Barranco v. 3D Systems Corporation et al
ORDER Denying 6 Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2) or, in the Alternative to Transfer Pursuant to 28 U.S.C. § 1404. Signed by JUDGE LESLIE E. KOBAYASHI on 3/17/14. (gab, )CERTIFICAT E OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
3D SYSTEMS CORPORATION, a
Delaware corporation, 3D
SYSTEMS, INC., a California
REICHENTAL, DAMON GREGOIRE,
CIVIL NO. 13-00412 LEK-RLP
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS PURSUANT
TO FED. R. CIV. P. 12(b)(2) OR, IN THE ALTERNATIVE,
TO TRANSFER PURSUANT TO 28 U.S.C. § 1404
On October 21, 2013, Defendants 3D Systems Corporation (“3D
Corp.”), 3D Systems, Inc. (“3D Inc.,” collectively, “3D
Systems”), Abraham Reichental (“Reichental”), and Damon Gregoire
(“Gregoire,” collectively “Defendants”) filed their Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2) or, in the
Alternative, to Transfer Pursuant to 28 U.S.C. § 1404 (“Motion”).
[Dkt. no. 6.]
Plaintiff Ronald Barranco (“Plaintiff”) filed his
memorandum in opposition on January 6, 2014, and Defendants filed
their reply on January 14, 2014.
[Dkt. nos. 27, 30.]
On January 31, 2014, this Court issued an entering
order vacating the hearing on the Motion.
[Dkt. no. 34.]
careful consideration of the Motion, supporting and opposing
memoranda, and the relevant legal authority, Defendants’ Motion
is HEREBY DENIED, for the reasons set forth below.
The Complaint asserts that, for the past thirty years,
Plaintiff has worked in the field of 3D printing, which is the
“additive manufacturing process of making a three-dimensional
solid object of virtually any shape from a digital model.”
[Complaint at ¶ 16.]
Over the past fifteen years, Plaintiff also
developed and owned several businesses in the 3D printing
[Id. at ¶ 17.]
The Complaint alleges that, over the past twenty years,
Plaintiff created and owned more than 100 domain names associated
with different technologies and businesses in the 3D printing
[Id. at ¶ 18.]
Examples of domain names that
Plaintiff created include: (1) www.stereolithography.com
(“Stereolithography.com”); and (2) www.lasersintering.com
Plaintiff created Stereolithography.com
and Lasersintering.com on October 31, 1997 and February 13, 2004,
[Id. at ¶¶ 19, 23.]
Lasersintering.com were to license their respective domain names,
websites, and instant online quote engines to “third parties who
broker physical, three-dimensional printed objects.”
¶¶ 22, 26.]
According to the Complaint, 3D Corp. is incorporated in
Delaware and operates through its subsidiaries in the United
States, Europe, and the Asia-Pacific region.
3D Corp. provides
3D content-to-print solutions, and produces 3D printers,
integrated print materials, and on-demand custom parts services.
Plaintiff alleges that 3D Inc. is a subsidiary of 3D Corp.
Plaintiff also alleges that 3D Inc. is the alter ego and/or agent
of 3D Corp., and that 3D Corp. is actively involved in the dayto-day operations of 3D Inc.
Plaintiff asserts that both 3D
Corp. and 3D Inc. have: corporate offices located at the same
address in Rock Hill, South Carolina; and common officers and
directors, including Reichental and Gregoire.
3D Corp. is
involved in the acquisitions of 3D Inc., and also transacts
business by or on behalf of 3D Inc.
[Id. at ¶¶ 27-34.]
The Complaint alleges that, on July 10, 2001, 3D
Systems contacted Plaintiff in Hawai`i to see if he would be
interested in selling Stereolithography.com and its related
business, but Plaintiff declined.
3D Systems contacted Plaintiff
again on June 6, 2009, this time to see if he would be interested
in selling both Stereolithography.com and Lasersintering.com
(collectively “Primary Domains”) and their related businesses.
Plaintiff again declined.
[Id. at ¶¶ 35-36.]
that 3D Systems invented the stereolithography process and was a
major participant in the stereolithography and laser sintering
sectors of the industry.
Nevertheless, 3D Systems did not own
the domain names “Stereolithography.com” and
“Lasersintering.com”, which were valuable to 3D Systems.
Plaintiff declined to sell his Primary Domains to 3D Systems when
a representative called him in Hawai`i on April 6, 2010.
Plaintiff alleges that, in mid-February 2011,
Abraham Reichental, President and CEO of 3D Systems, invited
Plaintiff and Deelip Menezes to 3D Systems’s corporate
headquarters in Rock Hill, South Carolina to discuss Print3D
Corporation (“Print3D”), which Plaintiff and Menezes own.
February 17, 2011, Plaintiff and Menezes met with Reichental,
Senior Vice President and Chief Financial Officer Damon Gregoire,
and other 3D Systems representatives in Rock Hill to discuss.
Plaintiff alleges that, during this meeting, 3D Systems told
Plaintiff and Menezes that it was interested in acquiring
Print3D’s assets, and the parties agreed on a purchase price of
[Id at ¶¶ 42-44.]
Plaintiff also informed
Reichental that he was undergoing daily chemotherapy treatments
for leukemia, which he had been diagnosed with in September 2009.
The Complaint asserts that, due to the progression of Plaintiff’s
leukemia, he was interested in selling Print3D.
[Id. at ¶ 45.]
Plaintiff alleges that, on March 27, 2011, Reichental
called Plaintiff in Hawai`i to ask whether Plaintiff was
interested in selling his Primary Domains to 3D Systems.
During that phone call, Plaintiff told Reichental that he
would meet with him and other 3D Systems representatives to
discuss the possible sale of his Primary Domains.
alleges that, at this time, he was still undergoing daily
chemotherapy treatments, which affected his mental health.
parties agreed to meet in Los Angeles, California, in early
The Complaint asserts that, by April 2011, Plaintiff
was receiving annual license fees of approximately $150,000 for
Stereolithography.com, pursuant to a non-exclusive license
agreement with non-party Cranston LLC (“Cranston”).
Plaintiff was also receiving approximately $100,000
annually for Lasersintering.com, pursuant to a non-exclusive
license agreement with non-party Additive Manufacturing LLC
[Id. at ¶ 51.]
The Complaint alleges that, on April 3, 2011, Plaintiff
and Menezes met with Gregoire, and in-house counsel for 3D
Systems, Andrew Johnson, in Los Angeles for about three hours and
The first three hours of the meeting concerned
the sale of Print3D to 3D Systems.
