Rice v. Petedge Inc.

Filing 15

ORDER AND OPINION denying 3 Defendants Motion to Dismiss for Lack of Personal Jurisdiction or to Transfer. Signed by Judge Julie E. Carnes on 9/25/13. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

MARK RICE d/b/a GAMES TO
REMEMBER,
Plaintiff,
CIVIL ACTION NO.
v.

1:12-CV-03748-JEC

PETEDGE, INC.,
Defendant.
ORDER & OPINION
This case is before the Court on defendant’s Motion to Dismiss
for Lack of Personal Jurisdiction or to Transfer [3].

The Court has

reviewed the record and the arguments of the parties and, for the
reasons set out below, concludes that defendant’s Motion to Dismiss
or Transfer [3] should be DENIED.
BACKGROUND
This is a trademark infringement and unfair competition case.
(Compl. [1] at ¶¶ 16-18.)

Plaintiff manufactures and sells “Funky

Monkeys” board games through his business, Games to Remember.
at ¶ 7.)

In connection with his business, plaintiff owns a valid

trademark for the name “Funky Monkeys.”

AO 72A
(Rev.8/82)

(Id.

(Id. at ¶ 11.)

Plaintiff is

a Georgia resident.

(Rice Decl. [9] at ¶ 2.)

Defendant is a Massachusetts corporation with its principal
place of business in Beverly, Massachusetts. (Dow Decl. [3] at ¶ 1.)
Defendant manufactures pet-related products and sells them through
its website www.petedge.com.

(Id. at ¶¶ 2, 8.)

products is the “ZANIES® Funky Monkeys” dog toy.

One of defendant’s
(Id. at ¶ 2.)

All

orders for the toy are processed through defendant’s Massachusetts
headquarters,

and all related documents are located there.

(Id. at

¶ 7.)
Defendant

does

not

specifically

target

Georgia

in

its

advertising or marketing and has no stores or offices in Georgia.
(Id. at ¶ 8-9.) However, petedge.com is a typical e-commerce website
that any customer can search to purchase defendant’s products.
PetEdge, http://www.petedge.com/

(last visited Sept. 24, 2013.)

Petedge customers enter their shipping information onto the website,
allowing defendant to ship their purchases anywhere in the United
States.

Id.

Georgia residents accounted for 1.27% of defendant’s

total sales of the Funky Monkeys dog toy in 2011 and 1.91% in 2012.
(Dow Decl. [3] at ¶ 5.)

The percentage of net annual sales for all

of defendant’s products from Georgia customers was between 1 and 2%
for the five years leading up to 2012.

(Id. at ¶ 6.)

Plaintiff contends that defendant’s sale of the Funky Monkeys
dog toy in Georgia (1) constitutes trademark infringement and unfair
2

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competition under 15 U.S.C. §§ 1114 and 1125 of the Lanham Act and
(2) violates Georgia’s common law and statutory protections against
unfair competition and deceptive trade practices.
21-40).

Defendant moves to dismiss the complaint under Federal Rule

12(b)(2) for lack of personal jurisdiction.
Mot.

to

(Compl. [1] at ¶¶

Dismiss

(“Def.’s

Br.”)

[3]

at

(Def.’s Br. in Supp. of
7-15.)

Alternatively,

defendant moves to transfer the case to Massachusetts under 28 U.S.C.
§§ 1404 and 1406.

(Id. at 16.)
DISCUSSION

I.

MOTION TO DISMISS STANDARD
Dismissal under Federal Rule 12(b)(2) is required if the Court

lacks personal jurisdiction over defendant.

FED. R. CIV. P. 12(b)(2).

Plaintiff has the burden of establishing a prima facie case of
personal jurisdiction.
Cir. 1990).

Madara v. Hall, 916 F.2d 1510, 1514 (11th

If defendant presents affidavits or other evidence

refuting plaintiff’s prima facie case, plaintiff must respond with
sufficient evidence to support jurisdiction.

Meier ex rel. Meier v.

Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002).

