 	emails
containing information for Transcend employees submitted to Greif. (Doc. 1, #34; Doc.
1-22 (Davis emails)). According to Greif, Davis’s and Silva’s email activity using their
Greif email accounts shows that both were “entrenched” in the “Transcend, Excel,
and Mack-backed schemes.” (Doc. 1, #35).
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D. 	Greif’s Theories of Liability and the Defendants’ Motions to Dismiss.
All told, Greif alleges that this pattern of fraudulent conduct enabled the
Defendants to profit at Greif’s expense. (Id.). Based on that, Greif asserts thirteen
counts: (1) a claim under RICO’s civil cause of action against all Defendants for their
various means of defrauding Greif, (id. at #36–40); (2) a civil RICO conspiracy claim
against all Defendants for forming a conspiracy to defraud Greif, (id. at #40–44); (3) a
claim under the Ohio Corrupt Practices Act (OCPA) against all Defendants on the
same grounds that support Greif’s civil RICO claim, (id. at #44–48); (4) an OCPA
conspiracy claim against all Defendants on the same grounds that support Greif’s
civil RICO conspiracy claim, (id. at #48–52); (5) a civil conspiracy claim against all
Defendants that is based on substantially the same grounds as Greif’s civil RICO
claim, (id. at #52–53); (6) a fraudulent concealment and misrepresentation claim
against all Defendants for the various misrepresentations the Defendants made to
Greif in order to keep their conspiracy secret, (id. at #53–56); (7) a civil claim for
criminal theft under Ohio Revised Code § 2307.60, (id. at #56–57); (8) a civil claim for
a criminal act of telecommunications fraud under Ohio Revised Code § 2913.05, (id.
at #57–58); (9) a breach of contract claim against Davis for Davis’s violation of her
Confidentiality Agreement with Greif, (id. at #58–59); (10) a breach of contract claim
against Silva for Silva’s violation of his Confidentiality and Proprietary Rights
Agreement, (id. at #59–60); (11) a breach of contract action against Transcend and
Mack for violation of Transcend’s Transportation Agreement with Greif, (id. at #60);
(12) a breach of contract claim against Excel and Mack for violation of Excel’s
Interchange and Brokerage Agreements with Greif, (id. at #61); and (13) a claim for
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declaratory judgment against Mack on the theory that Mack is personally liable for
the actions of Transcend and Excel because of Mack’s “misuse of the corporate form,
fraud, and other relevant grounds,” (id. at #61–62).
Based on this alleged conduct Greif seeks a host of different forms of relief.
First, a permanent injunction against the Defendants that bars them from (a) using,
disclosing, or disseminating Greif’s confidential business information, (b) retaining
any 	copies, 	summaries 	or 	other 	reproductions 	of 	Greif’s 	confidential 	business
information, or (c) engaging in any activities that would result in the further use or
disclosure 	of 	Greif’s 	confidential 	business 	information. 	Second, a 	declaratory
judgment against Mack. Third, compensatory damages in an amount exceeding $1
million. Fourth, treble damages under 18 U.S.C. § 1964(c) and Ohio Revised Code
§ 2923.34(E). 	And 	finally 	pre- 	and 	post-judgment 	interest; 	punitive 	damages;
attorneys’ fees; costs; and any other relief the Court deems appropriate. (Id. at #62–
63).
All Defendants (except for Silva, who is in default) have now moved to dismiss.
(Docs. 15, 16). Transcend, Excel, and Mack, as a group, contend that (1) the Court
lacks personal jurisdiction over them and this is not an appropriate venue, (Doc. 15,
#380–83); (2) the Court should dismiss the action under forum non conveniens, 6 (id.
at #383); (3) Greif fails to state a claim for relief under any of its various theories, (id.
at #383–405); and (4) Greif’s claim for a declaratory judgment against Mack should
be dismissed for want of a justiciable controversy, (id. at #405). Filing separately,
6 As noted above, see supra note 1, the Court construes this as a request to transfer venue
under 28 U.S.C. § 1404(a).
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Davis contends that (1) Greif fails to state RICO or OCPA claims against Davis, (Doc.
16, #413–15); (2) the Court lacks personal jurisdiction over Davis, (id. at #415–18);
(3) the Court is an improper venue for this action, (id. at #418–19); and (4) the Court
should dismiss the complaint under forum non conveniens, (id. at #419–21). Greif has
responded, (Doc. 19), and Defendants have replied, (Docs. 23, 24). So the matter is
ripe for review.
LEGAL STANDARD
A. 	Motion to Dismiss under Rule 12(b)(6).
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
a “complaint must present sufficient facts to ‘state a claim to relief that is plausible
on its face.’” Robbins v. New Cingular Wireless PCS, LLC, 854 F.3d 315, 319 (6th Cir.
2017) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In assessing plausibility, the
Court “construe[s] the complaint in the light most favorable to the plaintiff.” Bassett,
528 F.3d at 430 (quotation omitted). That is so, however, only as to well-pleaded
factual allegations. The Court need not accept as true any legal conclusions alleged
in a complaint; “labels and conclusions” or a “formulaic recitation of the elements of
a cause of action” will not suffice. Iqbal, 556 U.S. at 678 (cleaned up). And while well-
pleaded allegations are accepted as true, they are just that—allegations. Id.
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A court analyzing a motion to dismiss under Rule 12(b)(6) generally must
confine its review to the pleadings. Armengau v. Cline, 7 F. App’x 336, 343 (6th Cir.
2001). That said, “a court may consider exhibits attached to the complaint, public
records, 	items 	appearing 	in 	the 	record 	of 	the 	case, 	and 	exhibits 	attached 	to
defendant’s motion to dismiss, so long as they are referred to in the complaint and
are central to the claims contained therein, without converting the motion to one for
summary judgment.” Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016) (citations
omitted).
B. 	Motion to Dismiss Under Rule 12(b)(2).
When faced with a motion to dismiss for lack of personal jurisdiction under
Federal Rule of Civil Procedure 12(b)(2), a court has three options: it (1) “may
determine the motion on the basis of affidavits alone”; (2) “permit discovery in aid of
the motion”; or (3) “conduct an evidentiary hearing on the merits of the motion.”
Malone v. Stanley Black & Decker, Inc., 965 F.3d 499, 505 (6th Cir. 2020) (quoting
Serras v. First Tenn. Bank Nat’l Ass’n, 875 F.2d 1212, 1214 (6th Cir. 1989)). If the
Court decides the motion on the pleadings and affidavits alone, a plaintiff need only
make a prima facie showing of personal jurisdiction. Id. (quoting Schneider v.
Hardesty, 669 F.3d 693, 697 (6th Cir. 2012)). In evaluating whether the plaintiff
meets this “relatively slight” burden, the Court “must consider the pleadings and
affidavits in the light most favorable to the plaintiff.” Am. Greetings Corp. v. Cohn,
839 F.2d 1164, 1169 (6th Cir. 1988) (quoting Welsh v. Gibbs, 631 F.2d 436, 439 (6th
Cir. 1980)). And the Court “does not weigh the controverting assertions of the party
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seeking dismissal,” so as to “prevent non-resident defendants from regularly avoiding
personal jurisdiction simply by filing an affidavit denying all jurisdictional facts.”
Theunissen v. Matthews, 935 F.2d 1454, 1459 (6th Cir. 1991) (citing Serras, 875 F.2d
at 1214).
Here, the Court is deciding the motion without conducting an evidentiary
hearing and therefore considers the pleadings and affidavits in the light most
favorable to Greif. Thus, consistent with the authority above, insofar as the parties
aver conflicting accounts of the salient facts, the Court resolves those conflicts in
Greif’s favor. With that version of the facts in mind, “[d]ismissal in this procedural
posture is proper only if all the specific facts which the plaintiff … alleges collectively
fail to state a prima facie case for jurisdiction.” Kerry Steel, Inc. v. Paragon Indus.,
Inc., 106 F.3d 147, 149 (6th Cir. 1997) (emphasis removed) (quoting Theunissen, 935
F.2d at 1458).
LAW AND ANALYSIS
A. 	Excel (but not Transcend) Has Consented to Personal Jurisdiction in
the Southern District of Ohio by Virtue of a Forum-Selection Clause.
The Court begins with personal jurisdiction. See Med. Mut. of Ohio v. deSoto,
245 	F.3d 	561, 	566 (6th 	Cir. 	2001) 	(“As 	with 	every 	case, 	we 	begin 	with 	any
jurisdictional issues.”). But in light of civil RICO’s unique venue and jurisdiction
provisions, which provide for nationwide service of process in certain circumstances,
that analysis looks a bit different than it normally might. Here are the pertinent
statutory provisions:
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(a) Any civil action or proceeding under this chapter against any person
may be instituted in the district court of the United States for any
district in which such person resides, is found, has an agent, or transacts
his affairs.