Menezes then left, and the
remainder of the meeting was between Plaintiff, Gregoire, and
Johnson, regarding the sale of the Primary Domains to 3D Systems.
[Id. at ¶¶ 52-53.]
The Complaint alleges that, during this
portion of the meeting, Gregoire confirmed that Plaintiff should
receive between $5 million and $10 million for the sale of his
Primary Domains to 3D Systems.
[Id. at ¶ 54.]
Plaintiff to meet with him and Reichental again on April 5, 2011.
At their first meeting on April 5, Gregoire emailed Plaintiff a
summary of 3D Systems’s valuation of Lasersintering.com and
Plaintiff’s interest in the Print3D assets.
(citing id., Exh. A).]
[Id. at ¶¶ 55-57
Plaintiff alleges that this summary
valued Lasersintering.com at $1,649,322, and that the summary did
not include a valuation of Stereolithography.com, which was
generating approximately fifty percent more income.
Later that same day, the parties met again, and
Plaintiff alleges that Gregoire and Reichental told him that 3D
Systems wanted to structure the sale of the Primary Domains “as a
‘buy-out’ so that a relatively small amount of the purchase price
would be paid on the closing, with the balance of most of the
purchase price for the Primary Domains to be paid over a period
of time based on revenues generated by the Primary Domains’
businesses after the closing of the sale.”
[Id. at ¶¶ 59-60.]
Gregoire and Reichental also told Plaintiff that, in addition to
the Primary Domains, 3D Systems wanted to purchase related domain
names (“Defensive Domains”).1
[Id. at ¶ 61.]
Gregoire and Reichental, $6 million represented a fair price for
the Web Domains, and Plaintiff would make more than that through
the buy-out mechanism.
Plaintiff alleges that, in order to
The Court will refer to the Primary Domains and the
Defensive Domains collectively as “Web Domains.”
induce him to accept the proposed buy-out structure, Gregoire and
Reichental represented that, after acquisition, 3D Systems would
“make a substantial commitment of resources to the Web Domains’
businesses to ensure that Plaintiff would receive the $6 million
plus purchase price for the sale of his Web Domains.”
Furthermore, Gregoire and Reichental represented that
Lasersintering.com’s existing license agreement with Additive
would remain in place after the close of the sale.
Reichental indicated that 3D Systems would likely terminate
Stereolithography.com’s license agreement with Cranston.
order to induce Plaintiff to sell the Web Domains, however, they
assured Plaintiff that 3D Systems would replace the lost Cranston
revenue with a revenue stream that exceeded the current $150,000
annual income from Cranston.
[Id. at ¶ 64.]
Plaintiff alleges that Gregoire wrote an outline of the
structure for the purchase price of the Web Domains: “first, a
buyout based on the initial $250,000 of revenue generated by the
Primary Domains; second, on development of the Web Domains; and
third, on the $225,000 annual compensation to be paid to
[Id. at ¶ 65 (citing id., Exh. B.]
In order to
further induce Plaintiff, Gregoire and Reichental told Plaintiff
that 3D Systems would employ him as a manager for a period of
five years, at an annual salary of $150,000, plus an annual bonus
[Id. at ¶ 66 (citing id., Exh. A).]
Plaintiff informed Gregoire and Reichental that,
pursuant to its licensing agreement, Additive had a right of
first refusal to purchase Lasersintering.com.
that he needed to provide Additive with the proposed purchase
price so that Additive could then decide whether to exercise its
right of first refusal.
After the meeting, Gregoire sent
Plaintiff an email indicating that 3D Systems would pay
$1,649,000 to purchase Lasersintering.com.
(citing id., Exh. C).]
of first refusal.
[Id. at ¶¶ 67-69
Additive declined to exercise its right
[Id. at ¶ 70.]
Even later that day, April 5, 2011, 3D Systems prepared
a three-page letter of agreement regarding the sale of the Web
Domains (“Agreement Letter”), which Plaintiff and Reichental, on
behalf of 3D Corp., executed.
[Id. at ¶¶ 71-73; id., Exh. D at
The Agreement Letter provided, inter alia, that: 3D Systems
would pay Plaintiff $250,000 in cash at closing, plus a portion
of all license fees and royalties that the Web Domains generated;
3D Systems would pay Plaintiff a buy-out related to the Web
Domains based on royalties that the Web Domains generated over
the five-year period following the closing; 3D Systems would
support Plaintiff’s continued web development efforts; 3D Systems
would employ Plaintiff as a manager of Print3D; and 3D Systems
would grant 5,000 shares of its restricted common stock to
[Id. at ¶¶ 74-77.]
Plaintiff alleges that, in executing the Agreement
Letter, he relied upon Reichental and Gregoire’s representations
that 3D Systems would: commit substantial resources to the Web
Domains so that Plaintiff would be paid the $6 million purchase
price through the buy-out; replace the Cranston revenue with a
higher revenue stream; and employ Plaintiff as a manager of 3D
Systems for a period of five years at an annual salary of
Plaintiff contends that he would not have executed the
Agreement Letter had he known that 3D Systems had no intention of
honoring these representations.
Furthermore, Plaintiff executed
the Agreement Letter with the understanding that he would be able
to work primarily from Hawai`i.
[Id. at ¶¶ 78-80.]
On April 19, 2011, Plaintiff met with Gregoire and
other 3D Systems representatives to execute the Purchase and Sale
Agreement (“PSA”), which detailed the terms of the sale of the
Web Domains to 3D Systems.
This meeting took place at 3D
Systems’s corporate office in Rock Hill.
[Id. at 83 (citing id.,
The Complaint alleges:
Consistent with the [Agreement Letter], the [PSA]
provided for the sale of the Web Domains to
Defendant 3D Systems for an initial payment of
$250,000 plus license fees and royalties and a
buy-out for each Primary Domain “based on average
royalty generated by such Primary Domain over the
previous two year reporting period . . .
calculated over a five year period present valued
back at an applicable interest rate.”
[Id. at ¶ 84 (quoting id., Exh. E at 2)(some alterations in
The Agreement Letter also contained a non-compete
clause that prohibited Plaintiff from competing with the Web
Domains for a five-year period.
Plaintiff alleges that, in
executing the PSA, he relied upon Reichental and Gregoire’s
representations that 3D Systems would: commit substantial
resources to the Web Domains so that Plaintiff would be paid the
$6 million purchase price through the buy-out; generate annual
income in excess of $150,000 from Stereolithography.com during
the buy-out; and employ Plaintiff as a manager of 3D Systems for
five years at an annual salary of $225,000.
that he would not have executed the PSA had he known that 3D
Systems had no intention of honoring these representations.
