Jarratt et al v. Amazon.Com, Inc. et al

Filing 52

OPINION AND ORDER granting in part and denying in part 41 Motion to Transfer Case; ORDER TRANSFERRING CASE immediately to the Western District of Washington. Docket Sheet and case documents sent to receiving court. Signed by Honorable P. K. Holmes, III on August 10, 2017. (rg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
HUGH JARRATT and JARRATT
INDUSTRIES, LLC
v.

PLAINTIFFS
No. 5:16-CV-05302

AMAZON.COM, INC.

DEFENDANT
OPINION AND ORDER

Before the Court is Defendant Amazon.com, Inc.’s (“Amazon”) motion (Doc. 41) to
transfer venue to the Western District of Washington, or in the alternative to dismiss for improper
venue. Amazon has filed a brief (Doc. 42) in support. Plaintiffs Hugh Jarratt and Jarratt Industries,
LLC (collectively, “Jarratt”) 1 have filed a response (Doc. 45) in opposition. Amazon filed a reply
(Doc. 47) with leave of Court, and the Court denied Jarratt’s motion to file a surreply. Amazon
filed its motion in response to the Court’s May 30, 2017 order (Doc. 38), entered following the
decision of the Supreme Court in TC Heartland, LLC v. Kraft Foods Group Brands LLC, --U.S.--,
137 S.Ct. 1514 (2017). The motion will be granted as to transfer and denied as to dismissal.
As the Court noted in its show cause order, Amazon has waived the defense of improper
venue. (Doc. 38, p. 3). Amazon argues that because TC Heartland is an intervening decision that
presents new case law on the issue of proper venue, Amazon should have an opportunity to raise
a defense that was not previously available to it. This Court agrees with the analysis of this issue
in Reebok International Ltd. v. TRB Acquisitions LLC, Case No. 3:16-CV-1618, 2017 WL
3016034 (D. Or. July 14, 2017) which directly addresses whether this defense would have been
available prior to the holding in TC Heartland. Under this analysis, Amazon’s argument fails

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Hugh Jarratt founded Jarratt Industries, LLC, and operates it out of his home in his spare
time. (Doc. 45-1, ¶¶ 1–9).
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because the defense of improper venue was available to it. The TC Heartland decision merely
reiterates Supreme Court precedent from Fourco Glass Co. v. Transmirra Products Corp., 353
U.S. 222 (1957), which was erroneously rejected by the Federal Circuit. Amazon has waived the
defense of improper venue, and its motion to dismiss will be denied.
While dismissal is inappropriate, the motion to transfer will be granted. Venue may be
transferred to a more convenient forum under 28 U.S.C. § 1404(a). As a threshold matter, the new
venue must be a district or division where the action originally “might have been brought.”
28 U.S.C. § 1404(a). A patent infringement action “may be brought in the judicial district where
the defendant resides, or where the defendant has committed acts of infringement and has a regular
and established place of business.” 28 U.S.C. § 1400(b). Amazon resides in the State of Delaware
because it is incorporated there. (Doc. 1, ¶ 3); TC Heartland, LLC, 137 S.Ct. at 1521 (“As applied
to domestic corporations, ‘reside[nce]’ in § 1400(b) refers only to the State of incorporation.”).
Amazon’s principal place of business is its corporate headquarters in the Western District of
Washington, so it inarguably has a regular and established place of business in that district.
Amazon’s alleged acts of infringement 2 are the selling, offering for sale, or exposing for sale
through its website of products that infringe Jarratt’s patent. (Doc. 1, ¶¶ 18, 19). Amazon’s “retail
and marketplace website operations” are coordinated from its corporate headquarters in the
Western District of Washington. (Doc. 42-1, ¶ 7). Its alleged acts of infringement occurred there,
as much as they occurred anywhere. This action could originally have been brought in the Western
District of Washington.
Because the Western District of Washington is an acceptable venue for transfer, the Court

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Whether any act of infringement has occurred is reserved for trial—allegations of
infringement are sufficient for a venue determination. In re Cordis Corp., 769 F.2d 733, 737 (Fed.
Cir. 1985).
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must determine whether “the convenience of parties and witnesses . . . [and] the interest of justice”
weigh in favor of transfer of venue. 28 U.S.C. § 1404(a). This is typically a two-prong analysis.
Under the “convenience” prong, the Court considers:
(1) the convenience of the parties, (2) the convenience of the witnesses—including
the willingness of witnesses to appear, the ability to subpoena witnesses, and the
adequacy of deposition testimony, (3) the accessibility to records and documents,
(4) the location where the conduct complained of occurred, and (5) the applicability
of each forum state’s substantive law.
Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 696 (8th Cir. 1997). Under the “interest of
justice” prong, the Court considers:
(1) judicial economy, (2) the plaintiff’s choice of forum, (3) the comparative costs
to the parties of litigating in each forum, (4) each party’s ability to enforce a
judgment, (5) obstacles to a fair trial, (6) conflict of law issues, and (7) the
advantages of having a local court determine questions of local law.
Id. The deference typically given to a plaintiff’s choice of forum means that Amazon bears the
burden of persuasion. Id. at 695.
The convenience prong weighs in favor of transfer. Under this prong, many Courts
consider the convenience of witnesses to be the most important factor. See 15 Wright, Miller &
Cooper, Fed. Practice and Procedure § 3851, n.1 (4th ed.) (collecting cases). In response to
Amazon’s motion, Jarratt identifies witnesses 3 other than himself who are located or have a
presence in this district. Jarratt represents that these witnesses have knowledge related to damages
and to the marking and manufacture of Jarratt’s product. (Doc. 45-1, ¶¶ 10–12). Amazon
identifies witnesses whose testimony is likely to be relevant to Amazon’s allegedly-infringing
conduct, and who are likely to be located in the Western District of Washington. In this case,

