(Pl.'s Mem. of Law in Supp. of Pl.'s Cross-Motion for Partial Summ. Judg. at 9.) While McStay is correct to point out that Rule 9(b), F.R. Civ. P. permits a plaintiff to allege fraudulent intent generally, see, e.g., PI. Inc. v. Ogle, 932 F. Supp. 80, 84 (S.D.N.Y. 1996) (Koeltl, J.), she fails to satisfy the attendant requirement that such allegations be supplemented with statements of fact upon which the belief or intent is founded. "Allegations of fraud cannot ordinarily be based 'upon information and belief,' except as to 'matters peculiarly within the opposing party's knowledge' . . .

The parties each cite cases where a court either permitted or forbade a party from raising a choice-of-law argument late in the proceedings. E.g., Bergin v. Dartmouth Pharm., Inc., 326 F.Supp.2d 179, 180 n. 1 (D.Mass. 2004) (deeming choice-of-law argument waived); PI, Inc. v. Ogle, 932 F.Supp. 80, 82 (S.D.N.Y. 1996) (same); Torah Soft Ltd. v. Drosnin, 224 F.Supp.2d 704, 718-19 (S.D.N.Y. 2002) (permitting choice of law argument to be raised late in litigation). The cases cited do not establish a definitive point by which a litigant must raise a choice-of-law argument; rather, each was decided based on the case's own facts and equities.

That the parties interacted in this District does not alone make venue here proper. See, e.g, PI, Inc. v. Ogle, 932 F.Supp. 80, 85 (S.D.N.Y. 1996) (venue improper where fraud claim “concerns statements [defendant] allegedly made” in different state, despite the fact that the parties had other interactions in that state); Friedman v. Revenue Management of N.Y., Inc., 38 F.3d 668, 672 (2d Cir. 1994) (venue improper where “all the events” alleged in the complaint “occurred in” a different state, despite the fact that the parties had other interactions in that state). Bare Body has failed to meet its burden to show that venue is proper in this District as to its first claim.

Further, as Plaintiff's motion fails to meet the threshold requirement for transfer, by showing jurisdiction and proper venue, pursuant to § 1404(a), it is unnecessary to evaluate Plaintiff's further contentions based on § 1404(a)(2) relating to convenience of witnesses and other relevant factors. See PI, Inc. v. Ogle, 932 F.Supp. 80, 84-85 (S.D.N.Y. 1996) (declining to address factors relevant to motion to transfer pursuant to § 1404(a) where moving defendant failed to establish the case could have been brought in the proposed transferee district). Additionally, as Defendant is headquartered in the Northern District of Texas it is therefore "at home" in that district sufficient to support general jurisdiction over all cognizable claims, including those brought pursuant to the FLSA in the instant matter, as Defendant concedes.

Further, as Plaintiff's motion fails to meet the threshold requirement for transfer, by showing jurisdiction and proper venue, pursuant to § 1404(a), it is unnecessary to evaluate Plaintiff's further contentions based on § 1404(a)(2) relating to convenience of witnesses and other relevant factors. See PI, Inc. v. Ogle, 932 F.Supp. 80, 84-85 (S.D.N.Y. 1996) (declining to address factors relevant to motion to transfer pursuant to § 1404(a) where moving defendant failed to establish the case could have been brought in the proposed transferee district). Additionally, as Defendant is headquartered in the Northern District of Texas it is therefore "at home" in that district sufficient to support general jurisdiction over all cognizable claims, including those brought pursuant to the FLSA in the instant matter, as Defendant concedes.

While the defendants take issue with the fact that the First Amended Complaint makes claims based "upon information and belief," such allegations can be sufficient to satisfy Rule 9(b) where, as here, they relate to "matters particularly within the opposing party's knowledge" that are "accompanied by statements of facts upon which the belief is founded." PI, Inc. v. Ogle , 932 F.Supp. 80, 83–84 (S.D.N.Y. 1996) (citing Luce v. Edelstein , 802 F.2d 49, 54 n.1 (2d Cir. 1986) ). The defendants also argue that any claims arising out of the July 30, 2015 Certification should be dismissed because the Certification was actually true.

Because he did not raise a conflict of law argument in his motion to dismiss and relied solely on Ohio law in that motion, the Defendant arguably waived his right to raise a conflict of law issue at this late stage in the litigation. See Lott v. Levitt, 556 F.3d 564, 567-68 (7th Cir. 2009); PI, Inc. v. Ogle, 932 F. Supp. 80, 82 (S.D.N.Y. 1996) (holding that previous decision denying defendant's motion to dismiss was the law of the case and barred defendant from bringing motion again, even though defendant argued in second motion that law of another state applied to action; neither party had raised conflicts of law issue on prior motion, and thus law of forum was deemed to apply and any conflicts of law issue was deemed waived). --------

These requirements cannot be waived by the party seeking the transfer." (citing Hoffman, 363 U.S. at 335));see also Schertenleib v. Traum, 589 F.2d 1156, 1161 (2d Cir. 1978) (noting that § 1404(a) "authorize[s] transfer only to an alternative forum in which jurisdiction over the defendant could have been obtained at the time suit was brought regardless of his consent"); PI, Inc. v. Ogle, 932 F. Supp. 80, 85 (S.D.N.Y. 1996) (denying a motion to transfer where the defendant had failed to demonstrate that he was subject to personal jurisdiction in the transferee district at the time the suit was filed). Under § 1404, the party seeking transfer has the burden of demonstrating that transfer is appropriate.

See, e.g.,Posven, C.A. v. Liberty Mut. Ins. Co., 303 F. Supp. 2d 391, 401 (S.D.N.Y. 2004) ("For the purposes of section 1404(a), an action might have been brought in another forum if, at the time the action was originally filed, the transferee court would have had subject matter jurisdiction and personal jurisdiction over the defendants, and if venue would have been proper in the transferee court." (citation omitted)); PI, Inc. v. Ogle, 932 F. Supp. 80, 85 (S.D.N.Y. 1996) (finding as part of its section 1404(a) analysis that defendant failed to show that proposed transferee district had personal jurisdiction over him when the action commenced); Anglo Am. Ins. Group, P.L.C. v. CalFed Inc., 916 F. Supp. 1324, 1330 (S.D.N.Y. 1996) ("To transfer under § 1404(a), the movant must show . . . that the [transferee] district has personal jurisdiction over [defendant] on the date of the commencement of this claim."). District judges in the Seventh Circuit, including the Southern District of Indiana where the transfer motion in this case was decided, have come to the same conclusion. See, e.g., Encyclopedia Britannica, Inc. v. Magellan Navigation, Inc., 512 F. Supp. 2d 1169, 1172 (W.D. Wis. 2007) ("The [Supreme] Court reasoned that `where it might have been brought' means that the plaintiff has to have had the right to bring its case in the transferee district, which would require proper venue and personal jurisdiction over the defendants in the transferee distric

This strong inference can be established either (a) by alleging facts to show that defendants had both motive and opportunity to commit fraud, or (b) by alleging facts that constitute strong circumstantial evidence of conscious misbehavior or recklessness." PI Inc. v. Ogle, 932 F. Supp. 80, 84 (S.D.N.Y. 1996) (internal citation and quotation marks omitted). Under New York law, "an escrow agent can be held liable for breach of the escrow agreement and breach of fiduciary duty as escrowee."