Plaintiff asserts that, because he trusted Reichental and
Gregoire, he did not retain or consult with an attorney regarding
the Web Domains transaction.
April 19, 2011.
Plaintiff executed the PSA on
Although Reichental executed the Agreement
Letter on behalf of 3D Corp., Gregoire executed the PSA on behalf
of 3D Inc.
[Id. at ¶¶ 85-88.]
After the closing of the Web Domains sale, and pursuant
to the Agreement Letter, 3D Systems employed Plaintiff as a
manager of Print3D at an annual salary of $150,000.
alleges that he believed that, pursuant to the Agreement Letter
and the PSA, his employment was to be for a five-year period in
order to maximize the amount that he would be paid through the
Plaintiff asserts that, as a manager of Print3D, he
made a good faith attempt to manage and develop the Web Domains.
Plaintiff alleges that, throughout his employment, he made
numerous requests to 3D Systems to honor its promises to commit
resources to the Web Domains, but 3D Systems refused.
Plaintiff contends that 3D Systems never intended to
honor the promises and representations that Reichental and
Gregoire made to Plaintiff.
Rather, Reichental and Gregoire
conspired with each other to purchase the Web Domains at a
discounted price, while ensuring that Plaintiff could not compete
with the Web Domains.
Reichental and Gregoire made false
promises and representations in order to induce Plaintiff to
execute the Agreement Letter and the PSA.
[Id. at ¶¶ 93-95.]
Plaintiff alleges that, after the closing of the Web
Domains sale, 3D Systems terminated Cranston’s license agreement
3D Systems did not attempt to run
Stereolithography.com as a separate business, and instead used
the “Stereolithography.com” domain name “as a portal to funnel
business to other subsidiaries or divisions” of 3D Systems.
at ¶¶ 96-97.]
Plaintiff contends that 3D Systems failed and
refused to account for the revenues it earned for its use of
From the time of the Web Domains sale
through February 15, 2013, 3D Systems paid Plaintiff $46,711 in
licensing fees and royalties that the Web Domains generated,
which was virtually all from the Additive license agreement.
Plaintiff asserts that, after its purchase of the Web Domains, 3D
Systems neither supported the Primary Domains as an independent
business nor generated the necessary revenue to pay Plaintiff the
full value that he had bargained for when he sold the Web
[Id. at ¶¶ 98-101.]
On February 15, 2013, Plaintiff received a phone call
from Kimberly Hale (“Hale”), the head of 3D Systems’s human
Hale informed Plaintiff that his
employment was terminated, effective that day, but offered no
reason for his termination.
Plaintiff assert thats, prior to his
termination, Plaintiff had not received any complaints regarding
[Id. at ¶¶ 102-03.]
Plaintiff filed his Complaint against Defendants on
August 23, 2013. [Dkt. no. 1.]
The Complaint asserts the
following causes of action: breach of contract against 3D Systems
(“Count I”); breach of employment agreement against 3D Systems
(“Count II”); breach of the covenant of good faith and fair
dealing against 3D Systems (“Count III”); fraud against all
Defendants (“Count IV”); negligent misrepresentation against all
Defendants (“Count V”); unjust enrichment against 3D Systems
(“Count VI”); rescission against 3D Systems (“Count VII”).
The Complaint seeks the following relief: an entry of
judgment in favor of Plaintiff and against 3D Systems with
respect to Counts I-VII; damages from 3D Systems in the amount of
$7,818,000; an entry of judgment in favor of Plaintiff against
Reichental and Gregoire with respect to Count IV and Count V;
damages from all Defendants in the amount of $7,818,000 for
Count IV and Count V; a judgment ordering the “release of any and
all of Plaintiff’s shares of restricted common stock, together
with interest[;]” [id. at pg. 28;] punitive damages; and
attorneys’ fees and costs.
As an alternative to damages, the
Complaint seeks rescission of the Agreement Letter and the PSA.
This district court has stated:
A plaintiff has the burden of establishing
personal jurisdiction over a nonresident
defendant. See Love v. Associated Newspapers,
Ltd., 611 F.3d 601, 608 (9th Cir. 2010);
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004). A plaintiff must
establish personal jurisdiction over a defendant
with respect to each claim. Action Embroidery
Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174,
1180 (9th Cir. 2004) (“Personal jurisdiction must
exist for each claim asserted against a
defendant.” (citing Data Disc, Inc. v. Sys. Tech.
Assocs., Inc., 557 F.2d 1280, 1289 n.8 (9th Cir.
When, as here, a district court acts on a
motion to dismiss without holding an evidentiary
hearing, a plaintiff need only make a prima facie
showing of jurisdictional facts to withstand the
motion to dismiss. Love, 611 F.3d at 608;
Schwarzenegger, 374 F.3d at 800. Although a
plaintiff may not simply rest on the bare
allegations of the complaint, uncontroverted
allegations in the complaint must be taken as
true, and conflicts between parties over
statements contained in affidavits or declarations
must be resolved in the plaintiff’s favor. See
Love, 611 F.3d at 608; Schwarzenegger, 374 F.3d at
Maui Elec. Co. v. Chromalloy Gas Turbine, LLC, 942 F. Supp. 2d
1035, 1040 (D. Hawai`i 2013).
“Under § 1404(a), the district court has discretion to
adjudicate motions for transfer according to an individualized,
case-by-case consideration of convenience and fairness.”
v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2001)
(quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108
S. Ct. 2239, 101 L. Ed. 2d 22 (1988)) (quotation marks omitted).
The purpose of transfer under § 1404(a) is to “‘prevent the waste
of time, energy, and money,’ and ‘to protect litigants,
witnesses, and the public against unnecessary inconvenience and
See Kawamoto v. CB Richard Ellis, Inc., 225 F. Supp.
2d 1209, 1213 (D. Hawai`i 2002) (quoting Lung v. Yachts Int’l,
980 F. Supp. 1362, 1369 (D. Hawai`i 1997)).
To transfer a case,
a defendant must first show that the transferee court is one in
which the action could have been commenced originally.
defendant must show that transfer would result in greater
convenience to the parties and witnesses, as well as advance the
interest of justice.
28 U.S.C. § 1404(a).
As an initial matter, the Court notes Defendants’
argument that Count II should be dismissed because it is
identical to the claim that Plaintiff and Print3D assert
in Barranco, et al. v. 3D Sys. Corp., et al., CV 13-00411 LEK-RLP
(“CV 13-00411 Action”).
