LEAPERS, INC. v. BANERJEE et al
ORDER on Defendants' Motion to Dismiss or Alternatively, Transfer Case - the Motion to Dismiss or Alternatively Transfer Case (Filing No. 20 ) is granted and the matter is transferred to the Southern Division of Nevada. Signed by Judge Tanya Walton Pratt on 3/31/2017. (TRG)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
CATHERINE YAN HE a citizen of China,
MINDPOWER WORLDWIDE, INC.,
Case No. 1:16-cv-00776-TWP-DKL
ORDER ON DEFENDANTS’ MOTION TO DISMISS
OR ALTERNATIVELY, TRANSFER CASE
This matter is before the Court on a Motion to Dismiss Complaint or Alternatively,
Transfer Case, filed pursuant to Federal Rules of Civil Procedure 12(b)(2), 12(b)(3), and 12(b)(6)
by Defendants Adrish Banerjee (“Banerjee”), Catherine Yan He (“He”), Patriot Industry
(“Patriot”), and Mindpower Worldwide, Inc. (“Worldwide”) (collectively “Defendants”). Plaintiff
Leapers, Inc. (“Leapers”) initiated this lawsuit, alleging Defendants violated the Indiana Crime
Victim’s Relief Act (“ICVRA”), Ind. Code § 34-24-3-1, which prohibits conversion, theft, forgery,
counterfeiting, and criminal mischief.
(Filing No. 1.) Specifically, Leapers contends that
Defendants violated the ICVRA by unlawfully selling riflescopes in Indiana that bear trademarks,
markings, and unique symbols of identification belonging to Leapers. Id. On July 13, 2016,
Defendants filed their Motion to Dismiss, asserting that this Court does not have personal
jurisdiction over them, venue in the Southern District of Indiana is improper, and Leapers’
Complaint fails to state a cognizable claim. (Filing No. 20.) In the alternative, Defendants argue
that the Court should issue an order transferring this case to the District of Nevada, Southern
Division, pursuant to 28 U.S.C. 1404(a). Id. For the following reasons, the Court DENIES
Defendants’ Motion to Dismiss, but GRANTS Defendants’ alternative request to transfer this case
to the Southern Division of Nevada.
Leapers is a Michigan corporation that manufactures and sells shooting and hunting gear
across the United States, as well as internationally. Banerjee and He are Nevada residents who
own and operate Patriot, a Nevada company that sells shooting, hunting, camping and fishing
related products at www.patriotindustry.com. Banerjee and He also own and operate Worldwide,
a Nevada company engaged in construction project management. This case derives from
Defendants’ selling and shipping riflescopes, developed and designed by Leapers, into Indiana.
At some point prior to July 24, 2014, Leapers hired Continental Enterprises
(“Continental”), an Indiana corporation, to investigate unauthorized third-party uses of Leapers’
intellectual property rights 1 in its riflescopes. On July 24, 2014, Continental performed internet
searches and learned that Patriot sold riflescopes developed and designed by Leapers at
www.patriotindustry.com. The website states that it is the “One Stop Tactical Gear Shop” and is
“an American Business serving American Patriots.” (Filing No. 37-1 at 9.) Continental then
purchased and received two shipments of riflescopes from Defendants’ website and arranged for
Patriot to ship the items to Indiana. Continental paid for the two purchases through Worldwide’s
PayPal account and received the shipments on August 8, 2014 and September 9, 2014. A
Continental employee, Kyle Wilson, also travelled to Nevada to meet with Defendants as part of
The Court notes that Leapers does not own proprietary rights in the design of the riflescopes because the United
States Patent and Trademark Office rejected Leapers’ application to register the design of the riflescopes, deeming the
design non-distinctive. (Filing No. 21-6 at 5.)
Thereafter, with the help of Indiana’s Vanderburgh County Sheriff’s Office, Leapers
arranged for the arrest of Banerjee and He during a trade show in Las Vegas, Nevada. After
spending one month in Las Vegas Detention Center, Banerjee and He were extradited to Indiana
and subjected to criminal charges. The criminal case against Banerjee and He was ultimately
dismissed and, thereafter, Banerjee and He brought a civil action against Leapers in the District of
Nevada, asserting that Leapers significantly damaged their business when Leapers arranged for
their arrest in front of current and potential customers at the trade show.
