California Brewing Company v. 3 Daughters Brewing LLC et al

Filing 23

ORDER signed by District Judge Kimberly J. Mueller on 4/18/16 ORDERING for the foregoing reasons, defendants' 10 motion to dismiss or to transfer venue is DENIED. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CALIFORNIA BREWING COMPANY, a
California Corporation,
Plaintiff,

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ORDER
v.

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No. 2:15-cv-02278-KJM-CMK

3 DAUGHTERS BREWING LLC, a
Florida Limited Liability Company, et al.,

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Defendants.

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This action arises from defendant 3 Daughters Brewing, LLC’s (“3 Daughters”)

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and defendant LMMML, LLC’s (“LM”) alleged use of plaintiff California Brewing Company’s

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(“CBC”) “Beach Blonde Ale” mark. Before the court is defendants’ motion to dismiss for lack of

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personal jurisdiction and improper venue or, alternatively, to transfer venue. ECF No. 10.

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Plaintiff opposes the motion. ECF No. 14. The court submitted the matter as provided by Local

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Rule 230(g). As explained below, the court DENIES defendants’ motion.

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I.

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BACKGROUND
On November 2, 2015, plaintiff filed a complaint, which makes the following

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allegations. Compl., ECF No. 1. Plaintiff CBC is a California corporation with its principal place

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of business in Anderson, California. Id. ¶ 11. CBC is engaged in the business of creating,

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manufacturing, distributing, and marketing handmade craft beer. Id. In 2007, CBC created a
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recipe for a very pale, American ale style beer, and conceived of the “Beach Blonde Ale” mark to

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identify the beer. Id. ¶ 14. CBC applied to register its mark with the U.S. Patent and Trademark

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Office (“USPTO”) on December 23, 2007, and the USPTO granted registration of the mark on

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October 7, 2008. Id. ¶¶ 15–17, Ex. 2. CBC has continuously used its mark in connection with

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the advertisement and sale of its beer products and merchandise since 2007. Id. ¶¶ 14–18.

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Defendants 3 Daughters and LM are Florida limited liability companies with their

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principal places of business in St. Petersburg, Florida. See id. ¶¶ 12–13; Harting Aff. ¶¶ 3–10.

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According to an affidavit submitted by Michael Harting, the CEO of LM, LM is the sole manager

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of 3 Daughters. See Harting Aff. ¶ 4. The complaint alleges defendants began selling beer using

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plaintiff’s Beach Blond Ale mark in 2014. Compl. ¶ 25. Defendants allegedly have engaged in a

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marketing campaign promoting the infringing product, and sell the beer nationwide through

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online retailers, tasting rooms, and retail stores. Id. ¶¶ 25–27. The complaint alleges defendants’

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use of the mark is likely to confuse consumers, because defendants’ product uses an identical

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mark to plaintiff’s product, both products are beer, and both products are marketed and sold

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through similar channels. Id. ¶ 33. The complaint further alleges defendant 3 Daughters filed an

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application with the USPTO to register the word mark “Beach Blonde Ale” on May 17, 2013, but

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the USPTO rejected the application on September 5, 2013 based on CBC’s existing registration.

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Id. ¶ 39.

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The complaint asserts claims for false designation of origin and unfair competition

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under 15 U.S.C. § 1125(a); trademark infringement under 15 U.S.C. § 1114; unfair competition

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and/or unfair and deceptive practices under the laws of all U.S. states, including California

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Business & Professions Code section 17200 et seq.; trademark infringement under California

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common law; common law unfair competition; false advertising under California Business &

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Professions Code section 17500 et seq.; and unjust enrichment. See id. ¶ 7.

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On December 3, 2015, defendants moved to dismiss the complaint for lack of

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personal jurisdiction and improper venue or, alternatively, to transfer venue. ECF No. 10

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(“Mot.”). As noted, plaintiff opposes the motion, ECF No. 14 (“Opp’n”), and defendants replied,

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ECF No. 18 (“Reply”).
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II.

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LEGAL STANDARD
A.

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Rule 12(b)(2) Lack of Personal Jurisdiction
A defendant may move to dismiss a complaint for lack of personal jurisdiction.

