KEY ELECTRONICS, INC. v. EARTH WALK COMMUNICATIONS, INC.
Filing
30
ORDER denying 12 Motion to Dismiss for Lack of Jurisdiction or Transfer. See Entry for details. Signed by Judge Sarah Evans Barker on 6/16/2014. (LBT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
KEY ELECTRONICS, INC.,
Plaintiff,
vs.
EARTH WALK COMMUNICATIONS, INC.,
Defendant.
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4:13-cv-00098-SEB-DML
ORDER DENYING DEFENDANT’S MOTION
TO DISMISS OR TO TRANSFER VENUE
This cause is before the Court on Defendant’s Motion to Dismiss. Defendant contends
pursuant to Federal Rule of Civil Procedure 12(b)(2), that the Court lacks personal jurisdiction,
or in the alternative, that transfer of this case is appropriate to the Eastern District of Virginia
based on the doctrine of forum non conveniens pursuant to 28 U.S.C. § 1404(a). For the reasons
set forth below, the motion is DENIED.
STATEMENT OF FACTS
Defendant EarthWalk Communications, Inc. (“EarthWalk”) is a Virginia corporation
with its principal place of business in Manassas, Virginia. McConnell Decl. ¶ 4. EarthWalk does
not own or possess property in Indiana, have an Indiana address or telephone number, pay
Indiana taxes, have an Indiana bank account, or have agents of any type in Indiana. Id. at ¶¶ 8–
11. EarthWalk sells energy-efficient electronic equipment such as mobile computer labs for
education and training technology. Id. at ¶ 6. EarthWalk does not advertise its products
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specifically in Indiana, and since 2009, less than two percent of the company’s total revenue has
been generated from products sold in our state.1 Id. at ¶¶ 7,13.
Plaintiff Key Electronics, Inc. (“Key Electronics”) is an Indiana corporation with its
principal place of business in Jeffersonville, Indiana, where it manufactures its products. Hardy
Aff. ¶ 3. Key Electronics is a contract manufacturer offering electronic circuit card assembly,
product integration, and testing and repair of electronics with the International Standard
Organization quality systems certifications. Id. at ¶ 4.
In November of 2005, the President of EarthWalk, Evan T. McConnell, contacted Key
Electronics to inquire about a possible business relationship. Id. at ¶ 5. At the time, EarthWalk
had an existing relationship with another Indiana company—Indesign, LLC (“Indesign”)—which
designs electronic products and systems for EarthWalk. Id. Indesign recommended Key
Electronics to EarthWalk as a company that could manufacture the products designed by
Indesign for EarthWalk. Id. at ¶ 6. In December of 2005, representatives and officers of
EarthWalk, including McConnell, travelled by private airplane to Jeffersonville, Indiana, to
inspect Key Electronics’ facility and determine whether the company would be an appropriate
manufacturing partner for EarthWalk. Id. at ¶ ¶ 7, 10.
In January of 2006, the parties entered into a seven-year business relationship, lasting
until 2012. Id. at ¶ 8. As part of this relationship, EarthWalk sent purchase orders to Key
Electronics specifying the parts it desired, and Key Electronics manufactured and shipped the
parts to EarthWalk based on the requested design. Id. at ¶ 9. EarthWalk then incorporated the
Key Electronics parts into its mobile computers labs and sold them to the end users. Id. During
1
EarthWalk did not provide the exact percentages of revenue generated before or after 2009.
2
the course of the parties’ relationship, Key Electronics manufactured approximately $3 million
worth of EarthWalk-designed parts at its Indiana facility. Id. at ¶ 12. Throughout the course of
the relationship, EarthWalk representatives made “multiple” visits to Key Electronics’ Indiana
facility, sent “multiple correspondences” to Key Electronics representatives in Indiana, and
initiated “countless” telephone call to Indiana.2 Id. at ¶ 10–11.
On July 19, 2013, Key Electronics filed this suit against EarthWalk alleging that Key
Electronics sent to EarthWalk or EarthWalk possessed specially-manufactured component parts
for EarthWalk’s computer systems that were produced in its Indiana facility, and that EarthWalk
has refused to remit payment. Compl. at ¶¶ 8–9.
