Barranco v. 3D Systems Corporation et al

Filing 37

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
)
)
Plaintiff,
)
)
vs.
)
)
)
3D SYSTEMS CORPORATION, a
Delaware corporation, 3D
)
)
SYSTEMS, INC., a California
corporation, ABRAHAM
)
)
REICHENTAL, DAMON GREGOIRE,
)
)
Defendants.
_____________________________ )
RONALD BARRANCO,

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.]

After

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.

BACKGROUND
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
industry.

[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
industry.

[Id. at ¶ 18.]

Examples of domain names that

Plaintiff created include: (1) www.stereolithography.com
(“Stereolithography.com”); and (2) www.lasersintering.com
(“Lasersintering.com”).

Plaintiff created Stereolithography.com

and Lasersintering.com on October 31, 1997 and February 13, 2004,
respectively.

[Id. at ¶¶ 19, 23.]

Stereolithography.com and

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.”

[Id. at

¶¶ 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.

2

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.]

Plaintiff asserts

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.

3

Plaintiff declined to sell his Primary Domains to 3D Systems when
a representative called him in Hawai`i on April 6, 2010.

[Id. at

¶¶ 37-41.]
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.

On

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
$10 million.

[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.
¶ 46.]

[Id. at

During that phone call, Plaintiff told Reichental that he

would meet with him and other 3D Systems representatives to

4

discuss the possible sale of his Primary Domains.

Plaintiff

alleges that, at this time, he was still undergoing daily
chemotherapy treatments, which affected his mental health.

The

parties agreed to meet in Los Angeles, California, in early
April 2011.

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”).
¶¶ 47-50.]

[Id. at

Plaintiff was also receiving approximately $100,000

annually for Lasersintering.com, pursuant to a non-exclusive
license agreement with non-party Additive Manufacturing LLC
(“Additive”).

[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
twenty minutes.

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.]

Gregoire invited

Plaintiff to meet with him and Reichental again on April 5, 2011.

5

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.

[Id. at

¶ 58.]
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.]

According to

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

1

The Court will refer to the Primary Domains and the
Defensive Domains collectively as “Web Domains.”
6

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.”
¶¶ 62-63.]

[Id. at

Furthermore, Gregoire and Reichental represented that

Lasersintering.com’s existing license agreement with Additive
would remain in place after the close of the sale.

Gregoire and

Reichental indicated that 3D Systems would likely terminate
Stereolithography.com’s license agreement with Cranston.

In

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
Plaintiff.”

[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
of $75,000.

[Id. at ¶ 66 (citing id., Exh. A).]

7

Plaintiff informed Gregoire and Reichental that,
pursuant to its licensing agreement, Additive had a right of
first refusal to purchase Lasersintering.com.

Plaintiff said

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.
4.]

[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
Plaintiff.

[Id. at ¶¶ 74-77.]

8

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
$225,000.

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.
Exh. E).]

[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

9

Complaint).]

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.

Plaintiff contends

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.

Plaintiff

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

10

buy-out.

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.
¶¶ 89-92.]

[Id. at

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
with Stereolithography.com.

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.]

[Id.

Plaintiff contends that 3D Systems failed and

refused to account for the revenues it earned for its use of
Stereolithography.com.

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,

11

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
Domains.

[Id. at ¶¶ 98-101.]
On February 15, 2013, Plaintiff received a phone call

from Kimberly Hale (“Hale”), the head of 3D Systems’s human
resources department.

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
his performance.

[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

12

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.
STANDARD
I.

Personal Jurisdiction
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.
1977)).
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
13

must be resolved in the plaintiff’s favor. See
Love, 611 F.3d at 608; Schwarzenegger, 374 F.3d at
800.
Maui Elec. Co. v. Chromalloy Gas Turbine, LLC, 942 F. Supp. 2d
1035, 1040 (D. Hawai`i 2013).
II.

Transfer Venue
“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.”

Jones

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
expense.’”

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.

Second, a

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).

14

DISCUSSION
I.

Count II
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
arbitration.

[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.]

The

Court HEREBY DISMISSES Count II WITHOUT PREJUDICE.
II.

Personal Jurisdiction
Defendants argue that the Complaint should be dismissed

for lack of personal jurisdiction over all Defendants.

[Motion

at 1.]
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
jurisdiction.
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
16

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
reasonable.
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.]

The Court

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
appropriate.

17

A.

Purposeful Availment
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.
1.

Tort 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).
a.

Reichental and Gregoire
i.

Intentional Act

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.]

[Complaint at

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

18

established that Reichental and Gregoire both committed an
intentional act.
ii.

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.
11.]

[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.]

Reichental

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.]

Gregoire

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.’”

19

Trade W.,

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.

[Mem.

in Opp., Declaration of Ronald Barranco (“Barranco Decl.”) at
¶ 14.]