On April 8, 2016, Leapers filed a Complaint in this Court, contending that it did not give
Defendants permission to manufacture, produce, advertise, or sell any item using Leapers’
riflescope design in Indiana, or elsewhere. (Filing No. 1.) Leapers alleges that Defendants’ sale
of the riflescopes violates Leapers’ rights under the ICVRA, which prohibits conversion, theft,
forgery, counterfeiting, and criminal mischief. On July 13, 2016, Defendants moved to dismiss
Leapers’ Complaint asserting that this Court does not have personal jurisdiction over Defendants,
venue in the Southern District of Indiana is improper, and Leapers’ Complaint fails to state a
cognizable claim. (Filing No. 20.) In the alternative, Defendants assert that the Court should issue
an order transferring the case to the District of Nevada, Southern Division, pursuant to 28 U.S.C.
1404(a). Thereafter, on October 16, 2016, Defendants’ Nevada action was dismissed without
28 U.S.C. § 1404(a) provides: “[f]or the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought.” “Transfer is appropriate under this section where the moving
party establishes that (1) venue is proper in the transferor district, (2) venue is proper in the
transferee district, and (3) the transfer will serve the convenience of the parties, the convenience
of the witnesses, and the interests of justice.” Volkswagen Aktiengesellschaft v. Dee Eng'g, Inc.,
No. 1:02-CV-1669-LJM, 2003 WL 1089515, at *1 (S.D. Ind. Mar. 4, 2003) (citations omitted).
A. Venue is Proper in Both Districts
As an initial matter, in order for transfer to be appropriate under 28 U.S.C. § 1404(a), venue
must be proper in both the transferor and transferee districts. See Dee Eng'g, Inc, 2003 WL
1089515, at *2. There is no dispute that venue is proper in the Southern Division of Nevada,
however, Defendants dispute that venue is proper in the Southern District of Indiana. Defendants
argue that their contacts with Indiana are minimal, random acts that are not strong enough to
establish proper venue. The Court disagrees with Defendants’ contention and finds that venue is
proper in Indiana. Under § 1391, a civil action may be brought in “a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391.
The basis of Leapers’ claim before this Court is that Defendants violated Indiana state law and
caused Leapers’ injuries when they sold and shipped riflescopes to an Indiana resident.
Accordingly, venue is proper in the Southern District of Indiana, and the Court is now left to
determine whether this case should be transferred based on convenience.
B. Convenience and the Interests of Justice
Defendants argue that the Court should transfer this case to the District of Nevada,
Southern Division, because Nevada best serves the convenience of the parties, the witnesses, and
the interest of justice. Leapers contends that a transfer of venue would merely shift any alleged
inconvenience. Generally, the plaintiff's choice of forum is entitled to substantial deference.
However, the plaintiff’s choice of forum is given less deference when the plaintiff chooses to
litigate outside its home forum. Dee Eng'g, Inc, 2003 WL 1089515, at *2. Leapers is incorporated
and has its principal place of business in Michigan, and all of Leapers’ employees are located in
Michigan. (Filing No. 37-3 at 1-2.) Accordingly, “the defendant's place of residence becomes more
important in determining the convenience to the parties.” Dee Eng'g, Inc, 2003 WL 1089515, at
In addition, when considering the convenience of the parties, courts also consider the
parties’ abilities to bear the expense of trial in a particular forum. Id. at *2-3 (holding that the
larger of the two parties was in a better position to bear the cost of litigating outside of its home
forum). In this case, Defendants argue that litigating in Indiana would impose a substantial
hardship as they have already suffered substantial financial loss from their public arrest in Nevada.
Leapers does not allege that it is in a weaker financial position or is unable to bear the extra expense
of travel to Nevada and, in fact, Leapers admits that a representative from Continental visited
Nevada and met with Defendants as part of the investigation conducted on Leapers’ behalf. As a
result, this Court will assume that Leapers is capable of bearing any additional travel costs and this
analysis favors Defendants.
Regarding convenience of witnesses, Leapers argues that resolution of this trial will likely
require witness testimony from its representatives that are located in Michigan. Leapers contends
that Indiana is more convenient than Nevada, because Michigan is closer to Indiana. Nevertheless,
when weighing the relative convenience of witnesses, courts generally assign little weight to the
location of employee-witnesses because they are usually within the control of the parties and are
likely to appear voluntarily in either forum. Abbot, 2007 WL 844903, at *3. Both parties,
however, note several non-party witnesses. Defendants point to witnesses 2 who are parties to its
Officers of the Las Vegas Metropolitan Police Department, a representative from the Clark County Detention Center
in Nevada, four Nevada eyewitnesses, a Nevada treating physician, two or more of Defendants’ customers in Nevada,
civil action against Leapers in Nevada, and assert that their existence requires transfer to the
Southern Division of Nevada. In response, Leapers argues that the witnesses outlined in the nowdismissed Nevada litigation are irrelevant for establishing the cause of action or affirmative
defenses pending before this Court. Leapers also contends that Indiana is more convenient because
its non-party witnesses are located in the Southern District of Indiana, specifically the employees
of Continental and the employees of Vanderburgh County who were involved in the investigation.