Any

conflict in the evidence must be construed in favor of plaintiff.
Id. and Madara, 916 F.2d at 1514.
A two-step analysis governs whether a federal court can exercise
personal jurisdiction over a non-resident defendant. Meier, 288 F.3d

3

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at 1269.

First, the court must determine whether the long-arm

statute of its forum state allows for the exercise of personal
jurisdiction.

Id.

If so, the court must then ascertain whether

exercising jurisdiction comports with federal due process.

Id.

As

both requirements are met in this case, defendant’s motion to dismiss
for lack of personal jurisdiction [3] is DENIED.
A.

The Georgia Long-Arm Statute

Federal courts must interpret a state’s long-arm statute in the
same manner as the state supreme court.1 Diamond Crystal Brands, Inc.
v. Food Movers Int’l, Inc., 593 F.3d 1249, 1258 (11th Cir. 2010).
Georgia’s long-arm statute allows for the exercise of personal
jurisdiction over a nonresident corporate defendant who transacts
“any business” within Georgia.

O.C.G.A § 9-10-91.

The Georgia

Supreme Court has required that this language be construed literally.
Innovative Clinical & Consulting Serv., LLC v. First Nat’l Bank of
Ames, Iowa, 279 Ga. 672, 675 (2005).

Thus, a corporate defendant

need not physically enter or establish a presence in Georgia for the
state to exercise jurisdiction over it.
Inc.,

593

F.3d

at

1264.

Transacting

1

Diamond Crystal Brands,
“any

business”

by

mail,

Contrary to the assertions of both parties, Georgia’s long-arm
statute requires an analysis that is separate from the federal due
process inquiry. See Diamond Crystal Brands, 593 F.3d at 1259 and
Innovative Clinical & Consulting Servs., LLC v. First Nat’l Bank of
Ames, 279 Ga. 672, 674 (2005).
4

AO 72A
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telephone, or the internet will suffice.
Defendant’s

conduct

satisfies

Id.

Georgia’s

requirement.

By

defendant’s own admission, Georgia customers accounted for between 1
and 2% of its total sales in the last five years, and defendant also
sold its Funky Monkeys dog toy in Georgia.

(Dow Decl. [3] at ¶¶ 5,

6.) Thus, the plain language of the Georgia long-arm statute permits
the Court to exercise personal jurisdiction over defendant.
B.

Id.

Federal Due Process

Federal due process provides a dual system of protection that
requires

a

plaintiff

to

show

contacts” with the forum state.
U.S. 310, 316 (1945).

that

the

defendant

has

“minimum

Int’l Shoe Co. v. Washington, 326

See also Sculptchair, Inc. v. Century Arts,

Ltd., 94 F.3d 623, 630-31 (11th Cir. 1996)(applying the minimum
contacts analysis).

In addition to minimum contacts, due process

requires that the exercise of jurisdiction over the defendant comport
with “‘traditional notions of fair play and substantial justice.’”
Int’l Shoe, 326 U.S. at 316.

See also Goodyear Dunlop Tires

Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011). This second
analysis involves balancing several “fairness factors” to ensure that
requiring the defendant to appear in the forum is reasonable under
the circumstances.

Burger King Corp. v. Rudzewicz, 471 U.S. 462,

476-77 (1985).

5

AO 72A
(Rev.8/82)

1.

Minimum Contacts:

General Jurisdiction

General jurisdiction allows a plaintiff to sue the defendant in
the forum state on any claim, regardless of whether the claim is
connected to the defendant’s activities in the state.
S. Ct. at 2851.
systematic”

Goodyear, 131

General jurisdiction requires “continuous and

contacts

with

the

forum.

Id.

The

Supreme

Court

established a high bar for the quantity of contacts that rises to the
level of “continuous and systematic” in Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 416 (1984).

In Helicopteros,

the non-resident defendant’s contacts with the forum state consisted
of sending its CEO to the state to negotiate contracts, accepting
checks drawn from a bank located in the state, spending “substantial
sums” on equipment purchased in the state, and sending employees to
train there.

Id.

The Court held that this level of contacts did not

suffice for general jurisdiction.

Id.