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Amazon argues that the convenience of these witnesses should not be considered because
Jarratt has not disclosed them in discovery. Because this factor favors Amazon even if the Court
considers Jarratt’s witnesses, resolving this dispute is unnecessary.
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testimony of liability witnesses is likely to be more substantial than testimony of damages
witnesses. Additionally, travel to the Western District of Washington will be more convenient
than travel to this district for any foreign witnesses associated with Chinese manufacturers of
accused products, and for any witnesses from now-dismissed CT Discount Store, which is located
in New York. This factor weighs in favor of transfer.
The remaining convenience prong factors are split, but weigh in favor of transfer. With
respect to the parties, each party’s preferred district is inarguably more convenient to it, and it
appears equally inconvenient for each to litigate in the other district. Hugh Jarratt operates Jarratt
Industries, LLC in his spare time, and he spends more time at a separate full-time job. Amazon is
headquartered in Seattle, Washington, and most of its relevant party witnesses are likely to be
located there. This factor is neutral. Accessibility to records and documents favors transfer
because “[i]n patent infringement cases, the bulk of the relevant evidence usually comes from the
accused infringer. Consequently, the place where the defendant’s documents are kept weighs in
favor of transfer to that location.” In re Genetech, 566 F.3d 1338, 1345 (Fed. Cir. 2009) (quotation
omitted). The conduct complained of in this case is Amazon’s decision to sell allegedly-infringing
products. This conduct occurred primarily in the Western District of Washington. The only
conduct that appears to have occurred in this district is that Amazon allowed access to its website
where the accused products were offered for sale, but this conduct happens equally in every district
where the website is accessible—including the Western District of Washington. Finally, while
Arkansas substantive law applies to some of the claims at issue, applying state law from a different
forum presents no special concern for federal courts, and the central claims in this suit are federal.
This factor is neutral.
The interest of justice prong weighs in favor of transfer. Judicial economy is typically

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served by allowing a case to proceed in the district that is “the locus of operative facts.” 15 Wright,
Miller & Cooper, Fed. Practice and Procedure § 3854, n.29 (4th ed.) (collecting cases). In a patent
infringement case, that is the location of the allegedly-infringing conduct—here, the Western
District of Washington. See, e.g., LG Electronics, Inc. v. First Int’l Computer, Inc., 138 F.Supp.2d
574, 590 (D.N.J. 2001) (“The district court ought to be as close as possible to the infringing device
and the hub of activity centered around its production. . . . Also relevant is the place where
marketing and sales decisions were made, rather than where the limited sales activity has
occurred.”). Jarratt’s choice of forum is owed more than minimal deference because Jarratt is
headquartered here and so has some relevant contact with this district, but because Amazon’s
conduct occurred primarily in the Western District of Washington and the conduct in this
jurisdiction (the offering for sale of the accused product through its website) occurred equally
nationwide, this deference is not as substantial as Jarratt argues it must be. Cf. In re Apple, Inc.,
602 F.3d 909, 913 (8th Cir. 2010) (identifying a party’s headquarters in a district as a relevant
factor that would warrant something more than minimal deference to a plaintiff’s choice of forum,
but noting that “[t]his ‘general’ practice of according deference . . . is based on an assumption that
the plaintiff’s choice will be a convenient one.”). The comparative cost to the parties favors
transfer, as Amazon is likely to bear the burden of producing most of the documents and testimony
in this case.

The remaining factors are neutral, as there will be no substantial barrier to

enforcement of a judgment, no conceivable obstacle to a fair trial, no substantive conflict of law
issues in either district, and any advantage to having this Court determine any questions of
Arkansas law is de minimis.
IT IS THEREFORE ORDERED that Defendant Amazon.com, Inc.’s motion (Doc. 41) is
GRANTED IN PART and DENIED IN PART. The motion is DENIED to the extent it seeks

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dismissal for improper venue. The motion to transfer venue is otherwise GRANTED, and the
Clerk is directed to transfer this case to the United States Court for the Western District of
Washington.
IT IS SO ORDERED this 10th day of August, 2017.

/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U.S. DISTRICT JUDGE

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