The Court first notes that the investigation in Indiana “‘was [Leapers’] choice, and
therefore it is not entitled to nearly as much weight as it would be if Indiana were inherently more
convenient.’” See Heckler & Koch, Inc. v. Precision Airsoft, LLC, No. 109-CV-485-SEB-JMS,
2010 WL 1257450, at *2 (S.D. Ind. Mar. 25, 2010) (quoting Heckler & Koch, Inc. v. Dong Ying
Manufacturing, Inc., 2009 WL 4906930, at *1 (S.D. Ind. Dec. 11, 2009)). The Court also
concludes, however, that although Defendants identified several non-party witnesses who live
beyond the reach of this forum, Defendants failed to adequately assert what testimony these
witnesses might provide and whether these witnesses would not be willing to travel to Indiana.
Without more, the Defendants have failed in their burden to establish that convenience clearly
favors transfer to Nevada because of the existence of non-party witnesses outside the reach of this
Court. See, e.g., Villafuerte v. Decker Truck Line, Inc., No. 2:14-CV-177-TLS-PRC, 2014 WL
3721962, at *4 (N.D. Ind. July 25, 2014) (“[t]he determination of whether a particular venue is
more convenient for the witnesses should not turn on which party produces a longer witness list.
Rather, the court must look to the nature and quality of the witnesses’ testimony with respect to
the issues of the case”) (internal quotation omitted). Consequently, because neither forum is clearly
three California witnesses, as compared to two Indiana witnesses from the Indiana County Sheriff’s Department and
the County Prosecutor’s office. (Filing No. 21-7 at 4.)
more convenient for the party and non-party witnesses, the Court concludes that this factor does
not favor either party.
Additionally, regarding material evidence, the Court concludes that Defendants have not
presented any facts regarding whether specific evidence or documents are located in Nevada. On
the other hand, Leapers asserts that most of the material evidence in this case is investigationrelated documents that are located at Continental’s office in Indiana and, therefore, Indiana is more
convenient. The Court again notes, however, that the investigation in Indiana was Leapers’ choice,
and is given little weight. See Heckler & Koch, Inc., 2010 WL 1257450, at *2. Accordingly,
because neither forum is clearly more convenient, this factor also favors neither party.
When considering the interests of justice factor, the Court finds that it tilts in favor of
transfer. Defendants’ presence in Indiana is primarily through internet connections and the amount
of business conducted in Indiana is minimal. Also, relevant to this factor is a comparison of the
dockets in this district and Nevada. See Heckler & Koch, No. 109-CV-485-SEB-JMS, 2010 WL
1257450, at *2. For the twelve-month period ending December 31, 2016, this Court ranked fourth
in the nation for the number of weighted filings per authorized judgeship. 3 The Court notes that
Nevada, on the other hand, ranked fifteenth. This Court is also under a declared “Judicial
Emergency” due to its heavy caseload, while Nevada is not. See http://www.uscourts.gov/judgesjudgeships/judicial-vacancies/judicial-emergencies.
significantly lighter caseload than this district, litigation in Nevada would serve the interest of
justice as the litigants are more likely to receive a speedy trial.
Accordingly, the Court finds that, while venue in either the Southern Division of Nevada
or the Southern District of Indiana is proper, and the Southern District of Indiana is more
convenient for Leapers, the gain in convenience to the Defendants and the interests of justice favor
transfer to the Southern Division of Nevada. Accordingly, the Motion to Dismiss or Alternatively
Transfer Case (Filing No. 20) is granted and the matter is transferred to the Southern Division of
Amie Peele Carter
FAEGRE BAKER DANIELS LLP (Indianapolis)
Daniel E. Pulliam
FAEGRE BAKER DANIELS LLP (Indianapolis)
Louis T. Perry
FAEGRE BAKER DANIELS LLP (Indianapolis)
Jeffrey I. Pitegoff
MORRIS SULLIVAN LEMKUL & PITEGOFF
Jonathan G. Polak
TAFT STETTINIUS & HOLLISTER LLP
Tracy Nicole Betz
TAFT STETTINIUS & HOLLISTER LLP
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