MEMORANDUM OPINION AND ORDER

Sidney A. FITZWATER, U.S.D.J.

In this action by plaintiff Mark T. Fowler ("Fowler") alleging claims for breach of fiduciary duty, breach of contract, promissory estoppel, and intentional and negligent misrepresentation arising from a dispute concerning the ownership and operations of defendant Synergy Management Solutions, Inc. ("Synergy"), defendants Reuben P. Broussard ("Reuben"), Elizabeth Broussard ("Elizabeth"), and Kendall A. Broussard ("Kendall") (collectively, the "Broussards") move to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction or to dismiss or transfer pursuant to Rule 12(b)(3) for improper venue, and defendant Synergy moves pursuant to Rule 12(b)(3) or 28 U.S.C. § 1404 (a) to transfer the case to the Western District of Louisiana. For the reasons that follow, the court denies the motions to dismiss but grants the motion to transfer pursuant to § 1404(a), finding that doing so will promote the convenience of the parties and witnesses and is in the interest of justice.

Fowler alleges that he and the Broussards agreed to form and own Synergy. Fowler became resident, Reuben became Chairman of the Board, Kendall became Secretary-Treasurer, and Elizabeth became Vice President. Fowler and the Broussards each owned Synergy stock. The Broussards are also directors of the company.

Fowler avers that the Broussards devised a plan to pay approximately $10,000 each month for fictitious or negligible services. Reuben, Kendall, and Fowler had borrowed $100,000 from a bank to finance Synergy's initial operations. Reuben and Kendall used company funds and assets to pay off the loan. They then paid money and capital directly to the company to obtain personal tax advantages and benefits. Although Synergy was to receive $125,000 in capital from Reuben and Kendall, it received far less as a result of these transactions.

Synergy's major customer, Harvest Management Services, Inc. ("Harvest"). began experiencing financial difficulties. Fowler insisted that Synergy cease doing business with Harvest, but the Broussards provided accounting and other services to Harvest that depended upon services provided by Synergy, thereby causing the company to do business with Harvest regardless of its financial condition. Harvest later defaulted on its obligations to Synergy and filed for bankruptcy.

Fowler asserts that the Broussards breached their fiduciary duties, duty of care, and duty of loyalty, and committed waste, misappropriation of corporate assets, usurped corporate opportunities, and defrauded Synergy. He alleges a claim for breach of contract, contending that the Broussards repudiated and breached their agreement with him concerning ownership of Synergy. Fowler brings a claim for promissory estoppel on the ground that the Broussards promised, but failed to honor their commitment, that he would own 50% of Synergy. He maintains that the Broussards are liable for intentional and negligent misrepresentation for misrepresenting to Fowler that he would own 50% of Synergy.

II

The Broussards move to dismiss this action for lack of personal jurisdiction or to dismiss or transfer for improper venue. They maintain that this court may not exercise general or specific jurisdiction over them because they do not have sufficient minimum contacts with the state of Texas and that exercising jurisdiction would offend traditional notions of fair play and substantial justice. In a related motion, the Broussards assert that venue is improper under 28 U.S.C. § 1391 (a) because they are not subject to personal jurisdiction in this forum. They seek dismissal on this basis or, alternatively, transfer to the Western District of Louisiana, where they reside.

A

The determination whether a federal district court has in personam jurisdiction over a nonresident defendant is bipartite. The court first decides whether the long-arm statute of the state in which it sits confers personal jurisdiction over the defendant. If it does, the court then resolves whether the exercise of jurisdiction is consistent with due process under the United States Constitution. See Mink v. AAAA Dev. LLC, 190 F.3d 333, 335 (5th Cir. 1999). Because the Texas long-arm statute extends to the limits of due process, the court need only consider whether exercising jurisdiction over the Broussards would be consistent with the Due Process Clause of the Fourteenth Amendment. See Id; Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 214 (5th Cir. 2000).

