DOCUVOICE LLC v. KIWI TEK LLC MARK WAGNER JERRY MASON (2026)

ORDER DENYING DEFENDANTS' MOTION TO DISMISS FOR IMPROPER VENUE OR IN THE ALTERNATIVE TO TRANSFER VENUE

Before the Court is Defendants KIWI-TEK, LLC, Mark Wagner, and Jerry Mason's (“Defendants”) Motion to Dismiss for Improper Venue or in the Alternative to Transfer Venue. Doc. 23. Defendants move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(3), asserting that the Western District of Tennessee is an improper venue for this litigation, or in the alternative, to transfer venue pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, the Motion to Dismiss for Improper Venue or in the Alternative to Transfer Venue is DENIED.

BACKGROUND

This dispute arises from a long-standing business relationship between DocuVoice and KIWI-TEK, LLC (“KIWI-TEK”). Doc. 1 at 4. On January 19, 2005, the parties entered into a Marketing Agreement, which authorized DocuVoice to market and sell KIWI-TEK automated coding products and related workflows to healthcare providers. Id. at 4-5. The parties maintained this contractual relationship for nearly twenty years. Doc. 1 at 6.

DocuVoice claims that KIWI-TEK ceased paying commissions due to it in 2023, with matters coming to a head after DocuVoice cultivated a relationship with the University of Mississippi Medical Center (“UMMC”), responded to a request for proposal on behalf of KIWI-TEK, and as a result obtained a five-year agreement award for KIWI-TEK on February 8, 2024. Id. The following day, KIWI-TEK notified DocuVoice that it was terminating the Marketing Agreement effective April 9, 2024. Id. DocuVoice alleges that KIWI-TEK has since failed to pay any commissions related to the UMMC contract and has effectively appropriated a business opportunity that DocuVoice developed. Id.

DocuVoice subsequently filed suit in the Western District of Tennessee. DocuVoice alleges that KIWI-TEK's failure to pay commissions amount to a breach of contract. Doc. 1 at 8– 10. DocuVoice also claims that KIWI-TEK is estopped from backing out of its promise to pay commissions for sales made by DocuVoice, Doc. 1 at 10–11, and that KIWI-TEK will be unjustly enriched if it does not pay those commissions, Doc. 1 at 11–12. With respect to the UMMC sale in particular, DocuVoice claims that KIWI-TEK tortiously interfered with its relationship with UMMC by cutting it out of the picture after DocuVoice had effectively made the sale, with DocuVoice missing out on a commission as a result. Doc. 1 at 12–13. Finally, DocuVoice seeks to pierce the corporate veil so that it can recover from two of KIWI-TEK's principals, Mark Wagner and Jerry Mason. Doc. 1 at 14–15.

Defendants KIWI-TEK, Mark Wagner, and Jerry Mason moved to dismiss the action for improper venue under Federal Rule of Civil Procedure 12(b)(3), or alternatively to transfer the case to the Southern District of Indiana. Doc. 23. Defendants argue that they do not reside in Tennessee and that the events giving rise to the claims occurred in Indiana. Doc. 23-1. DocuVoice opposes the motion, maintaining that the Western District of Tennessee is a proper, non-inconvenient forum because a substantial part of the events and the resulting financial harm occurred within this District. Doc. 24. KIWI-TEK has also filed a Reply. Doc. 25.

LEGAL ANALYSIS

I. Motion to Dismiss for Improper Venue under 28 U.S.C. § 1391(b)

A. Under Federal Rule of Civil Procedure 12(b)(3), a party may move to dismiss a complaint for improper venue. On a 12(b)(3) motion to dismiss, “the plaintiff bears the burden of proving that venue is proper.” Gone To The Beach, LLC v. Choicepoint Servs., Inc., 434 F. Supp. 2d 534, 536–37 (W.D. Tenn. 2006); see also Tobien v. Nationwide Gen. Ins. Co., 133 F.4th 613, 621 (6th Cir. 2025), cert. denied, No. 25-439, 2026 WL 135652 (U.S. Jan. 20, 2026). The plaintiff must prove proper venue by a preponderance of the evidence. Id. A burden-shifting standard applies: “A plaintiff's well-pled allegations pertaining to the venue issue are taken as true, unless contradicted by a defendant's affidavits,” in which case the plaintiff must come forward with proof establishing proper venue. Reilly v. Meffe, 6 F. Supp. 3d 760, 765 (S.D. Ohio 2014). The Court “must draw all reasonable inferences and resolve factual conflicts in favor of the plaintiff.” Audi AG & Volkswagen of Am., Inc. v. Izumi, 204 F. Supp. 2d 1014, 1017 (E.D. Mich. 2002).

