Nutrition & Fitness, Inc. v. Progressive Emu, Inc. et al

Filing 34

ORDER LIFTING STAY and TRANSFERRING this civil action to the United States District Court for the Northern District of Alabama, pursuant to 28 U.S.C. § 1404(a), for all further proceedings. Signed by Senior Judge James C. Fox on 8/23/2012. (Edwards, S.) [Transferred from North Carolina Eastern on 8/24/2012.]

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

No.5:12-CV-192-F

NUTRITION & FITNESS, INC.,
Plaintiff,

v.
PROGRESSIVE EMU, INC. and
CHRIS BINKLEY,
Defendants.

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ORDER

This matter is before the court on the Plaintiffs Status Report [DE-33].
On May 25, 2012, this matter came before the court for a hearing on the Motion to Dismiss
or Transfer [DE-20] and the Motion for Reconsideration [DE-22] filed by Progressive Emu, Inc. and
Chris Binkley (hereinafter individually referred as "Pro Emu" or "Binkley" or collectively referred
as "Defendants"). The court found in the hearing, and memorialized in an order filed on June 7,
2012, that this case falls squarely within the purview of the first-filed rule. The court ordered that
the action be stayed, pending the decision of the Northern District of Alabama on the appropriate
forum and whether an exception to the first-filed rule is applicable. The court also directed Plaintiff
Nutrition & Fitness, Inc., ("NFl" or "Plaintiff') to submit a status report ofthe Alabama proceedings
no later than 60 days from June 7,2012, and every 60 days thereafter until such proceedings were
concluded. See June 7, Order [DE-31] at p. 5.
On August 20,2012, NFl filed its Status Report [DE-33] and attached thereto the Northern

District of Alabama's June 26,2012 Order [DE-33.1]. In that order, United States District Judge
William M. Acker, Jr., found that (1) the first-filed rule was applicable; (2) no exceptions to the firstfiled rule were applicable; and (3) NFl failed to meet its burden in showing that the Eastern District
of North Carolina is a more convenient forum. Id. at pp. 4-7. Accordingly, Judge Acker denied
NFl's motion to dismiss the Alabama action, and also denied its alternative request to transfer venue
to the Eastern District of North Carolina. Id. at p. 11. NFl represents in its status report that it has
filed an answer and asserted counterclaims in the Alabama action.
Having received notice that the Alabama court has issued a ruling on NFl's motion to
dismiss, the court ORDERS that the stay in this action is lifted. Rather than dismissing this case,
the court finds that transfer ofthis action for all further proceedings pursuant to 28 U.S.C. § 1404(a)
to be appropriate.} See, e.g., Nutrition & Fitness, Inc. v. Blue Stuff, Inc., 264 F. Supp. 2d 357,360
(W.D.N.C. 2003)("Where the same parties have filed similar litigation in separate federal fora, ..
. the later-filed action should be stayed, transferred, or enjoined."); Hardee's Food Sys., Inc. v.

Rosenblatt, 44 F. Supp. 2d 767, 770 (E.D.N.C. 1998)(explaining that in determining whether a
transfer is appropriate, the relevant factors include the convenience of the witnesses, where the
events occurred that gave rise to the action, the residences of the parties, a plaintiff s initial choice
of forum, the availability of compulsory process, and the law which will govern the dispute). See

also Northern District ofAlabama's Order [DE-33.1] at pp. 6-7 (noting that the contract at issue was
executed and allegedly breached in Alabama, most ofthe documents relating to this action will likely

1 The court notes that although NFl has asserted counter-claims in the Alabama action,
there is no indication as to what counterclaims it has asserted, and whether those counterclaims
differ from the claims asserted in the instant action. Nor is there any indication that it has
asserted claims against Chris Binkley in the Alabama action.

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be found in Alabama, and that "many, if not most, of the potential witnesses are located in
Alabama"). Accordingly, the court TRANSFERS this civil action to the United States District Court
for the Northern District of Alabama, pursuant to 28 U.S.C. § 1404(a), for all further proceedings.
The Clerk of Court is DIRECTED to forward the entire case file to the Clerk ofthe Northern District
of Alabama.
SO ORDERED.

23rd
This the_ day of August, 2012.

~ESC.FOX
nior United States District Judge

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