EarthWalk represents in its motion that it intends to call several witnesses from inside or
near Virginia to testify in this case. McConnell Decl. at ¶¶ 14–16. EarthWalk has also retained
several finished computers at its Virginia office that it claims it intends to make available for
“on-site inspection” by the parties’ respective experts. Id. at ¶ 17. EarthWalk also emphasizes
that the purchase orders disputed in this case do not contain language that requires Key
Electronics to produce its component parts in Indiana, nor do they require that the parties litigate
potential disputes in Indiana. Id. at ¶ 18.
In response, Key Electronics claims that it intends to call several witnesses who are
residents of Indiana in order to prosecute its case. Pl.’s Resp. 15. Further, Key Electronics notes
that it did not build the computers stored by EarthWalk in Virginia; rather, it built only circuit
boards for them. Id.
2
Key Electronics claims in its brief and in the Hardy Affidavit that EarthWalk representatives made multiple visits,
sent multiple correspondences, and initiated countless telephone calls to Indiana over the course of the business
relationship; however, the number and frequency of these contacts were never specified. Pl.’s Resp. 3; Hardy Aff. ¶¶
10–11.
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I.
PERSONAL JURISDICTION
Legal Standard
Federal Rule of Civil Procedure 12(b)(2) permits the dismissal of a claim for lack of
jurisdiction over the person or entity. Noble Roman's, Inc. v. French Baguette, LLC, 2008 WL
975078, at *2 (S.D. Ind. Apr. 8, 2008). In considering a 12(b)(2) motion, this Court examines the
sufficiency of the plaintiff's complaint as opposed to the merits of the lawsuit, and directs
dismissal “only if it appears to a certainty that the plaintiff can establish no basis for asserting
personal jurisdiction.” Id. “[A] complaint need not include facts alleging personal jurisdiction.”
Steel Warehouse of Wis., Inc. v. Leach, 154 F.3d 712, 715 (7th Cir. 1998). However, once the
defendant moves to dismiss the complaint under Rule 12(b)(2) for lack of personal jurisdiction,
the plaintiff bears the burden of demonstrating the existence of jurisdiction. Purdue Research
Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 781–82 (7th Cir. 2003). The plaintiff need only
make out a prima facie case of personal jurisdiction and is entitled to have any conflicts in the
affidavits or supporting materials resolved in its favor. Id. at 782. We accept as true all wellpleaded factual allegations and draw all reasonable inferences in favor of the plaintiff bearing on
personal jurisdiction. Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012). However, if a
complaint consists of conclusory allegations unsupported by facts, it fails even under the liberal
standards of Rule 12(b)(2). Id.
Discussion
A district court sitting in diversity has personal jurisdiction over a nonresident defendant
only if a court of the state in which it sits would have jurisdiction. Hyatt Int'l Corp. v. Coco, 302
F.3d 707, 713 (7th Cir.2002). Whether an Indiana state court would have jurisdiction over
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EarthWalk requires a two-step inquiry. Int'l Med. Grp., Inc. v. Am. Arbitration Ass'n, Inc., 312
F.3d 833, 846 (7th Cir. 2002). First, we determine whether the personal jurisdiction would
comport with Indiana’s long-arm statute, Indiana Trial Rule 4.4(A). Id. Second, we determine
whether exercising personal jurisdiction would comport with the requirements of the 14th
Amendment’s Due Process Clause. Id.
In Indiana, the two inquiries collapse into one. Indiana Trial Rule 4.4(A) “reduce[s]
analysis of personal jurisdiction to the issue of whether the exercise of personal jurisdiction is
consistent with the [f]ederal Due Process Clause.” LinkAm. Corp. v. Albert, 857 N.E.2d 961, 967
(Ind. 2006). Therefore, we may limit our analysis in this case to determining whether exercising
personal jurisdiction would violate the defendant’s due process rights.
Federal Due Process requires that a defendant have sufficient “minimum contacts” with a
forum such that the maintenance of the suit does not offend traditional notions of fair play and
substantial justice. Purdue Research Found., 338 F.3d at 780 (citing Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316–317 (1945)). In determining whether it is fundamentally fair to
require a defendant to submit to the jurisdiction of the court, we focus on the factor of
foreseeability; specifically, whether the defendant could have anticipated being haled into the
courts of the Indiana with respect to the matter at issue. See Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474 (1985); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297
(1980). This requirement is designed to ensure that the defendant retains sufficient control of its
activities so that it may reasonably anticipate whether it might be subject to suit in a given
jurisdiction. Burger King, 471 U.S. at 472.
