Swoboda v. Manders et al

Filing 17

RULING: The Defendants' 12(B)(3) Motion to Dismiss for Improper Venue or, Alternatively, Motion to Transfer Venue Under 28 U.S.C. § 1404(a) is denied. Signed by Magistrate Judge Stephen C. Riedlinger on 6/4/2014. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

MICHAEL SWOBODA
CIVIL ACTION
VERSUS
NUMBER 14-19-SCR
KARL MANDERS, ET AL.
RULING ON MOTION TO DISMISS OR TRANSFER
Before the court is the Defendants’ 12(b)(3) Motion to Dismiss
for Improper Venue or, Alternatively, Motion to Transfer Venue
Under 28 U.S.C. § 1404(a).

Record document number 7.

The motion

is opposed.1
For the reasons which follow, the defendants’ motion is
denied.
Background
Plaintiff

Michael

Swoboda

filed

a

Complaint

against

Continental Incorporated, Inc. d/b/a Continental Enterprises, and
its employees Karl Manders, Denise Mosteller, Jeremiah A. Pastrick,
and Karla Bledsoe.

Plaintiff, a German citizen and resident, is

the president of German Sport Guns GmbH (“GSG”), a German firearms
manufacturer.

Continental is a corporation that investigates

claims of intellectual property infringement.
Plaintiff alleged the following facts.

In 2009 Heckler &

Koch, Inc. (“H & K”), a German firearms manufacturer with a United

1

Record document number 11.

States subsidiary, filed lawsuit against GSG lawsuit in the United
States District Court, Southern District of Indiana.
settled that same year.

The case was

In August 2011 H & K filed another lawsuit

against GSG alleging that GSG breached the settlement agreement.
In May 2012, H & K hired Continental to investigate GSG and
plaintiff’s alleged infringement of H & K’s trademark for its G36
Airsoft pellet gun design.

Plaintiff alleged that defendants

Mosteller and Manders met with Livingston Parish Sheriff’s Office
detectives in September 2012 and accused the plaintiff of violating
Louisiana’s trademark law. This accusation was based on the belief
that

the

plaintiff

was

copying

H

&

K’s

pellet

gun

design.

Plaintiff alleged that after this meeting, defendant Pastrick
registered a 3-D design of the H & K G36 Airsoft gun as a trademark
in Louisiana in the name of Heckler & Kock GmbH.
Plaintiff alleged that during the following months, defendant
Continental’s agents and employees, including defendant Bledsoe,
repeatedly corresponded with the plaintiff by email, representing
themselves to be a potential customers from Brazil and/or Paraguay.
Afer personally meeting with the plaintiff in 2013, defendant
Bledsoe eventually convinced a GSG representative to send a sample
shipment of GSG products to Walker, Louisiana, which products would
then be shipped to Paraguay.
Defendant

Mosteller

allegedly

reported

the

plaintiff’s

activities via email to Brandon Browning, a Livingston Parish
Sheriff’s office detective, and to Richard Lovell, a United States

Department

of

Homeland

Security

agent.

On

March

28,

2013,

defendant Mosteller signed an affidavit in support of a warrant for
the plaintiff’s arrest for violating LSA-R.S. § 14:229, Illegal Use
of Counterfeit Trademark.

The warrant for the plaintiff’s arrest

was issued by a judge from 21st Judicial District Court, Livingston
Parish, Louisiana.
On April 19, 2013, the plaintiff arrived at the United States
District Court for the Southern District of Indiana for a judicial
settlement conference in the 2011 suit filed against the plaintiff
by H & K.

With knowledge of the arrest warrant, the United States

Marshal (or a deputy marshal) arrested plaintiff at the settlement
conference.

Plaintiff was held at the detention center in Marion

County, Indiana, until he was given the opportunity to make bail.
On June 25, 2013 the district attorney for the 21st Judicial
District dismissed all charges against the plaintiff and declined
to prosecute him for any criminal violation.
Plaintiff subsequently filed Plaintiff’s Complaint in this
court against alleging claims under 42 U.S.C. § 1983 and state law
claims for false imprisonment, intentional infliction of emotional
distress, defamation, abuse of process, negligence, and unfair
competition.

Defendants moved to dismiss or transfer the case,

arguing that venue is improper in the Middle District of Louisiana
under 28 U.S.C. § 1406(a).

