LRP Publications, Inc. et al v. SharedXpertise Media, LLC
Filing
35
ORDER AND OPINION denying 15 Motion to transfer this action to the District of New Jersey. Signed by Judge Kenneth A. Marra on 12/15/2011. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-80395-CIV-MARRA/JOHNSON
LRP PUBLICATIONS, INC. and J. TODD LUTZ,
Plaintiffs,
vs.
SHAREDXPERTISE MEDIA, LLC,
Defendant.
_____________________________________/
ORDER AND OPINION DENYING MOTION TO TRANSFER
THIS CAUSE came before the Court upon Defendant Sharedxpertise Media,
LLC’s (“SharedXpertise”) Motion to Transfer This Action to the District of New Jersey
(DE 15), filed on June 7, 2011. This matter is fully briefed and is ripe for review. The Court
has carefully considered the motion and is otherwise fully advised in the premises. For the
reasons discussed below, Defendant’s Motion to Transfer is DENIED.
I. Background
This matter arises out of a press release issued by SharedXpertise on April 1, 2011,
that falsely claimed that SharedXpertise acquired the rights to Plaintiff LRP Publications,
Inc.’s (“LRP”) Human Resource Executive magazine and Human Resource Technology
Conference. Complaint at ¶ 9. The e-mail also falsely quoted Plaintiff J. Todd Lutz
(“Lutz”), Chief Financial Officer of LRP, and Bill Kutik (“Kutik”), who is referred to as
“Conference Chair of the HR Technology Conference” in the press release. Complaint at
¶ 9. SharedXpertise does not deny sending the press release, but rather asserts that the e-
mail was simply an April Fool’s Day joke. Answer at ¶ 9. Through their Complaint,
Plaintiffs allege that SharedXpertise’s conduct constituted: (1) unfair competition, in
violation of 15 U.S.C. § 1125(a)(1)(A); (2) false advertising, in violation of §
1125(a)(1)(b); (3) unfair competition under Florida common law; and (4) a violation of §
540.08, Florida Statutes. Complaint at 4-7. Defendant now seeks to transfer this matter
to the District of New Jersey pursuant to 28 U.S.C. §§1404(a) and 1406(a). Kutik has
filed a separate cause of action against SharedXpertise in the District of Connecticut
(“The Connecticut Action”).
II. 28 U.S.C. § 1404(a)
The burden is ultimately on SharedXpertise to establish that the District of New
Jersey is a more convenient forum than the Southern District of Florida. Steifel
Laboratories, Inc. V. Galderma Laboratories, Inc., 588 F.Supp.2d 1336, 1338 (S.D. Fla.
2008) (citing In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989)). In determining
whether SharedXpertise has met its burden, 28 U.S.C. § 1404(a) affords this Court broad
discretion. Vina Dona Paula, S.A. v. Vineyard Brands, Inc., 2011 WL 4527441, *1 (S.D.
Fla. 2011) (quoting Brown v. Connecticut Gen. Life. Ins. Co., 934 F.2d 1193, 1197 (11th
Cir. 1991)).
To determine the propriety of transfer to another district, courts engage in a
two-step analysis under § 1404(a). Abbate v. Wells Fargo Bank, Nat. Ass’n, 2010 WL
3446878, *4 (S.D. Fla. 2010). “First, courts determine whether the action could have
been brought in the venue in which transfer is sought. Second, courts assess whether
convenience and the interest of justice require transfer to the requested forum.” Id.
Through their briefs, the parties agree that this case could have been brought in the
District of New Jersey, so the Court focuses its discussion exclusively on the second step.
In deciding that step, “courts focus on a number of potential factors including: (1) the
convenience of the witnesses; (2) the location of documents and other sources of proof;
(3) the convenience of the parties; (4) the locus of operative facts; (5) the ability of
process to compel the attendance of unwilling witnesses; (6) the relative means of the
parties; (7) the forum's familiarity with the governing law; (8) the weight accorded a
plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based on
the totality of the circumstances.” Id. (citing Manuel v. Convergys Corp., 430 F.3d 1132,
1135 n. 1 (11th Cir. 2005)).