Applying Helicopteros, it is clear that defendant does not have
sufficient contacts to support general jurisdiction in Georgia.
Defendant has no physical presence in Georgia, an important factor in
determining whether general jurisdiction exists.

See Perkins v.

Benguet Consol. Mining Co., 342 U.S. 437, 447-48 (1952)(emphasizing
physical presence in the forum as a factor in finding general
jurisdiction).

And defendant’s minimal amount of internet and
6

AO 72A
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catalog

sales

jurisdiction.

in

Georgia

are

insufficient

to

support

general

Compare Hockerson-Halberstadt, Inc. v. Propet USA,

Inc., 62 Fed. App’x 322, 337 (Fed. Cir. 2003)(refusing to exercise
general jurisdiction over a non-resident defendant whose forum sales
accounted for .00008% of its total sales) and Gator.Com Corp. v. L.L.
Bean, Inc., 341 F.3d 1072, 1074-78 (9th Cir. 2003)(finding general
jurisdiction based on millions of dollars of online and catalog sales
in the forum state totaling 6% of total sales).2
2.

Minimum Contacts:

Specific Jurisdiction

In contrast to general jurisdiction, specific jurisdiction
requires a link between the plaintiff’s cause of action and the
defendant’s contacts with the forum state.

Goodyear, 131 S. Ct. at

2851. Specific jurisdiction exists when a defendant (1) purposefully
avails itself of contacts in the forum state and (2) there is a
“sufficient

nexus

between

those

contacts

and

Diamond Crystal Brands, Inc., 593 F.3d at 1267.

the

litigation.”

These two elements

ensure that a defendant is only burdened with litigation in a forum

2

The Court rejects plaintiff’s argument that general
jurisdiction arises from the sale of the Funky Monkeys toys by thirdparty retailers.
(Pl.’s Resp. [9] at 12.) Plaintiff presents no
evidence to rebut defendant’s assertion that it has no affiliation
with these retailers. (Suppl. Dow Decl. [10] at ¶ 2.) Because the
unilateral actions of third parties are not relevant to jurisdiction,
plaintiff’s argument is meritless. Helicopteros, 466 U.S. at 417.
7

AO 72A
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where his “‘conduct and connection with the forum . . . are such that
he should reasonably anticipate being haled into court there.’”
Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1220-21 (11th
Cir. 2009)(quoting World–Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980)).

When a defendant purposefully avails itself of

contacts with the forum state and a sufficient nexus exists between
those contacts and the plaintiff’s claim, then the defendant has
“fair warning” that it might be sued in the forum state.

Burger King

Corp., 471 U.S. at 472.
a.

Defendant purposefully availed itself of business
contacts in Georgia.

A corporate defendant can purposefully avail itself of minimum
contacts with a forum without ever entering the state or maintaining
a physical presence there.

Burger King Corp., 471 U.S. at 476.

Regardless of the means used, the cornerstone of the purposeful
availment analysis is whether the defendant voluntarily reaches into
the state to do business.

Id.

The parties agree that defendant’s

internet presence and sales in Georgia are its only relevant contacts
with the state for purposes of specific jurisdiction.
[9] at 12 and Dow Decl. [3] at ¶¶ 5-6, 9.)

(Pl.’s Resp.

The question is whether

those online activities constitute purposeful availment.

(Dow Decl.

[3] at ¶ 8.)
The

Eleventh

Circuit

has

not
8

AO 72A
(Rev.8/82)

ruled

on

whether

purposeful

availment exists when a defendant’s only contacts with the forum
state are sales made through an e-commerce website.
558 F.3d at 1219, n.26.

See Oldfield,

However, numerous district courts and

several circuit courts have addressed this particular issue.
generally, 4A Charles Alan Wright & Arthur R. Miller,
Practice and Procedure § 1073.1 (3rd ed. 2002).

See

Federal

Many courts have

adopted the influential “Zippo sliding scale” test articulated by
Judge McLaughlin in Zippo Manufacturing Co. v. Zippo Dot Com, Inc. to
determine whether internet contacts support specific jurisdiction.
Jurisdiction under the Zippo sliding scale test depends on the
nature of the website.

Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.

Supp. 1119, 1124 (W.D. Pa. 1997).

At one end of the scale are

“interactive” websites where the defendant “clearly does business
over the [i]nternet” and thereby purposefully avails itself of
business contacts within the forum.

Id.

At the other end of the

scale are “passive websites” that merely provide information.

Id.

Because these sites do not direct any commercial conduct toward the
forum state, contacts based on such sites alone are not sufficient
for purposeful availment.

Id.

In between interactive and passive

sites are those where users can interact with the host computer but
not necessarily conduct business.

Id.

Jurisdiction in this gray

area depends on the website’s level of interactivity.

9

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Id.

The Eleventh Circuit has neither adopted nor rejected the Zippo
test, but at least two judges in this district have applied or at
least

discussed

it

in

cases

dealing

Oldfield, 558 F.3d at 1219, n.26.

with

internet

contacts.

See Imageline, Inc. v. Fotolia

LLC, 663 F. Supp. 2d 1367, 1376-77 (N.D. Ga. 2009) (Evans, J.) and
Barton S. Co., Inc. v. Manhole Barrier Sys., Inc., 318 F. Supp. 2d
1174, 1177 (N.D. Ga. 2004) (Hunt, J.).

Several other circuits have

expressly adopted the Zippo test. Oldfield, 558 F.3d at 1219 (noting
that the 2nd, 3rd, 4th, 5th, 9th and 10th Circuits have adopted
Zippo).

However, the Seventh Circuit has declined to apply Zippo in

a case similar to the present one.

See Illinois v. Hemi Grp. LLC,

622 F.3d 754, 759 (7th Cir. 2010) (“the traditional due process
inquiry . . . is not so difficult to apply to cases involving
[i]nternet contacts that courts need some sort of easier-to-apply
categorical test”).
Because the Zippo test is widely-used, but has not been adopted
by this Circuit, the Court will consider the facts at hand under both
Zippo and the traditional approach. Under Zippo, defendant’s website
undoubtedly falls on the far end of the “interactive” side of the
sliding scale, as it allows users to purchase products and receive
them from defendant.

Zippo Mfg. Co., 952 F. Supp. at 1121, 1124.

Courts applying Zippo have repeatedly found that such sites provide

10

AO 72A
(Rev.8/82)

a valid basis for exercising specific jurisdiction.

See Zing Bros.,

LLC v. Bevstar, LLC, No. 2:11-cv-0037 DN, 2011 WL 4901321, at *3 (D.
Ut.

Oct.

defendant’s

14,

2011)(finding

website

allowed

specific
customers

jurisdiction
to

select

where

“Utah”

the
as

a

destination address, making the site “‘something more’ than a nontargeted transaction site”) and Young Again Prods., Inc. v. Acord,
307

F.

Supp.

2d

713,

716-17

(D.

Md.

2004)(finding

specific

jurisdiction where the defendant’s internet sales to forum state
customers accounted for only .02% of its total national sales).
A more traditional analysis yields the same result.

As the

Seventh Circuit explained in Illinois v. Hemi Group LLC, the focus of
the purposeful availment inquiry is on the conduct of the defendant
who reaches out to the forum state, not the residents who reach back.
Hemi Grp. LLC, 622 F.3d at 758.

In Hemi Group, the New Mexico

defendant sold cigarettes through its website, allowing customers to
select their products and then put in their zip code to calculate
shipping costs.

Id. at 755.

every state except New York.

The defendant shipped its products to
Id.

The court concluded that Illinois

could exercise jurisdiction over the defendant based solely on an
Illinois citizen’s purchase of three hundred packs of cigarettes
(made over several years) through the website.

Id.

PetEdge’s contacts with Georgia are essentially the same as the

11

AO 72A
(Rev.8/82)

defendant’s in Hemi Group:

a small amount of sales in the forum

state made through a website accessible to customers nation-wide.
(Dow Decl. [3] at ¶¶ 5-9.)

