PCS Phosphate Co. v. Jacobs Eng’g Grp., Inc., 2026 NCBC 15.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION BEAUFORT COUNTY 25CV000227-060
PCS PHOSPHATE COMPANY, INC. and PCS ADMINISTRATION (USA), INC.,
Plaintiffs, ORDER AND OPINION ON DEFENDANT BUSS CHEMTECH AG’S v. MOTION TO TRANSFER OR, IN THE ALTERNATIVE, DISMISS JACOBS ENGINEERING GROUP, INC. and BUSS CHEMTECH AG,
Defendants.
1. This matter is before the Court on defendant Buss ChemTech AG’s motion
to transfer or, in the alternative, dismiss the Amended Complaint of plaintiffs PCS
Phosphate Company, Inc. and PCS Administration (USA), Inc. (ECF No. 50).
2. Invoking Rule 12(b)(3) of the North Carolina Rules of Civil Procedure and
N.C. Gen. Stat. § 7A-258, Buss argues that the Court should transfer this state-court
action to federal court in the United States District Court for the Southern District
of New York. Alternatively, Buss moves for dismissal under Rule 12(b)(6), contending
that Plaintiffs have failed to state a claim for several of their causes of action alleged
in their amended complaint. (ECF No. 50).
3. With this Order and Opinion, the Court addresses only Buss’s requests to
transfer, stay, or dismiss this action under Rule 12(b)(3), N.C. Gen. Stat. § 7A-258, 1
1 Buss’s motion and briefing mention § 7A-258 only once each in passing, purely for the
procedural components of that statute and with no related substantive analysis. (ECF Nos. 50 at 1 and 51 at 1). Accordingly, the Court need not and does not address it further. and the doctrine of forum non conveniens. The Court will address Buss’s Rule 12(b)(6)
arguments in a separate forthcoming Order and Opinion.
4. The Court previously held a hearing on the motion, and all parties were
represented at the hearing by their respective counsel of record. (ECF No. 76). The
parties have fully briefed the motion, and the motion is ripe for resolution.
5. Having considered the amended complaint, the motion, the written and oral
arguments of counsel, and applicable law, the Court hereby DENIES Buss’s motion
to the extent it seeks to transfer, stay, or otherwise dismiss this action pursuant to
Rule 12(b)(3) or the doctrine of forum non conveniens.
Brooks Pierce McLendon, Humphrey & Leonard, LLP by Joseph A. Ponzi, Harold Bolick, Christopher B. Dodd, and Gabrielle E. Supak, and King & Spalding, LLP by Adam Gray for Plaintiffs PCS Phosphate Company, Inc. and PCS Administration (USA), Inc.
K&L Gates, by Nathan A. Huff, Lindsay S. Bishop, Jason L. Richey, Justin N. Leonelli, John L. Gavin, and Daniel McClurg for Defendant Jacobs Engineering Group, Inc.
Mullins Duncan Harrell & Russell, PLLC by Allison Mullins, Alan W. Duncan, and Tyler Nullmeyer for Defendant Buss ChemTech AG.
Houston, Judge.
I. BACKGROUND
6. Plaintiffs PCS Phosphate Company, Inc. and PCS Administration (USA),
Inc. are Delaware corporations maintaining their principal places of business in
North Carolina. (ECF No. 42, ¶ 3). PCS Phosphate “produces products for use as
ingredients in fertilizers, livestock and poultry feed, and industrial applications” at
its Aurora, North Carolina facility. (ECF No. 42, ¶ 9). 7. Defendant Buss ChemTech AG is a Swiss corporation and maintains its
principal place of business in Switzerland. (ECF No. 42, ¶ 5). Buss “develop[s] and
licens[es] chemical process technologies worldwide.” (ECF No. 42, ¶ 25).
8. Plaintiffs 2 have commissioned the construction of an anhydrous hydrogen
fluoride plant (the “AHF Plant”) in Aurora, Beaufort County, North Carolina. (ECF
No. 42, ¶¶ 1, 25, 41). Beginning at least by July 2019, PCS Phosphate and Buss began
negotiations regarding Buss’s potential involvement in the AHF Plant project. (ECF
No. 42, ¶¶ 27–28).
9. In September 2019, PCS Phosphate and Buss finalized their negotiations
and entered into an Engineering, Procurement and Field Support Agreement (ECF
No. 42.2), 3 outlining Buss’s specific role in construction of the AHF Plant. Buss agreed
to provide engineering services, materials needed to incorporate Buss’s chemical
process system and technologies into the AHF Plant, and training and oversight.
(ECF No. 42, ¶¶ 1, 25, 41; ECF No. 42.2, Ex. A, §§ 17–17.3.3, 18.1, 18.2 & Ex. B, §§
19.1, 19.2.1–19.2.4). That agreement ultimately contemplated that the AHF Plant
would produce at least 40,000 metric tons per year (“MTPY”) of anhydrous hydrogen
fluoride (“AHF”), using two separate lines producing 20,000 MTPY each. (ECF No.
42.2, Ex. A, § 14; ECF No. 42.2, Ex. C, § A(1)).
