As the Court discusses in detail below, where a party's motion to transfer venue is based on a forum selection clause, " [s]uch clause shifts the burden from the party seeking transfer to the party opposing it." Blue Mako, Inc. v. Minidis, 472 F.Supp.2d 690, 704 (M.D.N.C.2007) (citing Allen v. Lloyd's of London, 94 F.3d 923, 928 (4th Cir.1996); Cable-La, Inc. v. Williams Communications, Inc., 104 F.Supp.2d 569, 574-75 (M.D.N.C.1999)).          b.

If so, the court must then decide whether to transfer venue. See Dacar v. Saybolt LP, No. 7:10–CV–12–F, 2011 WL 223877, at *2 (E.D.N.C. Jan. 24, 2011) (unpublished); Blue Mako, Inc. v. Minidis, 472 F.Supp.2d 690, 703 (M.D.N.C.2007); Datasouth Computer Corp. v. Three Dimensional Techs., Inc., 719 F.Supp. 446, 450–51 (W.D.N.C.1989). When venue and personal jurisdiction are proper in the filing district, transfer of venue is still possible under section 1406.

The court begins by asking whether the case could have been brought in the proposed transferee district. If so, the court must then decide whether to transfer venue. See Dacar v. Saybolt LP. No. 7:10-CV-12-F, 2011 WL 223877, at *2 (E.D.N.C. Jan. 24, 2011) (unpublished); Blue Mako. Inc. v. Minidis. 472 F. Supp. 2d 690, 703 (M.D.N.C. 2007); Datasouth Computer Corp. v. Three Dimensional Techs., Inc.. 719 F. Supp. 446, 450-51 (W.D.N.C. 1989). When venue and personal jurisdiction are proper in the filing district, transfer of venue is still possible under section 1406.

The party seeking removal has the burden of proving that the objecting party is merely nominal. See Blue Mako, Inc. v. Minidis, 472 F. Supp. 2d 690, 696 (M.D.N.C. 2007) (citing 14C Wright et al., Federal Practice and Procedure § 3731, at 270-71 (3d ed. 1998)). In this case, the Commonwealth does not consent to removal.

The party seeking removal has the burden of proving that non-consenting defendants are merely nominal. Creed, 596 F.Supp.2d at 934 (citing Blue Mako, Inc. v. Minidis, 472 F.Supp.2d 690, 696 (M.D.N.C. 2007)); see Johnson v. Nutrex Research, Inc., 429 F.Supp.2d 723, 727 (D.Md. 2006); Egle Nursing Home, Inc. v. Erie Ins. Grp., 981 F. Supp. 932, 935 (D.Md. 1997) (granting motion to remand when the removal notice failed to state why all defendants did not join in or consent to removal and noting that "the consent of all defendants to removal is not a mere technicality, but an important part of the burden carried by the party seeking removal jurisdiction"). The United States Court of Appeals for the Fourth Circuit recently clarified what constitutes a "nominal party" in Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co., 736 F.3d 255 (4th Cir. 2013).

28 U.S.C. § 636(b)(1); see Insteel Wire Products, Co. v. Dywidag Systems Int'l USA, Inc., No. 1:07cv641, 2009 WL 2253198 (M.D.N.C. July 28, 2009). The Removing Respondents, who seek to preserve removal, bear the burden of establishing that the requirements for removal have been met. Blue Mako, Inc. v. Minidis, 472 F. Supp. 2d 690, 696 (M.D.N.C. 2007). They do so understanding that removal statutes, being in derogation of state sovereignty, are strictly construed, Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941), and all doubts will be resolved in favor of remand to state court, Dixon v. Coburg Diary, Inc., 369 F.3d 811, 816 (4th Cir. 2004) (internal citations omitted).

See Creed, 596 F.Supp.2d at 935 (citing Allen, 396 F.Supp.2d at 733). Courts within this Circuit have also asked "whether a court would be able to enter a final judgment favoring the plaintiff in the absence of the purportedly nominal defendant without materially affecting the relief due to the plaintiff." Creed, 596 F.Supp.2d at 935; see also Blue Mako, Inc. v. Minidis, 472 F.Supp.2d 690, 696 (M.D.N.C. 2007). Bank of America, as the removing party, bears the burden of establishing that HUD and SIWPC are "formal" or "nominal" parties whose citizenship can be ignored for diversity purposes.

A corporate officer who actively participates in a tort may be liable even if he or she was acting in a corporate capacity. Blue Mako, Inc., v. Minidis, 472 F. Supp. 2d 690, 701-702 (M.D.N.C. 2007) (finding jurisdiction over non-resident corporate officer who allegedly sent false and misleading or inaccurate information to North Carolina to induce plaintiff to sign contract forming the basis of the action). In trademark infringement cases, a non-resident employee-defendant may be held jointly and severally liable "with that corporation if the individual defendant has direct involvement in the infringing activities of the corporation."

The Fourth Circuit has yet to address the nominal party exception to the rule of unanimity. Blue Mako, Inc. v. Mindis, 472 F. Supp. 2d 690, 696 (M.D.N.C. 2007). However, in a thorough and persuasive opinion, Judge Tilley of the Middle District of North Carolina explained that "there appears to be broad consensus concerning the type of situations which would be covered by the exception," id., and then catalogued those "situations:"

Were Hammonds not included in this action, it would have no effect on Hartford's ability to be made whole by the other insurers. Hammonds's absence would not prevent the court from “be[ing] able to enter a final judgment in favor of the plaintiff ... without otherwise materially circumscribing the relief due.” Blue Mako, Inc. v. Minidis, 472 F.Supp.2d 690, 696 (M.D.N.C.2007). Hammonds essentially has no dog in this fight.