Defendant’s website allows customers to

purchase goods and calculate the cost of shipping purchases to any
state.

PetEdge,

http://www.petedge.com/.

Significantly,

its

shipping information page includes a map of the United States, shaded
according to the various shipping times, that includes Georgia.

Id.

Defendant’s creation of a website that allows Georgia customers to
directly purchase its products constitutes purposeful availment, as
defendant financially benefits from doing business in Georgia.

See

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)(when
a

corporation

purposefully

avails

itself

of

the

privilege

of

conducting activities in the forum, it is on notice that it may be
sued and is therefore subject to personal jurisdiction).
Defendant suggests that its minimal sales in Georgia constitute
the kind of random, fortuitous, or attenuated contacts that are
insufficient to confer jurisdiction.

(Def.’s Br. [3] at 14.)

However, Georgia customers have accounted for between 1 and 2% of
defendant’s total net sales of Funky Monkeys toys over the past five
years, illustrating a consistency that rises above a random sale or
two.

See Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 454 (3rd

Cir. 2003)(refusing to find personal jurisdiction over a Spanish
company with only two documented sales in the forum state where the
12

AO 72A
(Rev.8/82)

sales were initiated by the plaintiff and the merchandise could only
be

mailed

to

a

Spanish

address).

Defendant’s

argument

would

essentially turn the purposeful availment inquiry into a question of
sales percentages, introducing the kind of mechanistic determinations
into the jurisdictional inquiry that the Supreme Court warned against
in International Shoe.

Int’l Shoe Co., 326 U.S. at 319.

Moreover,

the Supreme Court has stated that even one contact can confer
jurisdiction if it is significant.

McGee v. Int’l Life Ins. Co., 355

U.S. 220, 221-23 (1957).
Defendant also argues that it did not purposefully avail itself
of its contacts with Georgia because it does not specifically target
Georgia through ads or marketing.

(Def.’s Br. [3] at 14-15.)

In

support of this point, defendant cites Imageline, Inc. v. Fotolia
LLC.

(Id.)

As Judge Evans held in Imageline, the fact that a

website does not target the forum state might reinforce an overall
lack

of

sufficient

Imageline,

Inc.,

contacts

663

dispositive factor.

F.

Id.

Supp.

to
2d

support
at

purposeful

1377.

But

it

availment.
is

not

a

The website in Imageline was not nearly as

commercial as defendant’s website in this case.
If defendant wished to avoid litigation in Georgia, it could
have organized its website so that it wasn’t selling its products in
this state.

World-Wide Volkswagen Corp., 444 U.S. at 297 (stating

13

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that defendants can restructure their business if they wish to avoid
the possibility of a lawsuit in a certain forum).

Having instead

opened itself up for business in Georgia through its website,
defendant cannot now argue that its low level of sales or lack of ads
in the state negates purposeful availment of the state’s benefits and
privileges.

As the Seventh Circuit pointed out, a defendant making

this argument “wants to have its cake and eat it, too: it wants the
benefit of a nationwide business model with none of the exposure.”
Hemi Grp. LLC, 622 F.3d at 760.
through

its

website

directly

Defendant’s act of making sales
to

Georgia

customers

more

than

compensates for the lack of any targeted ads or marketing.
b.

A

defendant’s

Plaintiff’s claims are related to defendant’s
Georgia contacts.
contacts

with

the

forum

state

must

also

sufficiently relate to the plaintiff’s cause of action for a court to
exercise specific jurisdiction.

Oldfield, 558 F.3d at 1222.

To

determine whether a “sufficient nexus” exists between plaintiff’s
claims and defendant’s contacts with Georgia, the Court must conduct
“a

fact-sensitive

analysis

consonant

with

the

principle

that

foreseeability constitutes a necessary ingredient of the relatedness
inquiry.”

Id. at 1223.

F.3d at 1267.

See also Diamond Crystal Brands, Inc., 593

In other words, the Court must consider whether it was

reasonably foreseeable, based on defendant’s activities in Georgia,
14

AO 72A
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that defendant would have to respond in Georgia to the claims
asserted by plaintiff.