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Additionally, there must be some showing that the defendant purposefully availed itself
of the privilege of conducting activities within the forum state. Id. at 475. Notably, it must be the
activity of the defendant that makes it amenable to jurisdiction, not the unilateral activity of the
plaintiff or some other entity. Id. at 474. This requirement ensures that a defendant's amenability
to jurisdiction is not based on fortuitous contacts, but on contacts that demonstrate a real
relationship with the state with respect to this transaction. Id.
Personal jurisdiction may be either general or specific. See Alpha Tau Omega v. Pure
Country, Inc., 185 F. Supp. 2d 951, 956 (S.D. Ind. 2002). Specific jurisdiction over a defendant
exists if the case or controversy “arises out of” the defendant’s contacts with the state, creating a
relationship among the defendant, the forum, and the litigation. Helicopteros Nacionales de
Colom., S.A. v. Hall, 466 U.S. 408, 414 (1984). General jurisdiction over a defendant, however,
exists only if the defendant has “continuous and systematic” contacts with the forum state. Hyatt
Int’l, 302 F.3d at 713.
Although it is unclear whether EarthWalk had “continuous and systematic” contacts
sufficient to support a finding of general personal jurisdiction, we need not decide that matter as
it is clear from the facts that there is a sufficient basis on which to find specific personal
jurisdiction in this case.
A. Specific Personal Jurisdiction
This Court has specific personal jurisdiction over a defendant where: (1) the defendant
has purposefully directed its activities at the forum state or purposefully availed itself of the
privilege of conducting business in the state; (2) the alleged injury arises out of the defendant’s
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forum-related activities; and (3) the exercise of specific jurisdiction comports with traditional
notions of fair play and substantial justice. Felland, 682 F.3d at 673.
1. Purposeful Availment or Directed Conduct
First, we address whether EarthWalk purposefully directed its activities at Indiana or
purposefully availed itself of the privilege of conducting business in Indiana. See Tamburo v.
Dworkin, 601 F.3d 693, 700 (7th Cir. 2010). As previously mentioned, the “purposeful
availment” requirement ensures that a defendant will not be hauled into a jurisdiction solely as a
result of “random, fortuitous, or attenuated contacts,” or as the result of the unilateral activity of
another party or a third person. Burger King, 471 U.S. at 475. Rather, jurisdiction is proper
where the contacts result from actions of the defendant which create a “substantial connection”
with the forum state. Id. If the defendant has deliberately engaged in significant activities within
a state, or has created continuing obligations between itself and the state’s residents, then it has
availed itself of the privilege of conducting business there and is required to submit to the
burdens of litigation in that forum as well. Id. at 475–76.
It is Plaintiff’s position in this case that “[b]y soliciting and subsequently engaging in a
seven-year business relationship with an Indiana manufacturing corporation (and accepting
approximately $3 million worth of product), EarthWalk purposefully availed itself of the
privilege of conducting business in Indiana.” Pl.’s Resp. 7.
With respect to such interstate contractual obligations, the Supreme Court has
emphasized that “parties who reach out beyond one state and create continuing relationships and
obligations with citizens of another state are subject to regulation and sanction in the other state
for the consequences of their activities.” Burger King, 471 U.S. at 473. Likewise, Indiana courts
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have held a defendant purposefully avails himself of the benefits and responsibilities of doing
business in Indiana by soliciting, negotiating, and forming a contract with an Indiana resident.
See Woodmar Coin Ctr., Inc. v. Owen, 447 N.E.2d 618, 621 (Ind. Ct. App. 1983); see also Noble
Roman’s, 2008 WL 975078, at *4 (finding personal jurisdiction where a defendant deliberately
entered into a long-term agreement with a plaintiff, which was an Indiana Corporation).
However, an out-of-state party's contract with an in-state party is not enough alone to
establish the requisite minimum contacts. RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1277
(7th Cir. 1997). Rather, prior negotiations, contemplated future consequences, the terms of the
contract and the parties' actual course of dealing must indicate the purposeful availment required
of the defendant. Id.
Here, the President of EarthWalk, Evan McConnell, first made contact with Key
Electronics in November of 2005, Hardy Aff. at ¶ 5, followed soon thereafter by a visit—
accompanied by other EarthWalk representatives—to Key Electronics’ Indiana facility to
negotiate a potential business relationship between the parties. Id. at ¶ 7. After entering into the
business relationship in January of 2006, EarthWalk representatives visited the Indiana facility
numerous times, corresponded with Key Electronics’ Indiana representatives on multiple
occasions, made countless phone calls to Indiana concerning the relationship, and exchanged
approximately $3 million in products over the course of seven years. Id. at ¶ ¶ 10–12.