"The Due Process Clause of the Fourteenth Amendment permits the exercise of personal jurisdiction over a nonresident defendant when (1) that defendant has purposefully availed himself of the benefits and protections of the forum state by establishing `minimum contacts' with the forum state; and (2) the exercise of jurisdiction over that defendant does not offend `traditional notions of fair play and substantial justice.' To comport with due process, the defendant's conduct in connection with the forum state must be such that he `should reasonably anticipate being haled into court' in the forum state." Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999) (footnotes omitted). To determine whether exercising jurisdiction would satisfy traditional notions of fair play and substantial justice, the court examines (1) the defendant's burden, (2) the forum state's interests, (3) the plaintiff's interest in convenient and effective relief, (4) the judicial system's interest in efficient resolution of controversies, and (5) the states' shared interest in fundamental social policies. Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 421 (5th Cir. 1993).

A defendant's contacts with the forum may support either specific or general jurisdiction over the defendant. Mink, 190 F.3d at 336. "Specific jurisdiction exists when the nonresident defendant's contacts with the forum state arise from, or are directly related to, the cause of action. General jurisdiction exists when a defendant's contacts with the forum state are unrelated to the cause of action but are `continuous and systematic.'" Id. (citations omitted).

"When a court rules on a motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing, it must accept as true the uncontroverted allegations in the complaint and resolve in favor of the plaintiff any factual conflicts posed by the affidavits. Therefore, in a no-hearing situation, a plaintiff satisfies his burden by presenting a prima facie case for personal jurisdiction." Latshaw, 167 F.3d at 211 (footnotes omitted).

B

The Broussards have adduced evidence that they reside in Louisiana, and that they do not transact business, own real estate, have an office or place of business, use, own, or rent real or personal property, have agents, servants, employees, brokers, or other representatives, maintain bank accounts, have telephone listings, keep books or records, pay taxes, solicit or advertise for business, or have consented to be sued or designated an agent for service of process in Texas. See Reuben Aff. at [1]-[2]; Elizabeth Aff. at [1]-[2]; Kendall Aff. at [1]-[2]. They assert that Fowler resided in Texas for only a short period of time and now resides in Florida. Id. at [2). The Broussards deny that Fowler' s claims arose or accrued in Dallas County, Texas or that they are based on a written contract to perform obligations in Dallas County. Id. They maintain that when the negotiations took place and alleged oral agreement was reached, Fowler was domiciled in Louisiana, all negotiations concerning formation of the contract occurred in Louisiana, not Texas, and that Synergy is a Louisiana corporation whose formation and operations are governed by Louisiana law, and whose principal officers and shareholders were, at the time of formation, domiciliaries of Louisiana. Id. at [2]-[3].

Fowler responds that the record supports the exercise of general jurisdiction over the Broussards, who have purposely availed themselves of the privilege of conducting business in the state of Texas. He cites evidence that the Broussards are Certified Public Accountants who have several clients in the state of Texas and regularly conduct business and have continuing and systematic business contacts here. He avers that Harvest, located in Pasadena, Texas, was a major client, and that Rags Incorporated, located in Brownsville, Texas, was another client, whose offices the Broussards visited in rendering CPA services. He maintains that they also have accounting clients in Richardson, Nacogdoches, and Marshall or Tyler, Texas. Fowler relies on evidence that Reuben has visited Texas on business at least five times annually during the past 5-6 years, including Harvest's Pasadena offices in 1998 and 1999; that Kendall visited Harvest's offices in 2000, visited in January 2000 an auto parts manufacturing client located in Ferris, a suburb of Dallas, and has clients in Beaumont and Lufkin; and that Harvest was a client of the Broussards to whom they provided CPA services.

Fowler also argues that the court can exercise specific jurisdiction over the Broussards. He relies on evidence that they made misrepresentations to him in Dallas, at Synergy's Dallas offices, relating to the agreement to own Synergy on a 50/50 basis, and that he relied on these representations here. Fowler avers that their conduct that constituted breach of contract, fraud upon Synergy, waste, misappropriation of corporate assets, and usurpation of corporate opportunities that breached their fiduciary duties injured Synergy at its Dallas offices. Fowler posits that the communications to him that constituted failure to carry out the agreement, and consummation of the breach, occurred in Dallas, and that his tort and contract actions occurred in whole or in part in Dallas.