(b) In any action under section 1964 of this chapter in any district court
of the United States in which it is shown that the ends of justice require
that other parties residing in any other district be brought before the
court, the court may cause such parties to be summoned, and process for
that purpose may be served in any judicial district of the United States
by the marshal thereof.
(c) In any civil or criminal action or proceeding instituted by the United
States under this chapter in the district court of the United States for
any judicial district, subpoenas issued by such court to compel the
attendance of witnesses may be served in any other judicial district,
except that in any civil action or proceeding no such subpoena shall be
issued for service upon any individual who resides in another district at
a place more than one hundred miles from the place at which such court
is held without approval given by a judge of such court upon a showing
of good cause.
(d) All other process in any action or proceeding under this chapter may
be served on any person in any judicial district in which such person
resides, is found, has an agent, or transacts his affairs.
18 U.S.C. § 1965.
The Sixth Circuit recently explained the import of some of this language in
Peters Broadcast Engineering, Inc. v. 24 Capital, LLC, 40 F.4th 432 (6th Cir. 2022).
There, the court noted that, over the past thirty years, a circuit split has emerged as
to 	which 	of 	these 	provisions 	provide 	for 	service 	of 	process 	on 	out-of-district
defendants. Id. at 438. The Fourth and Eleventh Circuits hold that § 1965(d) governs
such service, see ESAB Grp., Inc. v. Centricut, Inc., 126 F.3d 617, 626 (4th Cir. 1997);
Rep. of Panama v. BCCI Holdings (Lux.) S.A., 119 F.3d 935, 942 (11th Cir. 1997),
while the Second, Third, Seventh, Ninth, Tenth, and D.C. Circuits hold that § 1965(b)
is the relevant provision, see PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d
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65, 71–72 (2d Cir. 1998); Laurel Gardens, LLC v. Mckenna, 948 F.3d 105, 117 (3d Cir.
2020); Lisak v. Mercantile Bancorp, Inc., 834 F.2d 668, 671 (7th Cir. 1987); Butcher’s
Union Loc. No. 498, United Food & Com. Workers v. SDC Inv., Inc., 788 F.2d 535,
538–39 (9th Cir. 1986); Cory v. Aztec Steel Bldg., Inc., 468 F.3d 1226, 1229–31 (10th
Cir. 2006); FC Inv. Grp. LC v. IFX Mkts., Ltd., 529 F.3d 1087, 1098–1100 (D.C. Cir.
2008), overruled on other grounds by, Erwin-Simpson v. AirAsia Berhad, 985 F.3d
883, 891 (D.C. Cir. 2021).
The Peters Broadcast court adopted the latter approach, but with a few
clarifications. The first concerned § 1965(a), which, the panel explained, “provides for
venue, not jurisdiction.” Peters Broadcast, 40 F.4th at 440. So another rule, “such as
Federal Rule of Civil Procedure 4(k)(1)(A) and the relevant state’s long-arm statue,”
is necessary to establish jurisdiction over an initial civil RICO defendant. Id. The
second clarification focused on § 1965(b)’s relationship to § 1965(a). Once a district
court has personal jurisdiction over an initial defendant (and therefore venue is
appropriate 	under 	§ 1965(a)), 	§ 1965(b) 	“extends 	personal 	jurisdiction 	through
nationwide service of process over ‘other parties residing in any other district,’” as
long as the “‘ends of justice’ require it.” Id. (quoting 18 U.S.C. §§ 1965(a)–(b)).
So, in sum, a “plaintiff must satisfy two requirements to establish personal
jurisdiction under § 1965(b): (1) at least one other defendant must have minimum
contacts with the forum state, and (2) the ‘ends of justice’ must require that the
district court in question is the one in which the matter should be heard.” Doe v.
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Varsity Brands, LLC, No. 1:22-cv-2139, 2023 WL 4935933, at *14 (N.D. Ohio Aug. 2,
2023).
Greif offers several contacts-based arguments for personal jurisdiction over an
initial “anchor” defendant. But it also says that the Court should give its forum-
selection clauses with Transcend and Excel “controlling weight.” (Doc. 19, #457 n.4
(quoting Atlantic Marine Constr. Co. v. United States Dist. Court, 571 U.S. 49, 60
(2013))). Because “[a] party that validly consents to the jurisdiction of a particular
court in a forum-selection clause waives his or her lack-of-personal-jurisdiction
defense,” Traton News, LLC v. Traton Corp., 914 F. Supp. 2d 901, 907 (S.D. Ohio
2012) (citation omitted), the Court starts here.
1. 	Transcend Has Not Consented to Personal Jurisdiction in the
Southern 	District 	of 	Ohio 	by 	Virtue 	of 	the 	Transportation
Agreement’s Forum-Selection Clause.
As there are three different agreements at issue (one with Transcend and two
with Excel), the Court elects to start with the forum-selection clause in Greif’s
Transportation Agreement with Transcend. That clause provides that “[a]ll judicial
actions or arbitration proceedings affecting this agreement shall be conducted in
Delaware County, Ohio, or such other location as mutually agreed to, in writing, by
the parties.” (Doc. 1-4, #79). Greif says that this language shows that Transcend
consented to personal jurisdiction in the Southern District of Ohio by signing an
agreement with a forum-selection clause “focused on Ohio.” (Doc. 19, #440).
Not so fast. Even granting each of Greif’s premises, the conclusion it seeks does
not follow. True, under Atlantic Marine, a court may almost never set aside a valid
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and binding forum-selection clause. See 571 U.S. at 66. And here, the clause is, in
some sense, “focused on Ohio.” (Doc. 19, #440). But rather than showing that
Transcend has consented to personal jurisdiction in a federal court in the Southern
District of Ohio, it actually shows the opposite. That’s because the clause requires
that all “judicial actions or arbitration proceedings” be “conducted in Delaware
County, Ohio.” (Doc. 1-4, #79 (emphasis added)). That matters because the Southern
District of Ohio does not have a seat of court in Delaware County. The closest it comes
is a seat of court in Franklin County, which adjoins Delaware County. So a clause
that requires judicial actions or arbitration proceedings to occur “in Delaware
County,” means Greif cannot rely on the clause to establish Transcend’s consent to
this (or indeed any) federal forum. See Yakin v. Tyler Hill Corp., 566 F.3d 72, 76 (2d
Cir. 2009).
True, the “wording of the clause” does not literally say no actions in federal
court. Id. But this objection “misses the point.” Id. The forum-selection clause
contains “obligatory venue language” that expresses the “parties’ commitment to trial
in [Delaware] County. Had there been a federal court located in [Delaware] County,”
then the clause could be read to express the parties’ intent to litigate in the Southern
District of Ohio. Id. But the Court is “free only to interpret and enforce the clause as
written,” and as written, it does not evince an intent to litigate in this Court. Id. at
77; see also Wall St. Aubrey Golf, LLC v. Aubrey, 189 F. App’x 82, 86–87 (3d Cir. 2006)
(holding that it would “torture logic” to read a provision that provided for venue “in
Butler County” as authorizing federal jurisdiction in a federal court that “ha[d]
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jurisdiction over Butler County” but nonetheless sat in “Erie, Cambria, and Allegheny
Counties”); Argyll Equities LLC v. Paolino, 211 F. App’x 317, 319 (5th Cir. 2006)
(holding that a federal court based in Bexar County did not “sit[] in” Kendall County);
Collin Cnty. v. Siemens Bus. Servs., Inc., 250 F. App’x 45, 52 (5th Cir. 2007) (holding
that a forum-selection clause precluded federal jurisdiction where the clause specified
a county in which no federal court existed).
Admittedly, some courts take a broader view of language like that at issue
here. Those courts hold that county-specific forum-selection clauses “do not preclude
litigation in the federal court that encompasses the county identified in the forum
selection clause.” Ahern v. Fidelity Nat’l Title Ins. Co., 664 F. Supp. 2d 1224, 1227
(M.D. Fla. 2009) (first citing Priority Healthcare Corp. v. Chaudhuri, No. 08-cv-425,
2008 WL 2477623, at *2–3 (M.D. Fla. June 18, 2008); and then citing Links Design,
Inc. v. Lahr, 731 F. Supp. 1535, 1536 (M.D. Fla. 1990)). But the Court is not
persuaded. To interpret a forum-selection clause is to interpret a contract, and
“[c]ontract interpretation is fundamentally a matter of state law.” Firexo, Inc. v.
Firexo Grp. Ltd., 99 F.4th 304, 327 n.12 (6th Cir. 2024) (citing DIRECTV, Inc. v.