EarthWalk has argued that the size of its transactions with Key Electronics—$3
million—can hardly be a principled basis for distinguishing this case from any other or for
ignoring the requirement of minimum contacts. Def.’s Br. 9 (citing See Lakeside Bridge & Steel
Co. v. Mountain State Const. Co., 597 F.2d 596, 604 (7th Cir. 1979)). However, the holding in
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Lakeside Bridge & Steel, is inapposite, given that the contacts between the parties all occurred
outside the forum state, the plaintiff solicited the work from the defendant, and the defendant
was found to have simply placed an order with the plaintiff. 597 F.2d 598 at 604. The dollar
amount of the transaction in that case would not have been a sufficient basis for finding personal
jurisdiction over the defendant. Here, by contrast, EarthWalk engaged in an ongoing business
relationship with Key Electronics that involved physical visits to Indiana by EarthWalk
representatives in addition to correspondences with the Indiana corporation via telephone and
other medium. Hardy Aff. ¶¶ 10–11. Thus, although the dollar amount of this transaction is one
indication of the significance of the parties’ business relationship, it is certainly not the only
determinative factor in this case.
Defendant has also argued that because nothing in the purchase orders mandates that the
parties litigate their dispute in Indiana, Earth Walk has not purposefully availed itself of the
benefits of Indiana law and cannot be subjected to specific personal jurisdiction. Pl.’s Resp. 10.
The terms of the contracts may be a factor of consideration, but the lack of specific terms
mandating that Indiana serve as the forum is not enough to outweigh the other evidence of
Defendant’s purposeful availment conduct. See RAR, Inc., 107 F.3d at 1277 (listing the terms of
the contract as one of many considerations in determining the defendant’s purposeful availmant).
EarthWalk reached out to establish a continuing relationship with Key Electronics, an Indiana
Corporation, and thus purposefully availed itself of the benefits of doing business in Indiana.
2. Injury “Arising Out Of” the Defendant’s Contacts with the Forum
State
Even where a defendant's conduct is purposefully directed at the forum state, the plaintiff
must also show that his injury “arises out of” or “relates to” the conduct that comprises the
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defendant's contacts. See Tamburo, 601 F.3d at 708. In other words, a defendant’s contacts with
the forum state must have a “substantial connection” to the plaintiff’s action. Kaempe v. Myers,
2001 WL 1397291, at *2 (S.D. Ind. Nov. 6, 2001).
For this reason, there can be no specific jurisdiction where a defendant’s ongoing
business relationship with the plaintiff does not directly give rise to the cause of action. See RAR,
Inc., 107 F.3d at 1277–1278 (7th Cir. 1997) (holding that the court may not simply aggregate all
of the defendant’s contacts with a state as evidence of the constitutionally-required minimum
contacts because “individuals and corporations must be able to conduct interstate business
confident that transactions in one context will not come back to haunt them unexpectedly in
another”).
Here, EarthWalk argues that its prior dealings with Key Electronics are insufficient to
show that the current dispute over the purchase orders arose out of its contacts with Indiana.
Def.’s Br. 8–9. Simply put, EarthWalk maintains that the presently-disputed purchase orders
should be separated from any prior transactions between itself and Key Electronics for the
purposes of determining the sufficiency of its Indiana contacts.
This argument misapprehends the Seventh Circuit’s holding in RAR, Inc. As the court
made clear, the parties’ past course of dealings is relevant and the finding of a “continuing
relationship or obligation” must be considered in light of the similarities between the disputed
transaction and prior transactions. Id. at 1279 (citing Heritage House Rests, Inc. v. Cont’l
Funding Grp., Inc., 906 F.2d 276, 278–279 (7th Cir. 1990)). Strong similarities between the
transactions “immediately suggest the substantive relevance of the past transactions,” because
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later transactions may incorporate understandings formed during prior transactions, and a suit
regarding later transactions might actually hinge on those prior understandings. Id.
EarthWalk has given no evidence that the disputed purchase orders are in any way
different than the prior transactions conducted by the parties during their seven-year business
relationship. Rather, when considered in light of the parties’ prior course of dealings, the strong
similarities between the current purchase orders and the prior transactions clearly suggest their
substantive relevance. Thus, the parties’s seven-year business relationship—not just the currently
disputed purchase orders—has given rise to the plaintiff’s injury and reflects the defendant’s
Indiana contacts.
