ULTRAFLEX SYSTEMS OF FLORIDA, INC. v. VERITIV OPERATING COMPANY

              UNITED STATES DISTRICT COURT                           
                  DISTRICT OF NEW JERSEY                             
____________________________________                                      
                         :                                           
ULTRAFLEX SYSTEMS OF          :                                           
FLORIDA, INC., d/b/a ULTRAFLEX  :                                         
SYSTEMS, INC.,                :    Civil Action No. 19-13308 (KM) (MAH)   
                         :                                           
Plaintiff,               :                                           
                         :                                           
v.                       :                                           
                         :                                           
VERITEV OPERATING CO.,        :                                           
                         :    OPINION                                
Defendant.               :                                           
____________________________________:                                     

I.   INTRODUCTION                                                         
This  matter  comes  before  the  Court  by  way  of  Defendant/counterclaimant  Veritiv 
Operating Co.’s (“Defendant”) motion to transfer this action to the United States District Court for 
the District of Delaware pursuant to 28 U.S.C. § 1404(a) or, in the alternative, to dismiss this action 
on forum non conveniens grounds.  Def’s. Mot. to Transfer or Dismiss, June 27, 2019, D.E. 6.  The 
Court has decided this motion without oral argument.  See Local Civ. R. 78.1(b).   For the reasons 
set forth below, the Court will deny Defendant’s motion.                  
II.  BACKGROUND                                                           
This action arises out of allegedly unpaid invoices for the sale of commercial substrate 
materials for digital printing.  Plaintiff/counter-defendant Ultraflex Systems of Florida, Inc. 
(“Plaintiff”) is a “worldwide distribution company of substrate fabrics and accessories used for 
digital printing” that is incorporated and headquartered in Florida.  Compl. ¶ 2, June 3, 2019, D.E. 
1.  Plaintiff maintains a distribution warehouse and offices in Randolph, New Jersey.  Id. ¶ 3.  
Defendant  is  a  “business-to-business  distributor  of  packaging,  facility  solutions,  print  and 
publishing products and services.”  Id. ¶ 5.  Defendant is a Delaware corporation with a principal 
place of business in Atlanta, Georgia, and conducts business in New Jersey from two offices 
located in this state.  Id. ¶ 4.                                          
The parties have regularly done business together for the past decade.  Id. ¶ 9.  “At all 
times, the parties exchanged routine documents such as purchase orders, sales order confirmations, 

and invoices.”  Decl. of John E. Schleicher, Jr. in Opp’n to Def.’s Mot. to Transfer (“Schleicher 
Decl.”) ¶ 7, Aug. 5, 2019, D.E. 13-1.  Defendant would initiate the parties’ transactions by 
electronically sending purchase orders that contained Defendant’s Terms and Conditions of 
Purchase (“Veritiv Terms and Conditions”).  Decl. of Scott Dickerson in Supp. of Def.’s Mot. to 
Transfer (“Dickerson Decl.”) ¶¶ 4-5, Aug. 20, 2019, D.E. 19.  Paragraph One of the Terms and 
Conditions prescribes:                                                    
     Acceptance; Entire Agreement – Unless otherwise agreed to in    
     writing, these Terms and Conditions of Purchase (“Terms”) apply 
     to all purchases by Veritiv Operating Company (“Buyer”) from the 
     supplier of any goods and/or services (“Seller”) hereunder.  These 
     Terms constitute Buyer’s offer and may be accepted by Seller only 
     in accordance with the terms hereof.  Seller’s acceptance of these 
     Terms  and  any  order  hereunder  shall  occur  either  through 
     commencement of performance or acknowledgment of the order.     
     By  accepting  an  order  hereunder,  Seller  waives  all  terms  and 
     conditions contained in its quotation, acknowledgment, invoice or 
     other documents which are different from or additional to those 
     contained herein and all such different or additional terms and 
     conditions  shall  be  null  and  void.    No  addition  to,  waiver  or 
     modification of, any provisions herein contained shall be of any 
     force or effect unless made in writing and executed by Buyer’s  
     authorized representative.                                      