Imburgia, 577 U.S. 47, 54 (2015)). In Ohio, contracts “must be given a just and
reasonable construction that carries out the intent of the parties as evidenced by the
contractual language.” Ohio Water Dev. Auth. v. W. Rsrv. Water Dist., 776 N.E.2d 530,
535 (Ohio Ct. App. 2002) (citing Skivolocki v. E. Ohio Gas Co., 313 N.E.2d 374, 375
(Ohio 1974)). 7 “The parties’ intent is presumed to reside solely within the language
7 The Transportation Agreement contains a choice-of-law provision that calls for the
application of Ohio law in connection with the “formation, execution, and performance” of the
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employed in the agreement.” Id. (citing Kelly v. Med. Life Ins. Co., 509 N.E.2d 411,
411–12 (Ohio 1987)). Against that backdrop, the Court concludes that the best
approach is to take the forum-selection clause at its word and hold that it evinces
Transcend’s consent to the jurisdiction of courts physically located “in Delaware
County,” (Doc. 1-4, #79 (emphasis added)), which does not include this Court. 8
2. 	Excel Has Consented to Personal Jurisdiction by Virtue of the
Forum-Selection 	Clause 	in 	the 	Transportation 	Brokerage
Agreement.
Next, consider Excel’s forum-selection clauses, of which there are two. The
first, which appears in the Master Interchange Agreement, is identical to the clause
that the Court just analyzed. (See Doc. 1-5, #87). So the same analysis applies. But
the corresponding clause in the Transportation Brokerage Agreement departs from
the other two clauses in key respects. Rather than merely providing for venue “in
Agreement, and all parties assume in their briefing that Ohio law applies. (Doc. 1-4, #79).
Thus, “[t]he parties’ litigation choices allow [the Court] to avoid th[e] choice-of-law issue” that
the Agreement implicates. AtriCure, Inc. v. Meng, 12 F.4th 516, 525 (6th Cir. 2021); see also
Masco Corp. v. Wojcik, 795 F. App’x 424, 427 (6th Cir. 2019) (citing Wood v. Mid-Valley, Inc.,
942 F.2d 425, 426–27 (7th Cir. 1991)) (“[Courts] regularly rely on the litigants’ agreement
about the governing law (or, more often, on one litigant’s failure to dispute the issue) to avoid
deciding what could be knotty choice-of-law questions.”).
8 The Court notes that, while it rejects Ahern’s broad approach to forum-selection clauses of
this sort, the Court also rejects a rule that it deems too restrictive in the other direction. The
Tenth Circuit has held that any time a mandatory forum-selection clause specifies the proper
forum in terms of “a specific county” rather than “a specific judicial district,” the clause
evinces an intent to litigate “only in state district court.” Excell, Inc. v. Sterling Boiler &
Mech., Inc., 106 F.3d 318, 321 (10th Cir. 1997) (citation omitted). While this move is not
wholly implausible, Excell overreads the plain meaning of forum-selection clauses like the
one in the Transportation Agreement. A contractual intent to litigate in a particular county
is consistent with an intent to litigate in a federal forum located within that county. Cf.
Basicomputer Corp. v. Scott, 973 F.2d 507, 510 (6th Cir 1992) (citing Spatz v. Nascone, 364
F. Supp. 967, 974 (W.D. Pa. 1973)) (“Since the federal district court for the Northern District
of Ohio is unquestionably a court ‘in the State of Ohio,’ the forum selection clause is not
limited to Ohio state courts.” (emphasis in original)).
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Delaware County,” (Doc. 1-4, #79; Doc. 1-5, #87), the clause requires that “[a]ny legal
action arising under or pursuant to this Agreement shall be brought and maintained
only in federal or state courts located in or having jurisdiction over Delaware, Ohio,”
(Doc. 	1-6, 	#94 	(emphases 	added)). 	Importantly, 	courts 	that 	adhere 	to 	Yakin’s
reasoning often hold that it does not apply where the forum-selection clause goes out
of its way to mention the federal courts. See, e.g., Zhang v. Diaz, No. 2:21-cv-4002,
2021 WL 3698387, at *4 (W.D. Mo. Aug. 19, 2021) (“To hold that the forum-selection
clause here does not permit litigation in the federal court that encompasses cases
within Barton County would be to render the language ‘the federal courts located in
Barton County, Missouri’ mere surplusage.”). And perhaps even more to the point,
applying the provision’s plain language, there is no question that this Court has
“jurisdiction over” Delaware, Ohio. (Doc. 1-6, #94). 9, 10 So, the Court has personal
jurisdiction over Excel based on the claims that Greif advances in this suit.
9 Additionally, while neither Greif nor Excel raise the issue, the Court notes that the forum-
selection clause likely applies to all of Greif’s claims against Excel. Under Ohio contract law,
forum-selection clauses “can apply to torts if the clause applies to ‘any dispute that may arise
out of this agreement or otherwise between the parties … ,’ or, less broadly, to ‘any dispute
arising under or in connection with … ’ a contract if the tort is sufficiently related.” Navidea
Biopharmaceuticals, Inc. v. Cap. Royalty Parters II, L.P., 170 N.E.3d 472, 501 (Ohio Ct. App.
2021) (citation omitted). And those torts may include “fraud, misrepresentation[,] and
conspiracy claims.” Id. That said, because the parties decline to raise this interpretive issue,
the Court declines to pursue that matter further. So too for the forum-selection clause’s
enforceability as a matter of federal law.
10 Greif seems to assume, without argument, that Excel’s forum-selection clause also binds
Mack. The assumption is not well-taken. Because Greif fails to offer any argument for this
point, it has forfeited it. That said, the Court concludes below that it has personal jurisdiction
over Mack for different reasons. See infra Law & Analysis, Part C.1.
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In sum, the forum selection clause in Greif’s contract with Excel creates
personal jurisdiction over Excel, but the corresponding clause in Greif’s contract with
Transcend does not provide personal jurisdiction over Transcend. 11
B. 	Greif Fails to State a Claim Against Excel.
A finding of personal jurisdiction over Excel should be a happy result for Greif.
But here, not so much. Greif may have successfully established personal jurisdiction
over Excel. But it fails to state a claim for relief against Excel. And so Excel must be
dismissed.
In reaching that result, the Court can, for the most part, train its analysis on
Federal Rule of Civil Procedure 9(b). That’s because each of the nine claims that Greif
advances against Excel—the civil RICO and civil RICO conspiracy claims (Counts I
and II), the related state-law claims (Counts III and IV), the civil conspiracy claim
(Count V), the fraud claim (Count VI), the civil claims for criminal acts of theft and
telecommunications fraud (Counts VII and VIII), and even the breach of contract
claim (Count XI)—is predicated on some species of fraud. And, under Federal Rule of
Civil 	Procedure 	9(b), 	a 	party 	“alleging 	fraud 	or 	mistake” 	“must 	state 	with
particularity the circumstances constituting fraud or mistake.” To comply with Rule
9(b)’s heightened pleading requirements, a plaintiff must “(1) specify the statements
that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where
and when the statements were made, and (4) explain why the statements were
11 As discussed below, however, Greif does have personal jurisdiction over Transcend under
a traditional minimum contacts analysis. See infra Part C.
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fraudulent.” Frank v. Dana Corp., 547 F.3d 564, 570 (6th Cir. 2008) (citation omitted).
“If the complaint alleges a complex and far-reaching fraudulent scheme, then that
scheme must be pleaded with particularity and the complaint must also provide
examples of specific fraudulent conduct that are representative samples of the
scheme.” United States ex rel. Prather v. Brookdale Senior Living Cmtys., Inc., 892
F.3d 822, 830 (6th Cir. 2018) (cleaned up) (quotation omitted). “Malice, intent,
knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.
R. Civ. P. 9(b). But a plaintiff must still allege a “basis for inferring scienter”—that
is, “specific facts that make it reasonable to believe that defendant knew that a
statement was materially false or misleading.” Heinrich v. Waiting Angels Adoption
Servs., Inc., 668 F.3d 393, 406 (6th Cir. 2012) (citations omitted).
This requirement is a problem for Greif’s various theories of liability against
Excel, because, as the Mack Defendants point out, there are “no well-pleaded
allegation[s] in the Complaint to explain why Excel is even a defendant in this action.”