2 Throughout their amended complaint, Plaintiffs engage in “group pleading,” lumping the
two PCS entities together in the defined term “PCS” and rarely (but sometimes) specifying the particular entity at issue. See Britcher v. Assur. Grp., LLC, 2025 NCBC LEXIS 150, at *10–12 (N.C. Super. Ct. Nov. 4, 2025) (requiring re-pleading in light of improper “group pleading”); Baker v. Hobart Fin. Grp., 2023 NCBC LEXIS 45, at *4–5, 9–10 (N.C. Super. Ct. Mar. 22, 2023) (same). Thus, the amended complaint is often unclear as to the specific entity at issue. 3 The agreement is attached and incorporated into the complaint as an exhibit. 10. Under the agreement, the parties agreed that the AHF Plant would be
“designed, constructed, erected, and commissioned based on the Engineering
Documents and under the technical assistance provided by” Buss. (ECF No. 42.2, Ex.
C, § B(1)).
11. PCS Phosphate and Buss agreed that Buss would provide “Services” that
were defined to include:
all personnel, supervision, services, materials and supplies and do all things necessary for the engineering, design, delivery and procurement of the Proprietary Equipment, testing and commissioning of the Plant (as hereafter defined) as set forth in this Agreement and the other Contract Documents.
(ECF No. 42.2, § 1). Proprietary Equipment was defined to include “any Equipment
to which [Buss] owns or licenses the exclusive intellectual property rights and which
is to be delivered by [Buss] pursuant to the Contract Documents,” 4 with “Equipment”
circularly defined as “all equipment and materials (by way of example, including the
Proprietary Equipment) to be procured, supplied, designed and/or specified, by [Buss]
as required by the Contract Documents.” (ECF No. 42.2, § 26(e), § 26(m) (emphasis
added)).
12. The parties also agreed that Buss would “furnish efficient administration
and management of the design, contract administration and other aspects of the
Services” as defined in the agreement. (ECF No 42.2, § 2(a)(iv)). This included, among
4 While Buss emphasizes in its briefing that the definition of “Proprietary Equipment” contains a reference to “intellectual property rights,” (ECF No. 51 at 15), the phrase merely describes the category of equipment (i.e., equipment to which Buss otherwise owns the intellectual property rights). It does not limit the definition of “Proprietary Equipment” to intangible intellectual property. other things, ensuring that the Services were performed in compliance with
applicable law and the “requirements of applicable permits for the Plant” and
furnishing “all of the equipment, computers and labor required to complete the
Services. (ECF No 42.2, §§ 2(a)(i) and 2(a)(vi)).
13. In detailing the scope of Buss’s work and services, the agreement attaches
an exhibit titled “Quotation No 3.20.2 0338,” which sets out the “design” of the AHF
Plant and the technical specifications for Buss’s Services. (ECF No 42, ¶¶ 28–29; ECF
No 42.2, § 12 & Ex. A at 14, 25–59).
14. The parties agreed that Buss’s “services and supply” (i.e., scope of work)
“comprise basically:” (i) an “Extended Basic Engineering package,” (ii) “[t]he right to
use [Buss’s] process technology,” (iii) “[d]esign, procurement and supply of the
Materials (as per § 17),” (iv) “[a]ssistance during installation of the Materials at Site,”
and (v) “[a]ssistance during commissioning, start-up and performance tests of the
Plant.” (ECF No. 42.2, Ex. A, § 5.1 (emphasis added)). The term “Materials” is defined
to mean “the proprietary equipment and other material to be supplied by” Buss. (ECF
No. 42.2, Ex. A, § 2).
15. Among the materials and equipment to be provided with its Services, Buss
agreed to provide for installation at the AHF Plant numerous industrial-sized
spraying devices, agitators, filters, slurry tanks, and slurry pumps to be assembled
and incorporated into the AHF Plant. (ECF No. 42.2, Ex. A, §§ 17.1.1, 17.1.2, and
17.1.3; ECF No. 42.2, Ex. B, § 1.1). 16. Buss also proposed to “offer spare parts for the Materials as an option” under
the agreement. (ECF No. 42.2, Ex. A, §§ 17.4).
17. To provide the services and materials and to install the equipment at issue,
Buss agreed to provide a team of up to five engineers and specialists on site 5 for the
construction of the AHF Plant, estimating that “[b]ased on Contractor’s [i.e., Buss’s]
experience the period for erection, commissioning, start-up and carry-out the
performance test runs of the Plant is expected to an average term of 12 to 15 months.”
(ECF No. 42.2, Ex. A, § 18.1 (syntax and spelling in original)).
18. Buss agreed that its services would be provided in approximately four
phases, consisting of (i) “[b]asic engineering for [PCS Phosphate’s] internal AFE cost
estimate,” (ii) “[c]ompletion of basic engineering package and implementation of
changes requested by the HAZOP review meeting,” (iii) “Delivery of the Materials,”
and (iv) the provision of “Field Services.” (ECF No. 42.2, Ex. B, § 17).