Dickerson Decl., Ex. A, D.E. 19-1.  Paragraph Seventeen, titled “Miscellaneous,” contains both a 
choice-of-law provision and a forum-selection clause:                     
     These terms, any order hereunder, and the rights and obligations of 
     the parties thereto, shall be governed by the laws of the State of 
     Delaware, without giving effect to its principles of conflicts of law. 
     Seller agrees to subject itself to the courts of Delaware and such 
     venue shall be exclusive regarding disputes arising out of these 
     Terms.                                                          

Id.; see also Def.’s Answer & Countercls. ¶ 16, June 27, 2019, D.E. 4.    
Upon receipt of a purchase order, Plaintiff would promptly transmit to Defendant a sales 
order confirmation that included a copy of its own terms and conditions of sale (“Ultraflex Terms 
and Conditions”).  See Schleicher Decl. ¶ 8; Dickerson Decl. ¶¶ 7-8.  The final provision of the 
Ultraflex Terms and Conditions prescribes:                                
     MISCELLANEOUS:  This agreement is effective upon shipment       
     of the Product by Ultraflex.  This agreement is governed by New 
     Jersey law and Purchaser agrees that in the event of any dispute 
     arising under or relating to this purchase and sale agreement that 
     Purchaser shall submit to the exclusive personal jurisdiction of the 
     state and federal courts situated in the State of New Jersey.   

Schleicher Decl., Ex. 1, D.E. 13-2.                                       
Defendant submitted multiple purchase orders for substrate materials to Plaintiff between 
September 2018 and March 2019.  See Compl. ¶ 10; Schleicher Decl. ¶ 2.  Following delivery, 
Plaintiff issued invoices to Defendant from its New Jersey office.  Compl. ¶¶ 11-13.  However, 
Defendant refused to pay those invoices on the basis that an October 2017 order was deemed 
defective by one of Defendant’s customers, Circle Graphics, Inc.  See id. ¶ 14-15; Schleicher Decl. 
¶¶ 3-4.  Plaintiff avers that it provided an appropriate credit for the allegedly defective shipment 
towards Defendant’s unpaid balance from the 2018-19 purchases.  Compl. ¶¶ 16-17.  As a result, 
Plaintiff filed this breach-of-contract action seeking the unpaid balance plus interest, attorneys’ 
fees, and late charges pursuant to the Ultraflex Terms and Conditions.  Id. ¶¶ 18-26. 
Defendant filed three counterclaims arising from the October 2017 order of allegedly 
defective goods.  Answer & Countercls., ¶¶ 28-43.  Defendant alleges that it ordered 239 rolls of 
graphic printing product from Plaintiff for the purpose of resale to one of its own customers.  Id. ¶ 
17.  Defendant’s customer “experienced immediate printing failures” with respect to thirty of the 
first sixty printing rolls shipped.  Id. ¶ 18.  “As a result, [Defendant’s] customer returned the 
remaining 30 rolls from [Defendant’s] 60-roll delivery and refused to receive any further deliveries 
from that same batch of rolls provided by [Plaintiff].”  Id. ¶ 19.  Despite continued efforts by 

Defendant to obtain a full refund, Plaintiff only issued Defendant a credit for twelve of the 239 
printing rolls.  Id. ¶¶ 20-22.  Defendant seeks money damages, lost profits, and other relief in 
conjunction with the defective sale from Plaintiff.  Id. ¶¶ 23-27.  Defendant submits that the Veritiv 
Terms and Conditions supplies many of its remedies it seeks by way of its counterclaims.  See id. 
¶¶ 2-4, 11-15, 24-26, 33, 39.                                             
Defendant now moves to have this case transferred to the United States District Court for 
the  District  of  Delaware  pursuant  to  the  forum-selection  clause  in  the  Veritiv  Terms  and 
Conditions or, in the alternative, dismissed on the grounds of forum non conveniens.  See generally 
Mot. to Transfer or Dismiss, June 27, 2019, D.E. 6.                       
III.  DISCUSSION                                                          

a.  Battle of the Forms                                              
Relying  on  their  respective  term  sheets,  the  parties  dispute  whether  New  Jersey  or 
Delaware law applies to this action and whether Plaintiff properly filed suit in this forum.  To 
ultimately determine whether this case must be transferred to the District of Delaware, this Court 
must first resolve a “battle of the forms” under Section 2-207 of the Uniform Commercial Code 
(“U.C.C.”).1                                                              