(Doc. 15, #383 (emphasis added)). The point is perhaps best made by comparing
Greif’s allegations against Transcend to Greif’s allegations against Excel. For
example, Greif alleges that Transcend fraudulently charged Greif each month for the
Beaumont Yard rental from June 2020 to October 2023 and attaches copies of an
invoice for each month to its Complaint. (Doc. 1, #14; Doc. 1-9). Greif also describes
the content of two separate invoices that allegedly overcharged Greif for services
rendered in connection with the Beaumont Yard—one Transcend sent on August 11,
2023, (Doc. 1, #15; Doc. 1-10), and another it sent on March 27, 2023, (Doc. 1, #17;
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Doc. 1-11). Without deciding the issue (the Court ultimately does not reach the merits
of Greif’s claims against Transcend), these allegations may well be sufficient for
purposes of Rule 9(b) because Greif has pled the “circumstances of the fraud” with
“enough specificity to put [Transcend] on notice as to the nature of the claim.” Greer
v. Strange Honey Farm, LLC, 114 F.4th 605, 615 (6th Cir. 2024) (quoting Williams v.
Duke Energy Int’l, Inc., 681 F.3d 788, 803 (6th Cir. 2012)).
But none of Greif’s allegations against Excel even come close to this standard.
For example, Greif generally alleges that, at some point, Davis fraudulently awarded
twelve loads to Excel. (Doc. 1, #23). But nowhere are these loads described with the
kind of specificity that Greif alleges as to its transactions with Transcend. True, Greif
says that Davis used the same bill of lading 47 separate times to “justify awarding
manual loads to either Transcend or Excel.” (Id. at #22 (emphasis added)). But which
is it? And when? Again, to compare, Greif expands on its allegations against
Transcend by describing several instances in which Davis allegedly used a bill of
lading to fraudulently award loads to the company, including dates, the frequency of
the allegedly fraudulent submissions, and even the extent of Greif’s financial harm.
(See id.). But curiously, the Complaint never fleshes out its allegations against Excel
in quite the same way. Moreover, the bill of lading itself says “Transcend,” not “Excel.”
(Doc. 1-14, #224). And, because Greif attached the bill of lading to its Complaint, the
Court may consider the document without converting Excel’s motion to dismiss into
one for summary judgment. Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680–
81 (6th Cir. 2011) (citation omitted).
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By lumping the two companies together, Greif engages in impermissible “group
pleading.” United States ex rel. Kramer v. Doyle, No. 1:18-cv-373, 2022 WL 1186182,
at *5 (S.D. Ohio Apr. 21, 2022). Under Rule 9(b), “each defendant named in the
complaint is entitled to be apprised of the circumstances surrounding the fraudulent
conduct with which he individually stands charged.” Id. (emphases added) (citations
omitted); see also United State ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493,
510 (6th Cir. 2007) (“[I]mproperly pled allegations of fraud do not become adequate
merely by placing them in the same complaint with allegations that are sufficient.”);
Sugarlips Bakery, LLC v. A&G Franchising, LLC, No. 3:20-cv-830, 2022 WL 210135,
at *10 (M.D. Tenn. Jan. 24, 2022) (“[T]he prohibition on group pleading under Rule
9(b) prevents a plaintiff from simply lumping multiple defendants together without
explaining each defendant’s culpable role.”). Because allegations of fraud 12 form the
basis of the claims against Excel, and because Greif has failed to adequately plead a
single instance of fraud, Greif fails to state a claim. 13
12 Admittedly, in addition to its allegation that Excel breached the contract by “committing
fraud,” Greif attaches some additional allegations to its breach-of-contract claim. (Doc. 1,
#61). 	But 	Rule 	9(b) 	aside, 	these 	additional 	allegations 	don’t 	even 	meet 	the 	lesser
Twombly/Iqbal standard. For example, Greif alleges in a wholly conclusory fashion that
Excel breached the contract by “entering into transactions that create a conflict of interest.”
(Id.). But nowhere in the Complaint does Greif actually plead the “factual matter” necessary
to create a plausible inference that Excel actually entered into such transactions. Iqbal, 556
U.S. at 678. The only “transaction” pleaded with any specificity is Greif’s initial set of
contracts with Excel. (Doc. 1, #10–12). But that goes only to initial contract formation, not
the question whether Greif entered in subsequent transactions that created a conflict of
interest that breached the first set of contracts. Thus, these allegations also fail to state a
claim.
13 Interestingly, the paucity of factual matter that Greif alleges against Excel is reflected in
the documents that Greif attaches to its pleading. Along with the Complaint, Greif attaches
over 20 exhibits. (See Docs. 1-1–1-22). Out of those exhibits, eight contain invoices or trip
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Importantly, this means that Greif may not use Excel as its “anchor” defendant
for 	purposes 	of 	civil 	RICO’s 	unique 	venue 	and 	jurisdiction 	provisions. 	“An
inadequately 	pleaded 	RICO 	claim 	against 	an 	out-of-district 	Defendant 	cannot
support a finding that the ‘ends of justice’ require exercising personal jurisdiction”
over the remaining defendants. Anthony v. Van Over, No. 3:22-cv-416, 2023 WL
6307960, at *5 (E.D. Tenn. Sep. 27, 2023).
In sum, the Court holds that Excel (but not Transcend) consented to personal
jurisdiction in the Southern District of Ohio pursuant to a forum-selection clause with
Greif. But Greif’s victory on this front is hollow, as Greif fails to assert any claim
against Excel. The Court therefore GRANTS Excel’s Motion to Dismiss for Failure
to State a Claim (Doc. 15) WITHOUT PREJUDICE. The Court now proceeds to
consider whether Greif has established personal jurisdiction over the remaining
defendants, and whether venue lies in this Court.
C. 	The Court Has Personal Jurisdiction Over the Remaining Defendants
(Including 	Transcend) 	Under 	a 	Traditional 	Minimum-Contacts
Analysis, and Venue is Proper in the Southern District of Ohio.
Having exhausted Greif’s arguments based on the forum-selection clauses, the
Court now proceeds to consider whether it can establish contacts-based jurisdiction
over any of the remaining defendants (including Transcend). Because the Court finds
that it has personal jurisdiction over the non-Excel Defendants under traditional
logs. (See Docs. 1-9–1-16). Yet every single document in these exhibits is a Transcend
document; Excel does not appear once.
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minimum-contacts principles, it does not reach Greif’s arguments under civil RICO’s
unique venue and jurisdiction provisions.
1. 	The 	Court 	May 	Exercise 	Personal 	Jurisdiction 	Over 	the
Remaining 	Defendants 	Consistent 	with 	Ohio’s 	Long-Arm
Statute and Due Process.
When a plaintiff sues an out-of-state defendant, the propriety of exercising
personal jurisdiction over that defendant under International Shoe’s “minimum
contacts” test turns on (1) whether the state’s long-arm statute extends to the
defendant, and (2) whether the exercise of personal jurisdiction over that defendant
comports with due process. CompuServe, Inc. v. Patterson, 89 F.3d 1257, 1262 (6th
Cir. 1996) (quoting Reynolds v. Int’l Amateur Athletic Fed’n, 23 F.3d 1110, 1115 (6th
Cir. 1994)) (“The defendant must be amenable to suit under the forum state’s long-
arm statute and the due process requirements of the Constitution must be met.”)
a. 	Ohio’s Long-Arm Statute Extends to the Limits of Due
Process.
Start with Ohio’s long-arm statute, which was recently amended “to mirror the
constitutional limitations for personal jurisdiction.” NOCO Co. v. Shenzhen Valuelink
E-Commerce Co., Ltd., 550 F. Supp. 3d 488, 493 (N.D. Ohio 2021); see Ohio Rev. Code
§ 2307.382(C) (“[A] court may exercise personal jurisdiction over a person on any
basis consistent with the Ohio Constitution and the United States Constitution.”).
When a state’s long-arm statute extends to the limits of due process, the statutory
and due process inquiries are “merged and the court need only determine whether
exercising personal jurisdiction violates constitutional due process.” Bridgeport
Music, Inc. v. Still N The Water Publ’g, 327 F.3d 472, 477 (6th Cir. 2003) (citing
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Nationwide Mut. Ins. Co. v. Tryg Int’l Ins. Co., Ltd., 91 F.3d 790, 793 (6th Cir. 1996)).
The Court therefore proceeds directly to the due process inquiry.
b. 	The Court Has Specific Jurisdiction Over the Remaining
Defendants.14
As a general matter, personal jurisdiction comes in two forms: general and
specific. Malone, 965 F.3d at 501 (citing Goodyear Dunlop Tires Ops., S.A. v. Brown,
564 	U.S. 	915, 	919 	(2011)). 	General 	jurisdiction 	exists 	when 	the 	defendant’s
connections to the forum state are “so continuous and systematic as to render the
defendant essentially at home there.” Id. at 501–02 (cleaned up) (quoting Int’l Shoe
Co v. Washington, 326 U.S. 310, 316 (1945)). By contrast, specific jurisdiction
“depends on an affiliation between the forum and the underlying controversy.” Id. at
502 (quotation omitted). There is no dispute here that the Court lacks general
jurisdiction over the Defendants. So the Court considers only specific jurisdiction.