Defendants also argue that the
respective claim in the CV 13-00411 Action is subject to
[Mem. in Supp. of Motion at 21-23.]
In light of
Defendants’ arguments, Plaintiff stipulates that Count II should
be dismissed against all Defendants.
[Mem. in Opp. at 29.]
Court HEREBY DISMISSES Count II WITHOUT PREJUDICE.
Defendants argue that the Complaint should be dismissed
for lack of personal jurisdiction over all Defendants.
With respect to establishing personal jurisdiction,
this district court has stated:
The district court considers two factors
before exercising personal jurisdiction over a
nonresident defendant in a diversity of
citizenship case: “(1) whether an applicable state
rule or statute potentially confers jurisdiction
over the defendant; and (2) whether assertion of
such jurisdiction accords with constitutional
principles of due process.” Flynt Distrib. Co. v.
Harvey, 734 F.2d 1389, 1392 (9th Cir. 1984). “The
jurisdictional inquiries under state law and
federal due process merge into one analysis” when,
as here, the state’s long-arm statute is “co15
extensive with federal due process requirements.”
Roth v. Garcia Marquez, 942 F.2d 617, 620 (9th
Cir. 1991). See Cowan v. First Ins. Co. Of
Hawaii, 61 Haw. 644, 649, 608 P.2d 394, 399 (1980)
(Hawaii’s long-arm statute, Haw. Rev. Stat. § 63435, was adopted to expand the jurisdiction of
Hawaii’s courts to the extent permitted by the due
process clause of the Fourteenth Amendment). . . .
The Due Process Clause protects a person’s
“liberty interest in not being subject to the
binding judgments of a forum with which he has
established no meaningful ‘contacts, ties, or
relations.’” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 471-72 (1985) (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 319 (1945)). The Due
Process Clause requires that defendants have
“certain minimum contacts with [Hawaii] such that
the maintenance of the suit does not offend
traditional notions of fair play and substantial
justice.” Int’l Shoe, 326 U.S. at 316; Data Disc,
Inc. v. Systems Tech. Assocs., Inc., 557 F.2d
1280, 1287 (9th Cir. 1977). The minimum contacts
required mean that the defendant must have
purposefully availed itself of the privilege of
conducting activities within the foreign
jurisdiction, thereby invoking the benefits and
protections of the foreign jurisdiction’s laws.
See Asahi Metal Indus. Co. v. Sup. Court of Cal.,
480 U.S. 102, 109 (1987). In applying Due Process
Clause requirements, courts have created two
jurisdictional concepts – general and specific
A court may exercise general jurisdiction
over the defendant when the defendant is a
resident or domiciliary of the forum state, or the
defendant’s contacts with the forum state are
continuous, systematic, and substantial.
Helicopteros Nacionales de Columbia, S.A. v. Hall,
466 U.S. 408, 414-16 [104 S. Ct. 1868, 80 L. Ed.
2d 404 (1984); Data Disc, 557 F.2d at 1287 . . . .
. . . .
Specific jurisdiction, on the other hand, may
be found when the cause of action arises out of
the defendant’s contact or activities in the forum
state. See Roth v. Garcia Marquez, 942 F.2d 617,
620 (9th Cir. 1991); Data Disc, 557 F.2d at 1287.
To ensure that the exercise of specific
jurisdiction is consistent with due process in
this particular case, this court must be satisfied
that the following have been shown:
1) the nonresident defendant must have
purposefully availed himself of the privilege
of conducting activities in the forum by some
affirmative act or conduct; 2) plaintiff’s
claim must arise out of or result from the
defendant’s forum-related activities; and
3) exercise of jurisdiction must be
Roth, 942 F.2d at 620-21.
Maui Elec., 942 F. Supp. 2d at 1041-42 (footnote omitted) (some
alterations in Maui Elec.).
Plaintiff concedes that this Court may not exercise
general jurisdiction over Defendants.
Rather, Plaintiff argues
that Defendants’ contacts with Hawai`i are sufficient to
establish specific jurisdiction.
[Mem. in Opp. at 5.]
will assess whether each of the Defendants has sufficient minimum
contacts with Hawai`i.
See Kukui Gardens Corp. v. Holco Capital
Grp., Inc., 664 F. Supp. 2d 1103, 1111 (D. Hawai`i 2008) (quoting
Calder v. Jones, 465 U.S. 783, 790, 104 S. Ct. 1482, 79 L. Ed. 2d
804 (1984)) (“Each defendant’s contacts with the forum State must
be assessed individually.” (emphasis in Kukui)).
To the extent
that the Complaint alleges that Defendants committed the same
conduct, the Court will consolidate its analysis when
Defendants argue that this Court lacks specific
jurisdiction over Reichental and Gregoire.
Motion at 9-11.]
[Mem. in Supp. of
In determining whether a defendant has
purposefully availed himself of the laws of the forum, the
analysis differs with respect to tort claims and contract claims.
In tort cases, the Ninth Circuit, sitting en
banc, has stated that a defendant purposefully
avails itself of a forum in the following
circumstances: “the defendant allegedly must have
(1) committed an intentional act, (2) expressly
aimed at the forum state, (3) causing harm that
the defendant knows is likely to be suffered in
the forum state.” Yahoo! Inc. v. La Lique Contre
Le Racisme Et L’Antisemitisme, 433 F.3d 1199, 1206
(9th Cir. 2006) (en banc) (formatting omitted).
The Ninth Circuit has explained that the third
prong is satisfied when a defendant’s intentional
act has “foreseeable effects” in the forum.
Brayton Purcell LLP v. Recordon & Recordon, 606
F.3d 1124, 1131 (9th Cir. 2010). . . .
Maui Elec., 942 F. Supp. 2d at 1042 (footnote omitted).
Reichental and Gregoire
Plaintiff alleges that Reichental and Gregoire made
false promises and representations to Plaintiff in order to
induce him to sell his Web Domains to 3D Systems.
¶¶ 63-64, 66, 78-79, 86, 93-95.]
Defendants have not offered any
evidence to deny these allegations.
Thus, taking the allegations
of the Complaint as true, the Court finds that Plaintiff has
established that Reichental and Gregoire both committed an
Expressly aimed at the forum state
In determining whether Reichental and Gregoire’s
conduct was expressly aimed at Hawai`i, the Court notes that
Defendants emphasize that the Complaint does not allege that
Reichental or Gregoire made any representations to Plaintiff
while Plaintiff was in Hawai`i.