3. Traditional Notions of Fair Play and Substantial Justice
Once sufficient minimum contacts have been established, a defendant can escape
jurisdiction only by making a “compelling case” that forcing it to litigate in the forum state
would violate traditional notions of fair play and substantial justice. See Felland, 682 F.3d at
677; Burger King, 471 U.S. at 476.
We balance five factors in determining whether an exercise of jurisdiction in a particular
case is reasonable and fair: (1) the burden on the defendant; (2) the forum state’s interest in
adjudicating the dispute; (3) the plaintiff’s interest in obtaining convenient and effective relief;
(4) the interstate judicial system’s interest in obtaining the most efficient resolution of
controversies; and (5) the shared interest in obtaining the most efficient resolution of
controversies. Id.
These considerations sometimes serve to measure the reasonableness of jurisdiction when
the analysis of minimum contacts would otherwise be insufficient. Burger King, 471 U.S. at 477.
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On the other hand, the requirements of “fair play and substantial justice” may render an exercise
of jurisdiction unreasonable even if the defendant has purposefully engaged in forum activities.
Id at 477–78.
With respect to the burden imposed on Defendant by a forum selection made by Plaintiff,
jurisdictional rules may not be employed in such a way as to make litigation “so gravely difficult
and inconvenient” that a party unfairly is at a “severe disadvantage” in comparison to his
opponent. Id.
Although EarthWalk has stated its intention to call witnesses in or near Virginia to testify
in this litigation, and although it has retained a number of computers relevant to its defense in its
Virginia location, it has failed to make a “compelling case” that an Indiana forum would be
unjustly onerous. Litigation in this forum would not be “so gravely difficult and inconvenient”
that EarthWalk would unfairly face a “severe disadvantage” in comparison to Key Electronics.
See Burger King, 471 U.S. at 474 (explaining that modern transportation and communications
mean it is usually not unfair or too burdensome to require a party to defend itself in a state where
it engages in economic activity); see also Bd. of Trs., Sheet Metal Workers' Nat'l Pension Fund v.
Elite Erectors, Inc., 212 F.3d 1031, 1037 (7th Cir. 2000) (“Easy air transportation, the rapid
transmission of documents, and the abundance of law firms with nationwide practices, make it
easy these days for cases to be litigated with little extra burden in any of the major metropolitan
areas.”). EarthWalk representatives have, over several years, made multiple trips to Indiana by
use of private aircraft to advance and pursue its business relationship with Key Electronics.
Further, they have directed significant correspondence and business-related activities to Indiana
over the course of the parties’ seven-year business relationship. Hardy Aff. ¶¶ 10–11.
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In addition, a state generally has a “manifest interest” in providing its residents with a
convenient forum for redressing injuries inflicted by out-of-state actors, and domestic
corporations have an interest in obtaining convenient relief in their own state. Burger King, 471
U.S. at 473, 482–83. In this respect, both Indiana and Key Electronics have a significant interest
in resolving this dispute in an Indiana forum.
There being no evidence that EarthWalk would be severely burdened or disadvantaged by
litigating in this forum, and in light of both Indiana’s as well as Key Electronics’ interests in
proceeding in an Indiana forum, personal jurisdiction in this case is proper and consistent with
traditional notions of fair play and substantial justice.
II.
TRANSFER OF VENUE
Legal Standard
A federal court has discretion to transfer a case based on the doctrine of forum non
conveniens, when an alternative forum has jurisdiction to hear a case and when trial in the
plaintiff’s chosen forum would result in “oppressiveness and vexation to a defendant…out of all
proportion to a plaintiff’s convenience.” Sinochem Int’l. Co. Ltd. v. Malaysia Int’l. Shipping
Corp., 549 U.S. 422, 430 (2007).
Congress has codified this doctrine and has provided for transfer of venue when a sister
federal court is a more convenient place for trial of the action: “For 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.” 28 U.S.C. § 1404(a).
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Section 1404(a) is intended to prevent avoidable waste of time, energy and money, as
well as to protect parties, witnesses and the public against inconvenience and expense. Somers,
2000 WL 1280314, at *1. It also places discretion in the district court to adjudicate motions for
transfer according to an “individualized, case-by-case consideration of convenience and
fairness.” Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988).