1   Both New Jersey and Delaware have adopted identical forms of U.C.C. § 2-207.  Compare N.J. 
Stat. Ann. § 12A:2-207 with Del. Code Ann. tit. 6, § 2-207.  Accordingly, this Court will cite to 
the U.C.C. directly when appropriate.  See Step-Saver Data Sys., Inc. v. Wyse Tech., 939 F.2d 91, 
94 n.6 (3d Cir. 1991) (citing directly to the relevant U.C.C. provisions because the states at issue 
adopted the U.C.C. without modification); Fresh Direct, Inc. v. Harvin Foods, Inc., No. 10-040, 
Section  2-207  addresses  the  situation  when  parties  consummate  a  sale  of  goods 
notwithstanding their exchange of non-identical term sheets.  See U.C.C. § 2-207 cmt. 1; Olefins 
Trading, Inc. v. Han Yang Chem Corp., 9 F.3d 282, 287-88 (3d Cir. 1993).  To simplify business 
transactions, the drafters of the U.C.C. recognized that “a proposed deal which in commercial 

understanding has in fact been closed is recognized as a contract.”  U.C.C. § 2-207 cmt. 2.  Proof 
of a contract can be established by either “[a] definite and seasonable expression of acceptance or 
a written confirmation which is sent within a reasonable time” after the offer.  Id. § 2-207(1).  If 
the confirmation makes acceptance expressly conditional on the offeror’s assent to the new terms, 
the parties’ writings do not give rise to a valid contract.  See id.  In that context, “[c]onduct by both 
parties which recognizes the existence of a contract is sufficient to establish a contract for sale 
although the writings of the parties do not otherwise establish a contract.”  Id. § 2-207(3).  
The dispute here is not over the existence of a contract arising from the purchase orders, 
but the terms thereof.  Plaintiff’s mailing of the sales confirmation constituted its acceptance of 
the purchase order (the offer) because Plaintiff did not condition its acceptance on Defendant’s 
assent to the Ultraflex Terms and Conditions.2  See Corestar Int’l Pte. Ltd v. LPB Commc’ns, Inc., 

513 F. Supp. 2d 107, 116-17 (D.N.J. 2007) (holding that confirmatory purchase order in response 
to price quotation constituted acceptance “because it was not ‘expressly made conditional on asset 
to the additional or different terms’” (quoting U.C.C. § 2-207(1)).       


2017 WL 1197674, at *5 n.3 (D.Del. Mar. 30, 2017) (“The court uses U.C.C. § 2-207 instead of 
any specific state commercial code because any state’s law that could possibly be relevant to this 
action adopts the U.C.C. § 2-207 into its own commercial code verbatim.”). 

2  Accordingly, this Court need not consider U.C.C. § 2-207(3).  See Jermax, Inc. v. AK Steel 
Corp., No. 09-4438, 2010 WL 2652276, at *4 (D.N.J. June 24, 2010) (applying U.C.C. § 2-207(3) 
where “the parties did not reach a binding agreement in accordance with the plain language of the 
parties’ proposed contracts” because the confirmatory writing stated that acceptance was expressly 
conditioned on the buyer’s assent to the additional terms).               
With respect to the additional or different terms,                   
     UCC § 2-207 establishes a legal rule that proceeding with a contract 
     after receiving a writing that purports to define the terms of the 
     parties’ contract is not sufficient to establish the party’s consent to 
     the terms of the writing to the extent that the terms of the writing 
     either add to, or differ from, the terms detailed in the parties[’] 
     earlier writings or discussions.                                

Step-Saver Data Sys, Inc., 939 F.2d at 99.  In a dealing between merchants, however, the additional 
terms become part of the contract unless any one of three enumerated exceptions apply: 
     (a) the offer expressly limits acceptance to the terms of the offer; 
     (b) they materially alter it; or                                
     (c) notification of objection to them has already been given or is 
     given within a reasonable time after notice of them is received. 