19. Buss agreed and anticipated that its on-site engineers and specialists would
provide “field services” for a up to “267 man-days,” with at least ten round-trip visits
to the AHF Plant. (ECF No. 42.2, Ex. A, § 18.1). The services to be provided under
the agreement include, among other things, training PCS Phosphate’s personnel on-
site in the AHF Plant; supervising the erection of construction materials; inspecting
the erection process; checking to confirm mechanical completion; overseeing the
testing performed by PCS Phosphate’s operating personnel of the mechanical,
5 “Site” is defined by the agreement as “the real property owned by PCS Phosphate in or near
Aurora, North Carolina, upon which the Plant is to be constructed, erected and operated, and including, without limitation, any laydown and similar areas dedicated for use in connection with the Plant construction.” (ECF No. 42.2, § 26(o)). functional, start-up, and performance of materials on site; training on site; and
providing multiple engineers to complete the process. (ECF No. 42.2, Ex. A, §§ 18.1,
18.2 & Ex. B, §§ 19.1, 19.2.1–19.2.4).
20. Buss also agreed to provide, at PCS Phosphate’s request, “key-specialists”
to “ensure the integration of the Plant in the Site” (i.e., to ensure that the AHF Plant
was properly integrated into the overall physical site). These services included, at
PCS Phosphate’s request, “electrical, piping, instrumentation, program of the DSC
and safety design activities relating to all field tie-ins (interface connections). (ECF
No. 42.2, Ex. B, § 19.3).
21. Buss further agreed that its “Standard of Care” under the agreement would
be, in relevant part, “those standards of care and diligence normally practiced by
engineering and construction firms in the performance of design, procurement,
construction, commissioning and testing services for a anhydrous hydrofluoric acid
production facility as of the Effective Date.” (ECF No. 42.2, § 26(p) (emphasis added);
ECF No. 42.2, § 2(a)(ii) (“All Services provided by Engineer hereunder shall be . . . in
accordance with the Standard of Care . . .”)). The parties also agreed that Buss would
“exercise the Standard of Care to minimize Plant downtime and reduced Plant
operations and production, including utilizing reasonable overtime and expedited
equipment, machinery, parts, and materials deliveries.” (ECF No. 42.2, § 2(b)
(emphasis added)).
22. The parties also agreed that the AHF “Plant shall be designed, constructed,
erected, commissioned and started-up in close cooperation between [PCS Phosphate] and [Buss].” (ECF No. 42.2, Ex. A, § 3.1).
23. At its core, the agreement provided that Buss would (i) design parts of the
AHF Plant as relevant to integration of Buss’s equipment and technology, (ii) provide
the equipment and materials necessary to produce or manufacture AHF from
fluorosilicic acid, (iii) provide on-site installation assistance for its equipment in the
AHF Plant, and (iv) oversee, and assist PCS Phosphate in completing, the initial
installation, start-up, and testing phases of the manufacturing process within the
AHF Plant. (See generally ECF No. 42.2).
24. In the event of a dispute between the parties, the contract contains two
substantively similar forum-selection and choice-of-law clauses providing, in relevant
part, as follows:
21. DISPUTE RESOLUTION
...
(b) Litigation. . . . Any litigation by the parties over any Dispute under this Agreement shall be governed by New York law. All disputes arising out of or in connection with this Agreement shall be finally settled in the State of New York or the United States District Court for the Southern District of New York. The language shall be English.
29. GOVERNING LAW
This Agreement shall be governed by New York law. All disputes arising out of or in connection with this Agreement shall be finally settled in State of New York or the United States District Court for the Southern District of New York. The language shall be English. (ECF No. 42.2, §§ 21(b) and 29 – together, the “Clauses”). 6
25. Plaintiffs allege that, since the relationship commenced, Buss has breached
the agreement in myriad ways. (ECF No. 42, ¶¶ 35–49).
26. Thus, Plaintiffs filed their original complaint on 28 February 2025, followed
by an amended complaint on 20 June 2025. (ECF Nos. 3 and 42).
27. As against Buss, Plaintiffs assert causes of action for breach of contract,
breach of warranty, negligent misrepresentation, and professional negligence. (ECF
No. 42, ¶¶ 50–80).
28. The case was designated as a mandatory complex business case on 7 April
2025 and was ultimately reassigned to the undersigned judge on 21 August 2025.
(ECF Nos. 1 and 66).