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Fed. R. Civ. P. 12(b)(2). Even though the defendant makes a motion under Rule 12(b)(2), it is the

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plaintiff’s burden to establish the court’s personal jurisdiction. See Sher v. Johnson, 911 F.2d

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1357, 1361 (9th Cir. 1990). When, as here, the court acts without holding an evidentiary hearing,

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“the plaintiff need make only a prima facie showing of jurisdictional facts to withstand the motion

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to dismiss.” Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). In other words, “the plaintiff

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need only demonstrate facts that if true would support jurisdiction over the defendant.” Id. The

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plaintiff may not rely on “bare allegations” alone, Schwarzenegger v. Fred Martin Motor Co.,

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374 F.3d 797, 800 (9th Cir. 2004), but the court assumes the complaint’s allegations are true

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unless “directly contravened” by other evidence, Harris Rutsky & Co. Ins. Servs., Inc. v. Bell &

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Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003). Any factual conflicts contained in the

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parties’ affidavits are resolved in the plaintiff’s favor. Doe v. Unocal Corp., 248 F.3d 915, 922

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(9th Cir. 2001) (per curiam).

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B.

Rule 12(b)(3) Improper Venue

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Under Rule 12(b)(3), a defendant may move to dismiss a complaint for improper

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venue. Fed. R. Civ. P. 12(b)(3). Once the defendant has challenged the propriety of venue in a

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given court, the plaintiff bears the burden of showing that venue is proper. See Piedmont Label

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Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). In assessing a motion to

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dismiss for improper venue, a court may consider facts outside of the pleadings, but must draw all

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reasonable inferences and resolve all factual conflicts in favor of the non-moving party. Murphy

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v. Schneider Nat’l, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004). If the court determines that venue

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is improper, the court must either dismiss the action or, if it is in the interests of justice, transfer

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the case to a district or division in which it could have been brought. 28 U.S.C. § 1406(a); see

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King v. Russell, 963 F.2d 1301, 1304 (9th Cir. 1992).

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III.

DISCUSSION
A.

Personal Jurisdiction
When no federal statute governing personal jurisdiction applies, the district court

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applies the law of the state in which it sits, here California. Schwarzenegger, 374 F.3d at 800

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(citing Fed. R. Civ. P. 4(k)(1)(A)). “Because California’s long-arm statute allows the exercise of

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personal jurisdiction to the full extent permissible under the U.S. Constitution, our inquiry centers

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on whether exercising jurisdiction comports with due process.” Picot v. Weston, 780 F.3d 1206,

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1211–12 (9th Cir. 2015) (internal quotation marks and citation omitted; citing Cal. Civ. Proc.

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Code § 410.10). Federal due process requires some “minimum contacts” between the defendant

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and the relevant forum so that the court’s exercise of personal jurisdiction “does not offend

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traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S.

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310, 316 (1945) (internal quotation marks and citations omitted).

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There are two forms that personal jurisdiction may take: general and specific.

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Picot, 780 F.3d at 1211. CBC does not contend defendants are subject to general jurisdiction in

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California, and instead argues specific jurisdiction exists. See Opp’n at 1. The test for specific

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personal jurisdiction has three parts: first, the plaintiff must show the defendant purposefully

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directed its activities at residents of the forum or purposefully availed itself of the privilege of

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doing business in the forum state; second, the plaintiff must show its claim arises out of or is

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related to the forum-related activities; and third, if the plaintiff satisfies the first two prongs, the

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burden shifts to the defendant to present a “compelling case” that the exercise of personal

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jurisdiction would be unreasonable or unfair. Picot, 780 F.3d at 1211–12 (quoting

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Schwarzenegger, 374 F.3d at 802; citations omitted).

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1.

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The first prong of the specific jurisdiction test refers to both purposeful direction

Purposeful Direction

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and purposeful availment, in the disjunctive. In cases sounding in tort, the Ninth Circuit typically

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employs a purposeful direction analysis. Id. at 1212 (citing Schwarzenegger, 374 F.3d at 802–

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03); Mavrix Photo, Inc. v. Brand Techs., Inc., 647 F.3d 1218, 1228 (9th Cir. 2011) (employing

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purposeful direction analysis in action for copyright infringement). Because trademark
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infringement involves tortious conduct, the court here addresses only purposeful direction,

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without reaching purposeful availment. Purposeful direction is evaluated under the three-part

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“effects” test established in Calder v. Jones, 465 U.S. 783 (1984), which requires a plaintiff to

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show the defendant “(1) committed an intentional act, (2) expressly aimed at the forum state, (3)

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causing harm that the defendant knows is likely to be suffered in the forum state.” Picot, 780

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F.3d at 1214 (quoting Schwarzenegger, 374 F.3d at 803). “The inquiry whether a forum State

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may assert specific jurisdiction over a nonresident defendant focuses on the relationship among

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the defendant, the forum, and the litigation.” Walden v. Fiore, 571 U.S. ___, 134 S. Ct. 1115,

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1121 (2014) (internal quotation marks and citation omitted).