The Sixth Circuit has articulated a three-part test for determining whether a
district court has specific jurisdiction over a defendant:
First, the defendant must purposefully avail himself of the privilege of
acting in the forum state or causing a consequence in the forum state.
Second, the cause of action must arise from the defendant’s activities
14 Although specific jurisdiction is, by definition, claim-specific, the Court opts to forgo a
claim-by-claim analysis in light of the overlapping factual allegations that underpin each
claim. See, e.g., PREP Tours, Inc. v. Am. Youth Soccer Org., 913 F.3d 11, 21 n.6 (1st Cir. 2019)
(“[W]e are proceeding on the assumption in this case that the contract and tort claims arise
from the same alleged activity or occurrence in the forum State, and thus we consider
precisely the same set of contacts as to both claims.” (cleaned up)); O’Connor v. Sandy Lane
Hotel Co., Ltd., 496 F.3d 312, 317 n.3 (3d Cir. 2007) (“We note that our usual practice is to
assess specific jurisdiction on a claim-by-claim basis. However, it may not be necessary to do
so for certain factually overlapping claims.” (cleaned up)); cf. Seiferth v. Helicopteros
Atuneros, Inc., 472 F.3d 266, 275 (5th Cir. 2006) (“[I]f a plaintiff’s claims relate to different
forum contacts of the defendant, specific jurisdiction must be established for each claim.”
(emphasis added)).
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there. Finally, the acts of the defendant or consequences caused by the
defendant must have a substantial enough connection with the forum
state to make the exercise of jurisdiction over the defendant reasonable.
AlixPartners, LLP v. Brewington, 836 F.3d 543, 549–50 (6th Cir. 2016) (emphasis
omitted) (citation omitted).
i. 	The 	Remaining 	Defendants 	Purposefully 	Availed
Themselves of Ohio.
Purposeful availment, “the ‘constitutional touchstone’ of personal jurisdiction,
is present where the defendant’s contacts with the forum state ‘proximately result
from actions by the defendant himself that create a substantial connection with the
forum State.’” Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 889 (6th Cir.
2002) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)) (emphasis
in original). The requirement “ensures that a defendant will not be haled into a
jurisdiction solely as a result of random, fortuitous, or attenuated contacts, … or of
the unilateral activity of another party or a third person.” Burger King, 471 U.S. at
475 (quotations omitted). A nonresident defendant who “deliberately engages in
‘significant activities within a State’ or creates ‘continuing obligations between
himself and residents of the forum’ satisfies this requirement.” AlixPartners, 836 F.3d
at 550 (quoting Burger King, 471 U.S. at 475–76). Physical presence, however, is not
required. The “Supreme Court has ‘consistently rejected the notion that an absence
of physical contacts can defeat personal jurisdiction.’” Air Prods & Controls, Inc. v.
Safetech Int’l, Inc.., 503 F.3d 544, 551 (6th Cir. 2007) (quoting Burger King, 471 U.S.
at 476).
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Here, the question of purposeful availment as to each remaining Defendant is
largely controlled by Sixth Circuit precedent. In Neal v. Janssen, the plaintiffs sued
a foreign horse broker for defrauding them in connection with the sale of a particular
horse. 270 F.3d 328, 330 (6th Cir. 2001). The defendant’s sole defense in the trial
court was that the court lacked personal jurisdiction over him, and it was also the
sole issue on appeal. Id. at 331. In affirming the trial court’s determination that it
had personal jurisdiction over the defendant, the Sixth Circuit focused on the
fraudulent communications that the defendant had directed into the forum state. Id.
at 332–33. Importantly, the Court held that “[w]hen the actual content of the
communications into the forum gives rise to an intentional tort action, that alone may
constitute purposeful availment.” Id. at 332. Moreover, “the actions of sending false
information into Tennessee by phone and fax had foreseeable effects in Tennessee
and were directed at individuals in Tennessee.” Id. This, the court held, was sufficient
for purposes of the purposeful-availment prong of the analysis. Id.
More recently, in Power Investments, LLC v. SL EC, LLC, 927 F.3d 914 (6th
Cir. 2019), the Sixth Circuit reiterated largely the same holding. There, it held that
a Kentucky court could exercise personal jurisdiction over a nonresident defendant
who had “extensively” communicated with the Kentucky-based plaintiff for “well over
a year.” Id. at 919. Importantly, the defendant’s “alleged misrepresentations in these
communications constitute[d] the core of [the plaintiff’s] fraud claims—just as in
Neal.” Id.
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So too here, and with respect to each remaining Defendant. For example, Greif
alleges that Transcend routinely sent fraudulent invoices to Greif in Ohio, (see Doc.
1, #14–19 (describing these events with specificity)), and it even provides copies of
the invoices, as well as travel logs for the trips with its pleading, (see, e.g., Doc. 1-10).
These invoices all bear Greif’s Ohio address. (See id.). And, just as in Neal and Power
Investments, 	the 	“actual content” 	of 	these 	invoices 	allegedly “gives 	rise to an
intentional tort.” Neal, 270 F.3d at 332. Under Sixth Circuit precedent, that fact alone
is enough. See id.; Power Invs., 927 F.3d at 919. The same facts suffice to show that
the Court has personal jurisdiction over Mack. As Greif points out, the Sixth Circuit
has held that a court may exercise “personal jurisdiction over corporate officers where
the officers were active participants in the tortious conduct.” Balance Dynamics Corp.
v. Schmitt Indus., Inc., 204 F.3d 683, 697 (6th Cir. 2000). That is precisely what Greif
alleges here. The invoices that it attaches to the Complaint help on this front as well:
each bears Mack’s Transcend email address in the contact-information portion of the
invoice. (See, e.g., Doc. 1-10, #190).
The Court has personal jurisdiction over Davis for similar reasons. Greif
alleges that, starting in early 2021, Davis began routinely transmitting to Ohio the
documentation necessary to fraudulently award jobs to Transcend. (See Doc. 1, #22).
She thereby “reached the State of Ohio through her computer wires” for the purpose
of submitting fraudulent communications to Greif, The Rightthing, LLC v. Brown,
No. 2:09-cv-135, 2009 WL 249694, at *5 (N.D. Ohio Feb. 2, 2009), “a company [s]he
knew to be based in Ohio,” Rexam Healthcare Packaging, Inc. v. Osiris Med., Inc., No.
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3:09-cv-1584, 2010 WL 819063, at *3 (N.D. Ohio Mar. 9, 2010). And again, those very
communications allegedly “give[] rise to an intentional tort.” 15 Neal, 270 F.3d at 332.
In her Reply, (see Doc. 23, #512), Davis offers a beguiling suggestion based on
the Sixth Circuit’s decision in Calphalon Corp. v. Rowlette, 228 F.3d 718 (6th Cir.
2000). Calphalon rejected as insufficient a Minnesota corporation’s contacts with
Ohio. 228 F.3d at 720, 723. The corporation had agreed to serve as an Ohio
manufacturer’s exclusive representative in Minnesota and four other states outside
Ohio. Id. The mere fact of the parties’ contractual relationship was insufficient to
show that the Minnesota corporation purposefully availed itself of Ohio. Id. at 722.
And the other contacts to which the manufacturer pointed—“phone, mail, and fax
contact with Calphalon in Ohio,” as well as “physical visits there”—were insufficient
because they were an artifact of the plaintiff’s decision “to be headquartered in Ohio,”
rather than a deliberate choice to “create continuous and substantial consequences
there.” Id. at 723 (quotation omitted). In other words, the contacts were “purely
fortuitous” because the defendant was not attempting to “exploit any market” in Ohio,
and because “no facts connected the subject matter or performance of the contract at
issue to the forum state.” Id. at 722–23. The Sixth Circuit held that these were
“precisely the type of ‘random,’ ‘fortuitous,’ and ‘attenuated’ contacts that the
15 Although Silva is in default, the Court notes that what goes for Davis goes for him, as some
of the conduct alleged against him is essentially the same as the conduct alleged against
Davis. Like Davis, Silva allegedly directed documentation to Greif in Ohio through Greif’s
BluJay system for the purpose of defrauding Greif. (See Doc. 1, #5–6, 20–21, 36). This will
become relevant when the Court considers the Defendants’ arguments for venue transfer. See
infra Law & Analysis, Part D.
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purposeful availment requirement is meant to prevent from causing jurisdiction.” Id.
at 723.