The parties agree that this case falls within the general venue statute, 28 U.S.C. § 1391, which as relevant here sets forth three different venue options. The parties also agree that whether proper venue lies in this District turns on the second option, which in relevant part allows venue in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(2). Doc. 24, 25. They further agree that “[v]enue must be proper for each claim.” Pioneer Surgical Tech., Inc. v. Vikingcraft Spine, Inc., 2010 WL 2925970, at *3 (W.D. Mich. July 21, 2010). See Doc. 23-1 at 4, Doc. 24 at 1 (looking to whether a “substantial part of the events or omissions giving rise to each claim occurred in” this District).

So the parties ultimately agree that the key question is whether “a substantial part of the events or omissions giving rise to” each claim occurred in the Western District of Tennessee. And there, the agreement essentially stops, because while the parties identify the same standard, they differ in how they would go about applying it. KIWI-TEK argues that venue is improper in the Western District of Tennessee because: the Agreement between DocuVoice and KIWI-TEK was “drafted by Kiwi in the state of Indiana”; and no KIWI-TEK “employee or agent visited the state of Tennessee to negotiate” the agreement. Doc. 23-1 at 5–6.

This myopic focus on KIWI-TEK's location and side of things misunderstands the standard. While KIWI-TEK seemingly is of the view that there can only be one venue for each claim—and a defendant-centered one at that—the Sixth Circuit has held that “[a] plaintiff may file his complaint in any forum where a substantial part of the events or omissions giving rise to the claim arose; this includes any forum with a substantial connection to the plaintiff's claim.” First Michigan Corp. v. Bramlet, 141 F.3d 260, 263 (6th Cir.1998) (finding Plaintiff had a substantial connection to the venue because they had performed the investment services, communicated with the defendants, and managed the accounts from their Michigan offices). “The venue statute does not provide that venue lies only in the district with the most substantial contacts with the dispute; but, rather, that venue may be proper in more than one district, so long as ‘a substantial part of the events occurred in the challenged venue, even if a greater part of the events occurred elsewhere.’ ” In re Reciprocal of Am. (ROA) Sales Pracs. Litig., No. CIV.A. 04-2078, 2006 WL 1879817, at *6 (W.D. Tenn. July 6, 2006) (emphasis added); see also Bramlet, 141 F.3d at 263.

Applying that standard here, venue lies in the Western District of Tennessee because a substantial part of the events giving rise to those claims occurred here.

Counts I through IV. Consider first the various claims (Counts I through IV) most directly relating to the contractual relationship (or, in the case of promissory estoppel and unjust enrichment, quasi-contractual relationship) between DocuVoice and KIWI-TEK. In analyzing venue under § 1391(b)(2) in actions involving contract disputes, “courts look to (1) where the contract was negotiated and executed, (2) where the contract was performed, ․ (3) where the alleged breach occurred,” and (4) “where the effects of a defendant's alleged breach are experienced.” Reilly, 6 F. Supp. 3d at 766 (finding a substantial connection to the District because the Defendants solicited leases for the benefit of the partnership, while the Plaintiff, in turn, marketed those leases to District-based oil and gas companies to secure buyers for the partnership's assets). DocuVoice has submitted evidence that it conducted its end of the negotiations in the Western District, and that both it and KIWI-TEK, acting through Defendant Wagner, executed the agreement in the District.¹ Doc. 1, ¶ 9; Doc. 24-1, ¶¶ 4–5. DocuVoice also performed its end of the agreement (or, its actions pursuant to a promise of remuneration, or its actions enriching KIWI-TEK) primarily in this District, and KIWI-TEK sent its commissions into this District until it stopped paying them. Doc. 24-3, ¶¶ 6–8. Moreover, while KIWI-TEK focuses on the fact that its breach (whether of contract or of promise, or if recharacterized as unjust enrichment) resulted from decisions made in Indiana to not pay commissions, that breach straddled State lines, as evidenced by the cessation of payments into this District and KIWI-TEK's letter mailed into this District terminating the agreement. Id.; Doc. 24-4. And certainly, DocuVoice has allegedly felt the effects of the breach (however described) here, where it has its headquarters. Venue over Counts I through IV thus properly lies in this District.

Count V. A substantial part of the events giving rise to Count V, for tortious interference with business relations, likewise occurred in this District. According to KIWI-TEK, “the pertinent inquiry is where the client with whose contract the defendant allegedly interfered with is located.” Doc. 25 at 3. That categorical, single forum rule is inconsistent with governing precedent, Bramlet, 141 F.3d 260, 263 (6th Cir.1998), and the language of § 1391(b)(2). Here, DocuVoice cultivated, in part, its relationship with UMMC from its headquarters in this District, KIWI-TEK sent the allegedly tortious letter that eliminated DocuVoice's business relationship with UMMC into this District, and the effects of the allegedly tortious conduct were likewise felt there. Thus, this District is also a proper venue for the tortious interference claim. See Meco Corp. v. MRMC, Inc., No. 2:04-CV-431, 2005 WL 2139411, at *5 (E.D. Tenn. 2005) (venue deemed proper where “movants' tortious acts were directed towards plaintiff in” the forum “and the resulting injury occurred here”), report and recommendation adopted by 2005 WL 2387727.

