Advanced Solutions Life Sciences, LLC v. Biobots, Inc.

Filing 17

MEMORANDUM OPINION signed by Senior Judge Charles R. Simpson, III on 5/12/2017, re Defendant's 9 MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative, Transfer filed by Biobots, Inc. cc: Counsel (RLK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
ADVANCED SOLUTIONS LIFE
SCIENCES, LLC

PLAINTIFF
CIVIL ACTION NO. 3:16-CV-00709-CRS

v.
BIOBOTS, INC.

DEFENDANT
MEMORANDUM OPINION

I.

Introduction

This matter is before the Court on the motion of Defendant BioBots, Inc. (“BioBots”) to
dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2) or, in the
alternative, to transfer this action to the United States District Court for the Eastern District of
Pennsylvania under 28 U.S.C. §§ 1404 or 1406, ECF No. 9. Plaintiff Advanced Solutions Life
Sciences, LLC (“ASLS”) responded, ECF No. 10. BioBots replied, ECF No. 15. For the
following reasons, the Court will grant in part and deny in part BioBots’ motion to dismiss or, in
the alternative, transfer. The Court will transfer the case to the United States District Court for
the Eastern District of Pennsylvania.
II.

Background

ASLS owns and uses the registered trademark BIOASSEMBLYBOT for threedimensional (3D) bioprinting and tissue fabrication. Compl. ¶ 1, ECF No. 1. The
BIOASSEMBLYBOT mark is registered for “[c]omputer robotics-supported workstations
comprising three-dimensional (3D) printers, multi-axis robots, cartridges for containing printing
material, dispensers, video cameras and software for visualization of workstation operations,

1

sensors and software for environmental control of workstation, for fabricating and assembling
engineered tissue constructs.” Id. ¶ 10.
BioBots is a start-up company that designs, develops, and markets a desktop 3D
bioprinter under the BIOBOTS mark. Cabrera Decl. ¶ 3–4, ECF No. 9-2. On November 11,
2016, ASLS filed suit against BioBots. Compl. 1, ECF No. 1. ASLS alleges that BioBots is
infringing on its BIOASSEMBLYBOT trademark and is competing unfairly against it by selling
products deliberately named to infringe on ASLS’s trademark and to confuse customers. Id. ¶ 2.
ASLS also alleges that BioBots is “cybersquatting” by using the domain names
www.biobots.com and www.biobots.io because these domain names are confusingly similar to
ASLS’s BIOASSEMBLYBOT mark. Id. ASLS asserts causes of action for: (1) federal
trademark infringement under the Lanham Act § 32(1), 15 U.S.C. § 1114(1) (Count I), (2)
federal unfair competition under the Lanham Act § 43(a), 15 U.S.C. § 1125(a) (Count II), (3)
violation of the Anticybersquatting Consumer Protection Act (ACPA) under the Lanham Act §
43(d), 15 U.S.C. § 1125(d) (Count III), and (4) Kentucky common law trademark infringement
and unfair competition (Count IV). Id. at 5–8.
BioBots is a Delaware corporation with a principal place of business in Philadelphia,
Pennsylvania. Id. ¶ 5. ASLS alleges that this Court has personal jurisdiction over BioBots
“because it has committed and is continuing to commit substantial acts of infringement in this
judicial district by marketing, promoting, offering for sale, selling, and/or distributing infringing
products in this judicial district.” Id. ¶ 8. ASLS also alleges that “[o]n information and belief,
BioBots has offered, promoted, sold, shipped, provided, and/or installed 3D bioprinters using the
BIOBOTS Mark to an entity or entities located within the state of Kentucky.” Id. ¶ 17.

