Cocona, Inc. v. Kartex Corporation
ORDER by Judge Philip A. Brimmer on 03/06/2018, re: 14 Defendant's Motion to Dismiss Under Rule 12(b)(2) or in the Alternative to Transfer is GRANTED in part and DENIED as moot in part. ORDERED that, pursuant to 28 U.S.C. § 1404(a), this action shall be transferredto the United States District Court for the Southern District of New York. (sphil, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 17-cv-02933-PAB-KMT
This matter is before the Court on the Defendant’s Motion to Dismiss Under Rule
12(b)(2) or in the Alternative to Transfer [Docket No. 14]. Defendant Kartex
Corporation argues that this case should be dismissed for lack of personal jurisdiction
in this district and requests, in the alternative, that the Court transfer this case to the
United States District Court for the Southern District of New York pursuant to 28 U.S.C.
§ 1404(a). Docket No. 14 at 5-7. Plaintiff Cocona, Inc. consents to the requested
transfer. Docket No. 24 at 2.
On December 6, 2017, plaintiff initiated this lawsuit, alleging that defendant
violated the Lanham Act, 15 U.S.C. §§ 1114, 1125, by using the mark “37.8° C” to
market clothing. Docket No. 1 at 4, ¶ 20. Plaintiff is a Delaware corporation with its
principal place of business in Boulder, Colorado. Id. at 1, ¶ 1. Defendant states in its
motion that, as alleged, it is a New York company with its principal place of business
located in New York, New York. Docket No. 14 at 7. Defendant states, and plaintiff
does not dispute, that defendant’s operations, as relevant to the allegations in the
complaint, are located in New York, along with the relevant records and fact witnesses.
Id.; see also Docket No. 14-1 at 3, ¶¶ 18-19, 21; Docket No. 24 at 2.
Section 1404(a) of Title 28 provides, in pertinent part, that, “[f]or the convenience
of 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.” Section
1404(a) is “intended to place discretion in the district court to adjudicate m otions for
transfer according to an ‘individualized, case-by-case consideration of convenience and
fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van
Dusen v. Barrack, 376 U.S. 612, 622 (1964)). To warrant a transfer, the moving party
must establish that: “(1) the action could have been brought in the alternate forum; (2)
the existing forum is inconvenient; and (3) the interests of justice are better served in
the alternate forum.” Wolf v. Gerhard Interiors, Ltd., 399 F. Supp. 2d 1164, 1166 (D.
Colo. 2005) (citing Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515
(10th Cir. 1991)).
The Court is satisfied that this action could have been brought in the Southern
District of New York based on defendant’s representation and the affidavit of Kenneth
Z.N. Li that defendant maintains a corporate office in that district and conducts
substantial business there. Regarding the inconvenience of the existing forum, Mr. Li
affirms that defendant has no operations or witnesses located in Colorado, has never
been a party to any other lawsuits in Colorado, and that it would be burdensome to
litigate in this district because none of the documents or witnesses is located here.
Docket No. 14-1 at 3, ¶¶ 10-20. Because def endant’s operations relevant to the lawsuit
are located in New York City, the Court finds that the Southern District of New York is
the more convenient venue. Finally, because the motion to transfer is unopposed and
defendant contests personal jurisdiction in this district, the Court finds that the interests
of justice favor the transfer of this case to the United States District Court for the
Southern District of New York. The Court will grant the unopposed transfer and deny
plaintiff’s request to dismiss this case for lack of personal jurisdiction in this district as
moot. Accordingly, it is
ORDERED that the Defendant’s Motion to Dismiss Under Rule 12(b)(2) or in the
Alternative to Transfer [Docket No. 14] is GRANTED in part and DENIED as moot in
part. It is further
ORDERED that, pursuant to 28 U.S.C. § 1404(a), this action shall be transf erred
to the United States District Court for the Southern District of New York.
DATED March 6, 2018.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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