U.C.C. § 2-207(2).  The fate of conflicting terms is less clear.  The drafters of the U.C.C. provided 
two comments regarding that issue.  Comment Three provides:               
     Whether or not additional or different terms will become part of the 
     agreement depends upon the provisions of subsection (2). If they are 
     such as materially to alter the original bargain, they will not be 
     included unless expressly agreed to by the other party. If, however, 
     they are terms which would not so change the bargain they will be 
     incorporated unless notice of objection to them has already been 
     given or is given within a reasonable time.                     

Id. § 2-207 cmt. 3 (emphasis added).  On the other hand, Comment Six states: 

     Where clauses on confirming forms sent by both parties conflict 
     each party must be assumed to object to a clause of the other   
     conflicting with one on the confirmation sent by himself. As a result 
     the requirement that there be notice of objection which is found in 
     subsection (2) is satisfied and the conflicting terms do not become a 
     part of the contract. The contract then consists of the terms originally 
     expressly agreed to, terms on which the confirmations agree, and 
     terms supplied by this Act, including subsection (2).           

Id. § 2-207 cmt. 6 (emphasis added).                                      
As a result, jurisdictions have developed divergent approaches for dealing with conflicting 
terms sent in a confirmatory writing.  The majority rule is that conflicting terms are “knocked out” 
and not included in the resulting contract.  See Flender Corp. v. Tippins Int’l, Inc. 830 A.2d 1279, 
1285-87 (Pa. Sup. Ct. 2003) (noting that the knockout rule “has now been adopted by a strong 
majority of U.S. jurisdictions that have considered the issue, and the federal courts have predicted 
its adoption in others”); Richardson v. Union Carbide Indus. Gases, Inc., 790 A.2d 962, 967-68 

(N.J. Sup. Ct. App. Div. 2002) (surveying the different approaches to the issue of conflicting terms 
and holding that “the majority approach, the ‘knock-out’ rule, is preferable and should be adopted 
in New Jersey”).  There are two minority approaches: (1) the offeror’s terms control because 
conflicting terms constitute material alterations under U.C.C. § 2-207(2)(b) and Comment Three; 
and (2) the offeror’s terms control because conflicting terms are outside the scope of U.C.C. § 2-
207(2) and thus are never considered.  See Daitom, Inc. v. Pennwalt Corp., 741 F.2d 1569, 1579 
(10th Cir. 1984) (outlining the three approaches and predicting that the Pennsylvania Supreme 
Court would adopt the knockout rule).                                     
“Advocates of the knockout rule interpret Comment 6 to require the cancellation of terms 
in both parties’ documents that conflict with one another, whether the terms are in confirmation 

notices or in the offer and acceptance themselves.”  Reilly Foam Corp. v. Rubbermaid Corp., 206 
F. Supp. 2d 643, 654 (E.D. Pa. 2002) (emphasis added).  An additional rationale for the knockout 
rule flows from the U.C.C.’s rejection of the anachronistic mirror-image rule that existed at 
common law.  Under the mirror-image rule, any difference in the terms between the parties’ 
writings converted the putative acceptance into a counteroffer.  See Step-Saver Data Sys, Inc., 939 
F.2d at 99.                                                               
     If the offeror proceeded with the contract despite the differing terms 
     of  the  supposed  acceptance,  he  would,  by  his  performance, 
     constructively accept the terms of the “counteroffer”, and be bound 
     by its terms. As a result of these rules, the terms of the party who 
     sent the last form, typically the seller, would become the terms of 
     the parties'[] contract.                                        
Id.  The impetus for U.C.C. § 2-207 was the belief that “it would be unfair to bind the buyer of 
goods to the standard terms of the seller, when neither party cared sufficiently to establish 
expressly the terms of their agreement, simply because the seller sent the last form.”  Id.   
Courts that have adopted the knockout rule have expressed similar sentiments about not 
binding the offeree to the boilerplate terms of the offer when those terms were not deemed 
sufficiently important to be negotiated by the parties:                   
     One should not be able to dictate the terms of the contract merely 
     because one sent the offer. Indeed, the knockout rule recognizes that 
     merchants are frequently willing to proceed with a transaction even 
     though all terms have not been assented to. It would be inequitable 
     to lend greater force to one party's preferred terms than the other's. 
     As one court recently explained, “An approach other than the knock-
     out rule for conflicting terms would result in . . . [] any offeror . . . 
     [] always prevailing on its terms solely because it sent the first form. 
     That is not a desirable result, particularly when the parties have not 
     negotiated for the challenged clause.”                          