The Broussards argue in reply that virtually all contacts by Reuben and Kendall with the state of Texas occurred in their capacities as officers, agents, servants, and/or employees of Broussard and Company, LLC and therefore are subject to the fiduciary shield doctrine. They maintain that virtually all contacts by Elizabeth with the state of Texas occurred in her capacity as an employee of Broussard Health Care Consultants, LLC. All of their correspondence directed to persons or places in Texas were also generated or produced in their capacities as officers, agents, servants, and/or employees of various companies, including Synergy, Broussard and Company, LLC, Broussard Health Care Consultants, LLC, and Broussard Group, LLC, and are not individual contacts. They assert that when they engaged in telephone conversations and e-mail correspondence with Fowler, he had not yet moved to Dallas, and that Fowler resided in New Orleans when he and the Broussards allegedly agreed that he would own 50% of Synergy's stock. The Broussards argue that as their relations began to deteriorate, it was necessary to communicate with Fowler via telephone, mail, and/or e-mail.

C

The court must first decide whether the fiduciary shield doctrine precludes the court from exercising personal jurisdiction over the Broussards.

Under the fiduciary shield doctrine, "an individual's transaction of business within the state solely as a corporate officer does not create personal jurisdiction over that individual though the state has in personani jurisdiction over the corporation[.]" Stuart v. Spademan, 772 F.2d 1185, 1197 (5th Cir. 1985). The doctrine does not apply if the corporation is the alter ego of the individual. Id. at 1197. Nor does the doctrine apply to corporate officers who, in their roles as corporate agents, injure persons by "tortious activity even if such acts were performed within the scope of their employment as corporate officers." Id. (quoting Odell v. Signer, 169 So.2d 851, 853-54 (Fla.Ct.App. 1964), writ discharged, 176 So.2d 94 (Fla. 1965)). "It is well settled law that when corporate officers directly participate in or authorize the commission of a wrongful act, even if the act is done on behalf of the corporation, they may be personally liable," Moss v. Ole South Real Estate, Inc., 933 F.2d 1300, 1312 (5th Cir. 1991) (citation omitted); see also Shingleton v. Armor Velvet Corp., 621 F.2d 180, 183 (5th Cir. 1980) (per curiam) ("Officers who take part in the commission of a tort by the corporation may be held personally liable therefor.") (citations omitted). The Fifth Circuit has noted that "[t]he thrust of the general rule is that the officer to be held personally liable must have some direct, personal participation in the tort, `as where the defendant was the "guiding spirit" behind the wrongful conduct . . . or the "central figure" in the challenged corporate activity.'" Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 174 (5th Cir. 1985) (quoting Escrude Cruz v. Ortho Pharm. Corp., 619 F.2d 902, 907 (1st Cir. 1980)). A corporate employee is personally liable under Texas law for tortious acts he directs or participates in during his employment. Leyendecker Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex. 1984) (on rehearing) (citations omitted) if a corporate officer engages in tortious conduct in his corporate capacity in a forum, that conduct is sufficient to support a court's in personam jurisdiction over that officer in his individual capacity. See Star Brite Distrib., Inc. v. Gavin, 746 F. Supp. 633, 638 (N.D. Miss. 1990); Union Carbide Corp. v. UGI Corp., 731 F.2d 1186, 1189-90 (5th Cir. 1984) (holding jurisdiction proper because prima facie case of tortious interference with contract was established). "[T]he Fifth] [C]ircuit has long held that when officers or agents direct purposeful, tortious activity towards a particular forum, they should anticipate being haled into court in that forum." Intermed Labs., Inc. v. Perbadanan Geta Felda, 898 F. Supp. 417, 420 (E.D. Tex. 1995) (citations omitted).

The court holds that Fowler has made a prima facie showing that the Broussards are not protected by the fiduciary shield doctrine from this court's exercise of personal jurisdiction. Fowler has introduced evidence that each defendant made misrepresentations to him about the 50/50 split in Synergy ownership that were transmitted to him at Synergy's offices in Dallas. See Fowler Aff. ¶ 4. They sent e-mails and had telephone conversations with him in Dallas that he asserts contained misrepresentations that support his tort claim for intentional and negligent misrepresentation. Id. at ¶¶ 4-5. Fowler has also introduced evidence that the Broussards' conduct that constitutes breach of fiduciary duties, usurpation of corporate opportunities, and fraud occurred at Synergy's Dallas offices. Id. at ¶ 9. The fiduciary shield doctrine is inapplicable.