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a)

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Intentional Act

In the context of the Calder effects test, “intent” means “an intent to perform an

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actual, physical act in the real world, rather than an intent to accomplish a result or consequence

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of that act.” Schwarzenegger, 374 F.3d at 806. CBC alleges defendants market and sell beer

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products that infringe CBC’s Beach Blonde Ale trademark. Compl. ¶¶ 22–33, 38, 58–59. This is

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a sufficient allegation of an intentional act within the meaning of the Calder test. See Wash. Shoe

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Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 674 (9th Cir. 2012) (purchasing and selling boots

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that allegedly infringed plaintiff’s copyrighted design constituted “intentional acts” under Calder

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test).

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b)

Express Aiming

The second prong of the purposeful direction inquiry is whether the defendant

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expressly aimed its act at the forum state. Picot, 780 F.3d at 1214. “The ‘express aiming’

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analysis depends, to a significant degree, on the specific type of tort or other wrongful conduct at

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issue.” Schwarzenegger, 374 F.3d at 807. In intellectual property cases, “the Ninth Circuit has

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held that specific jurisdiction exists where a plaintiff files suit in its home state against an out-of-

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state defendant and alleges that defendant intentionally infringed its intellectual property rights

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knowing [the plaintiff] was located in the forum state.” Amini Innovation Corp. v. JS Imps., Inc.,

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497 F. Supp. 2d 1093, 1105 (C.D. Cal. 2007) (citing Columbia Pictures Television v. Krypton

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Broad. of Birmingham, Inc., 106 F.3d 284 (9th Cir. 1997), reversed on other grounds by Feltner
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v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998), and Panavision Int’l, L.P. v. Toeppen,

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141 F.3d 1316, 1321 (9th Cir. 1998); collecting subsequent cases); see also Wash. Shoe Co., 704

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F.3d at 675–76; Adobe Sys. Inc. v. Blue Source Grp., Inc., 125 F. Supp. 3d 945, 961 (N.D. Cal.

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2015). Courts often refer to this theory of specific jurisdiction as “individualized targeting” of the

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plaintiff. See, e.g., Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1130 (9th Cir.

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2010).

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Here, CBC alleges defendants intentionally infringed its Beach Blonde Ale mark

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with knowledge of CBC’s ownership of the mark and with knowledge CBC is located in

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California. See, e.g., Opp’n at 5–6; Compl. ¶¶ 24, 39, 62. CBC alleges the USPTO rejected

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defendants’ application to register marks in 2013 because the marks were confusingly similar or

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identical to CBC’s existing registered trademark, and the USPTO informed defendants of CBC’s

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superior rights. Compl. ¶ 39; Goschke Decl. ¶ 6. In addition, plaintiff’s CEO, Jack Goschke,

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contacted defendants in March 2015 to inform defendants of CBC’s rights and to ask defendants

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to stop using the mark. See Goschke Decl. ¶ 8; Harting Decl. ¶ 27. CBC contends defendants

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had knowledge of plaintiff’s residence in the forum state because plaintiff’s trademark

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registration identifies CBC as a resident of California and of this district. Opp’n at 5. The court

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notes plaintiff’s name—California Brewing Company—also signals it is a resident of California.

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Defendants have not offered any evidence contradicting these allegations and have not denied

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knowledge of plaintiff’s mark registration or location. Mr. Harting’s declaration admits

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defendants were aware of CBC’s trademark registration and investigated the registration after Mr.

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Goschke contacted defendants. Harting Decl. ¶ 27.