[Mem. in Supp. of Motion at 10-
Reichental and Gregoire both contend that, at all relevant
times to the instant action, they never met or communicated with
Plaintiff while Plaintiff was in Hawai`i.
[Id., Declaration of
Abraham Reichental (“Reichental Decl.”) at ¶ 16; id., Declaration
of Damon Gregoire (“Gregoire Decl.”) at ¶ 21.]
acknowledges that one possible exception to his statement is a
phone call that he made to Plaintiff regarding a future meeting,
but Reichental says that he is unsure as to whether Plaintiff was
in Hawai`i at that time.
[Reichental Decl. at ¶ 16.]
states that his only interactions with Plaintiff took place in
California and South Carolina.
[Gregoire Decl. at ¶ 22.]
“[T]he Ninth Circuit has repeatedly stated that the
‘express aiming’ requirement is satisfied, and specific
jurisdiction exists, ‘when the defendant is alleged to have
engaged in wrongful conduct targeted at a plaintiff whom the
defendant knows to be a resident of the forum state.’”
Inc. v. Dollar Tree, Inc., Civ No. 12-00606 ACK-BMK, 2013 WL
1856302, at *5 (D. Hawai’i April 30, 2013) (other citations and
quotation marks omitted) (quoting Dole Food Co. v. Watts, 303
F.3d 1104, 1111 (9th Cir. 2002)).
Thus, Plaintiff can satisfy
this prong by alleging that Reichental and Gregoire engaged in
wrongful conduct targeted at Plaintiff, knowing that Plaintiff is
a Hawai`i resident.
Plaintiff’s evidence demonstrates that Reichental and
Gregoire knew that Plaintiff was a Hawai`i resident at the time
of their alleged wrongful conduct.
Plaintiff states that all
Defendants were aware that he lived on the island of Maui.
in Opp., Declaration of Ronald Barranco (“Barranco Decl.”) at
In addition, Plaintiff contends that Gregoire said that
Plaintiff would be able to fulfill his employment agreement with
3D Systems from Hawai`i, without having to move to South
[Id. at ¶ 16; Complaint at ¶ 80.]
that the parties agreed to meet in Los Angeles for their
April 2011 meeting partly because Los Angeles is midway between
Hawai`i and South Carolina.
[Complaint at ¶ 49.]
that, based on Plaintiff’s representations, he believed that
Plaintiff resided in both Hawai`i and California.
Declaration of Andrew Johnson (“Johnson Decl.”) at ¶ 8.]
extent that any conflicts exist between Plaintiff’s evidence and
Defendants’ evidence, they must be resolved in Plaintiff’s favor.
See Love, 611 F.3d at 608; Schwarzenegger, 374 F.3d at 800.
Thus, the Court finds that Plaintiff has presented sufficient
allegations and evidence to show that Reichental and Gregoire’s
conduct was expressly aimed at Hawai`i.
iii. Causing harm that is known to
likely be suffered in the forum state
Plaintiff’s evidence also demonstrates that Reichental
and Gregoire knew that any harm that Plaintiff suffered as a
result of their alleged wrongful conduct would be in Hawai`i.
discussed above, Plaintiff’s evidence shows that Reichental and
Gregoire knew that Plaintiff was a Hawai`i resident, and that he
would remain in Hawai`i while working for 3D Systems.
Decl. at ¶¶ 14, 16.]
Thus, Reichental and Gregoire reasonably
understood that their alleged wrongful conduct would potentially
cause Plaintiff to suffer harm in Hawai`i.
The Court therefore
finds that, under the tort analysis, Plaintiff has satisfied his
burden in establishing the purposeful availment prong with
respect to Reichental and Gregoire.
Plaintiff alleges that 3D Inc. is a wholly owned
subsidiary of 3D Corp., that 3D Inc. is the agent of 3D Corp.,
and that 3D Corp. transacts business on behalf of 3D Inc.
[Complaint at ¶¶ 28, 34.]
Plaintiff also alleges that Reichental
and Gregoire are both employees and officers of both 3D Inc. and
[Id. at ¶¶ 5-6.]
Reichental executed the Agreement
Letter on behalf of 3D Corp.
[Id., Exh. D at 4.]
executed the PSA on behalf of 3D Inc.
[Id. at ¶ 88; id., Exh. E
Further, Plaintiff’s claims against Reichental and
Gregoire are based on the alleged representations they made to
Plaintiff in their official capacities on behalf of 3D Systems.
[Id. at ¶¶ 61-64, 80, 86, 88.]
In fact, Reichental states that,
at all times relevant to the Complaint, “I was acting in the
scope of my employment and in my official capacity with 3D
[Reichental Decl. at ¶ 19.]
Gregoire states the same.
[Gregoire Decl. at ¶ 24.]
This district court has stated:
The Court’s jurisdiction over an agent imputes to
the foreign principal when the agent’s conduct, on
behalf of the principal, gives rise to the cause
of action. See Wells Fargo & Co. v. Wells Fargo
Express Co., 556 F.2d 406, 414 (9th Cir. 1977);
Sher [v. Johnson], 911 F.2d [1357, 1362 (9th Cir.
1990)] (“For purposes of personal jurisdiction,
the actions of an agent are attributable to the
principal.”). . . Agency, in this context, is
determined by the state law of the forum.
Rollins v. Maui Dreams Dive Co., Civ. No. 10-00336 HG-KSC, 2011
WL 1299688, at *5 (D. Hawai`i Mar. 31, 2011); see also Resnick v.
Rowe, 283 F. Supp. 2d 1128, 1139 (D. Hawai`i 2003) (quoting
Sher); Chan v. ResortQuest Park City, LLC, No. CIV. S-11-420 FCD,
2011 WL 3555624, at *4 (E.D. Cal. Aug. 11, 2011) (“The Ninth
Circuit has imputed the contacts of an agent to its principal
corporation where there was a subsidiary or employer-employee
Plaintiff does not expressly allege that Reichental and
Gregoire are “agents” of 3D Systems.
Nevertheless, the Court
finds that, in taking the allegations in the Complaint as true,
and considering Reichental and Gregoire’s own statements,
Plaintiff is entitled to a reasonable inference that Reichental
and Gregoire were agents of 3D Systems.
Thus, insofar as the
Court has specific personal jurisdiction over Reichental and
Gregoire with respect to Plaintiff’s tort claims, jurisdiction is
imputed to 3D Systems.