29. On 21 July 2025, Buss filed a motion to transfer, or in the alternative,
dismiss. (ECF No. 50). The Court thereafter held a hearing at which counsel for all
parties appeared, (ECF No. 76), and the motion is ripe for resolution. 7
6 Though worded differently, the provisions are functionally the same. The parties’ arguments are premised largely on the phrasing from § 29, and the Court therefore primarily references that section of the agreement. The result, however, remains the same regardless of the provision at issue. 7 Though Buss submitted an affidavit and various purported draft documents and
communications with its response brief to argue that the parties negotiated the application of New York law and New York as a neutral venue, (ECF Nos. 52.1–52.11), the plain language of the final agreement is unambiguous, and the Court need not resort to extrinsic evidence regarding the parties’ intent with respect to whether the agreement is and was one for improvements, or the provision of materials for improvements, in North Carolina. Galloway v. Snell, 384 N.C. 285, 287–88 (2023) (citation omitted). Indeed, the provisions of N.C. Gen. Stat. § 22B–2 apply based on the facial subject matter of the underlying contract to which the parties agreed—not the work subsequently performed or not performed under the contract. See generally N.C. Gen. Stat. § 22B–2. Thus, for purposes analyzing the application of § 22B–2, Buss’s contention that it did not ultimately perform, or have the opportunity to perform, much of the work for which it contracted is simply irrelevant to the issue presently before the Court. (ECF No. 52.1, ¶¶ 9–14). II. ANALYSIS
30. Buss argues that this Court is not a proper venue for this action and
therefore requests that the Court transfer the matter to the Southern District of New
York or dismiss the action with leave to refile in that federal district pursuant to Rule
12(b)(3) of the North Carolina Rules of Civil Procedure. 8 (ECF No. 51 at 8–17; ECF
No. 75 at 1–6). Alternatively, Buss contends that the Court should transfer (or
dismiss without prejudice and allow it to refile) this action under the doctrine of
forum non conveniens. (ECF No. 51 at 17–19; ECF No. 75 at 6–8). The Court
addresses each argument in turn.
31. In opposition, Plaintiffs contend that this state-court action may not be
“transferred” to the federal court system, 9 that the Clauses are void and
unenforceable under N.C. Gen. Stat. § 22B–2 because the PCS Phosphate-Buss
Agreement is for the improvement of real property or the provision of materials for
8 Regardless of whether the motion is styled as a motion to “dismiss” or to “transfer,” the
Court’s resolution of the motion is ultimately the same to the extent the motion is filed pursuant to Rule 12(b)(3). Coats v. Sampson Cnty. Mem’l Hosp., Inc., 264 N.C. 332, 334 (1965) (citation omitted). 9 The Court agrees. While transfer is the appropriate mechanism under Rule 12(b)(3) to move
an action from one North Carolina judicial district to another, Aldridge v. Kiger, 2016 NCBC LEXIS 85, at *4 (N.C. Super. Ct. Nov. 3, 2016), dismissal without prejudice is the appropriate mechanism under Rule 12(b)(3) to move an action from North Carolina state court to another state or federal court. E.g., Big League Analysis, LLC v. Off. of the Comm’r of Baseball, 2016 NCBC LEXIS 68, at *24, 29 (N.C. Super. Ct. Aug. 29, 2016); Wall v. Automoney, Inc., 284 N.C. App. 514, 533 (2022), appeal docketed 249P22 (N.C. Feb. 18, 2026). Federal courts have been abundantly clear that “federal courts, alone, have authority to transfer venue to a federal court in a different state.” FindWhere Holdings, Inc. v. Sys. Env’t Optimization, LLC, 626 F.3d 752, 754 (4th Cir. 2010); Montero v. Tulsa Airport Improvements Tr., 770 F. App’x 439, 440 (10th Cir. 2019) (unpublished) (“Section 1404(a) . . . does not allow a state court to transfer a case to federal court.” (citations omitted)); Kosachuk v. 9197-5904 Que., Inc. 2025 U.S. Dist. LEXIS 120080, at *11 n.1 (S.D.N.Y. June 25, 2025) (“This of course makes no sense, as a state court cannot remand (or ‘transfer’) a case to a federal court in a different state.” (citing 28 U.S.C. § 1441)). such an improvement, and that North Carolina is otherwise the most convenient
forum for litigation of this dispute. (ECF No. 60). The Court address the arguments
in turn.
A. Buss’s Rule 12(b)(3) Motion
32. “In North Carolina, the proper procedure for seeking enforcement of a
contractual forum or venue selection clause is a motion to dismiss for improper venue
pursuant to Rule 12(b)(3).” LendingTree, LLC v. Anderson, 2012 NCBC LEXIS 21, at
*5 (N.C. Super. Ct. Apr. 11, 2012) (citing Hickox v. R&G Group Int’l, Inc., 161 N.C.
App. 510, 511 (2003)); Albright v. Vining-Sparks Sec., Inc., 2019 NCBC LEXIS 115,
at *11 (N.C. Super. Ct. Dec. 31, 2019) (“Rule 12(b)(3) motion is the proper method by
which to seek enforcement of an exclusive forum selection clause.”)
33. Generally, North Carolina courts will “enforce a contractual forum selection
clause if that clause is mandatory.” Apex Tool Grp., LLC v. Ingersoll-Rand Co., 2013
NCBC LEXIS 24, at *5 (N.C. Super. Ct. May 14, 2013) (citations omitted); see also
Earnhardt Plumbing, LLC v. Thomas Builders, Inc., – N.C. App. – , 2025 N.C. App.
LEXIS 815, at *21 (Nov. 19, 2025) (determining trial court “erred in concluding
the forum-selection clause was not enforceable”).
34. However, even a mandatory forum-selection or choice-of-law clause may be
unenforceable under certain circumstances. E.g., N.C. Gen. Stat. §§ 22B–1, 22B–2,
22B–3; Wall, 284 N.C. App. at 532–33 (citations omitted) (determining a forum
selection clause was “unenforceable as against public policy” under N.C. Gen. Stat.
