Tiscareno v. Netflix, Inc. et al

Filing 58

ORDER by Judge Hamilton denying 46 Motion for Service by Email; denying 28 Motion to Recuse Eric Norwitz; granting 31 Motion to Transfer Case (pjhlc1, COURT STAFF) (Filed on 11/26/2012) (Additional attachment(s) added on 11/26/2012: # 1 Certificate/Proof of Service) (nah, COURT STAFF).

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 TONY TISCARENO, Plaintiff, 8 9 No. C 12-3841 PJH v. ORDER GRANTING MOTION TO TRANSFER NETFLIX INC., et al., 11 For the Northern District of California United States District Court 10 Defendants. _______________________________/ 12 13 Before the court are defendants’ motion pursuant to 28 U.S.C. § 1404(a) to transfer 14 the above-entitled action to the Central District of California; plaintiff’s motion to allow 15 service of the summons and complaint on defendant Underhosts Network Ltd. by email or 16 fax; and plaintiff’s motion to preclude Eric Norwitz (“Norwitz”) – an attorney and a defendant 17 in this action) from representing Kristy Graham (“Graham”) – also a defendant in this 18 action). Having read the parties’ papers and carefully considered their arguments and the 19 relevant legal authority, the court hereby rules as follows. 20 21 BACKGROUND In January 2010, Tony Tiscareno (“Tiscareno”), plaintiff in this action, filed Tiscareno 22 v. Bass, 10-0440-SJO, in the Central District of California, alleging copyright infringement, 23 intentional interference with economic relationship, and civil conspiracy regarding a 24 screenplay (“FASTGLASS”) allegedly written by Tiscareno, two screenplays (“Fast Glass” 25 and “Kill Speed”) allegedly written by Kim Bass (“Bass”), an unfinished movie (“Fast Glass”) 26 directed by Bass, and a movie (“Kill Speed”) directed by Bass. Named as defendants were 27 Bass; Bass Entertainment, Inc. (“Bass Entertainment”); Richard Mattern (“Mattern”); John 28 Galanti (“Galanti”); Jon Zimmerman (“Zimmerman”); and Epic Pictures, Inc. (“Epic 1 Pictures”). 2 Tiscareno amended the complaint twice, and in September 2010, filed a third 3 amended complaint, alleging the same causes of action against the same defendants, with 4 the addition of Lawrence Brennan Jr. (“Brennan” – attorney for Bass and Bass 5 Entertainment), and Kaleidoscope Home Entertainment Ltd. (“Kaleidoscope”). In January 2011, the claims against Mattern, Galanti, Zimmerman, Epic Pictures, 6 7 Brennan, and Kaleidoscope were dismissed with prejudice, and the two non-copyright 8 infringement claims against Bass and Bass Entertainment were also dismissed with 9 prejudice. The court denied Tiscareno’s motion for leave to add new defendants. Tiscareno subsequently filed a fourth amended complaint, alleging copyright 11 For the Northern District of California United States District Court 10 infringement against Bass and Bass Entertainment only. In May 2011, eight days before 12 trial, the claims against Bass and Bass Entertainment were dismissed at Tiscareno’s 13 request. Judgment was entered on June 23, 2011 against Tiscareno. 14 On July 23, 2012, Tiscareno filed the present action against Bass, Netflix, Inc. 15 (“Netflix”), Blockbuster, Inc. (“Blockbuster”), Graham, and Norwitz, alleging a single cause 16 of action, for copyright infringement, against all defendants. The lawsuit involves 17 essentially the same transactions and events, and the same intellectual properties, that 18 were at issue in the former action filed in the Central District of California. On August 13, 2012, Tiscareno amended the complaint to remove Bass as a 19 20 defendant. Nevertheless, the “Summary of Facts” is replete with allegations of wrongs 21 allegedly perpetrated by Bass, including the assertion that Bass “sold . . . a stolen script 22 that Mr. Bass downloaded from the Internet entitled FASTGLASS . . . [which] was written 23 and copyrighted by the [p]laintiff nearly a decade earlier.” 24 A. Motion to Transfer Venue 25 1. Legal standard 26 Pursuant to 28 U.S.C. § 1404(a), a district court may transfer a civil action “for the 27 convenience of parties and witnesses [and] in the interest of justice . . . to any other district 28 or division where it might have been brought.” 28 U.S.C. § 1404(a); Straus Family 2 1 Creamery v. Lyons, 219 F.Supp. 2d 1046, 1047 (N.D. Cal. 2002). A motion to transfer 2 venue lies within the broad discretion of the district court, and must be determined on an 3 individualized basis. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). 4 The burden of showing that transfer is appropriate is on the moving party. The Carolina 5 Casualty Co. v. Data Broad. Corp., 158 F.Supp. 2d 1044, 1048 (N.D. Cal. 2001). 6 District courts use a two-step analysis to determine whether a transfer is proper. 7 First, the court must determine whether the case could have been brought in the forum to 8 which the transfer is sought. 