2

In support of its motion, BioBots submitted the declaration of its Chief Executive Officer,
Daniel Cabrera. Cabrera Decl. ¶ 1, ECF No. 9-2. Cabrera states that “BioBots does not conduct
business, transact business, or provide services in Kentucky, nor is it licensed or registered to do
so in Kentucky.” Id. ¶ 6. BioBots does not own property or maintain offices in Kentucky. Id. ¶¶
8, 12. BioBots’ employees and agents are not residents of Kentucky and BioBots has never sent
any employees or agents to Kentucky. Id. ¶¶ 9–11. No employees or agents of BioBots have
attended trade shows or exhibitions in Kentucky. Id. ¶ 11. No Kentucky residents own stock in
BioBots. Id. ¶ 13. BioBots does not have a registered agent for service of process in Kentucky
and has never been involved in a lawsuit in Kentucky before the instant matter. Id. ¶¶ 10, 14.
According to Cabrera, “BioBots has completed only one (1) bioprinter sale in any way
related to Kentucky. That lone sale amounted to less than 1% of BioBots’ bioprinter revenue.”
Id. ¶ 16. The sale occurred because a University of Louisville researcher saw one of BioBots’
bioprinters at a conference in Boston, Massachusetts. Id. A few days later, the researcher emailed
BioBots to schedule a telephone call. Id. After the telephone call, the researcher was provided
with a price quote and he purchased a BioBots 3D bioprinter. Id. BioBots maintains that this is
the only 3D bioprinter that it has sold to a Kentucky resident. Id.
In addition to this bioprinter sale, BioBots has sold laboratory materials once to a
Kentucky resident through its website. Id. ¶ 17. Cabrera states that “BioBots’ website can be
viewed anywhere in the world. The website is interactive to the extent it allows users to contact
BioBots or initiate purchases over the Internet.” Id. Cabrera also states that “nothing about
website [sic] or its content is directed toward Kentucky residents as opposed to persons in any
other location around the globe.” Id. These two sales—the sale of the bioprinter to the University

3

of Louisville researcher and the sale of laboratory materials over BioBots’ website—are the only
sales BioBots has made to Kentucky residents. Id. ¶¶ 16–17.
Cabrera states that “BioBots does not direct its advertising, marketing, or sales efforts
toward Kentucky.” Id. ¶ 7. ASLS disputes this assertion and submits the declaration of Stuart K.
Williams, II, Ph.D. Williams Decl., ECF No. 10-1. Dr. Williams states that he is a professor at
the University of Louisville, where the sole BioBots 3D bioprinter in Kentucky is located. Id. ¶¶
4–5. He states that in 2016, he received approximately five or six emails from BioBots. Id. ¶ 6.
He states that most of them appeared to be mass marketing emails regarding BioBots and its
products. Id. He attaches the most recent email he received, a holiday greeting that he received
on December 23, 2016. Id. The subject line of the attached email is “Happy Holidays.”
12/23/2016 Email, ECF No. 10-1. The email reads:
Happy Holidays!
Thank you for being a part of our company’s journey! It has been an incredible
few months for BioBots. Our community of users now extends to nearly 30
countries, and we count hundreds of incredible scientists among our ranks.
None of this would be possible without your help and support, thank you for
being on our team. Wishing you and your family a safe, and lovely holiday
season.
Warmly,
Your friends at BioBots
Id. The bottom of the email has a link allowing the recipient to “unsubscribe from this list.” Id.
III.

Discussion
A. Personal Jurisdiction

The plaintiff bears the burden of establishing personal jurisdiction over the defendant.
Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 887 (6th Cir. 2002). Where, as here, the

4

Court decides a Rule 12(b)(2) motion to dismiss without conducting an evidentiary hearing, the
plaintiff “need only make a prima facie showing of jurisdiction.” CompuServe, Inc. v. Patterson,
89 F.3d 1257, 1262 (6th Cir. 1996). The plaintiff, however, must set out the facts supporting
jurisdiction with “reasonable particularity.” Neogen, 282 F.3d at 887 (quoting Provident Nat’l
Bank v. Cal. Fed. Sav. & Loan Ass’n, 819 F.2d 434, 437 (3d Cir. 1987)) (internal quotation
marks omitted). In ruling on the motion, the Court will view the pleadings and affidavits in the
light most favorable to the plaintiff, and it “will not consider facts proffered by the defendant that
conflict with those offered by the plaintiff.” Id.
In federal question cases, the Court holds personal jurisdiction over a defendant if (1) the
defendant is amenable to service of process under the forum state’s long-arm statute and (2) the
exercise of personal jurisdiction would not deny the defendant due process under the
Constitution. Bird v. Parsons, 289 F.3d 865, 871 (6th Cir. 2002) (citing Mich. Coal. of
Radioactive Material Users, Inc. v. Griepentrog, 954 F.2d 1174, 1176 (6th Cir. 1992)). BioBots
contends that ASLS’s proposed exercise of jurisdiction fails both of these requirements. Mem.
Supp. Mot. Dismiss 6, ECF No. 9-1.
1. Kentucky’s Long-Arm Statute
BioBots contends that it is not amenable to service of process under Kentucky’s long-arm
statute, Kentucky Revised Statutes § 454.210. Id. The long-arm statute must authorize personal
jurisdiction over a defendant before service of process may be made. Ky. Rev. Stat. Ann.
454.210(3)(a). The long-arm statute’s grant of personal jurisdiction does not extend to the
outermost boundaries of federal due process. Caesars Riverboat Casino, LLC v. Beach, 336
S.W.3d 51, 56–57 (Ky. 2011). While the statute’s provisions “should be liberally construed in
favor of long-arm jurisdiction, their limits upon jurisdiction must be observed as defined.” Id. at