Plaintiff only asserts his contract claims against 3D
In support of their argument that this Court lacks
personal jurisdiction over 3D Systems, Defendants emphasize that
neither the Agreement Letter negotiations nor the PSA
negotiations took place in Hawai`i.
[Mem. in Supp. of Motion at
14-15 (citing Complaint at ¶¶ 42-44, 52-53, 59-60).]
argues that 3D Systems purposefully availed itself with respect
to the contract claims because 3D Systems directly solicited
Plaintiff’s business in Hawai`i, and the resulting Agreement
Letter and PSA created continuing obligations between the
[Mem. in Opp. at 14.]
In contract cases,
“[a] contract with an effect in the forum state
does not, by itself, automatically establish the
minimum contacts necessary for the exercise of
personal jurisdiction over a nonresident
defendant. Burger King, 471 U.S. at 478.
Instead, a court must examine the circumstances
surrounding the contract in determining whether
there have been the required minimum contacts.
Accordingly, this court examines “prior
negotiations and contemplated future consequences,
along with the terms of the contract and the
parties’ actual course of dealing.” See id. at
479. “Parties who ‘reach out beyond one state and
create continuing relationships and obligations
with citizens of another state’ are subject to
regulation and sanctions in the other State for
the consequences of their activities.” Id. at 473
(quoting Travelers Health Ass’n v. Virginia, 339
U.S. 643, 647 (1950)). “Thus, if the defendant
directly solicits business in the forum state, the
resulting transactions will probably constitute
the deliberate transaction of doing business
invoking the benefits of the forum state’s laws.”
Decker Coal Co. v. Commonwealth Edison Co., 805
F.2d 834, 840 (9th Cir. 1986).
Dinnerman v. Douter Coffee Co., Civil No. 07-00164 SOM-BMK, 2007
WL 1701919, at *6 (D. Hawai`i June 8, 2007).
Plaintiff alleges that 3D Systems directly solicited
his business by telephone in Hawai`i on March 27, 2011.
[Complaint at ¶ 46.]
This phone call led to a meeting between
Plaintiff and 3D Systems soon thereafter in Los Angeles, in order
to further discuss the sale of the Web Domains.
[Id. at ¶¶ 46-
Within sixteen days of their meeting, Plaintiff and 3D
Systems executed both the Agreement Letter and the PSA.
¶¶ 72, 83.]
Both contracts provide that, as part of the sale
agreement, 3D Systems would continue to divide all Web Domains’
license fees and royalties with Plaintiff.
id., Exh. E at 2.]
[Id., Exh. D at 2;
In addition, the sale would be structured as
a buyout, based on the average royalty generated by each
respective Primary Domain.
Plaintiff could exercise his buyout
rights at any time after the PSA’s execution, and 3D Systems
could exercise its buyout rights at anytime after the fifth
anniversary of the PSA’s execution.
that 3D Systems also agreed to employ him, and prohibited him
from competing with the Web Domains, for a period of five years.
[Id. at ¶¶ 66, 78, 85-86.]
Furthermore, the PSA requires
Plaintiff to indemnify 3D Systems if anyone were to claim that
any of the Web Domains infringed on their patent.
[Id., Exh. E
In examining the circumstances surrounding the
Agreement Letter and the PSA, despite the fact that the
negotiations and executions of the contracts did not take place
in Hawai`i, Plaintiff’s factual allegations show that 3D Systems
contemplated future contacts with Hawai’i.
3D Systems not only
agreed to continue to share the revenue that the Web Domains’
license fees and royalties generated, but also to employ
Plaintiff for five years.
In exchange, inter alia, Plaintiff was
obligated to indemnify 3D Systems in the event of a patent
infringement suit and refrain from competing with the Web Domains
for five years.
Defendants have not presented evidence to the
Taking all the allegations as true, the Court finds
that 3D Systems did not simply purchase the Web Domains from
Rather, 3D Systems reached out beyond South Carolina
and structured the transaction so as to create a continuing
relationship and obligations with Plaintiff in Hawai`i, and
should therefore be subject to regulation and sanctions in
Hawai`i for the consequences of their activities.
Court concludes that Plaintiff has met his burden in establishing
that 3D Systems purposefully availed itself of Hawai`i laws with
respect to Plaintiff’s contract claims.
Arising out of forum-related activities
In determining whether Plaintiff’s claims “arise out
of” Defendants’ alleged forum-related activities, “[c]ourts in
the Ninth Circuit use a ‘but for’ test[.]”
Trade W., 2013 WL
1856302, at *7 (citing Menken v. Emm, 503 F.3d 1050, 1058 (9th
Here, Defendants’ alleged forum-related activities
revolve around the formation and execution of the Agreement
Letter and the PSA.
Insofar as Plaintiff’s claims are directly
based on the Agreement Letter and the PSA, the Court finds that
Plaintiff’s claims arise out of Defendants’ forum-related
Reasonableness of exercise of jurisdiction
Plaintiff has satisfied both the first and second
prongs of the specific jurisdiction analysis.
Thus, the burden
now shifts to Defendants to “‘present a compelling case that the
exercise of jurisdiction would not be reasonable.’”
citation and internal quotation marks omitted) (quoting
Schwarzenegger, 374 F.3d at 801-02).
In determining whether
exercise of jurisdiction is reasonable so as to comport with fair
play and substantial justice, courts must consider the following
(1) the extent of the defendants’ purposeful
interjection into the forum state’s affairs;
(2) the burden on the defendant of defending
in the forum;
(3) the extent of conflict with the
sovereignty of the defendants’ state;
(4) the forum state’s interest in
adjudicating the dispute;
(5) the most efficient judicial resolution of
(6) the importance of the forum to the
plaintiff’s interest in convenient and
effective relief; and
(7) the existence of an alternative forum.
Fiore [v. Walden], 688 F.3d [558, 583-84 (9th Cir.
2011)]. The Court balances all seven factors,
recognizing that none of the factors is
dispositive in itself. Id.
“The Ninth Circuit has recognized that ‘circumstances
may exist where the level of purposeful injection into the forum
supports a finding of purposeful availment yet still weighs
against the reasonableness of jurisdiction.’”
quotation marks omitted) (quoting Fiore, 688 F.3d at 583).
smaller the element of purposeful interjection, the less is
jurisdiction to be anticipated and the less reasonable its
Id. (quoting Ins. Co. Of N. Am. v. Marina Salina
Cruz, 649 F.2d 1266, 1271 (9th Cir. 1981)).