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CBC alleges defendants have used plaintiff’s mark for the purpose of promoting

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defendants’ business and attracting new business in competition with plaintiff. For example,

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CBC avers defendants use metatags and search engine optimization to attract consumers

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searching for “Beach Blonde Ale” to their website and social media pages, and use “Beach

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Blonde Ale” branding throughout their website and social media posts. Goschke Decl. ¶¶ 12, 14,

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16, 20. Because plaintiff and defendants each sell beer using the name “Beach Blonde Ale,” with

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CBC’s use allegedly beginning first in time, it is plausible defendants divert consumers searching
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for plaintiff’s product to defendants’ web pages to profit from the goodwill and recognition

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associated with the Beach Blonde Ale mark. In addition, CBC has submitted evidence defendants

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sell their product to consumers in California through national retailers and market to California

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consumers through social media, Wilks Decl. ¶¶ 2–3; Gillette Decl. ¶¶ 2–3; Liedtke Decl. ¶¶ 2–9;

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Goschke Decl. ¶¶ 16–20, 28–29; defendants’ website states they ship their beer nationwide,

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Goschke Decl. ¶ 21; and defendants’ CEO has said defendants want to grow significantly, id.

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¶ 22. The court finds these allegations of individualized targeting with knowledge of plaintiff’s

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location sufficient to establish express aiming under Ninth Circuit precedent. See, e.g., Wash.

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Shoe Co., 704 F.3d at 675–79.

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In their reply brief, defendants argue these allegations cannot form the basis of the

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court’s jurisdiction after the Supreme Court’s recent decision in Walden v. Fiore, 571 U.S. ___,

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134 S. Ct. 1115 (2014). Reply at 3–4, 6–9. In Walden, the plaintiffs alleged an agent of the Drug

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Enforcement Administration (DEA) violated their Fourth Amendment rights by seizing cash from

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them at a Georgia airport on their return trip to their Nevada residence. 134 S. Ct. at 1119–20.

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The Court held the fact the agent knew a delay in returning the funds would affect persons with

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connections to Nevada was not sufficient to establish specific jurisdiction over the agent in

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Nevada. Id. at 1124–25. The Court emphasized the specific jurisdiction inquiry must focus on

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the relationship between the defendant’s conduct and the forum state, and “a defendant’s

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relationship with a plaintiff or third party, standing alone, is an insufficient basis for jurisdiction.”

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Id. at 1122–23; accord Picot, 780 F.3d at 1214. To illustrate these principles, the Court

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distinguished Calder, explaining:

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The crux of Calder was that the reputation-based “effects” of the
alleged libel connected the defendants to California, not just to the
plaintiff. The strength of that connection was largely a function of
the nature of the libel tort. However scandalous a newspaper article
might be, it can lead to a loss of reputation only if communicated to
(and read and understood by) third persons.

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Walden, 134 S. Ct. at 1123–24. In Walden, by contrast, the Court found a DEA agent’s alleged

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tortious conduct of seizing cash from the plaintiffs at an airport in Georgia in no way connected

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the agent to Nevada. See id.
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The instant action is more analogous to Calder than to Walden, because the nature

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of defendants’ alleged tortious conduct connects defendants to California. Cf. Schwarzenegger,

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374 F.3d at 807 (“The ‘express aiming’ analysis depends, to a significant degree, on the specific

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type of tort or other wrongful conduct at issue.”). Just as publication to third persons is a

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necessary element of libel, likelihood of consumer confusion is a necessary element of trademark

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infringement. See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602

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(9th Cir. 2005). Specific jurisdiction over 3 Daughters and LM is not based on “random,

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fortuitous, or attenuated” contacts defendants made with CBC, Walden, 134 S. Ct. at 1123

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(quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)), but rather on defendants’

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alleged conduct in marketing and selling an infringing product to California consumers with an

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alleged intent to directly compete with CBC. Accordingly, exercising personal jurisdiction over

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defendants in this action is not inconsistent with Walden. Cf. Tresona Multimedia LLC v. Legg,

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No. 14-02141, 2015 WL 470228, at *4 (D. Ariz. Feb. 4, 2015) (“The central lesson of Walden is

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that . . . jurisdiction must be based on a defendant’s contacts with the forum. Case law has

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established that certain actions by an out-of-state defendant—such as . . . directly competing with

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a person (Brayton)—create contacts with that person’s forum.”).

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Moreover, the court is not persuaded by defendants’ argument that acts by third

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party retailers are irrelevant to the analysis. Although standalone acts by third parties cannot

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establish specific jurisdiction, see Walden, 134 S. Ct. at 1123, here, there is evidence defendants

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sold their goods to national retailers with the intent to develop a national market, see, e.g.,

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Goschke Decl. ¶¶ 21–23. If such allegations are true, it would not be reasonable for defendants to

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disclaim any connection to sales in California. Cf. Seirus Innovative Accessories, Inc. v.