Count VI. Plaintiffs' efforts to pierce the corporate veil do not render venue in this district improper. Veil piercing is a remedial tool—allowing the plaintiff to expand the universe of defendants from whom it may recover—not a freestanding claim. See Huntsville Golf Dev. Corp. v. Brindley Constr. Co., 1–08–00006, 2011 WL 4960421, at *9 (M.D. Tenn. 2011); Elpers Bros. Construction & Supply, Inc. v. Smith, 230 N.E. 3d 920, 930 (Ind. App. 2024). Thus, in Kroger Co. v. Merrill, because the plaintiff's claims for declaratory judgment, breach of contract, and unjust enrichment stemmed from a contract for construction work in Ohio, the court held that venue was proper in Ohio notwithstanding the plaintiff's efforts to pierce the corporate veil in service of expanding recovery on those claims. Kroger Co. v. Merrill, No. 1:09-CV-722, 2009 WL 2059776, at *3 (N.D. Ohio July 9, 2009). In this case, Plaintiff attempts to pierce the corporate veil in direct relation to its underlying claims, for which venue is proper.

II. Motion to Transfer Venue under 28 U.S.C. § 1404(a)

“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). When deciding “a motion to transfer under § 1404(a), a district court should consider the private interests of the parties, including their convenience and the convenience of potential witnesses, as well as other public-interest concerns, such as systemic integrity and fairness, which come under the rubric of ‘interests of justice.’ ” Moore v. Rohm & Haas Co., 446 F.3d 643, 647 n. 1 (6th Cir.2006). In resolving the motion, the court considers six factors:

1. the convenience of the parties and witnesses,

2. the accessibility of evidence,

3. the availability of process to make reluctant witnesses testify,

4. the costs of obtaining willing witnesses,

5. the practical problems of trying the case most expeditiously and inexpensively, and

6. the interests of justice.

Reese v. CNH Am. LLC, 574 F.3d 315, 320 (6th Cir. 2009).

“Unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.” Id. “A defendant must therefore make a clear and convincing showing that the balance of convenience strongly favors an alternate forum.” Sacklow v. Saks Inc., 377 F. Supp. 3d 870, 877 (M.D. Tenn. 2019). “As the permissive language of the transfer statute suggests, district courts have ‘broad discretion’ to determine when party ‘convenience’ or ‘the interest of justice’ make a transfer appropriate.” Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir.1994).

KIWI-TEK has not made the sort of showing required to disturb a plaintiff's choice of forum. KIWI-TEK primarily argues that the “locus of operative facts” is Indiana, but Indiana is not clearly more of a locus of operative facts than this District for the reasons already given. KIWI-TEK suggests in passing that Tennessee “has minimal interest in this controversy,” but Tennessee has an obvious interest in adjudicating the controversy involving an alleged injury to a resident corporation. ND Acquisitions Corp. v. Bel Pre Leasing Co., LLC, No. 3-15-0796, 2015 WL 5306114, at *3 (M.D. Tenn. Sept. 10, 2015) (“Tennessee has a substantial interest in seeing that its residents get the benefit of their bargains.”). And while KIWI-TEK argues that its witnesses (including the other defendants) and records are in Indiana, DocuVoice's witnesses and records are in Tennessee. “Merely shifting the inconvenience from one party to another does not meet the Defendant's burden.” One StockDuq Holdings, LLC v. Becton, Dickinson & Co., 2:12–cv–03037– JPM, 2013 WL 1136726, at *3 (W.D. Tenn. 2013). Defendants make no further arguments in favor of a transfer under Section 1404, and so their Motion must be denied.

CONCLUSION

For the foregoing reasons, Defendants' Motion to Dismiss for Improper Venue or in the Alternative to Transfer Venue (Doc. 23) is DENIED. Additionally, because the Court has resolved the underlying Motion to Dismiss, Defendants' Motions to Stay (Docs. 34, 35) are hereby DENIED as moot.

SO ORDERED, this 25th day of March 2026.

FOOTNOTES

1.   The parties have presented conflicting evidence concerning whether Defendant Wagner visited Tennessee to sign the Marketing Agreement on behalf of KIWI-TEK. Doc. 23-1 at 9. That dispute is immaterial because it is undisputed that DocuVoice executed the Agreement in this District, which suffices to tip this consideration over into the proper venue side of the ledger. In any event, in deciding a Rule 12(b)(3) motion, a court must resolve all factual disputes in favor of the plaintiff. Gone to the Beach, LLC v. Choicepoint Servs., 434 F. Supp. 2d 534, 536–37 (W.D. Tenn. 2006).

BRIAN C. LEA UNITED STATES DISTRICT JUDGE