Reilly Foam Corp., 206 F. Supp. 2d at 653-54 (alterations in original) (quoting Richardson, 790 
A.2d at 968).                                                             
The parties dispute whether the knockout rule should apply in this case.  Defendant relies 
on two of the three exceptions set forth in U.C.C. § 2-207(2).  Defendant submits that Paragraph 
One of the Veritiv Terms and Conditions expressly limited acceptance to the terms contained 
therein.  Def.’s Br. at 7-8, D.E. 8; Def.’s Reply Br. at 8, 10-11, D.E. 17.  Defendant thus contends 
that, pursuant to U.C.C. § 2-207(2)(a), Plaintiff “could not unilaterally impose any additional terms 
via its acknowledgement forms without [Defendant’s] written acceptance, and any attempt to 
impose new terms without [Defendant’s] written assent would be null and void.”  Def.’s Reply Br. 
at 8.  Defendant further asserts that Plaintiff’s “choice of law and forum selection clause terms 
constitute  ‘material  alter[ations]’  that  are  not  incorporated  into  and  are  excluded  from  the 
agreement between the parties.”  Id. at 9 (quoting N.J. Stat. Ann. § 12A:2-207(2)(b); Del. Code 
Ann. tit. 6, § 2-207(2)(b)).  Defendant cites Comment Three for the proposition that conflicting 
terms are encompassed by U.C.C. § 2-207(2)(b), and as a result, the terms of the offer control.  Id.  
For its part, Plaintiff submits that the knockout rule cancels out the parties’ conflicting choice of 

law and forum selection provisions.  Pl.’s Br. at 6-7, D.E. 13.  Plaintiff predominately relies on 
Richardson and Comment Six to U.C.C. § 2-207.3  See id. at 9-11.          
Given the parties’ conflict regarding which state law applies, this Court must engage in a 
choice-of-law analysis.  Because the knockout rule is a principle of contract interpretation, its 
application is a matter of state substantive law.  See Collins v. Mary Kay, Inc., 874 F.3d 176, 182 
(3d Cir. 2017).  As a federal court sitting in diversity, this Court applies New Jersey choice-of-law 
rules.  See id. at 183.  The first inquiry, which is dispositive in this case, “is whether the laws of 
the states with interests in the litigation are in conflict.”  In re Accutane Litig., 194 A.3d 503, 517 
(N.J. 2018) (quoting McCarrell v. Hoffman-La Roche, Inc., 153 A.3d 207, 216 (N.J. 2017)).  The 
Court must “examin[e] the substance of the potentially applicable laws to determine whether ‘there 

is a distinction’ between them.”  P.V. ex rel. T.V. v. Camp Jaycee, 962 A.2d 453, 460 (N.J. 2008) 
(quoting Lebegern v. Forman, 471 F.3d 424, 430 (3d Cir. 2006)).  If there is no distinction, there 

3  Plaintiff  also  argues  that  Defendant  did  not  properly  authenticate  the  Veritiv  Terms  and 
Conditions.  Pl.’s Br. at 1-2, 4 (stating that Defendant’s motion was supported by “an unsigned, 
boilerplate form Veritiv’s counsel offers containing terms that have not been shown to apply to 
the specific sales at issue”).  The Court finds that the Declaration of Scott Dickerson resolves that 
issue.  Mr. Dickerson attests in his declaration, which was filed with Defendant’s reply brief, that 
“Veritiv initiated each transaction by sending to Ultraflex a purchase order including the basic 
specifications of the rolls that Veritiv ordered and setting out its standard Terms and Conditions 
of Purchase . . . .”  Dickerson Decl. ¶ 5.  He further attests that “Veritiv’s Terms have not changed 
in the last three years and have governed each of Veritiv’s transactions with Ultraflex during that 
period of time.”  Id. ¶ 6.  Notably, Mr. Schleicher, Ultraflex’s CEO, does not attest that Ultraflex 
never received Veritiv’s Terms and Conditions.  Nor has Plaintiff advanced the position that it was 
unaware of the Veritiv Terms and Conditions throughout the parties’ prior course of dealings.   
is no choice-of-law issue and the forum state applies its own law.  See In re Accutane Litig., 194 
A.3d at 517.                                                              
Although neither the Delaware Supreme Court nor the New Jersey Supreme Court has 
considered the knockout rule, this Court holds that there is no conflict.  Both states have adopted 

