Viesti Associates, Inc. v. McGraw-Hill Global Education Education Holdings, LLC et al

Filing 36

ORDER by Judge Richard Seeborg denying 16 Motion to Transfer Case; denying 17 Motion to Dismiss. (cl, COURT STAFF) (Filed on 4/4/2017)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 VIESTI ASSOCIATES, INC., Case No. 16-cv-07315-RS Plaintiff, 11 United States District Court Northern District of California v. 12 13 14 MCGRAW-HILL GLOBAL EDUCATION HOLDINGS, LLC, et al., ORDER DENYING MOTION TO TRANSFER AND MOTION TO DISMISS Defendants. 15 16 Pursuant to Civil Local Rule 7-1(b), defendants’ motions to transfer and motion to dismiss 17 are suitable for disposition without oral argument, and the hearing set for April 7th, 2017 is hereby 18 vacated. Both motions will be denied. 19 20 Motion to transfer 21 Defendants seek to transfer this action to the District of Colorado, pursuant to 28 U.S.C. 22 §1404(a), which vests courts with discretion to order such transfers “[f]or the convenience of the 23 parties and witnesses and in the interest of justice . . . .” Defendants rely on the facts that (1) there 24 is no particular connection between this district and the parties or the subject matter of the 25 complaint, and (2) plaintiff has previously litigated related and/or similar claims against 26 defendants and others in the District of Colorado, which is where plaintiff is based. Defendants 27 also characterize plaintiff’s election to bring suit in this District as “forum shopping”—accusing 28 plaintiff of seeking to take advantage of a relatively recent Ninth Circuit ruling that may support a 1 conclusion that plaintiff has standing to bring this action.1 Under § 1404(a), the district court has discretion “to adjudicate motions for transfer 2 3 according to an ‘individualized, case-by-case consideration of convenience and fairness.’ ” Jones 4 v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir.2000) (quoting Stewart Org. v. Ricoh Corp., 5 487 U.S. 22, 29 (1988)). The court must weigh multiple factors in determining whether transfer is 6 appropriate in a particular case. Jones, 211 F.3d at 498. Those factors may include: 7 8 (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. 9 10 United States District Court Northern District of California 11 12 13 14 Jones, 211 F.3d at 498 (citing Stewart, 487 U.S. at 29–31). A plaintiff’s choice of forum ordinarily is given substantial weight. See Decker Coal Co. v. 15 16 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). That is less so, however, where 17 the plaintiff does not reside in the forum and/or there is no particular connection between the 18 controversy and the forum. See Williams v. Bowman, 157 F. Supp. 2d 1103, 1106 (N.D. Cal. 19 2001)(“[t]he degree to which courts defer to the plaintiff's chosen venue is substantially reduced 20 where the plaintiff does not reside in the venue or where the forum lacks a significant connection 21 to the activities alleged in the complaint.”) Here, defendants have made no showing that any of the relevant factors tip strongly in 22 23 favor of a Colorado venue other than, perhaps, it might be more convenient for plaintiff to litigate 24 there, in its home state. Plaintiff, however, has disclaimed any interest in any such advantages to 25 it. 26 27 1 In prior litigation in Colorado, plaintiff received unfavorable rulings on the standing issue. 28 CASE NO. 2 16-cv-07315-RS Defendants’ primary argument is their accusation that plaintiff is engaged in “forum 1 2 shopping”—looking for a venue that may be more hospitable with respect to standing issues. 3 Defendants have not shown, however, there to be anything improper about plaintiff electing to file 4 a new case in a venue that undisputedly is not an improper forum, even assuming plaintiff was 5 motivated largely by a perception that the law of that circuit may be advantageous to it. While 6 “forum shopping” involving any manipulation or gaming of the system is discouraged, defendants 7 have not shown the circumstances here rise to that level. Accordingly, the motion to transfer is 8 denied. 9 Motion to dismiss 11 United States District Court Northern District of California 10 Defendants move to dismiss on res judicata grounds, arguing that in prior Colorado 12 litigation, plaintiff was found to lack standing to bring similar claims.2 The particular claims for 13 relief plaintiff is now pursuing, however, arose after the prior cases were decided. Because neither 14 the factual situation nor the law necessarily is the same as when the prior cases were decided, there 15 is no basis to conclude the claims are not tenable.3 Accordingly, the motion to dismiss is denied. 16 17 IT IS SO ORDERED. 18 19 Dated: April 4, 2017 ______________________________________ RICHARD SEEBORG United States District Judge 20 21 22 23 24 25 26 27 2 Defendants rely in part on litigation between plaintiff and a third-party. That action would, at most give rise to collateral estoppel (issue preclusion), not res judicata (claim preclusion), as the parties are not identical. Regardless of nomenclature, however, defendants have not shown the present action is barred by any of the prior cases. 3 Defendants also argue that, in light of the prior rulings on standing, plaintiff must do more than plead the bare fact that it owns the copyrights in issue. Defendants have not shown, however, how the results of earlier cases somehow changes pleading standards in this case. The factual allegation of copyright ownership is sufficient at this juncture. 28 CASE NO. 3 16-cv-07315-RS

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