It is undisputed
that Defendants never traveled to Hawai`i to meet Plaintiff in
connection with the Agreement Letter or the PSA.
argues, as he did in support of his purposeful availment
analysis, that this factor is satisfied because Defendants
solicited business with a Hawai`i resident.
nature of the Web Domains, however, suggests that Defendants’
solicitation was unrelated to his Hawai`i residency.
states that “3D Systems accommodated Plaintiff’s request to work
from home, whether that be in California or Hawai`i.”
Decl. at ¶ 10.]
Resolving any disputes in Plaintiff’s favor
requires a finding that Defendants knew Plaintiff would work from
his home in Hawai`i.
Nevertheless, Johnson’s statement indicates
that Plaintiff could also have fulfilled his employment with 3D
Systems in California.
Thus, the Court finds that the level of
Defendants’ purposeful interjection into Hawai`i is slight, and
that this factor weighs in favor of Defendants.
Burden on Defendants
The Court recognizes that Defendants will be burdened
by having to litigate in Hawai`i, as they are all South Carolina
The Court also recognizes, however, that “unless the
‘inconvenience is so great as to constitute a deprivation of due
process, it will not overcome clear justifications for the
exercise of jurisdiction.’”
Panavision Int’l, LP v. Toeppen, 141
F.3d 1316, 1323 (9th Cir. 1998) (other citation omitted) (quoting
Caruth v. International Psychoanalytical Ass’n, 59 F.3d 126, 128-
29 (9th Cir. 1995)).
Furthermore, this district court “has
observed that ‘[r]ecent advancements in communication and
transportation . . . have greatly reduced the inconvenience once
associated with defending in another forum.’”
Kukui, 664 F.
Supp. 2d at 1116 (alterations in Kukui) (other citation omitted)
(quoting Robinson Corp. v. Auto-Owners Ins. Co., 304 F. Supp. 2d
1232, 1240 (D. Hawai`i 2003)).
The Court therefore finds that
this factor weighs in favor of Plaintiff.
Conflict with sovereignty of Defendants’ state
Neither party has presented evidence to show a conflict
with the sovereignty of South Carolina, where Reichental and
Gregoire are residents and where 3D Systems has its principal
place of business.
“Moreover, the sovereignty of a defendant’s
state is not a significant consideration in actions between
citizens of the United States.”
Trade W., 2013 WL 1856302, at *8
(citing Decker Coal, 805 F.2d at 841).
Thus, this factor is
Interest of Hawai`i
This Court recognizes that, as the forum state, “Hawaii
has a strong interest in providing an effective means of redress
for its residents who are tortiously injured.”
Resnick, 283 F.
Supp. 2d at 1141 (citation and internal quotation marks omitted).
“A state generally has a ‘manifest interest’ in providing its
residents with a convenient forum for redressing injuries
inflicted by out-of-state actors.”
Burger King, 471 U.S. at 473.
Because Plaintiff is a resident of Hawai`i, this factor weighs in
The Court notes that “[t]his factor focuses on the
location of the evidence and witnesses[,]” and is “no longer
weighed heavily given the modern advances in communication and
F.3d at 129).
Panavision, 141 F.3d at 1323 (citing Caruth, 59
According to Defendants, witnesses and documentary
evidence are likely located in Rock Hill, South Carolina.
3D Systems employees that are potential witnesses are located in
Georgia, Massachusetts, Washington, and India.
at ¶ 5-7.]
Plaintiff argues that Defendants’ initial
disclosures, made pursuant to Fed. R. Civ. P. 26(a)(1), reveal
that half of Defendants’ potential witnesses are located outside
of South Carolina, and would therefore need to travel even if
Defendants are permitted to litigate in South Carolina.
Opp. at 20-21 (citing id., Declaration of Joachim P. Cox, Exh. 3
The Court concludes that this factor weighs slightly
in favor of Defendants.
Convenient and effective relief for Plaintiff
Insofar as Plaintiff resides in Hawai`i, Hawai`i would
be a more convenient forum for Plaintiff.
The Court acknowledges
Plaintiff’s contention that he is currently undergoing
chemotherapy treatments for leukemia, and therefore traveling
outside of Hawai`i to litigate this action would greatly
[Barranco Decl. at ¶¶ 2-7.]
this factor, however, “little weight is given to a plaintiff’s
Spring Patents, Inc. v. Avon Rubber & Plastics,
Inc., 183 F. Supp. 2d 1198, 1208 (D. Hawai`i 2001); see also
Panavision, 141 F.3d at 1324.
“A court should place greater
significance on the possibility of effective relief.”
Pantents, 183 F.3d at 1208 (citation omitted).
Both Hawai`i and
South Carolina appear to be able to provide Plaintiff with
effective relief for his claims.
Thus, the Court finds that this
factor weighs only slightly in favor of Plaintiff.
Existence of an alternative forum
The parties do not dispute that Plaintiff could have
brought the instant action in South Carolina.
Motion at 18; Mem. in Opp. at 22.]
[Mem. in Supp. of
Thus, this factor weighs in
favor of Defendants.
Balancing of the Factors
After carefully balancing the seven factors, the Court
finds that Defendants have failed to meet their burden of
presenting a compelling case that this Court’s exercise of
jurisdiction over them would be unreasonable.
Schwarzenegger, 374 F.3d at 801-02.
In other words, this Court’s
exercise of personal jurisdiction over Defendants is reasonable,
and would comport with fair play and substantial justice.
light of the foregoing, the Court concludes that Plaintiff has
satisfied his burden in establishing a prima facie case of
personal jurisdiction over all Defendants, and with respect to
The Court HEREBY DENIES the Motion to the extent
that it seeks dismissal for lack of personal jurisdiction.
III. Transfer of Venue
Alternatively, Defendants move to transfer this action
to the United States District Court for the District of South
[Motion at 2.]
As mentioned above, Plaintiffs do not
dispute that this action could have been brought in South
Instead, Plaintiff argues that Defendants cannot
satisfy their burden of showing that South Carolina is a more
[Mem. in Opp. at 24.]
This Court must weigh several factors to determine
whether to transfer a case pursuant to § 1404(a) including:
(1) the plaintiff’s choice of forum; (2) the location where the
relevant agreements were negotiated and executed; (3) the
respective parties’ contacts with the forum; (4) the contacts
relating to the plaintiff’s cause of action in the chosen forum;
(5) the differences in the costs of litigation in the two forums;
(6) the availability of compulsory process to compel attendance
of unwilling non-party witnesses; (7) the ease of access to
sources of proof; and (8) the state that is most familiar with
the governing law.
Jones, 211 F.3d at 498-99.
moving party has the burden of showing that an alternative forum
is the more appropriate forum for the action.”