5

56. A claim premised on contacts, conduct, and activities that do not fit within one of the
statute’s nine specific categories falls outside of the statute’s reach, regardless of whether federal
due process would otherwise allow the exercise of personal jurisdiction. Id. Moreover, not only
must the defendant’s conduct fall within one of the nine enumerated categories, the plaintiff’s
claim must arise from that conduct. Id.
ASLS relies on Kentucky Revised Statutes §§ 454.210(2)(a)(1), (2), and (4) to assert
personal jurisdiction over BioBots. Resp. Opp. Mot. Dismiss 5, ECF No. 10. BioBots maintains
that there is no personal jurisdiction because it undertakes no activities in Kentucky. Mem. Supp.
Mot. Dismiss 7, ECF No. 9-1. ASLS asserts first that BioBots has both transacted business in
Kentucky under Kentucky Revised Statutes § 454.210(2)(a)(1) and contracted to supply goods in
Kentucky under Kentucky Revised Statutes § 454.210(2)(a)(2) because of (1) the emails BioBots
sent to Dr. Williams, (2) the sale of the 3D bioprinter to the University of Louisville researcher,
and (3) the sale of laboratory materials to a Kentucky resident through the BioBots website.
Resp. Opp. Mot. Dismiss 5–8, ECF No. 10.
BioBots’ sale of the 3D bioprinter to the University of Louisville researcher constitutes
contracting to supply goods in Kentucky under Kentucky Revised Statutes § 454.210(2)(a)(2).
“A plain reading of the statutory language produces the interpretation that . . . the contract
provide for the supply of services or goods to be transported into, consumed or used in
Kentucky.” Hinners v. Robey, 336 S.W.3d 891, 896 (Ky. 2011). In this case, a University of
Louisville researcher contacted BioBots via email after seeing a BioBots 3D bioprinter at a
conference in Boston, Massachusetts. Cabrera Decl. ¶ 16, ECF No. 9-2. A representative of
BioBots and the researcher then spoke over the telephone. Id. BioBots offered a price quotation
for a 3D bioprinter to the researcher. Id. The researcher accepted this offer by purchasing the 3D

6

bioprinter. Id. This offer, acceptance, and consideration in the form of an exchange of payment
and goods constitute the formation of a contract. The subject of the contract, the 3D bioprinter, is
for use in Kentucky at the University of Louisville. Id. Thus, subjecting BioBots to adjudication
in Kentucky is authorized by the long-arm statute if the claim asserted against it arises from this
contract to supply goods.
In Caesars Riverboat Casino, the Supreme Court of Kentucky rejected the use of a “but
for” test in determining if a plaintiff’s claim “arises from” the defendant’s conduct under the
long-arm statute. 336 S.W.3d at 58. In that case, a Kentucky resident slipped on spilled butter at
the Indiana casino. Id. at 53. She filed suit in a Kentucky state court. Id. The Supreme Court of
Kentucky found that the casino was transacting business in Kentucky when its conduct consisted
of “mass media and billboard advertising in Kentucky, direct mail advertising to Kentucky
residents, preferred customer incentives directed to Kentucky residents, and substantial civic and
charitable activities” in Kentucky. Id. at 58. But the court found that the plaintiff’s claim did not
arise from that activity because the defendant’s wrongful conduct did not originate from or come
into being because of its activities in Kentucky. Id. at 59. In other words, the court found no
“reasonable and direct nexus between the conduct that caused [the plaintiff’s] injury and [the
defendant’s] business activities in Kentucky.” Id. Thus, the court found that it lacked personal
jurisdiction. Id.
In this case, ASLS’s claims arise from BioBots’ sale of 3D bioprinters, including the sale
to the researcher. ASLS asserts that BioBots markets and sells 3D bioprinters with the BIOBOTS
mark, which it argues is confusingly similar to its own BIOASSEMBLYBOT mark. Compl. ¶ 2,
ECF No. 1. The 3D bioprinter which BioBots sold to the researcher is one such allegedly
trademark-infringing 3D bioprinter. Thus, BioBots’ sale of the 3D bioprinter to the researcher in