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Cabela’s, Inc., No. 09-102, 2009 WL 9141752, at *3 (S.D. Cal. Nov. 2, 2009) (defendant who

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sold products through a national retailer should have reasonably expected sales in state where

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retailer marketed products); Hilsinger Co. v. FBW Investments, 109 F. Supp. 3d 409, 426 (D.

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Mass. 2015). Otherwise, defendants could avoid jurisdiction in a forum simply by acting through

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a third party and pleading ignorance.

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At this stage of the proceedings, the court finds plaintiff has satisfied express
aiming.

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c)

Foreseeable Harm

With respect to the third part of the Calder test, the court finds plaintiff’s

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allegations sufficient to establish defendants knew the resulting harm would be suffered in

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California. Here, it was foreseeable that plaintiff would be harmed by infringement of its Beach

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Blonde Ale mark, and that some of the harm would occur in California, where defendants knew

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CBC resided at least as early as March 2015, Harting Decl. ¶ 27, and likely as early as September

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2013, Compl. ¶ 39; Goschke Decl. ¶ 6. See Brayton, 606 F.3d at 1131. As discussed above, Mr.

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Harting admits plaintiff contacted him and asked him to stop using its Beach Blonde Ale mark in

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March 2015, and he subsequently investigated plaintiff’s use and registration of the mark.

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Harting Decl. ¶ 27. In addition, plaintiff alleges the USPTO rejected defendants’ application to

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register the word mark “Beach Blonde Ale” on or about September 5, 2013, in light of plaintiff’s

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existing mark registration, and CBC’s registration identifies it as a resident of this district.

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Compl. ¶ 39; Goschke Decl. ¶¶ 6, 10. Defendants have not submitted any evidence suggesting it

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was not foreseeable that harm would be suffered in California.

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The court finds plaintiff has established purposeful direction under the Calder test.

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2.

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The second prong of the test for specific personal jurisdiction focuses on the

The “But For” Test

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connection between the defendant’s acts and the harm those acts caused. It requires the plaintiff

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to show the claim would not have arisen but for the defendant’s contacts with the forum state.

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Ballard, 65 F.3d at 1500. Other decisions have articulated the test as requiring a “direct nexus”

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between the defendant’s contacts with the forum and the cause of action. Fireman’s Fund Ins.

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Co. v. Nat’l Bank of Coops., 103 F.3d 888, 894 (9th Cir. 1996).

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Despite its apparently strict language, many district courts in the Ninth Circuit

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have not applied the “but for” test stringently. See, e.g., Planned Parenthood v. Am. Coalition of

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Life Activists, 945 F. Supp. 1355, 1368 (D. Or. 1996) (“The ‘but for’ test should not be narrowly

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applied; rather, the requirement is merely designed to confirm that there is some nexus between
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the cause of action and defendant’s contact with the forum.” (citing Shute v. Carnival Cruise

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Lines, 897 F.2d 377, 385 (9th Cir. 1990), reversed on other grounds, 499 U.S. 585 (1991))).

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Whether a stricter or more lenient interpretation of Ballard’s “but for” test is

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appropriate, defendants’ alleged contacts satisfy both versions. As stated above, this action arises

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from defendants’ alleged individualized targeting of plaintiff and use of plaintiff’s mark in

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advertising, marketing, and sales reaching California consumers. Plaintiff’s injury would not

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have occurred but for defendants’ contacts with California, where plaintiff’s principal place of

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business is located, Compl. ¶ 11. See Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1021

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(9th Cir. 2002). Defendants’ motion addresses only purposeful direction, the first prong of the

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specific jurisdiction test, effectively conceding the second. The court finds the second prong is

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satisfied.

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3.

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Because plaintiff has established defendants’ contacts were purposefully directed

Reasonableness

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at California and caused the alleged injuries, the burden shifts to defendants to present a

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“compelling case” of the unreasonableness of personal jurisdiction over it. See Schwarzenegger,

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374 F.3d at 802 (quoting Burger King, 471 U.S. at 476–48). In assessing the overall

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reasonableness and fairness of exercising personal jurisdiction, the court considers, among other

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things,

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(1) the extent of a defendant’s purposeful interjection; (2) the
burden on the defendant in defending in the forum; (3) the extent of
conflict with the sovereignty of the defendant’s state; (4) the forum
state’s interest in adjudicating the dispute; (5) the most efficient
judicial resolution of the controversy; (6) the importance of the
forum to the plaintiff’s interest in convenient and effective relief;
and (7) the existence of an alternative forum.
Panavision, 141 F.3d at 1323 (citing Burger King, 471 U.S. at 476–77)).