U.C.C.  §  2-207  without  modification  and  this  Court  predicts  that  both  states  would  align 
themselves with the majority of jurisdictions that have adopted the knockout rule.  Indeed, one of 
the  primary  policies  of  the  U.C.C.  is  to  “[t]o  make  uniform  the  law  among  the  various 
jurisdictions.”  N.J. Stat. Ann. § 12A:1-103(a)(3); Del. Code. Ann. tit. 6, § 1-103(a)(3).   
This Court treats Richardson as persuasive authority that the New Jersey Supreme Court 
would adopt the knockout rule.  See Travelers Indem. Co. v. Dammann & Co., Inc., 594 F.3d 238, 
244 (3d Cir. 2010) (“Furthermore, in the absence of direct authority from the New Jersey Supreme 
Court, we may treat as persuasive authority decisions of the Appellate Division of the Superior 
Court of New Jersey.”).  With respect to Delaware, a review of Delaware case law provides this 
Court with no reason to believe that the Delaware Supreme Court would depart from the majority 

approach in this case.  See, e.g., Acienro v. Worthy Bros. Pipeline Corp., 656 A.2d 1085, 1089 
(Del. 1995) (adopting majority rule that the adoption of the U.C.C. did not displace the common 
law doctrine of accord and satisfaction); Johnson v. Hockessin Tractor, Inc., 420 A.2d 154, 158 
(Del. 1980) (adopting majority rule that the U.C.C.’s statute of limitations applies to a breach of 
implied warranty action where personal injury is also alleged).  Accordingly, the Court holds that 
the knockout rule governs this case.                                      
Applied here, the knockout rule operates to cancel out the conflicting litigation provisions.  
The  Court  reaches  this  conclusion  notwithstanding  the  putative  restrictions  on  acceptance 
contained in the Veritiv Terms and Conditions for several reasons.  See Dickerson Decl., Ex. A 
(stating that “[t]hese Terms constitute Buyer’s offer and may be accepted by Seller only in 
accordance with the terms hereof[]” and that “all such different or additional terms and conditions 
shall be null and void”).  First, U.C.C. § 2-207(2)(a) and N.J. Stat. Ann. § 12A:2-207(2)(a), by 
their plain language, apply only to additional terms—not conflicting terms.  Pursuant to Comment 

Six to U.C.C. § 2-207, neither parties’ proffered term becomes part of the contract.  See id. 
(prescribing that “the conflicting terms do not become a part of the contract”).  Second, the 
Superior Court of New Jersey, Appellate Division applied the knockout rule in light of similar 
restrictive language contained in the offer in that case.  See Richardson, 790 A.2d at 963-64 (noting 
that the offer stated that “[t]his sale . . . limited to and expressly made conditional on Purchaser’s 
asset to these Terms and Conditions”).  Finally, this Court is persuaded by the rationale underlying 
the knockout rule and concludes that it is the most equitable approach.  Defendant, as the offeror, 
had the opportunity to include the litigation provisions among the dickered terms if it deemed those 
provisions to be of sufficient importance.  The inclusion of disagreeable terms should not depend 
on which party initiated the transaction.  See Daitom, Inc., 741 F.2d at 1580 (“To refuse to adopt 