D

For the same reasons, the court holds that Fowler has established this court's specific jurisdiction over the Broussards. A court has specific jurisdiction when the nonresident defendant's contacts with the forum state arise from, or are directly related to, the cause of action. Fowler's evidence is sufficient to constitute prima facie proof that his tort claims against the Broussards arise from, and are directly related to, their contacts with the state of Texas.

E

The Broussards clearly will not suffer an undue burden. They reside in a part of Louisiana that is located in relatively close proximity to the state of Texas. They frequently travel to Texas to provide CPA and other services to clients located in this state. Texas has an interest in protecting persons located here from being defrauded and in providing a remedy for torts directed to the state. Fowler has an interest in obtaining convenient and effective relief in the state where he allegedly suffered the tort damages. The judicial system's interest in efficient resolution of controversies, and the states' shared interest in fundamental social policies, neither support nor undercut the exercise of jurisdiction here. The court holds that the exercise of personal jurisdiction over these defendants comports with traditional notions of fair play and substantial justice.

The court denies the Broussards' motion to dismiss for lack of personal jurisdiction.

F

In a related motion, the Broussards argue that this case must be dismissed or transferred due to improper venue. Section 1391(a)(2) provides that "(a] civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in . . . a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred[.]" As the court has explained above, Fowler has established a prima facie case that a substantial part of the conduct that gives rise to his tort claims occurred in Dallas, Texas. The court therefore denies the Broussards' motion to dismiss or transfer for improper venue.

III

Synergy moves to transfer this case pursuant to Rule 12(b)(3) or § 1404(a), contending that a substantial part of the events giving rise to this suit did not occur in Dallas and, alternatively, the Western District of Louisiana is a more convenient forum.

A

For the reasons explained supra at § 11(C), (D), and (F), the court rejects Synergy's assertion that a substantial part of the events giving rise to this suit did not occur in Dallas. Moreover, Synergy's motion assumes that the Broussards are not subject to personal jurisdiction in this forum, a proposition that the court has already rejected.

B

Synergy also moves to transfer this case pursuant to § 1404(a) for the convenience of the parties and witnesses and in the interest of justice.

I

Section 1404(a) provides that "[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 decision to transfer is made to prevent waste of time, energy, and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense. Stabler v. New York Times Co., 569 F. Supp. 1131, 1137 (S.D. Tex. 1983). The court considers several factors in their totality, including (1) plaintiff's choice of forum; (2) the availability of compulsory process for the attendance of unwilling witnesses; (3) the cost of obtaining the attendance of willing witnesses; (4) the accessibility and location of sources of proof; (5) the relative congestion of the courts' dockets; (6) the accessibility of the premises to jury view; (7) the relation of the community in which courts and the jurors are required to serve to the occurrence giving rise to the suit; and (8) the time, cost, and ease with which the trial can be conducted, and all other practical considerations relative to the trial and determination of the case. Fletcher v. Southern Pac. Transp. Co., 648 F. Supp. 1400, 1401 (E.D. Tex. 1986); Greiner v. American Motor Sales Corp., 645 F. Supp. 277, 278 (E.D. Tex. 1986).

The moving party must make a particularized showing regarding why transfer is necessary, including identification of key witnesses and the general content of their testimony. Young v. Armstrong World Indus., Inc., 601 F. Supp. 399, 401-02 (N.D. Tex. 1984) (Sanders, J.). The court may not transfer venue where the result will be merely to shift the burden of the trial from one party to the other. Enserch Int'l Exploration, Inc. v. Attock Oil Co., 656 F. Supp. 1162, 1167 n. 5 (N.D. Tex. 1987) (Fitzwater, J.).

