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Pacific Coast Marine Windshields v. Malibu Boats

December 5, 2011

PACIFIC COAST MARINE WINDSHIELDS,
PLAINTIFF,
v.
MALIBU BOATS, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS GRANTING MOTION FOR RETRANSFER

On October 3, 2011, Plaintiff Pacific Coast Marine Windshield's ("PCMW" or "Plaintiff") filed a Motion to Retransfer this action back to the Middle District of Florida. (Doc. 98, 99). On November 2, 2011, Malibu Boats LLC, Marine Hardware, Inc., Tressmark, Inc. d/b/a Liquid Sports Marine, MH Windows, LLC, and John Pugh (collectively "Defendants") filed an opposition to the Motion. (Doc. 113). Plaintiff filed a reply on November 10, 2011. (Doc. 114). The motion was reassigned to Magistrate Judge Barbara A. McAuliffe on October 17, 2011. (Doc. 107). On November 18, 2011, a hearing on the motion was held. Counsel Robert Rohde and Greg Durbin appeared in person on behalf of Plaintiff. Counsel Brian Berliner appeared in person on behalf of Defendants. Having considered the oral argument of counsel, the moving, opposition and reply papers, as well as the Court's file, the Court recommends that PCMW's Motion to Retransfer should be GRANTED.

BACKGROUND

Plaintiff PCMW initially filed this suit in the Middle District of Florida alleging that Defendants infringed its patent.*fn1 PCMW is a Canadian corporation with its principal place of business in Vancouver, British Columbia, Canada. (Doc. 100-2, See Ex. C at 3). PCMW manufactures windows for small boats and personal watercraft. According to PCMW, through its work in design and boat manufacture, it has created a number of patented innovative designs including a design for a "corner post windshield." PCMW sold its "corner post windshield" to Malibu Boats in 2005, but Malibu stopped ordering the windshield in 2008. PCMW believes that its "corner post windshield" is being manufactured in China by Marine Hardware and MH Windows in violation of PCMW's patent. PCMW claims that Malibu, along with the other defendants, infringed its patent by using and selling imitations of its patented windshield. (Doc. 99 at 6; Doc. 69 at 4).

Defendant Malibu Boats is a designer and manufacturer of water sports boats with its principal place of business in Merced, California. (Doc. 69 ¶ 6). Defendants' Marine Hardware and MH Windows are Washington corporations involved in the business of manufacturing small boats and windows, respectively. (Id. ¶ 7). Tressmark is one of many distributors used by Malibu to sell its marine boats and windshields. (Doc. 69 ¶ 9). Tressmark is a Florida corporation with its principal place of business in Orlando, Florida. (Id. ¶ 19) Finally, Defendant John Pugh is the CEO of Marine Hardware and a fifty-percent owner of MH Windows. (Doc. 46-2 ¶ 2). While Pugh maintains that he is a citizen and resident of the state of Washington, (Id.), PCMW maintains that he is a resident of Florida. (Doc. 49 at 1).

On November 29, 2010, Defendants, Malibu Boats LLC, Marine Hardware, Inc., and MH Windows LLC, filed a motion in the Middle District of Florida to transfer this action to the Eastern District of California.*fn2 (Doc.100, See Ex. A at 2.). Defendants emphasized that the Eastern District of California "is clearly [] more convenient than the Middle District of Florida," the venue chosen by Plaintiff. (Id.). Defendants also noted that Plaintiff, a Canadian based company, has no presence in the Middle District of Florida and only one defendant, Tressmark, has any meaningful presence in that District.

Ten months after the motion to transfer was filed, the Middle District of Florida concluded that the Eastern District of California was a more convenient forum and transfer was appropriate. (Doc. 100, See Ex. C). On September 20, 2011, the Middle District of Florida granted the defendants' motion to transfer the Florida action to this district pursuant to 28 U.S.C. § 1404(a). In doing so, the Middle District of Florida emphasized that the transfer was necessary to promote the interests of justice, because the alleged acts of infringement and the uncontested evidence of record demonstrates that the vast majority of the activities relating to the alleged infringement took place in and around the Eastern District of California. (Doc. 100, See Ex. C at 12). The California action was docketed in this district the following day on September 21, 2011, as Case No. 11-CV-1594.*fn3

In the Middle District of Florida, the parties did not argue that the Eastern District of California lacks personal jurisdiction over some of the defendants. Nonetheless, PCMW now moves this Court to retransfer the case back to the Middle District of Florida on the grounds that this Court lacks personal jurisdiction over defendants Tressmark and John Pugh.

STANDARD OF RETRANSFER

A Court may "transfer any civil action to any other district or division where it might have been brought" for the convenience of the parties and witnesses or in the interest of justice. 28 U.S.C. § 1404(a). A court may reconsider a prior ruling of a transferor court when the governing law has been changed by the subsequent decision of a higher court or when new evidence becomes available. See Crane Co. v. American Standard, 603 F.2d 244, 248-49 (2d Cir. 1979); Peterson v. Lindner, 765 F.2d 698, 704 (7th Cir. 1985). Reconsideration is also proper when a clear error has been committed or when it is necessary to prevent manifest injustice. See Arizona v. California, 460 U.S. 605, 618 (1983). When an action is transferred, that which has already been done remains untouched; only further proceedings in the case are referred to another tribunal. Magnetic Eng'g & Mfg. v. Dings Mfg., 178 F.2d 866, 868 (2d Cir.1950) (L. Hand, J.). Under the law of the case doctrine, a transferee court does not directly review either the transfer order or other rulings of the transferor court. See In re Cragar Indus., 706 F.2d 503, 505 (5th Cir.1983); Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 168-69 (3d Cir.1982) (evaluating § 1406(a) transfer). Nevertheless, "[l]aw of the case directs a court's discretion, it does not limit the tribunal's power." Arizona v. California, 460 U.S. at 618.

A motion to retransfer requires the "most impelling and unusual circumstances" or a "manifestly erroneous transfer order" to overcome the law of the case doctrine. Cragar, 706 F.2d at 505. "Failure to abide by the original transfer order contains the additional potential mischief of tossingcases back and forth to the detriment of an adjudication of the underlying merits of the case and to the respect due sister courts." Id. A plaintiff's choice of forum is ordinarily entitled to considerable deference. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981). Nevertheless, in considering retransfer, courts consider whether the original forum is better for reasons which became known after the original transfer order and which were not anticipated. Cragar, 706 F.2d 505. In determining whether a case should be retransferred, some courts have also considered whether a transfer would prejudice the parties and the private and public interests implicated by a transfer of venue. See Scarborough v. Nat'l Ass'n of Surety Bond Producers, 474 F. Supp. 2d 64, 73 (D.D.C. 2007).

DISCUSSION

PCMW contends that personal jurisdiction is not proper in the Eastern District of California for defendants Pugh and Tressmark. PCMW argues the Middle District of Florida should not have transferred the case under section 1404(a), and therefore this court should retransfer the case. In support of its motion, PCMW relies on the proposition that "retransfer of a case to the original venue is required where transfer was not proper or appropriate." Illinois Union Insurance Co. v. TriCore Inc., 191 F. Supp. 2d 794, 800 (N.D. Tex. 2002) (court retransferred case because defendants did not demonstrate court had personal jurisdiction over all defendants.). Defendants argue that there are no "impelling or unusual circumstances" that require this court to ...


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