Oldfield, 558 F.3d at 1223.

Here, there can be no legitimate dispute that defendant’s
activities in Georgia are connected to plaintiff’s claims.

The

claims arise directly from defendant’s sales of allegedly infringing
products,

at

least

some

of

which

occurred

in

Georgia.

See

Sculptchair, Inc., 94 F.3d at 625-28, 631 (finding a sufficient nexus
to support specific jurisdiction under similar facts).

In addition,

unfair competition and trademark infringement claims are foreseeable
as a result of defendant’s Georgia sales.

Id. at 631 (“[Selling

products in a state] is the kind of activity that would lead a person
to reasonably expect the possibility of ensuing litigation . . .
should some type of dissatisfaction or complications arise.”).

See

also Oldfield, 558 F.3d at 1224 (focusing on the foreseeability of
plaintiff’s claims arising from defendant’s contacts).
3.

Fairness Factors

At this stage in the analysis, the Court must simply ensure that
exercising personal jurisdiction over defendant is reasonable in that
it comports with “fair play and substantial justice.”
Inc., 94 F.3d at 631.

Sculptchair,

Once a court finds that minimum contacts

exist, the burden shifts to the defendant to “present a compelling
case that the presence of some other considerations would render
15

AO 72A
(Rev.8/82)

jurisdiction unreasonable.”

Burger King Corp., 471 U.S. at 477.

Defendant has not met that burden.
Courts look to five “fairness factors” to determine whether
exercising jurisdiction over a defendant is reasonable:

(1) the

burden on the defendant of litigating in the forum, (2) the forum
state’s interest in adjudicating the dispute, (3) the plaintiff’s
interest in obtaining convenient and effective relief, (4) the
interstate judicial system’s interest in obtaining the most efficient
resolution of controversies, and (5) states’ shared interest in
furthering fundamental social policies.

Meier, 288 F.3d at 1276.

Focusing on the first factor, defendant argues that it would be
unreasonable to litigate this case in Georgia because all of its
witnesses and documents are in Massachusetts.
16.)

(Def.’s Br. [3] at

As plaintiff’s witnesses and documents are presumably in

Georgia, this factor does not support a finding of unreasonableness.
Diamond

Crystal

Brands,

Inc.,

593

F.3d

at

1274

(requiring

a

California-based defendant to litigate in Georgia).
Neither do the other factors suggest that litigating this case
in Georgia would be unreasonable.

Georgia has a strong interest in

protecting its citizens from the sale of products that potentially
infringe their trademark rights or raise unfair competition concerns.
Sculptchair, Inc., 94 F.3d at 632 (“[The forum state has an] obvious
interest

in

stamping

out

[this]
16

AO 72A
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type

of

nefarious

economic

chicanery.”).

Plaintiff also has a strong interest in obtaining

relief to ensure that he can maximize his ability to sell his
products in Georgia.

Id.

Presumably Georgia and Massachusetts have

an equally strong interest in ensuring that commercial actors abide
by their statutory and common law rules regarding trade practices,
and there is no reason to believe that the litigation would be
resolved more efficiently in Massachusetts than in Georgia.
II.

DEFENDANT’S MOTION TO TRANSFER
Defendant alternatively moves for a transfer of venue under 28

U.S.C. § 1404 or § 1406.

(Def.’s Br. [3] at 16.)

Section 1406

provides for the dismissal or transfer of an action filed in the
wrong district.

28 U.S.C. § 1406(a).

Section 1404 provides for a

transfer when a case has been properly filed in one district but
would be more conveniently litigated in another.

28 U.S.C. § 1404.

Because the question of whether venue is proper under § 1406 precedes
the question of whether the Court can transfer the case under § 1404,
the Court will first address defendant’s motion under § 1406.
A.

Section 1406 Motion

Pursuant to 28 U.S.C. § 1391(b)(1) and (2), venue is proper
where (1) any defendant resides if all defendants are residents of
the state or where (2) a substantial part of the events giving rise
to the case took place.