§ 22B–3 and also unenforceable under North Carolina usury law); Sony Ericsson Mobile Communs. United States v. Agere Sys., 195 N.C. App. 577, 581–82 (2009)
(determining trial court correctly concluded that a forum selection clause was an
unenforceable agreement to agree).
35. Most relevant to this action, under North Carolina law,
A provision in any contract, subcontract, or purchase order for the improvement of real property in this State, or the providing of materials therefor, is void and against public policy if it makes the contract, subcontract, or purchase order subject to the laws of another state, or provides that the exclusive forum for any litigation, arbitration, or other dispute resolution process is located in another state.
N.C. Gen. Stat. § 22B–2 (emphasis added).
36. As set forth above, the Clauses here purport to make the agreement subject
to New York law (i.e., “governed by New York law”) and to require all disputes to be
resolved in forums exclusively in the State of New York (i.e., “in the State of New
York or the United States District Court for the Southern District of New York”).
(ECF No. 42.2, § 29; see ECF No. 42.2, §21(b)).
37. However, the PCS Phosphate-Buss agreement contemplates that services,
materials, and the work to be provided under the agreement will be provided or
otherwise performed largely in North Carolina, with field services and at least “267
man-days” to be completed over numerous round-trip visits to the site of the AHF
Plant in North Carolina. (ECF No. 42.2, Ex. A, § 18.1, 18.2 & Ex. B, §§ 19.1, 19.2.1–
19.2.4).
38. Thus, the Clauses are “void and against public policy” if the PCS Phosphate-
Buss agreement is a contract for either (i) “the improvement of real property” in North Carolina or (ii) “the providing of materials” for the improvement of real property in
North Carolina. N.C. Gen. Stat. § 22B–2.
39. The terms “improvement” and “materials” are undefined in N.C. Gen. Stat.
§ 22B–2.
40. In such situations, “[u]ndefined words are accorded their plain meaning so
long as it is reasonable to do so,” and, in determining a word’s plain meaning, North
Carolina courts have “‘used standard, nonlegal dictionaries as a guide.’” Midrex
Techs., Inc. v. N.C. Dep’t of Revenue, 369 N.C. 250, 258 (2016) (citations and internal
punctuation omitted); Surgical Care Affiliates, LLC v. N.C. Indus. Comm’n, 256 N.C.
App. 614, 621 (2017) (“When a statute employs a term without redefining it, the
accepted method of determining the word's plain meaning is not to look at how other
statutes or regulations have used or defined the term—but to simply consult a
dictionary.” (citation omitted)).
41. The common meaning of the term “material” or “materials” is “the elements,
constituents, or substances of which something is composed or can be made” or the
“apparatus necessary for doing or making something.” Material, Merriam-Webster,
https://www.merriam-webster.com/dictionary/materials (last visited Feb. 17, 2026);
Materials, Merriam-Webster, https://www.dictionary.com/browse/materials (last
visited Feb. 17, 2026) (defining the term as “the equipment necessary for a particular
activity”).
42. The ordinary meaning of the term “improvement” is (i) “the act or process of
improvement” or (ii) “the state of being improved.” Improvement, Merriam-Webster, https://www.merriam-webster.com/dictionary/improvement (last visited Feb. 17,
2026); Improvement, Dictionary.com, https://www.dictionary.com/browse/
improvement (last visited Feb. 15, 2026) (“an act of improvement or the state of being
improved” or “a change or addition by which a thing is improved”).
43. In turn, the term “improve” generally means (i) “to enhance in value or
quality: make better,” (ii) “to increase the value of (land or property) by making it
more useful for humans (as by cultivation or the erection of buildings),” and (iii) “to
make useful additions or amendments.” Improve, Merriam-Webster,
https://www.merriam-webster.com/dictionary/improve (last visited Feb. 17, 2026);
Improve, Dictionary.com, https://www.dictionary.com/browse/improve (last visited
Feb. 17, 2026) (defining “improve” as “to make (land) more useful, profitable, or
valuable by enclosure, cultivation, etc.”).
44. Moreover, this common (and broad) meaning aligns with the definitions of
“improve” and “improving” used in statutory schemes related to § 22B–2. For
example, N.C. Gen. Stat. § 22C–1, which addresses payments to subcontractors in
the construction context specifically, defines the term “[i]mprove” as
to build, effect, alter, repair, or demolish any improvement upon, connected with, or on or beneath the surface of any real property, or to excavate, clear, grade, fill or landscape any real property, or to construct driveways and private roadways, or to furnish materials, including trees and shrubbery, for any of such purposes, or to perform any labor upon such improvements, and shall also mean and include any design or other professional or skilled services furnished by architects, engineers, land surveyors and landscape architects registered under Chapters 83A, 89C or 89A of the General Statutes.
N.C. Gen. Stat. § 22C–1(2). 45. The same statute defines the term “[i]mprovement” to mean “all or any part
of any building, structure, erection, alteration, demolition, excavation, clearing,
grading, filling, or landscaping, including trees and shrubbery, driveways, and
private roadways, on real property.” N.C. Gen. Stat. § 22C–1(3); N.C. Gen. Stat.