the ‘knock-out’ rule . . . would serve to re-enshrine the undue advantages derived solely from the 
fortuitous positions of when a party sent a form.”).                      
b.  Motion to Transfer                                               
Having concluded that neither party’s forum selection clause was incorporated into the 
contract for the sale of the commercial substrate materials, Defendant’s motion to transfer is 
subject to a straightforward analysis under 28 U.S.C. § 1404.  “[A] district court may transfer a 
civil action to another district where the case might have been brought, or to which the parties have 
consented, for the convenience of the parties and witnesses and in the interest of justice.”  In re 
McGraw-Hill Glob. Educ. Holdings LLC, 909 F.3d 48, 57 (3d Cir. 2018) (citing Jumara v. State 
Farm Ins. Co., 55 F.3d 873, 879–80 (3d Cir. 1995)).  “Factors the court must consider include the 
three enumerated under the statute—convenience of the parties, convenience of the witnesses, and 
the interests of justice—along with all other relevant private and public factors, including the 
plaintiff’s choice of forum and the local interest in deciding local controversies close to home.”  

Id. at 57 (citing Atlantic Marine Constr. Co. v. U.S. District Court, 571 U.S. 49, 62 n.6 (2013)); 
see also 28 U.S.C. § 1404.                                                
More specifically, the private interests to be balanced include:     
     the plaintiff’s forum preference as manifested in the original choice; 
     the defendant’s preference; whether the claim arose elsewhere; the 
     convenience of the parties as indicated by their relative physical and 
     financial  condition;  the  convenience  of  the  witnesses;  and  the 
     location of books and records, well as all other practical problems 
     that make trial of a case easy, expeditious and inexpensive.    

In re: Howmedica Osteonics Corp, 867 F.3d 390, 402 (3d Cir. 2017) (internal quotation marks and 
citations omitted).  The public interests to be considered include: “the enforceability of the 
judgment; the relative administrative difficulty in the two fora resulting from court congestion; the 
local interest in deciding local controversies at home; the public policies of the fora; and the 
familiarity of the trial judge with the applicable state law in diversity cases.”  Id. (internal quotation 
marks and citations omitted).  The movant bears the burden of establishing that transfer is 
warranted and must “show the proposed alternative forum is not only adequate, but also more 
appropriate than the present forum.”  Hoffer v. InfoSpace.com, Inc., 102 F. Supp. 2d 556, 575 
(D.N.J. 2000).                                                            
Aside from Defendant’s preference to sue and be sued in Delaware, this Court finds that 
many of the private factors weighs against transfer.  Plaintiff filed this breach-of-contract action 
in New Jersey and the parties issued the purchase orders and invoices in this state.  See Compl. ¶ 
7, 10, 13; Schleicher Decl. ¶ 6.  Both parties operate on a national scale and do business in New 
Jersey.  See Compl. ¶¶ 2, 5; Schleicher Decl. ¶ 6.  At least some of Plaintiff’s witnesses and its 
books and records are associated with its Randolph, New Jersey facility.  With respect to 
Defendant’s counterclaim, the client who allegedly received the defective good is based in 
Colorado and has no clear ties to either desired forum.  Accordingly, it would not inconvenience 

the parties and witnesses to litigate this matter in New Jersey where they engaged in many of the 
commercial dealings at issue as opposed to Delaware, which has little to no connection to the 
disputed transactions.  See Yocham v. Novartis Pharm. Corp., 565 F. Supp. 2d 554, 558 (D.N.J. 
2008) (“[I]n light of the paramount consideration accorded to a plaintiff’s choice of venue, courts 
in this district have recognized that unless the balance of inconvenience of the parties is strongly 
in favor of Defendant, [Plaintiff’s] choice of forum should prevail.” (internal quotation marks and 
citations omitted)).                                                      
Nor is the Court convinced that the balancing of the public interest factors weighs in favor 
of transfer.  Although this Court’s docket is busy, there are no other administrative burdens in 
resolving this relatively straight-forward breach of contract and warranty action that is governed 

by the Uniform Commercial Code.  Accordingly, venue is proper in New Jersey and this Court 
will deny Defendant’s motion to transfer this action to the District of Delaware.   
IV.  CONCLUSION                                                           
For the foregoing reasons, the Court denies Defendant’s Motion to Transfer.  
Dated: December 27, 2019                                                  
                              s/ Michael A. Hammer                                 
                              United States Magistrate Judge