7

Kentucky falls under one of the nine enumerated categories in the long-arm statute and ASLS’s
claims arise from this conduct. Therefore, this sale meets the requirements for long-arm
jurisdiction under Kentucky Revised Statutes § 454.210(2)(a)(2). The Court need not address
personal jurisdiction under the other provisions of the long-arm statute. The Court will proceed
to a determination of whether asserting personal jurisdiction would offend the standards of
federal due process.
2. Due Process
Before a state can subject a non-resident defendant to a judgment, federal due process
requires that a defendant “have certain minimum contacts” with the forum state “such that the
maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”
Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). “Depending on the type of minimum
contacts in a case, personal jurisdiction can be either general or specific.” Reynolds v. Int’l
Amateur Athletic Fed’n, 23 F.3d 1110, 1116 (6th Cir. 1994) (citing Third Nat’l Bank v. Wedge
Grp. Inc., 882 F.2d 1087, 1089 (6th Cir. 1989)). ASLS relies on specific jurisdiction in this case.
Resp. Opp. Mot. Dismiss 10, ECF No. 10. The Sixth Circuit has established a three-part test for
specific jurisdiction:
First, the defendant must purposefully avail himself of the privilege of acting in
the forum state or causing a consequence in the forum state. Second, the cause of
action must arise from the defendant’s activities there. Finally, the acts of the
defendant or consequences caused by the defendant must have a substantial
enough connection with the forum to make the exercise of jurisdiction over the
defendant reasonable.
Reynolds, 23 F.3d at 1116 (citing In-Flight Devices Corp. v. Van Dusen Air, Inc., 466 F.2d 220,
226 (6th Cir. 1972)).
BioBots argues that it has not purposefully availed itself of the privilege of acting in
Kentucky because its online activity and sole bioprinter sale are “insufficient to show the regular
8

business or continuing relationship with the forum required for purposeful availment.” Mem.
Supp. Mot. Dismiss 14, ECF No. 9-1 (emphasis omitted). ASLS responds that BioBots
purposefully availed itself of the privilege of acting in Kentucky because not only did it
purposefully sell a 3D bioprinter to the researcher at University of Louisville, but it also
purposefully sold laboratory materials to a Kentucky resident through its website and
purposefully sent multiple email solicitations to a Kentucky resident. Resp. Opp. Mot. Dismiss
12, ECF No. 10.
The “purposeful availment” requirement is met “when the defendant’s contacts with the
forum state ‘proximately result from actions by the defendant himself that create a “substantial
connection” with the forum State,’ and when the defendant’s conduct and connection with the
forum are such that he ‘should reasonably anticipate being haled into court there.’” CompuServe,
89 F.3d at 1263 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474–75 (1985)). This
requirement insures that “random,” “fortuitous,” or “attenuated” contacts do not create personal
jurisdiction. Id. But “even a single act by defendant directed toward [the forum state] that gives
rise to a cause of action can support a finding of minimum contacts sufficient to exercise
personal jurisdiction without offending due process.” Neal v. Janssen, 270 F.3d 328, 331 (6th
Cir. 2001) (citing Calder v. Jones, 465 U.S. 783 (1984)).
In this case, BioBots has three connections to Kentucky: (1) BioBots sold a 3D bioprinter
to a researcher at the University of Louisville; (2) BioBots sold laboratory materials to a
Kentucky resident through its website; and (3) BioBots sent emails to Dr. Williams. The question
is whether these acts are sufficient to constitute purposeful availment.
For comparison, in Neogen, the Sixth Circuit found that there was specific jurisdiction in
a trademark action where the defendant maintained a website and reasonably expected about