§ 44A–7(3) and –7(4) (similar definitions in the statutory lien context).
46. While these statutory definitions are not binding in the context of the Court’s
analysis of § 22B–2, they reflect that, even in other statutory schemes, the concept of
an improvement is, in essence, to provide materials or services for the benefit or
betterment of real property or natural or man-made structures and fixtures thereon.
Taveney v. Int’l Paper Co., 2022 U.S. Dist. LEXIS 55637, at *12–13, 17 (E.D.N.C. Mar.
28, 2022) (using §§ 22C-1 and 44A-7 to evaluate the term “improvement” under
§ 22B–2 and determining that “repairing the valves at International Paper’s mill, as
contemplated in the parties’ contract, constitute[d] an improvement to real
property”).
47. As Buss argues, the limited case law analyzing § 22B–2 has most commonly
been in the “traditional construction context.” (ECF No. 51 at 14); e.g., T.M.C.S., Inc.
v. Marco Contrs., 244 N.C. App. 330, 331, 334 (2015) (applying § 22B–2 to “a
construction contract for the renovation of a Wal-Mart, Inc. (‘Wal-Mart’) retail
store.”); DFA Dairy Brands, LLC v. Primus Builders, Inc., 2021 U.S. Dist. LEXIS
154452, at *10–11 (W.D.N.C. July 27, 2021) (citations omitted) (“The mandate of N.C.
Gen. Stat. § 22B–2 is clear. Out-of-state contractors cannot venture into North
Carolina to perform construction work on North Carolina real property and seek the application of another jurisdiction’s law.”); Taveney, 2022 U.S. Dist. LEXIS 55637, at
*12–13, 17; see also Front Street Const., LLC v. Colonial Bank, N.A., 2012 NCBC
LEXIS 25, at *34 n.61 (N.C. Super. Ct. May 11, 2012) (declining to apply § 22B–2 to
a loan agreement); Wake Cnty. Bd. of Educ. v. Dow Roofing Sys., LLC, 792 F. Supp.
2d 897, 899, 901–02 (E.D.N.C. 2011) (finding that § 22B–2 did not apply in a product
warranty case governed by the Federal Arbitration Act).
48. However, despite Buss’s assertions to the contrary, neither the explicit
language of the statute nor case law limits § 22B–2 to the “traditional construction
context.” (Compare ECF No. 51 at 14 (arguing that the statute “does not apply to
contracts . . . outside of the traditional construction context”)), with N.C. Gen. Stat. §
22B–2 (containing no such limitation) and Taveney, 2022 U.S. Dist. LEXIS 55637, at
*12–13, 17 (applying the statute in the context of repairs to mechanical valves rather
than the traditional context of horizontal or vertical construction).
49. Rather, the statute merely requires that the subject matter of the contract
be for the improvement of real property or the providing of materials for such
improvements. N.C. Gen. Stat. § 22B–2; T.M.C.S., Inc., 244 N.C. App. at 334; compare
Colonial Bank, 2012 NCBC LEXIS 25, at *34 n.61 (determining that the subject
matter of a contract was financial distributions rather than improvements) and Dow
Roofing Sys., 792 F. Supp. 2d at 899, 901–02 (concluding that the subject matter of a
contract was a product warranty rather than improvements), with Taveney, 2022 U.S.
Dist. LEXIS 55637, at *12–13, 17 (determining that the subject matter of contract
was the replacement of valves in an already-completed construction, with the replacement constituting an “improvement” under § 22B–2).
50. Accordingly, the Court declines Buss’s invitation to limit § 22B–2 to the
“traditional construction context” and instead applies the plain language of the
statute to the contract and Clauses at issue. 10
51. Plaintiffs contend that the agreement with Buss is one for “improving real
property” or providing materials for such an improvement and that the Clauses
should be invalidated under § 22B–2. (ECF No. 60 at 5–13). Conversely, Buss
contends that the agreement is, at its core, a licensing agreement and not a
“traditional construction contract,” as it asserts is required under § 22B–2. (ECF No.
51 at 6–17).
52. Ultimately, the Court concludes that the PCS Phosphate-Buss agreement is
subject to § 22B–2 and that the Clauses at issue are therefore void and unenforceable
part of the agreement.
