Big Daddy Games v. Reel Spin Studios LLC et al
ORDER granting 24 Motion to Transfer Case to Western District of Wisconsin; denying 45 Motion for Attorney Fees; signed by Judge William C Griesbach on 06/25/2012 (cc: all counsel) (Griesbach, William)[Transferred from Wisconsin Eastern on 6/26/2012.]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
BIG DADDY GAMES, LLC,
Case No. 12-C-475
REEL SPIN STUDIOS, LLC, et al.,
DECISION AND ORDER GRANTING MOTION TO TRANSFER
In August 2011, Plaintiff, along with Tocatta Gaming International, LLC (not a party here),
filed an action in the Western District of Wisconsin against the Defendants named in the present
action. In September 2011, Judge Crabb, after a hearing involving six witnesses, denied the
Plaintiffs’ motion for a preliminary injunction, finding that they had a low likelihood of success on
the merits. On March 29, 2012, Judge Crabb issued a nineteen-page decision granting, in most
respects, the Defendants’ motion to dismiss. Judge Crabb allowed one claim to survive, but
expressed some skepticism about the viability of that claim. (Dkt. # 26, Ex. 10.) The claims were
dismissed with the understanding that the Plaintiffs would be allowed to file an amended complaint
that would, in the Judge’s words, “bolster” their claims. The Plaintiffs did file an amended
complaint, and the Defendants then filed another motion to dismiss. Soon after, the Plaintiffs
voluntarily dismissed their action.
Roughly six weeks after Judge Crabb dismissed two of its three claims, the Plaintiff (without
its co-plaintiff from the Western District case) filed this action in the Eastern District. The
Defendants now move to dismiss on the grounds that the present action is a blatant attempt to
forum-shop in light of the Western District’s adverse rulings.
On a motion for a change of venue, a district court considers the plaintiff's choice of forum,
the convenience of the parties and the witnesses, as well as the interest of justice. 28 U.S.C.
§ 1404(a). This is not the typical forum non conveniens case, however. Whether the dispute is
heard in Green Bay or Madison is of little moment to either side. An appearance in court will
involve a commute for all parties, and of course actual live appearances in court in civil cases are
becoming less common. Witnesses and evidence exists throughout this part of the state, easily
accessible from Madison or Green Bay. Plaintiff’s suggestions to the contrary must be taken with
a grain of salt, given that it originally filed the case in the very forum it now alleges is less
convenient. Having already filed an action in the Western District, the Plaintiff is all but estopped
from arguing that its original choice of forum is somehow inconvenient. At a minimum, the fact
that this forum is Plaintiff’s second choice means its current preference is afforded little deference.
This is not a convenience case but one involving the “interests of justice” aspect of § 1404.
The interests of justice “may be determinative in a particular case, even if the convenience of the
parties and witnesses might call for a different result.” Coffey v. Van Dorn Iron Works, 796 F.2d
217, 220 (7th Cir. 1986). Here, the Defendants argue that Judge Crabb is already familiar with the
dispute, given that she held a preliminary injunction hearing with several live witnesses and later
issued a lengthy decision on the merits of the complaint. Thus, allowing that court to continue
hearing the dispute would save judicial resources. In addition, in more general terms the interests
of justice would be served if litigants are prevented from shopping for new forums when things
don’t go their way in the original forum.
Plaintiff protests that this filing is about convenience to the parties and nothing more. The
dismissal in the Western District action played no role in its decision to seek another forum for its
dispute with the Defendants. The Plaintiff’s explanation does not convince. If this were truly about
“convenience,” things would have played out differently: Plaintiff would either have filed the
original action in this district, or it would have voluntarily dismissed the Western District action at
an earlier stage and then re-filed here. Plaintiff does not explain what it is about this forum that
suddenly became more convenient in the weeks following Judge Crabb’s dismissal. The only thing
that changed was that the judge hearing Plaintiff’s case had expressed skepticism about its
Moreover, Judge Crabb granted leave to file an amended complaint. The normal course
would be to simply file such a complaint (which Plaintiff did) and proceed with the case before the
same judge, not to drop the case entirely and re-file somewhere else. By granting leave to re-file,
Judge Crabb was inviting Plaintiffs to cure the defects that she had herself identified, not to try
again with a different judge.
Immediately after Plaintiffs filed an amended complaint in the Western District action, the
Defendants moved to dismiss. It was then that the Plaintiffs voluntarily dismissed their case. Given
those circumstances, Plaintiff knew that if it re-filed somewhere else, the Defendants would be
ready to file a motion to dismiss forthwith, which they did here. Thus, Plaintiff apparently believed
it was appropriate to file a new action and require a new judge to sift through the same complaint
and address the same legal issues that another judge had decided only weeks earlier, merely on the
basis that such a course was somehow more “convenient,” a concern that materialized out of the
ether only after the judge in the “inconvenient” district (which Plaintiff itself had selected) had ruled
against it. Plaintiff’s $350 filing fee does not entitle it to such largesse at the expense of the
judiciary, other litigants, and the taxpaying public.
Defendants have also moved for attorney’s fees under Fed. R. Civ. P. 41(d). That section
Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an
action in any court files an action based on or including the same claim against the
same defendant, the court:
(1) may order the plaintiff to pay all or part of the costs of that previous action; and
(2) may stay the proceedings until the plaintiff has complied.
Fed. R. Civ. P. 41(d).
Part of the “costs” of a previous lawsuit can include attorney’s fees when the underlying
statute considers fees to be part of awardable costs. Esposito v. Piatrowski, 223 F.3d 497, 500–01
(7th Cir. 2000). Here, however, awarding fees and costs for the previous lawsuit does not appear
to be the proper remedy. In transferring the case to the Western District, I am concluding not that
previous efforts there were wasteful but that the efforts here were wasteful. Indeed, my decision
to transfer rests largely on the fact that the parties have already expended significant efforts in that
district, efforts whose fruit should be harvested in the field where the seeds were planted.
Accordingly, I do not find § 41(d) applicable to these circumstances. This, of course, does not
preclude Defendants from seeking some other sanction in the transferee court. I merely conclude
that awarding costs for the litigation begun in the Western District is not a proper remedy here.
For the reasons given above, this case is TRANSFERRED to the Western District of
Wisconsin. The motion to transfer is GRANTED. The motion for attorney’s fees and costs is
SO ORDERED this
day of June, 2012.
s/ William C. Griesbach
William C. Griesbach
United States District Judge