9

fourteen contracts in the forum state every year. 282 F.3d at 890–91. The court found that a
defendant’s website can constitute purposeful availment “if the website is interactive to a degree
that reveals specifically intended interaction with residents of the state.” Id. at 890 (citing Zippo
Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1124 (W.D. Pa. 1997)). The court
acknowledged that the maintenance of a website alone does not constitute purposeful availment
because a website “by its very nature can be accessed internationally.” Id. “The level of contact
with a state that occurs simply from the fact of a website’s availability on the Internet is therefore
an ‘attenuated’ contact that falls short of purposeful availment.” Id. (citing Bensusan Rest. Corp.
v. King, 937 F. Supp. 295, 300 (S.D.N.Y. 1996)). But the court did not need to decide whether
maintenance of the website alone was sufficient because it found that when potential customers
from the forum state contacted the defendant to purchase its services, the defendant welcomed
their business on a regular basis. Id. at 891. The court held that “[a]lthough customers from [the
forum state] contacted [the defendant], and not the other way around, [the defendant] could not
mail test results to and accept payment from customers with [forum state] addresses without
intentionally choosing to conduct business in [the forum state].” Id. at 892. This, the court found,
established purposeful availment. Id.
Conversely, in Kerry Steel, Inc. v. Paragon Industries, Inc., the Sixth Circuit found that
the plaintiff had not made a prima facie showing of purposeful availment. 106 F.3d 147, 151 (6th
Cir. 1997). In that case, the non-resident defendant received an unsolicited sales call from the
resident plaintiff and opted to purchase products from the plaintiff. Id. at 152. The defendant
negotiated with the plaintiff via fax and telephone to finalize the transaction. Id. The court found
no purposeful availment, in part because the defendant had no employees or offices in the forum
state and no employee of the defendant had ever been to the forum state to conduct business. Id.

10

at 151. Also important to the court’s analysis, however, was that the plaintiff had been the party
to initiate the contact; there was no evidence that the defendant had reached out to the forum
state. Id. The court was not swayed by the fact that the defendant had entered into a contract with
a corporation from the forum state or that it placed telephone calls and sent faxes to the plaintiff
in the forum state. Id. Finally, the court found it significant that the defendant showed no
intention to establish continuing relationships and obligations in the forum state. Id. Rather, it
appeared that the transaction at issue was an isolated transaction. Id. Thus, the Sixth Circuit
found that the defendant had not purposefully availed itself of the forum state. Id. at 152.
Courts have repeatedly held that as little as a single transaction can establish purposeful
availment, particularly in cases involving a non-resident seller and a resident buyer. See Am.
Trade All., Inc. v. S. Cross Trading, Inc., No. 2009-CA-001353-MR, 2011 WL 112439, at *2
(Ky. Ct. App. Jan. 14, 2011). See also First Nat. Bank v. Shore Tire Co., Inc., 651 S.W.2d 472,
473 (Ky. Ct. App. 1982) (citing McGee v. Int’l Life Ins. Co., 355 U.S. 220 (1957)). But the
crucial distinction appears to be who reached out to whom. See CAPP Mgmt., LLC v. Alton Coal
Dev., LLC, No. 11-93-HRW, 2013 WL 1314052, at *4 (E.D. Ky. Mar. 26, 2013). See also
Spectrum Scan, LLC v. AGM California, 519 F. Supp. 2d 655, 658 (W.D. Ky. 2007).
This case is distinguishable from the cases in which courts have found specific
jurisdiction. BioBots has not welcomed the business of Kentucky residents on a regular basis, as
was the case in Neogen where the defendant expected about fourteen contracts in the forum state
every year. See 282 F.3d at 891. Rather, BioBots has only sold products to two Kentucky
residents. Cabrera Decl ¶¶ 16–17, ECF No. 9-2. This case is more like Kerry Steel, in which the
plaintiff initiated the contact, the subject contract was an isolated transaction, and the defendant
showed no intention of establishing continuing relationships in the forum state. 106 F.3d at 151.