Similarly, in Bulso v. O’Shea, a Tennessee attorney brought an action against
out-of-state former clients, alleging malicious prosecution stemming from an out-of-
state legal malpractice action. 730 F. App’x 347, 348–49 (6th Cir. 2018). The attorney
appealed to the Sixth Circuit when a Tennessee district court dismissed the case for
lack of personal jurisdiction over the out-of-state defendants. Id. at 349. On appeal,
the Sixth Circuit affirmed the jurisdictional dismissal. Id. at 349–52. The result was
controlled by Calphalon. Just like the Calphalon defendants, the Bulso defendants’
contacts were a product of “Bulso’s law firm being located in Tennessee,” rather than
a product of the defendants’ choice to “invoke the benefits and protections of
Tennessee law.” Id. at 350.
One could read these cases as lending support to Davis’s (as well as the other
Defendants’) position. After all, as far as the Defendants were concerned, Greif could
have been based in Michigan, or New York, or Pennsylvania, and it would not have
made a whit of difference to the Defendants’ efforts to serve Greif’s Texas operations.
In other words, nothing about the arrangement was Ohio-specific; Greif merely finds
it “convenient to be present []here,” and Defendants likely would have been “pleased
to communicate with [Greif] wherever the latter wished.” Int’l Techs. Consultants,
Inc. v. Euroglas S.A., 107 F.3d 386, 395 (6th Cir. 1997).
All of this could well be true. But it is not enough to overcome the rule from
Neal: intentionally directing fraudulent communications into the forum state in the
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context 	of 	an 	ongoing 	business 	relationship 	is 	sufficient 	to 	show 	purposeful
availment, at least where those very communications form the basis of the claim. 16
Neal, 270 F.3d at 332; Power Invs., 927 F.3d at 919; see also Johnson v. Griffin, 85
F.4th 429, 435 (6th Cir. 2023) (citing Neal, 270 F.3d at 332) (relying on Neal for the
proposition that “making phone calls” and “sending facsimiles” may “alone” be
sufficient for personal jurisdiction.).
In sum, Greif has shown that the remaining Defendants purposefully availed
themselves of Ohio.
ii. 	Greif’s 	Causes 	of 	Action 	Arise 	from 	Defendant’s
Activities in Ohio.
Next up is the requirement that Greif’s causes of action “arise from” the
Defendants’ Ohio contacts. AlixPartners, 836 F.3d at 552. The Sixth Circuit has
articulated the content of this requirement in several ways, “such as whether the
causes of action were made possible by or lie in the wake of the defendant’s contacts,
or whether the causes of action are related to or connected with the defendant’s
contacts with the forum state.” Id. (citation omitted). The standard is lenient, and
16 For this reason, Davis’s reliance (see Doc. 16, #417–18; Doc. 23, #507–10), on Total Quality
Logistics, LLC v. DeSantis, No. 1:18-cv-796, 2023 WL 4686359 (S.D. Ohio July 21, 2023) is
misplaced. There, a company sued an out-of-state former employee for breaching a
noncompete and for tortiously interfering with another employee’s employment relationship
with the plaintiff. Id. at *1. The plaintiff argued that the defendant “purposefully availed
himself of Ohio by working for any Ohio company, communicating with that Ohio company,
and benefiting from his employment.” Id. at *5. Additionally, the defendant “knew that [the
plaintiff], an Ohio company, would be harmed when [the defendant] allegedly tortiously
interfered with [the third party’s] contract with [the plaintiff].” Id. Relying on Bulso, the court
concluded that these contacts were not enough. Id. Crucially, though, the “attenuated
actions” to which the plaintiff pointed as a basis for jurisdiction did not include directing
fraudulent documentation to the plaintiff in the forum state via interstate wires. See id.
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“the cause of action need not ‘formally’ arise from” the defendant’s contacts. Id.
Generally, “this factor is satisfied if the cause of action, of whatever type, has a
substantial connection with the defendant’s in-state activities.” Id. (cleaned up)
(quoting Bird v. Parsons, 289 F.3d 865, 875 (6th Cir. 2002)).
Just like in Power Investments, the conclusion that the contacts are sufficiently
related to Greif’s claims essentially follows from the Court’s purposeful availment
analysis. See 927 F.3d at 919. Greif’s Complaint alleges a series of fraudulent
schemes that Defendants could not have carried out but for their relationships with
Greif. (See Doc. 1, #10, #14–24). And more narrowly, the allegedly fraudulent
communications directed to Ohio are what give rise to Greif’s claims. So the claims
have a “substantial connection” to the Defendants’ Ohio contacts, which is sufficient
to satisfy this second prong. AlixPartners, 836 F.3d at 552.
iii. 	The Court’s Exercise of Personal Jurisdiction Over
Defendants is Reasonable.
Finally, the Court considers “whether exercising personal jurisdiction over
[Defendants] would be reasonable, i.e., whether it would comport with traditional
notions of fair play and substantial justice.” CompuServe, 89 F.3d at 1267–68
(quotation omitted). In analyzing this third criterion, the Court would typically
consider “(1) the burden on the defendant; (2) the interest of the forum state; (3) the
plaintiff’s interest in obtaining relief; and (4) other states’ interest in securing the
most efficient resolution of the policy.” AlixPartners, 836 F.3d at 552 (quotation
omitted). But “[w]here, as here, the first two criteria [of the three-part test for specific
jurisdiction] are met … only the unusual case will not meet this third criterion.” Id.
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(quoting Theunissen, 935 F.2d at 1461). Indeed, the Sixth Circuit has stated that an
“inference of reasonableness” arises when the first two prongs for specific jurisdiction
are satisfied. Air Prods., 503 F.3d at 555. Accordingly, the last prong is satisfied as to
each remaining Defendant, too. So the Court has personal jurisdiction over all of the
Defendants, other than Excel, under traditional long-arm notions, without even
needing to rely on RICO’s nationwide service of process provisions.
2. 	Venue is Proper in the Southern District of Ohio.
Now consider venue. All Defendants contend that venue is improper. (Doc. 15,
#380–83; Doc. 16, #418–19; Doc. 23, # 517–19; Doc. 24, #533–34). The Court disagrees.
Under 28 U.S.C. § 1391(b)(2), venue is proper in “a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred.” “The
Sixth Circuit has held the language of § 1391(b)(2) to mean that venue is proper in
any 	forum 	with 	a 	‘substantial 	connection’ to 	the 	plaintiff’s 	claims.” 	Bluecross
Blueshield of Tenn., Inc. v. Dunwoody Labs, Inc., No. 1:20-cv-167, 2021 WL 6275252,
at 	*7 	(E.D. 	Tenn. 	Mar. 	8, 	2021) 	(citation 	omitted). 	And 	sending 	fraudulent
communications into a district where the injury is felt is sufficient. See id. at *8
(holding that “directing [] fraudulent claims” to the location of the plaintiff’s “losses”
was “sufficient for venue to be proper in the Eastern District of Tennessee.”). Here,
each Defendant did that. See supra Law & Analysis, Part C.1.
Defendants try to resist this conclusion by arguing that most (or all) of the
relevant events took place in Texas. (See Doc. 16, #419; Doc. 23, #518). But that
misses the point. “[T]he forum need not be the district with the most substantial
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connection to the events underlying the claims.” Bluecross Blueshield of Tenn., 2021
WL 6275252, at *7 (emphasis added) (citing First of Mich. Corp. v. Bramlet, 141 F.3d
260, 263–64 (6th Cir. 1998)). It’s enough that the connection is “substantial.” Id.
Accordingly, the Court finds that venue is proper in the Southern District of
Ohio. 17
D. 	The Court Will Transfer the Action to the Southern District of Texas
Under 28 U.S.C. § 1404(a).18
To take stock: the Court has found that it has jurisdiction over the Defendants
(except for Excel, whom the Court has already dismissed under Rule 12(b)(6)), and
17 The Court elects to undertake a traditional 28 U.S.C. § 1391 venue analysis, rather than a
RICO-based venue analysis. That’s because finding that venue lies in the Southern District
of Ohio under RICO’s “anchor defendant” approach would require the Court to determine
whether “the ends of justice require that other parties residing in any other district be
brought before the court.” 18 U.S.C. § 1965(b); see Peters Broadcast, 40 F.4th at 440. The
Sixth Circuit has not yet had occasion to opine on the ends-of-justice inquiry. See Peters
Broadcast, 40 F.4th at 440 n.4 (“We need not, and therefore do not, delve into the meaning of
§ 1965(b)’s ‘ends of justice’ language because there is no initial defendant that meets the
requirements of § 1965(a).”). And other courts have taken disparate approaches. Contrast
Butcher’s Union, 788 F.2d at 539 (“For nationwide service to be imposed under section
1965(b), the court must have personal jurisdiction over at least one of the participants in the
alleged multidistrict conspiracy and the plaintiff must show that there is no other district in
which a court will have jurisdiction over all of the alleged co-conspirators.” (emphasis added)),
with, e.g., Cory, 468 F.3d at 1232 (rejecting Butcher’s Union in favor of a “flexible [approach]
uniquely tailored to the facts of each case”). Because the Court need not wade into these
murky waters to resolve the jurisdiction and venue issues presented in this case, it does not
do so. See Modaressi v. Vedadi, 441 F. Supp. 2d 51, 54 (D.D.C. 2006) (“Section 1965, however,
is not a venue requirement; rather, it is a substitute venue provision that a plaintiff may
utilize if venue is not otherwise available.” (emphasis in original)); City of New York v.