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
Carolina.

[Id. at ¶ 16; Complaint at ¶ 80.]

Plaintiff alleges

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.]

Johnson states

that, based on Plaintiff’s representations, he believed that
Plaintiff resided in both Hawai`i and California.

[Reply,

Declaration of Andrew Johnson (“Johnson Decl.”) at ¶ 8.]

To the

extent that any conflicts exist between Plaintiff’s evidence and
Defendants’ evidence, they must be resolved in Plaintiff’s favor.

20

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.

As

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.]

[Barranco

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.
b.

3D Systems

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
3D Corp.

[Id. at ¶¶ 5-6.]

Reichental executed the Agreement
21

Letter on behalf of 3D Corp.

[Id., Exh. D at 4.]

executed the PSA on behalf of 3D Inc.
at 6.]

Gregoire

[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
Systems.”

[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
relationship.”).
22

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.
2.

Contract Claims

Plaintiff only asserts his contract claims against 3D
Systems.

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).]

Plaintiff

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
parties.

[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
23

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.
47, 49.]

[Id. at ¶¶ 46-

Within sixteen days of their meeting, Plaintiff and 3D

Systems executed both the Agreement Letter and the PSA.
¶¶ 72, 83.]

[Id. at

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
24

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.

[Id.]

Plaintiff alleges

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

at 3.]
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.
contrary.

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
Plaintiff.

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
25

Hawai`i for the consequences of their activities.

Thus, the

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.
B.

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
Cir. 2007)).

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
activities.
C.

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.’”

Id. (other

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
factors:
26

(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
the controversy;
(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.
Id.
1.

Purposeful interjection

“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.’”

Id. (internal

quotation marks omitted) (quoting Fiore, 688 F.3d at 583).

“‘The

smaller the element of purposeful interjection, the less is
jurisdiction to be anticipated and the less reasonable its
exercise.’”

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
27

connection with the Agreement Letter or the PSA.

Plaintiff

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.

The intangible

nature of the Web Domains, however, suggests that Defendants’
solicitation was unrelated to his Hawai`i residency.

Johnson

states that “3D Systems accommodated Plaintiff’s request to work
from home, whether that be in California or Hawai`i.”
Decl. at ¶ 10.]

[Johnson

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.
2.

Burden on Defendants

The Court recognizes that Defendants will be burdened
by having to litigate in Hawai`i, as they are all South Carolina
residents.

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-

28

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.
3.

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

neutral.
4.

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
29

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
his favor.
5.

Judicial efficiency

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
transportation.”
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.

Other

3D Systems employees that are potential witnesses are located in
Georgia, Massachusetts, Washington, and India.
at ¶ 5-7.]

[Gregoire Decl.

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.

[Mem. in

Opp. at 20-21 (citing id., Declaration of Joachim P. Cox, Exh. 3
at 2-4).]

The Court concludes that this factor weighs slightly

in favor of Defendants.
6.

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
30

chemotherapy treatments for leukemia, and therefore traveling
outside of Hawai`i to litigate this action would greatly
inconvenience him.

[Barranco Decl. at ¶¶ 2-7.]

In analyzing

this factor, however, “little weight is given to a plaintiff’s
inconvenience.”

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).

Spring

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.
7.

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.
8.

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.

See

In other words, this Court’s

exercise of personal jurisdiction over Defendants is reasonable,
31

and would comport with fair play and substantial justice.

In

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
all claims.

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
Carolina.

[Motion at 2.]

As mentioned above, Plaintiffs do not

dispute that this action could have been brought in South
Carolina.

Instead, Plaintiff argues that Defendants cannot

satisfy their burden of showing that South Carolina is a more
convenient forum.

[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

32

the governing law.

Jones, 211 F.3d at 498-99.

“Ultimately, the

moving party has the burden of showing that an alternative forum
is the more appropriate forum for the action.”

Tamashiro v.

Harvey, 487 F. Supp. 2d 1162, 1168 (D. Hawai`i 2006) (citation
omitted).
A.

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
of forum.

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
forum.”

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.
B.

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.

The

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.]
33

The Court

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.]

[Complaint

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.
C.

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

conclusory statements.

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.]

Of

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.]

34

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
significant.

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.”
¶ 19.]

[Barranco Decl. at

Based on the foregoing, the Court concludes that this

factor weighs slightly in favor of Plaintiff.
D.

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.
E.

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
South Carolina.

[Mem. in Supp. of Motion at 19 (citing Gregoire

Decl. at ¶¶ 5, 7).]

According to Defendants, other potential
35

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.
F.

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.
G.

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
South Carolina.

The Court finds, however, that most, if not all,

36

documents can be easily produced for litigation in Hawai`i at a
reasonable cost to Defendants.
H.

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.

There is

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.

The

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).
CONCLUSION
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.

37

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

38