11

Here, the customers reached out to BioBots to initiate these sales. Cabrera Decl. ¶¶ 16–17, ECF
No. 9-2. The University of Louisville researcher initiated contact with BioBots when he sent it
an email a few days after seeing a BioBots 3D bioprinter at a conference in Boston,
Massachusetts. Id. ¶ 16. The Kentucky resident who purchased laboratory materials did so
through BioBots’ website, which can be accessed internationally and does not direct its content
toward Kentucky residents in particular. Id. ¶ 17. “That the buyer’s home state was Kentucky is a
purely fortuitous consequence, not a purposeful choice” of BioBots. See Hinners, 336 S.W.3d at
900. Moreover, each sale was an isolated transaction, rather than a continuing contract for goods
or services that would intertwine BioBots with Kentucky. Cabrera Decl. ¶¶ 16–17, ECF No. 9-2.
BioBots’ emails to Dr. Williams do not help to establish personal jurisdiction over
BioBots either. ASLS asserts as much when it argues that because of the “mass marketing
nature” of the emails sent to Dr. Williams, “it is unlikely that Dr. Williams is the only Kentucky
resident to have received these solicitations from BioBots.” Resp. Opp. Mot. Dismiss 6, ECF No.
10. Because ASLS has attached only one email, the Court will rely only on the language in that
email in its analysis. The language of that email indicates that the email was sent only to people
who had purchased products from BioBots. For example, “Thank you for being a part of our
company’s journey” and “None of this would be possible without your help and support, thank
you for being on our team” both allude to prior support from the recipient. 12/23/2016 Email,
ECF No. 10-1. While it was apparently sent based on a mailing list, given its “unsubscribe from
this list” language, id., the list appears to send emails only to those individuals who have already
purchased BioBots products. Thus, because there are only two purchasers of BioBots products in
Kentucky, this email was likely only sent to the two Kentucky residents discussed above. See
Cabrera Decl. ¶¶ 16–17, ECF No. 9-2. The email, which does not appear to be a solicitation, but

12

rather an expression of gratitude, does not rise to the level of advertising that would enable
courts in Kentucky to exercise personal jurisdiction over BioBots. Thus, the first prong of the
three-part test cannot be satisfied because BioBots did not purposefully avail itself of the
privilege of acting in Kentucky.
Because BioBots did not purposefully avail itself of the privilege of acting in Kentucky,
exercising jurisdiction over it would violate due process. Thus, the Court need not discuss the
other two prongs of the test. Although the extension of jurisdiction is supported by Kentucky
Revised Statutes § 454.210(2)(a)(2), federal due process standards do not permit Kentucky to
exercise personal jurisdiction over BioBots.
B. Transfer Under 28 U.S.C. §§ 1404 and 1406
In the event that this Court chooses not to dismiss the case, BioBots alternatively moves
for transfer of venue under either 28 U.S.C. §§ 1404(a) or 1406 to the United States District
Court for the Eastern District of Pennsylvania. Mem. Supp. Mot. Dismiss 17, ECF No. 9-1.
ASLS agrees that, absent personal jurisdiction over BioBots, transfer of the case to the Eastern
District of Pennsylvania would be appropriate. Resp. Opp. Mot. Dismiss 14 n.3, ECF No. 10.
A transfer under 28 U.S.C. § 1404(a) may not be granted when the court does not have
personal jurisdiction over the defendant. Pittock v. Otis Elevator Co., 8 F.3d 325, 329 (6th Cir.
1993) (citing Martin v. Stokes, 623 F.2d 469, 474 (6th Cir. 1980)). Because the Court lacks
personal jurisdiction over BioBots, it will not analyze BioBots’ request to transfer venue under
28 U.S.C. § 1404(a).
28 U.S.C. § 1406(a), on the other hand, does not require that the court have personal
jurisdiction over the defendant before transferring the case. Id. It provides that the “district court
of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or

13

if it be in the interest of justice, transfer such case to any district or division in which it could
have been brought.” 28 U.S.C. § 1406(a). In the Sixth Circuit, 28 U.S.C. § 1406(a) “provides the
basis for any transfer made for the purpose of avoiding an obstacle to adjudication on the
merits,” including lack of personal jurisdiction, “in the district court where the action was
originally brought.” Martin, 623 F.2d at 474. 28 U.S.C. § 1631 “also applies to such actions.”
Jackson v. L & F Martin Landscape, 421 F. App’x 482, 483 (6th Cir. 2009). 28 U.S.C. § 1631
provides that if a “court finds that there is a want of jurisdiction, the court shall, if it is in the
interest of justice, transfer such action . . . to any other such court in which the action . . . could
have been brought at the time it was filed.” Both of these similar statutes give the district court
broad discretion in ruling on a motion to transfer. Stanifer v. Brannan, 564 F.3d 455, 456–57
(6th Cir. 2009). “A court may decide to dismiss an action rather than transferring it under § 1631
either because (1) no permissible federal court would have jurisdiction over the action, or
because (2) transfer would not be in the interest of justice.” Jackson, 421 F. App’x at 483 (citing
Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003)) (internal quotation marks omitted).
1. Where the Case Could Have Been Brought
The Court must first determine whether the case could have been brought in the Eastern
District of Pennsylvania, as the parties contend. The venue statute provides:
A civil action may be brought in—
(1) a judicial district in which any defendant resides, if all defendants are
residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property that is the subject
of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided
in this section, any judicial district in which any defendant is subject to the
court’s personal jurisdiction with respect to such action.