2

Under the first factor, the court considers Fowler's choice of forum. Although, a plaintiff's choice of forum is entitled to substantial weight and should be highly esteemed, see Enserch, 656 F. Supp. at 1167 n. 15, the weight to be accorded the choice is diminished where plaintiff brings suit outside his home forum, Alexander Alexander, Inc. v. Donald F. Muldoon Co., 685 F. Supp. 346, 349 (S.D. N.Y. 1988). Fowler is now a resident of Florida. Reuben Aff. at [2]; Elizabeth Aff. at [2]; Kendall Aff. at [2]. Synergy no longer has offices in Dallas. See P. Resp. at 6; Fowler Aff. at ¶ 2. Accordingly, this factor does not weigh in Fowler's favor.

3

The court next considers in tandem the availability of compulsory process for the attendance of unwilling witnesses and the cost of obtaining the attendance of willing witnesses.

Synergy has pointed to 14 witnesses whose testimony will be required at trial. Three — the Indiviual Defendants — are available to testify because they are parties-defendant. Although Synergy asserts in its brief that several of these witnesses are unwilling to testify, see D. Br. at 5, it does not identify which ones are unwilling, see id. at 4-5, and does not cite the court to supporting materials that do so, id. It merely identifies which witnesses are not subject to compulsory process. See id. Synergy does assert, however, that it will cost it a large amount of money to pay expenses for its witnesses to travel to Dallas, id. at 3, and Fowler does not dispute this assertion.

Fowler has adduced evidence that he is likely to call eleven non-party witnesses. See Fowler Aff. at ¶ 10 Only four of these witnesses, however, appear to reside in the Northern District of Texas, and Fowler has not specified that any one of them is an unwilling witness who must be compelled to testify, or averred that the cost of obtaining the attendance of willing witnesses will be unduly expensive. See id.

The court finds that this factor is neutral (to the extent it addresses the availability of compulsory process for the attendance of unwilling witnesses) and in part favors granting the motion (insofar as based on the cost of obtaining the attendance of willing witnesses).

4

The court next addresses the accessibility and location of sources of proof Synergy asserts that there are voluminous relevant documents located in the Western District of Louisiana. See D. Br. at 5-6. Fowler concedes that it is likely that documents may be located outside the state of Texas, but contends they can be transported and thus that this factor does not present a compelling reason to transfer the case. P. Resp. at 11. This factor weighs in favor of transfer given the presence of voluminous documents in the Western District of Louisiana and the apparent absence of any — or, at most, a modest number of — documents in this forum

5

The factors that take into account the relative congestion of the courts' dockets, the accessibility of the premises to jury view, and the time, cost, and ease with which the trial can be conducted, and all other practical considerations relative to the trial and determination of the case, do not weigh in favor of either forum and neither party has adequately addressed these elements.

6

The court now considers the relation of the community in which the courts and the jurors are required to serve to the occurrence giving rise to the suit. Litigating this case in Dallas would force citizens to serve on a jury to resolve a dispute between a Florida citizen, on the one hand, and Louisiana citizens, and a company that no longer maintains its offices in Dallas, on the other hand. This factor weighs in favor of transferring the case.

7

Synergy also urges the court to transfer the case because of choice of law considerations. It maintains that Louisiana law will control the formation and operation of Synergy — a Louisiana corporation — and that the Western District of Louisiana will already be familiar with the relevant state law. Fowler maintains that Texas law will control his tort claims. The court agrees that Texas law will likely govern several of Fowler' s claims. This factor weighs in favor of retaining the case here, although the court is confident that the Western District of Louisiana is quite capable of accurately ascertaining and applying the relevant Texas law.

8

Having considered the factors together, the court holds that it should transfer this case to the Western District of Louisiana for the convenience of the parties and witnesses and in the interest of justice. This case is essentially one that once had a connection to this forum — sufficiently so that the court can exercise personal jurisdiction over the Broussards — but that no longer has any meaningful connection here. The convenience of the parties and witnesses will be promoted by litigating the case in the Western District of Louisiana where several witnesses reside and where the voluminous relevant documents are located.

* * *

The court denies defendants' motions to dismiss. The court grants Synergy's motion to transfer and, pursuant to § 1404(a), transfers this action to the United States District Court for the Western District of Louisiana, Lake Charles Division. The clerk of court shall effect the transfer in accordance with the usual procedure.

SO ORDERED.