28 U.S.C. § 1404(a); Hatch v. Reliance Ins. Co., 758 F.2d 9 409, 414 (9th Cir. 1985). If venue would be appropriate in the transferee court, then the court must make an “individualized, case-by-case consideration of convenience and 11 For the Northern District of California United States District Court 10 fairness.” Jones, 211 F.3d at 498. 12 Among the factors that the court may consider in deciding whether a transfer is 13 appropriate are: (1) the location where the relevant agreements were negotiated and 14 executed; (2) the state that is most familiar with the governing law; (3) the plaintiff's choice 15 of forum; (4) the respective parties' contacts with the forum; (5) the contacts relating to the 16 plaintiff's cause of action in the chosen forum; (6) the differences in the costs of litigation in 17 the two forums; (7) the availability of compulsory process to compel attendance of unwilling 18 nonparty witnesses; (8) the ease of access to sources of proof and (9) any relevant public 19 policy of the forum state. Jones, 211 F.3d at 498-99; Lou v. Belzberg, 834 F.2d 730, 739 20 (9th Cir. 1987). 21 2. 22 Defendants argue that the case should be transferred to the Central District of 23 California for the convenience of parties and witnesses, and in the interests of justice. 24 First, they contend that this action “might have been brought” in the Central District, as the 25 almost-identical former action was in fact filed and litigated there. In addition, they assert 26 that at the time that Tiscareno filed this action, Graham and Norwitz were both domiciled in 27 the Central District; Netflix was domiciled in California; and Blockbuster had sufficient 28 “minimum contacts” with California to confer personal jurisdiction. Defendants’ motion 3 1 Defendants also contend that virtually all the transactions and events alleged in the 2 complaint occurred in the Central District, and that defendants’ intended trial witnesses 3 reside and/or work in that district. Defendants set forth in some detail the identity of nine 4 specific witnesses they plan on calling (and also list unidentified “employees” of a television 5 film production company and a movie production company that are located in the Central 6 District), along with the anticipated subject matter of their testimony. In addition, 7 defendants assert that an extraordinary amount of labor and expense was devoted to 8 defending the former action, and that the court expended a significant judicial resources. 9 In opposition, Tiscareno asserts that the expert witness whom he plans on calling to testify lives in this district, and that because Netflix is purportedly selling the allegedly 11 For the Northern District of California United States District Court 10 infringing film from its headquarters in Los Gatos, California, this district is “the site of the 12 malfeasance.” Thus, he asserts, venue is proper in this district. 13 In reply, defendants argue that Tiscareno has failed to present any reason for not 14 transferring the case to the Central District, and that he has not supported his factual 15 assertions with a declaration made under penalty of perjury. 16 The court finds that the motion must be GRANTED. Defendants have established 17 that a transfer to the Central District of California is warranted for the convenience of 18 parties and witnesses, and Tiscareno has not provided any persuasive opposition. 19 Defendants have also established that given the pendency of the former action in the 20 Central District, the interests of justice warrant a transfer to that district. 21 In addition, the relevant factors favor a transfer to the Central District. The events 22 giving rise to the lawsuit largely appear to have occurred there, and the parties’ contacts 23 with that forum are more extensive than their contacts with the Northern District. Although 24 Tiscareno has chosen to file his lawsuit in this district, he filed the former lawsuit in the 25 Central District, which fact prompts the court to give less weight to the plaintiff’s choice of 26 forum in this case. Finally, based on defendants’ declarations, it appears that the Central 27 District is far more convenient for defendants and their witnesses, and that any relevant 28 documents will also be available there. 4 1 2 CONCLUSION In accordance with the foregoing, the court ORDERS that this action be transferred 3 to the Central District of California. Plaintiff’s motion to preclude Eric Norwitz from 4 representing Kristy Graham is DENIED as unsupported by any legal authority. The motion 5 for email or fax service on Underhosts Network Ltd. is DENIED based on plaintiff’s failure to 6 support the factual allegations regarding attempts at service with a declaration made under 7 penalty of perjury. 8 The December 5, 2012 hearing date is VACATED. 9 IT IS SO ORDERED. 11 For the Northern District of California United States District Court 10 Dated: November 26, 2012 ______________________________ PHYLLIS J. HAMILTON United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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