14

28 U.S.C. § 1391(b). BioBots argues that the Eastern District of Pennsylvania is the appropriate
forum because, among other things, BioBots’ principal place of business and only offices are
located in Philadelphia, Pennsylvania. Mem. Supp. Mot. Dismiss 17, ECF No. 9-1. ASLS agrees
that, absent personal jurisdiction over BioBots, transfer of the case to the Eastern District of
Pennsylvania would be appropriate. Resp. Opp. Mot. Dismiss 14 n.3, ECF No. 10. BioBots, the
only defendant, resides in Philadelphia, Pennsylvania. Cabrera Decl. ¶ 2, ECF No. 9-2. Thus, the
Court finds that the action could have been brought in the Eastern District of Pennsylvania.
2. Interest of Justice
The Court must also determine whether transferring the case to the Eastern District of
Pennsylvania would be in the “interest of justice.” See 28 U.S.C. §§ 1406(a), 1631. Transfer is
appropriate when the plaintiff has “made an erroneous guess with regard to the existence of some
elusive fact of the kind upon which venue provisions often turn.” Stanifer, 564 F.3d at 459
(citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962)). In other words, “[i]f Plaintiff’s
mistake were one easy to commit, the penalty of dismissal might be so disproportionate to the
wrong that it would have to be reversed, as a clear abuse of discretion.” Id. (citing Cote v. Wadel,
796 F.2d 981, 985 (7th Cir. 1986)) (alterations omitted). In this case, ASLS had a colorable
argument for personal jurisdiction in the Western District of Kentucky. As discussed above,
BioBots’ conduct in Kentucky was sufficient to satisfy Kentucky’s long-arm statute, but was
insufficient to satisfy the due process analysis.
Additionally, BioBots argues that the Eastern District of Pennsylvania is the appropriate
forum because (1) BioBots’ principal place of business and only offices are located in
Philadelphia, Pennsylvania, (2) BioBots’ alleged conduct primarily occurred in Philadelphia, and
(3) a great portion of the witnesses and evidence central to ASLS’s claims and BioBots’ defenses

15

are located in Philadelphia. Mem. Supp. Mot. Dismiss 17, ECF No. 9-1. ASLS agrees that,
absent personal jurisdiction over BioBots, transfer of the case to the Eastern District of
Pennsylvania would be appropriate. Resp. Opp. Mot. Dismiss 14 n.3, ECF No. 10. Thus, the
parties agree that transfer is appropriate under these circumstances.
Transfer is also typically in the “interest of justice” because it saves “the parties the time
and expense associated with refiling.” Freedman v. Suntrust Banks, Inc., 139 F. Supp. 3d 271,
285 (D.D.C. 2015) (citing Capital Bank Int’l Ltd. v. Citigroup, Inc., 276 F. Supp. 2d 72, 78
(D.D.C. 2003)). Therefore, because ASLS’s mistake was “one easy to commit,” see Stanifer, 564
F.3d at 459, the parties agree that transfer is appropriate, and transfer will save “the parties the
time and expense associated with refiling,” see Freedman, 139 F. Supp. 3d at 285, the Court
finds that it is in the interest of justice to transfer the case to the Eastern District of Pennsylvania
under 28 U.S.C. § 1406(a).
IV.

Conclusion

For the reasons stated above, the Court will grant in part and deny in part BioBots’
motion to dismiss or, in the alternative, transfer. The Court will transfer the case to the United
States District Court for the Eastern District of Pennsylvania. The Court will issue an order in
accordance with this memorandum opinion.

May 12, 2017

C al R Smpo I , ei J d e
h r s . i sn I Sno u g
e
I
r
U i dSae Ds i C ut
nt tt ir t o r
e
s tc

16