Harvey, 487 F. Supp. 2d 1162, 1168 (D. Hawai`i 2006) (citation
Plaintiff’s choice of forum
With respect to the first factor, the Court recognizes
that there is a strong presumption in favor of Plaintiff’s choice
See Creative Tech., Ltd. v. Aztech Sys., 61 F.3d 696,
703 (9th Cir. 1995).
“The defendant must make a strong showing
of inconvenience to warrant upsetting the plaintiff’s choice of
Decker Coal, 805 F.2d at 843 (citation omitted).
Plaintiff chose to file the instant action in Hawai`i, where he
is a resident.
The Court therefore finds that this factor weighs
in favor of Plaintiff.
Location where relevant agreements
were negotiated and executed
The parties do not dispute that both contracts in this
action were neither negotiated nor executed in Hawai`i.
Complaint alleges that the parties negotiated and executed the
Agreement Letter in California.
With respect to the PSA, the
Complaint alleges that the parties executed it in South Carolina.
[Complaint at ¶ 83.]
Reichental and Gregoire confirm this, and
further assert that the PSA was also drafted in South Carolina.
[Reichental Decl. at ¶ 3; Gregoire Decl. at ¶ 8.]
notes Plaintiff’s allegation that the terms of the PSA regarding
the initial payment of $250,000, the license fees and royalties,
and the buyout structure were consistent with those already
stated in the previously executed Agreement Letter.
at ¶ 84.]
Thus, the Court finds that the PSA was at least
partially negotiated in California as well.
Thus, based on the
record before the Court, this second factor weighs only slightly
in favor of Defendants.
Respective parties’ contacts with the forum
Defendants assert that the third factor weighs in favor
of transferring the case because Defendants’ contacts with
Hawai`i are “limited or non-existent, while Barranco’s contacts
in and around South Carolina are significant.”
Motion at 19.]
[Mem. in Supp. of
Defendants’ argument, however, merely consists of
The Complaint alleges that 3D Systems and
Gregoire, on behalf of 3D Systems, contacted and solicited
business from Plaintiff and Menezes in Hawai`i, in their
capacities as the owners of Print3D.
These parties eventually
entered into an acquisition agreement, which is the subject of
the CV 13-00411 Action.
[Complaint at ¶¶ 42, 53, 81.]
course, the Court recognizes that South Carolina is where
Reichental and Gregoire reside, and where 3D Systems has its
principal place of business.
[Reichental Decl. at ¶ 5; Gregoire
Decl. at ¶¶ 3-4, 10.]
Plaintiff is a Hawai`i resident, as mentioned above.
Despite Defendants’ assertions, there is nothing in the record
that shows that Plaintiff’s contacts with South Carolina extend
beyond those he has with Defendants, let alone that they are
Plaintiff says, “apart from Mr. Gregoire and
Mr. Reichental, none of the 3D Systems employees that I worked
with worked or resided in South Carolina.”
[Barranco Decl. at
Based on the foregoing, the Court concludes that this
factor weighs slightly in favor of Plaintiff.
Contacts relating to the cause of
action in Plaintiff’s chosen forum
With respect to the fourth factor, Defendants again
emphasize that the parties executed the PSA in South Carolina.
[Mem. in Supp. of Motion at 18.]
Despite having solicited
business from Plaintiff in Hawai`i, Defendants did not travel to
Hawai`i to negotiate or execute the Agreement Letter or the PSA.
Based on the record, a majority of the events giving rise to
Plaintiff’s cause of action took place in California, and
partially in South Carolina.
Thus, the Court finds that this
factor weighs slightly in favor of transferring the case.
Differences in cost of litigation in the two forums
Defendants argue that the fifth factor weighs in their
favor because most of the witnesses in this case are located in
[Mem. in Supp. of Motion at 19 (citing Gregoire
Decl. at ¶¶ 5, 7).]
According to Defendants, other potential
witnesses are 3D Systems employees located in Georgia,
Massachusetts, Washington, and India.
Decl. at ¶ 6).]
[Id. (citing Gregoire
On the one hand, Defendants are correct that the
witnesses located on the East Coast would need to travel farther
to testify in Hawai`i than in South Carolina.
On the other hand,
the Court notes that any witnesses located in Hawai`i,
Washington, or India would need to travel farther to testify in
South Carolina than in Hawai`i.
Moreover, there is no reason
that at least some of these witnesses’ testimony cannot be
presented by way of videotaped depositions.
Thus, the Court
concludes that this factor weighs in favor of maintaining the
case in Hawai`i.
The availability of compulsory process
Defendants do not assert a specific argument with
respect to the sixth factor.
factor is neutral.
Even Plaintiff contends that this
Insofar as Defendants have not identified
reasons that South Carolina’s compulsory process to compel
attendance of unwilling non-party witnesses would be preferable
to that of Hawai`i, the Court finds that this factor is neutral.
Ease of access to sources of proof
In support of their argument for transfer, Defendants
contend that a majority of the relevant documents are located in
The Court finds, however, that most, if not all,
documents can be easily produced for litigation in Hawai`i at a
reasonable cost to Defendants.
Thus, this factor is neutral.
State most familiar with governing law
With respect to the final factor, the Court notes that
Plaintiff’s contract and tort claims do not involve areas of law
that are unique to either Hawai`i or South Carolina.
nothing to suggest that one forum would be more familiar with or
more competent to apply the law governing Plaintiff’s claims.
The Court therefore finds that this factor is neutral.
In considering all of these factors, the Court finds
that Defendants have not met their burden to demonstrate a
“strong showing of inconvenience to warrant upsetting the
plaintiff’s choice of forum.”
Decker Coal, 805 F.2d at 843.
Court concludes that the relevant factors weigh in favor of
maintaining the case in Hawai`i.
Accordingly, the Court HEREBY
DENIES the Motion to the extent that it seeks transfer of venue
pursuant to 28 U.S.C. § 1404(a).
On the basis of the foregoing, Defendants’ Motion to
Dismiss Pursuant to Fed. R. Civ. P. 12(b)(2) or, in the
Alternative, to Transfer Pursuant to 28 U.S.C. § 1404, filed
October 21, 2013, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 17, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RONALD BARRANCO V. 3D SYS. CORP., ET AL.; CV. NO. 13-00412 LEKRLP; ORDER DENYING DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FED.
R. CIV. P. 12(b)(2) OR, IN THE ALTERNATIVE, TO TRANSFER PURSUANT
TO 28 U.S.C. § 1404
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