Grady v. Brodersen
ORDER denying 36 Motion to Transfer Case. By Judge Robert E. Blackburn on 9/11/2014.(alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00752-REB-BNB
JAMES S. GRADY, d/b/a Group Five Photosports,
EVAN BRODERSEN, a/k/a EFAN BRUDER, and
JOHN DOES 1-5,
ORDER DENYING MOTION TO TRANSFER VENUE
This matter is before me on the Defendant’s Motion To Transfer Venue
Pursuant To 28 U.S.C. § 1404(a) [#36]1 filed February 22, 2014. The plaintiff filed a
response [#45]. I deny the motion.
This court has jurisdiction over this case under 28 U.S.C. § 1331 (federal
question) and § 1338(a) (patent, copyright, trademark).
II. STANDARD OF REVIEW
“For the convenience of the parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where it might
have been brought.” 28 U.S.C. § 1404(a). Because the current venue is proper, the
“[#36]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
burden of demonstrating increased convenience and the furtherance of justice through
venue transfer rests squarely on the moving party. Chrysler Credit Corp. v. Country
Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991) (“The party moving to transfer a
case pursuant to § 1404(a) bears the burden of establishing that the existing forum is
inconvenient.”) (citation omitted). While convenience is determined by “the
individualized, case-by-case consideration of convenience and fairness,” Van Dusen v.
Barrack, 376 U.S. 612, 622 (1964), district courts weigh several factors in determining
whether transfer is appropriate. Those factors include:
the plaintiff's choice of forum; the accessibility of witnesses and other
sources of proof, including the availability of compulsory process to insure
attendance of witnesses; the cost of making the necessary proof;
questions as to the enforceability of a judgment if one is obtained; relative
advantages and obstacles to a fair trial; difficulties that may arise from
congested dockets; the possibility of the existence of questions arising in
the area of conflict of laws; the advantage of having a local court
determine questions of local law; and, all other considerations of a
practical nature that make a trial easy, expeditious and economical.
Chrysler at 1516 (quoting Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th
No single factor is determinative, and there is considerable discretion
regarding the weight afforded to each factor. Id.
The plaintiff, James Grady, asserts claims against the defendants for copyright
Infringement and trademark infringement. Mr. Grady alleges that he is the registered
owner of the copyrights covering a collective group of photographs from the Colorado
based web publication TrueTeenBabes.com. Mr. Grady alleges that the defendant,
Evan Brodersen, a resident of Nebraska, has specifically targeted the protected works
and trademarks of Mr. Grady for copyright and trademark infringement, either directly or
indirectly, through the use of RegentImages.com and Facebook.com. Mr. Brodersen, a
resident of Nebraska, seeks a transfer of this case to the District of Nebraska.
1. Plaintiff’s Choice of Forum:
The plaintiff’s choice of forum weighs against transfer. The Tenth Circuit gives
great deference to the plaintiff’s choice of forum, and “‘[u]nless the balance is strongly in
favor of the movant the plaintiff's choice of forum should rarely be disturbed.’” Scheidt
v. Klein, 956 F.2d 963, 965 (10th Cir. 1992) (quoting William A. Smith Contracting
Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir.1972)); see also Deer Creek
Dev., LLC v. Kim, No. 06-CV-00083-LTB-MJW, 2006 WL 1154213, *2 (D. Colo. May 1,
2006) (“[plaintiff’s] choice of venue carries considerable weight”); Employers Mut. Cas.
Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010) (“The plaintiff's choice
of forum weighs against transfer.”). While the plaintiff’s choice of forum is not the
deciding factor, it is significant in the court’s analysis. In his motion, the defendant does
not address this factor directly.
2. Accessibility of Witnesses and other Proof:
The convenience of witnesses is the most important factor to consider in deciding
a motion under § 1404(a). Employers Mut., 618 F.3d at 1169. The convenience of
non-party witnesses weighs more heavily than the convenience of parties and their
employees. See, e.g., Amini Innovation Corp. v. Bank & Estate Liquidators, Inc.,
512 F. Supp. 2d 1039, 1043 (S.D. Tex. 2007). The movant bears the burden of
establishing inconvenience by identifying: 1. the witness and their location; 2. the
materiality of their testimony; and 3. the unwillingness of the witness to come to trial and
that a deposition is unsatisfactory. Employers Mut., 618 F.3d at 1169.
Mr. Brodersen contends generally that Nebraska would be more convenient for
“the individuals likely to be called as witnesses during a trail,” but he cites no particular
witnesses or other details. Motion [#36], CM/ECF p. 5. He claims also that all possible
physical evidence including documents relevant to the allegations of the plaintiff is in
Nebraska. Again, Mr. Brodersen provides no specifics. Mr. Brodersen has not met his
burden of showing that inconvenience to witnesses and access to other proof weighs in
favor of transfer.
3. Cost of Making Necessary Proof:
The cost of making necessary proof is a neutral factor. On the current record, it
appears that the proof in this case likely will be testimonial and documentary. Litigation
in either venue requires travel and document production. On the current record, there is
no indication that either venue significantly reduces the overall cost of litigation when
compared to the alternative venue. Thus, the cost of making the necessary proof does
not favor either venue.
4. Advantages of a Local Court:
The advantage of a local court is a neutral factor. The claims concern federal
copyright and trademark law. The same substantive law is applicable in both Colorado
and Nebraska. There is no advantage to having a local court decide issues of local law.
See Scheidt, 956 F.2d at 966 (court found the relative simplicity of the legal issues
involved in contract claims did not support venue transfer).
5. Remaining Factors:
The other factors considered in a §1404 analysis are not at issue or are neutral
in this case.
V. CONCLUSION & ORDER
All relevant factors are neutral or weigh against transfer. Therefore, the choice of
venue of the plaintiff shall not be disturbed.
THEREFORE IT IS ORDERED that the Defendant’s Motion To Transfer
Venue Pursuant To 28 U.S.C. § 1404(a) [#36] filed February 22, 2014, is DENIED.
Dated September 11, 2014, at Denver, Colorado.
BY THE COURT:
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