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Here, as well, defendants’ motion does not address the reasonableness prong.

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Accordingly, defendants have not met their burden of presenting a “compelling case” of the

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unreasonableness of this court’s exercising personal jurisdiction over them.

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Plaintiff has made a sufficient showing of jurisdictional facts to withstand
defendants’ motion to dismiss. Defendants’ motion to dismiss is DENIED.
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B.

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Venue
A district court may dismiss or transfer a case “to any district or division in which

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it could have been brought” if venue is “wrong.” 28 U.S.C. § 1406(a). Venue over trademark

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and UCL claims is governed by the general venue statute. See Adobe, 125 F. Supp. 3d at 959.

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The general venue statute provides in relevant part, “A civil action may be brought in . . . a

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judicial district in which any defendant resides, if all defendants are residents of the State in

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which the district is located.” 28 U.S.C. § 1391(b)(1). Section 1391 also provides that “an entity

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with the capacity to sue and be sued in its common name under applicable law . . . shall be

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deemed to reside . . . in any judicial district in which such defendant is subject to the court’s

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personal jurisdiction with respect to the civil action in question . . . .” Id. § 1391(c). Here, the

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court has found defendants are subject to the court’s personal jurisdiction with respect to this

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action, so defendants are both deemed to “reside” in this district. See id. Accordingly, venue in

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this district is proper under § 1391(b)(1).

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Moreover, § 1391 also allows a civil action to be brought in “a judicial district in

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which a substantial part of the events or omissions giving rise to the claim occurred . . . .” 28

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U.S.C. § 1391(b)(2). In trademark cases, infringement takes place in any district in which

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consumers are likely to be confused by the challenged goods. See E & J Gallo Winery v.

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Grenade Beverage LLC, No. 1:13-00770, 2013 WL 6048140, at *4 (E.D. Cal. Nov. 14, 2013);

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see also Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 295 (3d Cir. 1994). Here, the

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complaint alleges a likelihood of consumer confusion in this district, where plaintiff is based, as a

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result of defendants’ sales, marketing, and advertising to California consumers. The court finds

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plaintiff has sufficiently alleged a substantial part of the events giving rise to the claim occurred

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in this district. Because venue is proper in this district under both 28 U.S.C. §§ 1391(b)(1) and

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(b)(2), the court DENIES defendants’ motion to dismiss the case under 28 U.S.C. § 1406(a).

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C.

Transfer

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Alternatively, defendant moves to transfer venue under 28 U.S.C. § 1404. When

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the district court finds venue is proper, it may still exercise discretion, “[f]or the convenience of

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parties and witnesses, [and] in the interest of justice,” to transfer an action “to any other district
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where it might have been brought.” 28 U.S.C. § 1404(a). The Ninth Circuit has set out the

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following non-exclusive list of factors to consider in adjudicating a motion to transfer: “(1) the

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location where the relevant agreements were negotiated and executed, (2) the state that is most

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familiar with the governing law, (3) the plaintiff’s choice of forum, (4) the respective parties’

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contacts with the forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen

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forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of

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compulsory process to compel attendance of unwilling non-party witnesses, . . . (8) the ease of

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access to sources of proof,” (9) “the presence of a forum selection clause,” if any, and (10) “the

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relevant public policy of the forum state,” if any. Jones v. GNC Franchising, Inc., 211 F.3d 495,

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498–99 (9th Cir. 2000). The Ninth Circuit requires the defendant to make a “strong showing” of

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inconvenience to overcome the preference traditionally accorded a plaintiff’s choice of forum.

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Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

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Here, defendants’ motion does not address the Jones factors or provide any

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reasons explaining why transfer to the Middle District of Florida would be more convenient or in

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the interests of justice. See ECF No. 10-1 at 4 n.1. Accordingly, defendants have not met their

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burden of showing transfer is appropriate. See Decker Coal, 805 F.2d at 843. Defendants’

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motion to transfer venue under 28 U.S.C. § 1404(a) is DENIED.

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IV.

CONCLUSION

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For the foregoing reasons, defendants’ motion to dismiss or to transfer venue is
DENIED.
IT IS SO ORDERED.
DATED: April 18, 2016.

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UNITED STATES DISTRICT JUDGE

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