Cyco.Net, Inc., 383 F. Supp. 2d 526, 543–44 (S.D.N.Y. 2005) (quoting Shuman v. Computer
Assoc. Int’l, Inc., 762 F. Supp. 144, 116 (E.D. Pa. 1991) (“The RICO venue provision is
supplemental to the general federal venue provision found in 28 U.S.C. § 1391.”).
18 Greif asserts that Defendants have forfeited their § 1404 argument because, rather than
relying on § 1404(a), they rely on the common-law doctrine of forum non coveniens, which
applies only if the proposed alternative forum is abroad. (Doc. 19, #457 n.4). Greif’s forfeiture
argument is mistaken; the Sixth Circuit has already rejected one much like it. See Carver v.
Knox Cnty., 887 F.2d 1287, 1291 (6th Cir. 1989) (“The district court did not rely upon waiver
in denying the motion to transfer, and neither will this court.”). That’s because the statute
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that venue is proper in this district. The Court now pivots to a different question:
whether it should transfer the action under 28 U.S.C. § 1404(a), having found
jurisdiction and venue proper. The Court concludes that it should.
Section 1404(a) provides: “[f]or 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 where it might have been brought.” The statute confers on the Court
“broad discretion to transfer a case to any judicial district where it may have been
brought originally.” Means v. U.S. Conf. of Catholic Bishops, No. 13-cv-14916, 2015
WL 13035285, at *3 (E.D. Mich. Mar. 31, 2015) (citation omitted). Generally, the aim
of a transfer is to “prevent waste of time, energy and money, and to protect litigants,
witnesses and the public against unnecessary inconvenience and expense.” Id.
(citation omitted). It is the defendant’s burden to “overcome the presumption that the
plaintiff has chosen the proper forum.” Id. (quotation omitted).
But there’s a wrinkle—Transcend’s forum selection clause. As detailed, that
clause provides for venue in Delaware County, Ohio. See Law & Analysis Part A.1.
And because the Southern District of Ohio does not have a seat of court in Delaware
County, that means that the forum-selection clause selects an Ohio state court in
“does not require a motion; a district court may transfer a case sua sponte.” Id. Even were
that not so, however, the Court would reject Greif’s argument, as “[s]ection 1404(a) is merely
a codification of the doctrine of forum non conveniens for the subset of cases in which the
transferee forum is within the federal court system.” Atlantic Marine, 571 U.S. at 60. Because
the parties have had ample opportunity to brief the pertinent factors, the Court presses on
with the analysis. See, e.g., Williams v. Baldolf, No. 4:21-cv-76, 2021 WL 252579, at *2 (N.D.
Ohio Jan. 26, 2021) (noting that courts must give parties an opportunity to be heard before
transferring a case). To the extent that Greif’s arguments on this front are perhaps a little
underbaked, that’s a consequence of Greif’s decision to rest on its erroneous forfeiture
argument.
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Delaware County. Id. Under Atlantic Maine, the clause would ordinarily be entitled
to “controlling weight in all but the most exceptional cases.” 571 U.S. at 60–61
(quoting 	Stewart 	Org., 	Inc. 	v. 	Ricoh 	Corp., 	487 	U.S. 	22 	(1988) 	(Kennedy, 	J.,
concurring)). But the clause binds only Transcend, not the other parties. And so the
Court must determine how to analyze the Defendants’ transfer request against that
backdrop.
While the Sixth Circuit has yet to weigh in on this issue, the Third and Fifth
Circuits have addressed it. See In re Howmedica Osteonics Corp., 867 F.3d 390 (3d
Cir. 2017); In re Rolls Royce Corp., 775 F.3d 671 (5th Cir. 2014). The Court is
persuaded by the Third Circuit’s approach (which itself took a page from the Fifth
Circuit’s book), and will apply it here.
The Third Circuit’s Howmedica decision prescribes a “four-step inquiry” to use
in deciding whether to transfer a matter to a different forum, forum-selection clause
notwithstanding. That framework directs courts to look at “(1) the forum-selection
clauses, (2) the private and public interests relevant to non-contracting parties,
(3) threshold issues related to severance, and (4) which transfer decision most
promotes efficiency while minimizing prejudice to non-contracting parties’ private
interests.” 867 F.3d at 403–04.
1. 	Venue was Proper in the Southern District of Texas.
Before applying that four-step framework, though, the Court begins with a
preliminary inquiry—whether the Southern District of Texas is a permissible venue.
After all, under § 1404(a), a court can transfer a case only to a district “where it might
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have been brought.” And, even putting aside whether the forum-selection clause
specifies some other forum, if venue is not appropriate in the Southern District of
Texas, that is an independent bar on the action proceeding there. So the Court must
assess whether the Southern District of Texas is a permissible venue. Greif does not
contest that venue is appropriate there. Nor could it. La Porte, Texas, the location of
Greif’s HS1 and HS2 facilities, (see Doc. 1, #6), is located in Harris County, Texas. 19
And the Southern District of Texas embraces Harris County. 20 Venue is proper under
§ 1391(b)(2) because almost all the conduct actually alleged took place in and around
Greif’s HS1 and HS2 facilities. (See generally id.). Transcend’s forum-selection clause
does not change that result. Under Atlantic Marine, venue is a matter of statutory
law, which a forum-selection clause does not affect. See 571 U.S. at 55 (“Whether
venue is ‘wrong’ or ‘improper’ depends exclusively on whether the court … satisfies
the requirements of federal venue laws, and those provisions say nothing about a
forum-selection clause.”). Additionally, it is clear that the Southern District of Texas
would be able to exercise personal jurisdiction over the remaining defendants. Both
Davis and Silva lived and worked there. Further, Mack and Excel purposefully
availed themselves of Texas by seeking to serve Greif’s logistics operations there.
Thus, the Court holds that venue is proper in the Southern District of Texas.
19 See About the City of La Porte, https://perma.cc/5YF8-A4KG. The Court may take judicial
notice of geographic facts such as these. See, e.g., United States v. Rashid, 483 F. Supp. 3d
514, 525 (S.D. Ohio 2020) (taking notice that a given address is in a given county).
20 See Houston Division, https://perma.cc/N4XF-FPRA ; Rashid, 483 F. Supp. 3d at 525.
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2. 	Step One: Forum-Selection Clause.
That brings us to the forum-selection clause. “At the first step, the court
assumes that Atlantic Marine applies to parties who agreed to forum-selection
clauses.” Howmedica, 867 F.3d at 404. As explained, this means that the Court must
assume that the forum-selection clause controls except in the most unusual cases. Id.
(citation omitted). In this instance, the forum selection clause that governs disputes
between Transcend and Greif calls for an Ohio state court. So, at this stage, there is
a strong presumption that the proper course of action is dismissing the claim against
Transcend to allow Greif to file suit in Ohio state court. 21
3. 	Step 	Two: 	Private 	and 	Public 	Interests 	Relevant 	to 	Non-
Contracting Parties.
Now take the second part of the analysis, which is a bit more involved. The
Court must consider a bevy of so-called “public- and private-interest factors” to
determine whether the non-contracting Defendants have carried their burden of
showing that a transfer is warranted. Atlantic Marine, 571 U.S. at 49. Courts have
identified several such factors, seven of which the Court addresses below. 22 On
balance, these factors support a transfer to the Southern District of Texas.
21 Dismissal, rather than transfer, would be the appropriate course of action here because a
federal court may not transfer an action to state court. See Atl. Marine, 571 U.S. at 60 (“The
appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is
through the doctrine of forum non conveniens.” (italics omitted)).