Under § 1404(a), transfer is appropriate where the moving party establishes that: (1)
venue is proper in the transferor district; (2) venue and jurisdiction are 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.” State Farm Mut. Auto Ins. Co. v. Estate of Bussell, 939 F.
Supp. 646, 650–651 (S.D. Ind. 1996).
The relative weight to be accorded each factor is not spelled out in § 1404(a); rather,
“[t]he [required] weighing of factors for and against transfer necessarily involves a large degree
of subtlety and latitude, and, therefore, is committed to the sound discretion of the trial judge.”
Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 n.3 (7th Cir. 1986).
The party moving for transfer, in this case, EarthWalk, has the “burden of establishing,
by reference to particular circumstances, that the transferee forum is clearly more convenient,”
than the transferor forum. Id. at 220. In other words, the effect of a transfer cannot be merely to
shift the inconveniences from one party to the other. Moore v. AT & T Latin Am. Corp., 177 F.
Supp. 2d 785, 789 (N.D. Ill. 2001); see also In re Nat'l Presto Indus., Inc., 347 F.3d 662, 665
(7th Cir. 2003) (“[W]hen plaintiff and defendant are in different states there is no choice of
forum that will avoid imposing inconvenience; and when the inconvenience of the alternative
venues is comparable there is no basis for a change of venue; the tie is awarded to the plaintiff.”)
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Discussion
As we have concluded, both venue and jurisdiction are proper in this district. Neither
party disputes that the Eastern District of Virginia would also be a proper venue. Therefore, we
need only address the third prong of the analysis: whether transfer to the Eastern District of
Virginia would better serve the convenience of the parties and the witnesses and the interest of
justice.
A. The Convenience of the Parties
We examine first whether the available fora are convenient to the plaintiff and the
defendant. When evaluating the convenience of the parties, courts must consider the parties'
respective residences and their abilities to bear the expense of trial in a particular forum.
“[T]ransfer of an action is not appropriate if its only effect will be to shift the inconvenience
from one side to another.” Somers, 2000 WL 1280314, at *3.
“As an initial matter, the plaintiff’s choice of forum is entitled to ‘some’ weight,
especially when the action is brought in the plaintiff’s home forum.” Id. at *2. Traditionally,
district courts afford a plaintiff’s choice of forum substantial deference. In re Nat'l Presto Indus.,
Inc., 347 F.3d at 664 (“[U]nless the balance is strongly in favor of the defendant, the plaintiff's
choice of forum should rarely be disturbed.”).
EarthWalk contends that less weight should be accorded the Key Electronics’ choice of
forum if the sole nexus to the forum is that it is the situs of the plaintiff’s damages. See CMG
Worldwide, Inc. v. The Upper Deck Co., 2008 WL 4690983, at *3 (S.D. Ind. Oct. 22, 2008).
While this principle of law is true, the facts of this case show that not only was Indiana “the situs
of the plaintiff’s damages,” but it is also plaintiff’s home forum and state of residency. We
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therefore find no basis on which to discount the presumptive weight accorded Plaintiff’s choice
of venue. The facts also make clear that EarthWalk has the ability to bear the expense of
litigating this claim in Indiana. EarthWalk conducted business with an Indiana company on an
ongoing basis for seven years, during which, its representatives made multiple trips to the state—
each time flying their private plane into the Clark County Municipal Airport. Hardy Aff. at ¶ 10.
Additionally, transferring the venue to the Eastern District of Virginia would force Key
Electronics, an Indiana corporation, to travel to another state in order to adjudicate its legal
interests. Considered in the light of the weight given to the Plaintiff’s choice of home forum and
because “transfer of an action is not appropriate if its only effect will be to shift the
inconvenience from one side to another,” Somers, 2000 WL 1280314, at *3, we hold that this
factor weighs in favor of an Indiana forum.
B. The Convenience of the Witnesses
The next required consideration is the convenience to the witnesses. While there is no set
weight that we must give to each of the three controlling considerations, courts often conclude
that convenience to the witnesses is the most significant of the three factors under section
1404(a). Id. at *3; Seth v. Commodores Transp., LLC, 2013 WL 5176762, at *3 (S.D. Ind. Sept.
13, 2013).
