This matter comes before the court upon defendants' motion to dismiss and/or transfer case for improper venue. (ECF 7.) The court decided this motion without a hearing. For the following reasons, defendants' motion is granted and plaintiffs' complaint is hereby transferred to the U.S. District Court for the Eastern District of Pennsylvania.
Plaintiffs filed their complaint on August 1, 2011 alleging seven (7) causes of action: 1) trademark infringement under 15 U.S.C. § 1114; 2) false designation of origin, false/misleading description and false representation of fact under 15 U.S.C. § 1125(a); 3) trademark dilution under 15 U.S.C. § 1125(c); 4) common law trademark infringement; 5) unfair competition and false advertising under Cal. Bus. & Prof. Code §§ 17200 and 17500, et seq.; 6) common law unfair competition; and 7) contributory trademark infringement. (ECF 1.) Defendants filed the present motion to dismiss and/or transfer venue on September 29, 2011. Plaintiffs filed their opposition on November 16, 2011. (ECF 10.) Defendants filed their reply on November 23, 2011. (ECF 16.)
A. Proper Venue "A civil action wherein jurisdiction is not founded solely on diversity of
citizenship may . . . be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391(b). Defendants contend venue is improper in the Eastern District of California, relying on an incorrect interpretation of 28 U.S.C. § 1391(b) to argue they are residents of the Eastern District of Pennsylvania for purposes of this section. (Mot. at 3.) While defendants are domiciled in Pennsylvania, they are residents of "any judicial district" where they are "subject to personal jurisdiction." See 28 U.S.C. §§ 1391(c), (d). This court has personal jurisdiction over defendants, as they are licensed to do business and have an agent for service of process in California. (Opp'n at 5.) Indeed, defendants do not dispute this court has personal jurisdiction over them. (Mot. at 3.) Accordingly, defendants are residents of California for purposes of venue and the Eastern District of California is a proper forum. ///// /////
When the district court finds that venue is proper, it is still within its discretion,
"[f]or the convenience of parties and witnesses, [and] in the interest of justice," to transfer an "action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). "Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an 'individualized, case-by-case consideration of convenience and fairness.'" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). "In ruling on a motion to transfer pursuant to § 1404(a), the Court must evaluate three elements: (1) convenience of the parties; (2) convenience of the witnesses; and (3) interests of justice." Safarian v. Maserati North America, Inc., 559 F. Supp. 2d 1068, 1071 (C.D. Cal. 2008) (citations omitted). "Once the court determines that venue is proper, the movant must present strong grounds for transferring the action . . . ." Id. (citing Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)). "[A] motion to transfer venue for convenience pursuant to 28 U.S.C. § 1404(a) does not concern the issue 'whether and where' an action may be properly litigated. It relates solely to the question where, among two or more proper forums, the matter should be litigated to best serve the interests of judicial economy and convenience to the parties." Injen Tech. Co. v. Advanced Engine Mgmt., 270 F. Supp. 2d 1189, 1193 (S.D. Cal. 2003) (citation and emphasis omitted).
In determining whether transfer is proper, the court must "balance the preference accorded plaintiff's choice of forum with the burden of litigating in an inconvenient forum." Decker Coal, 805 F.2d at 843 (citations omitted). The court need not accept the pleadings as true and may consider facts outside the pleadings. Leskinen v. Halsey, No. 2:10-cv-03363 MCE KJN PS, 2011 U.S. Dist. LEXIS 102571, at *11 (E.D. Cal. Sep. 12, 2011) (citing Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1137 (9th Cir. 2004)). According to the Ninth Circuit, relevant factors to be considered in determining whether transfer is appropriate include: "(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof." Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000), cert. denied, 531 U.S. 928 (2000) (citing Stewart Org., 487 U.S. at 29).
Initially, the court finds, as it must, this action "might have been brought" in the Eastern District of Pennsylvania because defendants reside there. 28 U.S.C. § 1404(a); Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985); 28 U.S.C. § 1391(b)(1). The Eastern District of Pennsylvania has diversity and federal question jurisdiction over this suit, has personal jurisdiction over defendants, and is an appropriate venue in accordance with 28 U.S.C. § 1391(b). Indeed, plaintiffs do not dispute that this action could have been brought in the Eastern District of Pennsylvania.
The court next applies the relevant Jones factors to consider the convenience of the parties and witnesses and the interests of justice. "'No single factor is dispositive and a district court has broad discretion to adjudicate motions for transfer on a case-by-case basis." Johnson v. Wal-Mart Stores, Inc., No. CIV. 2:10-997 WBS EFB, 2010 U.S. Dist. LEXIS 84461, at *5 (E.D. Cal. Jul. 22, 2010) (quoting Ctr. for Biological Diversity v. Kempthorne, 2008 U.S. Dist. LEXIS 84978, 2008 WL 4543043, at *2 (N.D. Cal. Oct. 10, 2008) (citing Stewart Org., 487 U.S. at 29)); see also Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955).
1. Plaintiff's choice of forum and convenience of the parties Defendants contend the Eastern District of Pennsylvania is a more convenient forum for this action. They maintain that defendant Blue Sky International (BSI) has never conducted business in California except to register the trade name Blue Sky Turf International (BSTI) and that "none of the witnesses, documents, actions giving rise to the alleged claim, or indeed, any of the parties, have any particular relevance to the Eastern District of California." (Mot. at 3-4.) Moreover, they contend while this district provides no convenience to plaintiffs, it effects extreme hardship on defendants. (Id. at 5.) In contrast, plaintiffs' complaint alleges venue is proper in this district because defendants are subject to personal jurisdiction, have extensive contacts*fn1 and conduct business, caused their products to be advertised, promoted, and sold, and caused injury to plaintiffs in this district. (Compl. ¶ 11.)
Under § 1404(a) and Jones, courts consider the convenience of the parties by analyzing plaintiffs' choice of forum, the respective parties' contacts with the forum, and the contacts relating to plaintiffs' claims in the chosen forum. Jones, 211 F.3d at 498-99. Courts attach a "strong presumption in favor of plaintiff's choice of forum." Piper Aircraft v. Reyno, 454 U.S. 235, 255 (1981). Even so, that choice is not dispositive of the question whether transfer is appropriate. Where, as here, plaintiffs are not residents of the forum, the assumption that their choice of forum is reasonable is significantly more attenuated. King v. Sam Holdings, LLC, No. 5:CV 10-04706-EJD, 2011 U.S. Dist. LEXIS 120345, at *2 (N.D. Cal. Oct. 18, 2011) (Principle that deference is given to a plaintiff's choice of forum "does not hold nearly as strong where the plaintiff does not reside in the venue or where the forum lacks significant connection to the activities alleged in the complaint.") (internal quotations omitted); Sinochem Int'l Co., 549 U.S. at 430; cf. In re Apple Inc., 602 F.3d 909, 913 (8th Cir. 2010) (holding that a foreign plaintiff's choice of forum "is entitled to substantially less deference" and warning against "the risk that plaintiff chose the forum to take advantage of favorable law"). Plaintiff FieldTurf USA, Inc. is a Florida corporation with its principal place of business in Georgia. (Compl. ¶ 3.) Plaintiff FieldTurf Tarkett Inc. is a Canadian corporation with its principal place of business in Canada. (Id. ¶ 4.) Thus, plaintiffs do not reside in this venue or even in this state and their choice of this forum warrants less deference. ...