After carefully reviewing each of these factors, the Court finds that SharedXpertise
has not met its burden of establishing the District of New Jersey as a more convenient
forum. SharedXpertise concedes that the second, fifth, sixth, and seventh factors do not
weigh in favor of transfer. Accordingly, the Court will proceed to examine the five
remaining factors.
The Court finds that the first and third factors, the convenience of the witnesses
and parties, are both neutral. Plaintiffs do not dispute that LRP is a Pennsylvania
corporation and that Human Resource Executive, the magazine at the center of the
litigation, is headquartered within thirty miles of the District of New Jersey. On the other
hand, Defendants do not dispute that the Human Resource Tech Conference, also
involved in the litigation, is headquartered within the Southern District of Florida and that
Lutz, a named Plaintiff, is a Florida resident that operates out of LRP’s Florida office.
Although transfer would be more convenient for SharedXpertise, its employees, and those
individuals associated with LRP’s magazine in Pennsylvania, it would be burdensome for
those individuals associated with LRP’s conference division and Lutz. Accordingly, the
Court finds the convenience of the parties and witnesses is in equipose.
Next, the Court finds the locus of operative facts to also be a neutral factor. The
Court agrees with SharedXpertise in that the harm arose out of actions executed
exclusively within the District of New Jersey. The alleged harm arising out of that
conduct, however, is certainly not limited to New Jersey. SharedXpertise concedes that
the harm of consumer confusion existed throughout the nation because LRP has a
national customer base. Further, the harm to Lutz indisputably occurred in Florida. The
varied locations of the harm resulting from the allegedly wrongful conduct precludes a
finding of a clear locus of operative facts, so this factor does not weigh in favor of
transfer.
Given the neutrality of the aforementioned seven factors, the remaining question is
whether trial efficiency and the interests of justice weigh so heavily in favor of transfer as
to overcome the deference this Court must show to Plaintiffs’ choice of forum. See
Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996) (quoting Howell
v. Tanner, 650 F.2d 610, 616 (5th Cir. Unit B 1981)) (“The plaintiff’s choice of forum
should not be disturbed unless it is clearly outweighed by other considerations.”). In
support of this factor, SharedXpertise attaches a Motion filed by Kutik in the Connecticut
Action in which Kutik notes that “If the judge in the Florida Action grants the motion to
transfer, Kutik in the Connecticut Action has no objection to the granting of the motion of
SharedXpertise to transfer the Connecticut Action to the Untied States District Court for
the District of New Jersey.” DE 28-1. Accordingly, should this Court grant
SharedXpertise’s Motion to Transfer in this matter, both this case and the Connecticut
case would be litigated in the same court.
The Court finds that the benefit of transfer does not outweigh Plaintiffs’ right to
choose their forum. Although the conducting of pretrial discovery would be more
efficient in one court as opposed to two, nothing precludes all of the interested parties
from coordinating their discovery proceedings to maximize efficiency. Further, each
individual Plaintiff will be required to undergo discovery with regard to his or its
individual harm regardless of where this matter is pending. Finally, the individual nature
of the alleged harm will require two separate trials, irrespective of whether the matter is
tried in the same court. While transfer of this case to the District of New Jersey might
result in greater overall efficiency, the Court finds that the benefit derived from that
efficiency does not justify depriving Plaintiffs of their right to choose their forum.
III. 28 U.S.C. § 1406(a)
Section 1406(a) of Title 28 of the United States Code provides: “The district court
of a district in which is filed a case laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such case to any district or division in
which it could have been brought.” Because the Court finds that this matter was properly
filed in the Southern District of Florida, § 1406(a) is inapplicable here.
IV. Conclusion
For the reasons discussed above, it is hereby ORDERED AND ADJUDGED that
Defendant’s Motion to Transfer (DE 15), is DENIED.
DONE and ORDERED in West Palm Beach, this 15 th day of December, 2011.
KENNETH A. MARRA
United States District Judge
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