Defendant EarthWalk has indicated that it intends to call several non-party witnesses, all
of whom are located in or near Virginia, to testify in this case and that because these witnesses
are concentrated near Manassas, Virginia, it would be significantly more costly to require them
to travel to Indiana for trial, as opposed to attending proceedings in Virginia. However, Key
Electronics, too, has several non-party witnesses who are located in Indiana and whose testimony
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it says will be necessary to prosecute these claims.3 Pl.’s Resp. 15. This factor, therefore, is a
wash.
C. The Interests of Justice
The third consideration listed in Section 1404(a) is the Court’s interest in furthering the
administration of justice. When examining the interests of justice, we look at the following
factors: (1) the relative ease of access to sources of proof; (2) the amenability of unwilling
witnesses to service of process; (3) the cost of attendance at trial of unwilling witnesses; (4) the
relationship between the community in which the courts and jurors are required to serve
compared to the occurrence at issue in the litigation; (5) the accessibility of premises involved in
the litigation; (6) the relative congestion of the court dockets and prospects for earlier trial; and
(7) in a diversity case, the relative familiarity of the courts with the state law supplying the
applicable rules of decision. Somers, 2000 WL 1280314, at *2–3 (citing Gulf Oil v. Gilbert, 330
U.S. 501, 508–09 (1947)).
EarthWalk does not dispute that both courts will possess sound knowledge of the
applicable law, and that both Indiana and Virginia have equal relationships to the subject matter
of this litigation. Def.’s Reply Br. at 4. Rather, EarthWalk maintains that because it has stored
assembled computers in its Virginia location, the Eastern District of Virginia is the more
convenient forum in terms of access to sources of proof. Id. at 5. We fail to perceive from the
facts before us, how transportable the assembled computers are, how important they are to the
3
We note that EarthWalk has provided three examples of non-party witnesses it intends to call: Electronic Design
& Manufacturing in Lynchburg, Virginia; the Alexandria City School System; and Software Productivity Strategies,
Inc. in Rockville, Maryland. Def.’s Br. 13. Meanwhile Key Electronics has not specified the names of the witnesses
it intends to call from Indiana, only that it “has several witnesses—many of whom are residents of Indiana but no
longer employed by the plaintiff—that will need to be called to prosecute the claims.” Pl.’s Resp. 15. However, the
Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in favor of the plaintiff
bearing on personal jurisdiction. Felland v. Clifton, 682 F.3d 665, 672 (7th Cir. 2012).
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case, and what level of difficulty EarthWalk would face in transporting the computers to Indiana.
As Key Electronics notes, the Indiana company did not manufacture these computers. It
produced circuit boards based on the EarthWalk designs, which have already been transported
from Indiana to Virginia, suggesting that transporting these products is not unreasonably
burdensome.
Finally, EarthWalk asserts that the docket of the Eastern District of Virginia is less
congested than that in the Southern District of Indiana. The relative congestion of court dockets
is entitled to some consideration. Seth, 2013 WL 5176762, at *4 (comparing congestion in the
Southern District of Indiana with the Eastern District of Michigan in deciding to grant transfer);
Somers, 2000 WL 1280314, at *5 (comparing congestion between the Southern District of
Indiana and the Middle District of Tennessee in granting transfer). However, this factor alone is
insufficient to support a transfer, at least in this case. See Am. Commercial Lines, LLC v. Ne.
Mar. Inst., Inc., 588 F. Supp. 2d 935, 947 (S.D. Ind. 2008) (holding that although convenience
weighed somewhat in favor of granting the motion—on the balance, the court remained
unconvinced of the need to transfer the litigation.) An analysis of all of the Section 1404(a)
considerations here—the Plaintiff’s choice of home forum, the neutrality of the governing law,
and the convenience of parties and witnesses in Indiana and Virginia—leaves us unconvinced as
to the appropriateness of a transfer of this litigation.
CONCLUSION
For the reasons stated above, personal jurisdiction exists in this forum over the defendant
and venue is proper in this district as well. Transfer to the Eastern District of Virginia is
unwarranted, there being no showing that justice will be better served by transfer or that
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convenience to the witnesses will be greater if this case were litigated in Virginia. Defendant’s
Motion to Dismiss or Transfer is accordingly DENIED.
IT IS SO ORDERED.
06/16/2014
Date: ______________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
Distribution:
Anna M. Konradi
BARNES & THORNBURG LLP
anna.konradi@btlaw.com
Joseph C. Chapelle
BARNES & THORNBURG LLP
joe.chapelle@btlaw.com
Van T. Willis
KIGHTLINGER & GRAY, LLP-New Albany
vwillis@k-glaw.com
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