22 Courts have broad discretion not only as to the ultimate decision to transfer a case, but
also as to the factors it considers in reaching a conclusion. See, e.g., Mich. Custom Machs.,
Inc. v. AIT Worldwide Logistics, Inc., 531 F. Supp. 3d 1208, 1218 (E.D. Mich. 2021) (noting
that courts “often (but are no means required to) consider” a nine-factor list); see also Means,
2015 WL 13035285, at *3–4 (enumerating, but not applying, all of the factors that the court
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First, consider the weight that the Court should afford to Greif’s choice of
forum. Greif says that its choice is entitled to “great weight.” (Doc. 19, #457 n.4
(citation omitted)). As a general matter, Greif is correct. See, e.g., Panaro v. United
Airlines, Inc., No. 4:23-cv-45, 2024 WL 4291495, at *2 (E.D. Tenn. Sep. 25, 2024). But
when, as here, most of the operative facts occurred elsewhere, a plaintiff’s choice of
forum is entitled to less weight than it normally would be. Sacklow v. Saks Inc., 377
F. Supp. 3d 870, 878 (M.D. Tenn. 2019) (citation omitted) (“[A] plaintiff’s choice of
venue is entitled to less deference where the operative facts—‘the site of the events
from which the claim arises’—occurred elsewhere.”). Stated a little differently, “when
the cause of action has little connection with the chosen forum, the plaintiff’s choice
of forum is to be given less weight than such choice would be given otherwise.” DRFP,
LLC v. Republica Bolivariana de Venez., 945 F. Supp. 2d 890, 902 (S.D. Ohio 2013)
(bracket and citation omitted). Here, the facts pleaded overwhelmingly occurred in
Texas, and all claims asserted ultimately flow from Greif’s Texas operations. So,
although the Court accords some weight to Greif’s choice of forum, the factor is
entitled to less weight than Greif suggests.
Next, consider the convenience of the parties. “A transfer at the behest of a
defendant is disfavored where it merely shifts the burden of litigating in an
inconvenient forum to the plaintiff.” Sacklow, 377 F. Supp. 3d at 879 (citation
omitted). But a transfer would not have that effect in this case. Although Greif is
might have considered). Based on the record here, the Court deems these seven factors to be
most relevant.
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based in Ohio, it maintains operations in Texas, and those operations are central to
the claims at issue in this case. So even if it would be more convenient for Greif to
litigate on its home turf, the company cannot seriously claim that it would be
substantially inconvenienced by litigating in the district where it maintains its Texas
operations. Further, Greif alleges that two of the named Defendants are based in
Texas. That said, the other non-contracting Defendant (Mack) is based in Mississippi.
That tends to cut in the other direction, since Mack is likely to be inconvenienced in
Texas as well as Ohio. So, the Court finds that this factor slightly favors a transfer.
The convenience of non-party witnesses—a factor that courts often describe as
the “most important,” Smith v. Kyphon, Inc., 578 F. Supp. 2d 954, 963 (M.D. Tenn.
2008)—cuts in favor of transfer, but only slightly. Although Defendants correctly
point out that the majority of witnesses in this case are likely to be based in the
Southern District of Texas, they are thin on particulars. (See Doc. 16, #420–21).
Because of this, the Court affords the factor less weight than it would if they had
presented more details.
On a related note, the Court finds the next factor—the location of relevant
documents, Means, 2015 WL 13035285, at *4—to be neutral given the relative ease
with which the documents at issue in this case can be transferred electronically, see
Sacklow, 377 F. Supp. 3d at 879 (citation omitted) (“This factor is … ‘generally
neutral,’ because the rapid march of technology has facilitated the movement of
documents to different locations.”).
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In addition to Greif’s federal RICO claims, this case also involves various
claims brought under Ohio law. So the Court next considers the Southern District of
Texas’s ability to apply Ohio law. See id. at 879–80. That factor is neutral. While Greif
does advance state-law claims against the Defendants under Ohio law, Greif’s RICO
theories lie at the core of this dispute. And, in any event, as a general matter, “courts
in [one state] are fully capable of applying [another state’s] substantive law.” Metz v.
U.S. Life Ins. Co. in City of New York, 674 F. Supp. 2d 1141, 1148 (C.D. Cal. 2009).
The sixth factor, the “local interest in deciding local controversies at home,”
“weighs heavily in favor of transfer to the [Southern] District of Texas” because most
of the events alleged “occurred in Texas,” and the “relationship between” Greif and
the Defendants was “centered around Texas,” not Ohio. Drake v. FedEx Ground
Package Sys., Inc., No. 2:21-cv-2636, 2024 WL 1509677, at *4–5 (W.D. Tenn. Feb. 12,
2024). And finally, the locus of operative facts, an “important factor in resolving a
motion to transfer venue,” favors transfer for the same reasons. Sacklow, 377 F. Supp.
3d at 880 (citations and internal quotation marks omitted).
On balance the factors favor a transfer. And that is not altogether surprising—
as a practical matter this case has “Texas” written all over it.
4. 	Step Three: Threshold Issues Related to Severance.
“Third, if the Step One and Step Two analyses point in different directions,
then the court considers severance.” Howmedica, 867 F.3d at 404 (citing Fed. R. Civ.
P. 21). In other words, the Court ostensibly could shave off the claim against
Transcend, directing that to state court, and then transfer the remainder of the case
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to the Southern District of Texas. At this step, the Court is to consider, for example,
whether severance is necessary to preserve diversity jurisdiction, or to cure various
procedural defects. Id. In this case, however, transferring the matter to the Southern
District of Texas implicates no such concerns. So the Court has discretion to “select
the appropriate forum a based on a combination of interests addressed at the next
step.” Id. at 405.
5. 	Step 	Four: 	Efficiency 	and 	Non-Contracting 	Parties’ 	Private
Interests.
Finally, the Court must “exercise[] its discretion … in choosing the most
appropriate course of action,” taking into account “two key sets of interests.” Id.
(citations omitted). First, the Court must consider the “efficiency interests in avoiding
duplicative litigation, taking into account case management techniques that can
reduce inefficiencies accompanying severance, as well as any other public interests
that may weigh against enforcing a forum-selection clause.” Id. (citations omitted).
And second, the Court “considers the non-contracting parties’ private interests and
any prejudice that a particular transfer decision would cause with respect to those
interests.” Id. (citations omitted). More granularly, the Court considers “the nature
of any interests weighing against enforcement of any forum-selection clause; the
relative number of non-contracting parties to contracting parties; and the non-
contracting parties’ relative resources.” Id. The Court may “retain the case in its
entirety, transfer the case in its entirety, or sever certain parties or claims in favor of
another forum.” Id. But “[o]nly if it determines that the strong public interest in
upholding 	the 	contracting 	parties’ 	settled 	expectations 	is 	‘overwhelmingly’
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outweighed by the countervailing interests can the court, at this fourth step, decline
to enforce a valid forum-selection clause.” Id. (quotation omitted).
In this case, efficiency strongly favors centralizing all claims and parties in a
single forum. Given the degree of factual and legal overlap between the claims and
parties in this case, it simply makes no sense to cleave this case in two, sending
Transcend to one forum, while sending the other Defendants to another (or, for that
matter, sending Transcend to one forum (Ohio state court) while keeping the
remaining defendants in this forum). See id. at 409 (citation omitted) (“’[T]he same
issues’ should be litigated in the same forum.”) Indeed, Greif itself stresses “the
desirability of having the whole action litigated in one court.” (Doc. 19, #452 (citation
omitted)). In other words, Greif agrees (if only implicitly) that sending Transcend
alone to Ohio state court would make little sense.
Moreover, the non-contracting Defendants (Mack, Davis, and Silva) are more
numerous than the single contracting Defendant (Transcend). See, e.g., In re Dozier
Fin., Inc., 587 B.R. 637, 650 (Bankr. D.S.C. 2018) (declining to enforce a forum-
selection clause where only one of the six defendants was bound by the clause and
splitting up the case would have resulted in “substantially duplicative discovery and
court proceeds”). The Court lacks detailed information as to the relative means of the
parties. But the Court can reasonably surmise that Greif, one of the contracting
parties and a self-described global leader in industrial packaging and products
services, 	is 	better 	resourced 	than 	a 	handful 	of 	individual, 	non-contracting
Defendants. 	Thus, 	these 	considerations 	militate 	in 	favor 	of 	concentrating 	the
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litigation in a single forum, and more narrowly in favor of a transfer to the Southern
District of Texas. Because the non-contracting parties’ private and public interests
point in the same direction, the Court concludes that this is the rare case where it is
appropriate to set aside the parties’ forum-selection clause in favor of a different
forum. Accordingly, the Court TRANSFERS the case to the Southern District of
Texas.
CONCLUSION
For the reasons laid out above, the Court GRANTS IN PART both (1) Excel’s
Motion to Dismiss (Doc. 15) and (2) the remaining Defendants’ Motions to Transfer
(Docs. 15; 16). Specifically, the Court DISMISSES Excel WITHOUT PREJUDICE,
and then TRANSFERS this action as to the remaining Defendants to the Southern
District of Texas. All other outstanding motions are properly left for resolution by the
transferee court. Keene, Inc. v. U.S. Gypsum Co., No. 1:24-cv-1877, 2025 WL 1182476,
at *4 (N.D. Ohio Apr. 22, 2025).
SO ORDERED.
February 27, 2026
DATE 	DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
UGLAS R. COLE
TED STATES DISTRICT J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	JU	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U
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