53. Buss agreed to provide, among other things:
a. “all personnel, supervision, services, materials and supplies and
do all things necessary for the engineering, design, delivery and procurement
of the Proprietary Equipment, testing and commissioning of the Plant,” as
necessary to improve the AHF Plant and to permit the AHF Plant, in turn, to
10 Even if the Court were to adopt Buss’s argument and limit the statute to the traditional
construction context, other statutes (including § 22B–1) have defined the phrase “construction agreement” to broadly include “[a]ny promise or agreement in, or in connection with, a contract or agreement relative to the design, planning, construction, alteration, repair, or maintenance of a building, structure, highway, road, appurtenance, or appliance, including moving, demolition, and excavating connected therewith.” N.C. Gen. Stat. § 22B-1(f)(1) (emphasis added). Such a broad definition would certainly include the agreement at issue in this case. produce AHF, (ECF No. 42.2, §§ 1, 26(e), and 26(m));
b. myriad engineering services and an “engineering package” for the
improvement of the AHF Plant, (ECF No. 42.2, Ex. B, § 17);
c. dozens of industrial-sized, mechanical devices (including
agitators, filters, slurry tanks, and slurry pumps) for assembly, installation,
and near-constant use at the AHF Plant, with those materials being integral
to the eventual operation of the AHF Plant, (ECF No. 42.2, Ex. A, §§ 17.1.1,
17.1.2, and 17.1.3; ECF No. 42.2, Ex. B, § 1.1);
d. “[d]esign, procurement and supply of the Materials” and “Delivery
of the Materials” needed to enable the AHF Plant to operate, (ECF No. 42.2,
Ex. A, § 5.1 (emphasis added); ECF No. 42.2, Ex. B, § 17);
e. “[a]ssistance during installation of the Materials at Site,” (ECF
No. 42.2, Ex. A, § 5.1 (emphasis added));
f. at PCS Phosphate’s request, “electrical, piping, instrumentation,
program of the DSC and safety design activities relating to all field tie-ins
(interface connections),” (ECF No. 42.2, Ex. B, § 19.3); and
g. on-site manpower to supervise construction, inspections of the
construction and erection process, oversight of system testing, and on-site
training, (ECF No. 42.2, Ex. A, §§ 18.1, 18.2 & Ex. B, §§ 19.1, 19.2.1–19.2.4).
54. Considering the common meaning of the terms “materials” and
“improvement,” it is apparent that the agreement between PCS Phosphate and Buss
was one for at least the provision of materials (i.e., Buss’s plant-wide chemical process system and related components) to be incorporated, installed, and ultimately used as
part of the eventual AHF Plant facility constructed on the site (i.e., improvement of
the site). N.C. Gen. Stat. § 22B–2; see, e.g., Taveney, 2022 U.S. Dist. LEXIS 55637, at
*12–17.
55. Whether as a contract for improvements or for the delivery of materials for
improvements, the agreement falls within the purview of N.C. Gen. Stat. § 22B–2.
56. Accordingly, the Clauses contained in § 21(b) and § 29 of the agreement are
void and unenforceable under N.C. Gen. Stat. § 22B–2 and do not provide a valid
basis upon which Buss may seek to have this action transferred or New York law
applied to this dispute. Thus, the Court DENIES Buss’s Rule 12(b)(3) motion to the
extent it is premised on the validity of the Clauses.
B. Forum Non Conveniens
57. As an alternative to enforcing the Clauses, Buss moves to dismiss or transfer
this action under the common law doctrine of forum non conveniens, 11 arguing that
the United States District Court for the Southern District of New York is a more
convenient forum. (ECF No. 51 at 17–19; ECF No. 75 at 6–8).
11 Though Plaintiffs premise much of their argument upon N.C. Gen. Stat. § 1-75.12(a), Buss
does not reference the statute in its motion or briefing. (ECF Nos. 50, 51, and 75). Regardless of whether Buss is advancing a “common law” theory or a “statutory” theory with its phrasing, however, the factors the Court considers, and the results, are the same. Compare Motor Inn Mgmt., Inc. v. Irvin-Fuller Dev. Co., Inc., 46 N.C. App. 707, 713 (1980) (addressing elements for forum non conveniens under § 1–75.12(a)), with Eco Terra Prods., Inc. v. DayStar Holdings, LLC, 270 N.C. App. 820, 2020 N.C. App. LEXIS 271, at *11–12 (2020) (unpublished) (quoting Motor Inn Mgmt., 46 N.C. App. at 713, and reciting the same elements as being those for “the common-law doctrine of forum non conveniens”); see also Hengqin Dingsheng Zhirong Equity Inv. Fund Ltd. P’ship v. Li, 2025 NCBC LEXIS 24, at *14–15 (N.C. Super. Ct. Mar. 5, 2025) (explaining that “North Carolina’s General Assembly has codified the doctrine of forum non conveniens” in § 1–75.12(a)). 58. In support of its motion, Buss argues only two primary points: (i) that this
Court should decline to exercise jurisdiction based on the Clauses’ requirement to
apply New York law in a New York forum and (ii) that a North Carolina judgment
would be unenforceable in Switzerland because it would be in disregard of what Buss
contends to be the valid forum-selection and choice-of-law Clauses. (ECF No. 51 at
17–19; ECF No. 75 at 6–8).
59. Both of these arguments are premised almost entirely on the contention that
the Clauses are enforceable. (ECF No. 51 at 17–19; ECF No. 75 at 6–8). However,
because the Clauses are not enforceable, as set forth above, each argument fails on
that basis.
60. Moreover, considering the factors most commonly evaluated in the context
of forum non conveniens motions, the factors overwhelmingly favor denial of the
motion. Specifically, in evaluating a motion made on the basis of forum non
conveniens, courts generally consider
convenience and access to another forum; nature of case involved; relief sought; applicable law; possibility of jury view; convenience of witnesses; availability of compulsory process to produce witnesses; cost of obtaining attendance of witnesses; relative ease of access to sources of proof; enforceability of judgment; burden of litigating matters not of local concern; desirability of litigating matters of local concern in local courts; choice of forum by plaintiff; all other practical considerations which would make the trial easy, expeditious and inexpensive.