28 U.S.C. § 1391(b)(1) and (2).

17

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If neither

of those options provides for proper venue, then venue is proper in
any judicial district where the defendant is subject to the court’s
personal jurisdiction.

28 U.S.C. § 1391(b)(3).

In this case, venue is proper in this district under the second
option.

Plaintiff alleges that defendant sold the Funky Monkeys dog

toy to people living in this judicial district, and that the sales of
this allegedly infringing toy gave rise to plaintiff’s claims.
(Compl. [1] at ¶¶ 16-19.)

In the absence of any rebuttal evidence,

the Court must accept plaintiff’s alleged facts as true for purposes
of this motion.

Madara, 916 F.2d at 1514.

As defendant provides no

rebuttal evidence, the Court finds that venue is proper in this
district under § 1391(b)(2).
B.

Section 1404 Motion

Finally, defendant argues that this action should be transferred
to Massachusetts as the more convenient forum under § 1404(a).
(Def.’s Br. [3] at 17-18.) Section 1404(a) provides for the transfer
of a properly filed case “[f]or the convenience of parties and
witnesses.”

28 U.S.C. § 1404(a).

As the proponent of the transfer

motion, defendant bears the burden of showing that Massachusetts
would be a more convenient forum for the parties and witnesses.
re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989).

In

Courts have

wide latitude in determining whether a case should be transferred

18

AO 72A
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under § 1404(a).

Weber v. Coney, 642 F.2d 91, 93 (5th Cir. Unit A,

Mar. 9, 1981).3
In

ruling

on

the

transfer

motion,

the

Court

must

afford

plaintiff’s chosen forum a substantial degree of deference. Robinson
v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996)(“[T]he
plaintiff’s choice of forum should not be disturbed unless it is
clearly outweighed by other considerations.”).

This is particularly

so where, as here, plaintiff has filed suit in his home state.

See

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981) (“[A]
plaintiff’s choice of forum is entitled to greater deference when the
plaintiff has chosen the home forum.”) and Acrotube, Inc. v. J.K.
Fin. Grp., Inc., 653 F. Supp. 470, 477 (N.D. Ga. 1987)(Shoob, J.)
(“Absent

clear

justification,

courts

in

this

district

have

consistently refused to override a plaintiff’s choice of forum,
especially where, as here, the plaintiff has brought suit in its home
district.”)
Defendant argues that Massachusetts is more convenient because
its witnesses and documents are located there, and flying witnesses
and documents to Georgia would be unreasonably inconvenient. (Def.’s
Br. [3] at 16.)

Defendant correctly focuses on witness location is

3

Decisions of the former Fifth Circuit rendered prior to
October 1, 1981, are binding precedent in the Eleventh Circuit.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc).
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a key factor in considering a transfer of venue.

See Ramsey v. Fox

News Network, LLC, 323 F. Supp. 2d 1352, 1356 (N.D. Ga. 2004)
(Thrash, J.)(noting the importance of witness location to transfer
considerations). However, defendant ignores the fact that a transfer
of

venue

would

subject

plaintiff’s

witnesses

to

the

inconveniences of travel that defendant seeks to avoid.

same

Under the

circumstances, the witness convenience factor is not sufficient to
override plaintiff’s chosen forum.
Neither does any other factor warrant a transfer.

The cost of

moving documents and the ease of obtaining witnesses is an equal
inconvenience

for

both

parties.

While

Massachusetts

has

some

interest in ensuring its companies do not sell infringing products,
Georgia likely has more of an interest in protecting its citizens
from such infringement. Essentially, defendant’s motion is a plea to
transfer the inconveniences of litigation onto the plaintiff.
is proper in this district.

Venue

A desire to shift the inconveniences of

litigation onto plaintiff is not a valid basis for a transfer under
§ 1404(a).

Robinson, 74 F.3d at 260. Defendant’s motion to transfer

[3] is therefore DENIED.
CONCLUSION
For the foregoing reasons, the Court DENIES defendant’s Motion
to Dismiss for Lack of Personal Jurisdiction or to Transfer [3].

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SO ORDERED, this 25th day of September, 2013.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

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