Motor Inn Mgmt, 46 N.C. App. at 713.
61. This action concerns the parties’ rights, obligations, and performance under
a contract to be performed in North Carolina, with respect to services to be provided in North Carolina, for the AHF Plant being built in North Carolina. (See generally
ECF Nos. 42 and 42.2).
62. Because § 22B–2 applies, North Carolina law—not New York law—governs
the agreement. N.C. Gen. Stat. § 22B–2.
63. New York is not a more convenient or accessible forum than North Carolina.
Plaintiffs both maintain their principal places of business in North Carolina, while
Buss is based in Switzerland. (ECF No. 42, ¶¶ 3, 5). Under the circumstances, at least
two of the three parties at issue would have far less travel as a result of proceeding
in North Carolina, while Buss would be litigating between 3,900 and 4,500 miles from
its principal place of business in Switzerland regardless of whether the case were to
proceed in Beaufort County, North Carolina or the Southern District of New York. 12
64. As Buss acknowledges, neither Buss nor Plaintiffs have significant ties to
New York, and the subject matter of this action has no specific ties to New York.
Indeed, Buss contends that the parties selected New York and New York law
specifically because of the lack of ties to New York. (ECF No. 51 at 4).
65. Buss alleges in conclusory fashion that proceeding in North Carolina would
“be an inefficient use of judicial resources, impose additional burdens on witnesses,
[and] increase expenses,” (ECF No. 51 at 19), but neither side has introduced
substantive and competent evidence regarding the witnesses who will appear for
12 See N.C. R. Evid. 201; State v. Cannon, 254 N.C. App. 794, 797–98 (2017) (citations omitted)
(concluding that it is appropriate to take judicial notice of “the geographic distance between cities, the modes of travel between cities, the commercial aspects of their local area,” and similar distance and commute-related information). trial, the locations of those witnesses, or the costs likely to be incurred in connection
with their appearance at trial, if applicable.
66. Since the AHF Plant is in Beaufort County, North Carolina, over 500 miles
from the Southern District of New York in Manhattan, New York, factors concerning
a jury and the ability to conduct a site visit; the ease of access to sources of proof; the
desirability of litigating matters of local concern in local courts; and Plaintiffs’ choice
of forum all weigh in favor of maintaining this as a Beaufort County Superior Court
action pending before the North Carolina Business Court. Motor Inn Mgmt., 46 N.C.
App. at 713; Wachovia Bank v. Deutsche Bank Trust Co. Ams., 2006 NCBC LEXIS
10, at *18 (N.C. Super. Ct. June 2, 2006) (citation omitted) (“Courts generally give
great deference to a plaintiff's choice of forum, and a defendant must satisfy a heavy
burden to alter that choice by transferring or staying the case.”).
67. With respect to enforceability of any potential judgment in this action, Buss
asserts that Swiss courts (like most other courts) will not enforce a judgment entered
by a court that lacked jurisdiction and that Swiss law favors the parties’ choice of
forum in their contracts. (ECF No. 51 at 18–19). 13
68. Buss has not moved to dismiss this action under Rule 12(b)(1) or Rule
12(b)(2) for lack of subject matter jurisdiction or personal jurisdiction, respectively,
and, inasmuch as this Court has determined that the Clauses are void and
unenforceable, the Court has no reason to conclude that it lacks jurisdiction over this
13 Of course, North Carolina courts also will not enforce judgments from a court that lacked
jurisdiction prior to entering its judgment. E.g., Gardner v. Tallmadge, 207 N.C. App. 282, 292 (2010) (“[A] court of this state may not enforce a judgment entered by a court of a foreign state that lacked subject matter jurisdiction to enter the judgment[.]”). action or to believe that a Swiss court would determine otherwise. With neither party
having substantive ties to the State of New York, it is also unclear on what basis a
Swiss court might determine that New York courts have jurisdiction if the Clauses
are not otherwise enforceable.
69. Even if Buss were correct, however, that a Swiss court would be unlikely to
enforce a North Carolina judgment in this action, that factor is one of many in a forum
non conveniens analysis and does not outweigh the factors supporting jurisdiction in
North Carolina.
70. The Court also notes that defendant Jacobs Engineering Group, Inc. is a
defendant in this action, and purporting to transfer (or dismiss without prejudice)
Plaintiffs’ causes of action against Buss to permit separate litigation in the Southern
District of New York would not dispose of this action as against Jacobs or otherwise
be judicially efficient in that it would thereafter result in multiple pending cases.
71. Accordingly, the Court determines that the overwhelming balance of these
factors favors denial of Buss’s motion in the Court’s discretion.
III. CONCLUSION
72. Therefore, in the exercise of its discretion, the Court DENIES Buss’s motion
to transfer, stay, or otherwise dismiss this action under Rule 12(b)(3), N.C. Gen. Stat.
§ 7A-258, and the doctrine of forum non conveniens.
SO ORDERED, this 19th day of February 2026.
/s/ Matthew T. Houston. Matthew T. Houston Special Superior Court Judge for Complex Business Cases