Defendants argued that all of the

defendants are Indiana residents and the majority of the events
leading to this litigation occurred in Indiana, particularly noting

that the underlying trademark suit is pending in Indiana, the
plaintiff’s arrest occurred in a federal courthouse in Indiana and
the plaintiff spent time in an Indiana jail.
Applicable Law
A party may move to dismiss an action based on improper venue
pursuant

to

Rule

12(b)(3),

Fed.R.Civ.P.

When

a

defendant

challenges venue, the plaintiff has the burden of demonstrating
that the chosen venue is proper.

Gray Cas. And Sur. Co. v. Lebas,

2013 WL 74351 (E.D.La. Jan. 7, 2013).

“On a Rule 12(b)(3) motion

to dismiss for improper venue, the court must accept as true all
allegations in the complaint and resolve all conflicts in favor of
the plaintiff.” Braspetro Oil Servs. Co. v. Modec (USA), Inc., 240
Fed.Appx. 612, 615 (5th Cir. 2007).
A district court may dismiss a case improperly filed in the
wrong district or division or, in the interest of justice, transfer
the case to any district or division in which it could have been
brought.

28 U.S.C. § 1406.

If venue is proper, the district court

may still transfer the case to another district where it may have
been brought for the convenience of parties and witnesses pursuant
to 28 U.S.C. § 1404(a).

A district court has “broad discretion in

deciding whether to order a transfer.”

In re Volkswagen of Am.,

Inc., 545 F.3d 304, 311 (5th Cir. 2008) (In re Volkswagen II).

The

party seeking to change venue must show “good cause” for the
transfer by establishing that the transferee venue is clearly more
convenient than the venue chosen by the plaintiff.

Id. at 315.

“The ‘good cause’ burden reflects the appropriate deference to
which the plaintiff’s choice of venue is entitled.”
To

make

this

determination

consideration of several

the

Fifth

Id.

Circuit

requires

private and public interests factors.

The private interest factors are: “(1) the relative ease of access
to sources of proof; (2) the availability of compulsory process to
secure the attendance of witnesses; (3) the cost of attendance for
willing witnesses; and (4) all other practical problems that make
trial of a case easy, expeditious and inexpensive.”

Id., citing,

In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004) (In re
Volkswagen

I).

The

public

interest

factors

are:

“(1)

the

administrative difficulties flowing from court congestion; (2) the
local interest in having localized interests decided at home; (3)
the familiarity of the forum with the law that will govern the
case; and (4) the avoidance of unnecessary problems of conflict of
laws [or in] the application of foreign law.” Id.

These factors

are “not necessarily exhaustive or exclusive” and “none can be said
to be of dispositive weight.”

In re Volkswagen II, supra, citing,

Action Indus., Inc. v. U.S. Fid. & Guar. Corp., 358 F.3d 337, 340
(5th Cir. 2004).
Analysis
The Middle District of Louisiana Is a Proper Venue For
Plaintiff’s Action
Defendants’ argument that the Middle District of Louisiana is
not a proper venue is unpersuasive.

Under 28 U.S.C. § 1391(b)(2)

proper venue for a civil action includes the judicial district in
which a substantial part of the events or omissions giving rise to
the claim occurred.

A review of the allegations in the petition

taken as true shows that most of the significant events that give
rise to the plaintiff’s claims occurred in this district.

Among

other actions, the defendants allegedly: (1) induced the plaintiff
to

send

sample

guns

to

Walker,

Louisiana,

which

is

in

this

district; (2) fraudulently registered a trademark in Louisiana
pursuant to Louisiana law; and, (3) used the Livingston Parish
Sheriff’s office and the 21st Judicial District Court, both located
in

this

district,

to

obtain

an

arrest

warrant

based

on

the

plaintiff’s shipment of its products to Louisiana and the alleged
violation of the defendants’ Louisiana-registered trademark. These
acts collectively form the foundation for all of the plaintiff’s
claims.
To establish improper venue, the defendants’ relied on: (1)
their Indiana citizenship; (2) the filing of the initial suit
between H & K and GSG in Indiana; and, (3) the plaintiff’s arrest
and detention in Indiana.

However, none of these facts negate the

finding that a most of the significant events described in the
Plaintiff’s Complaint occurred this district.
The Middle District of Louisiana is a proper venue for this
suit under § 1391(b)(2); and dismissal or transfer under § 1406 is
not supported.

Transfer of Venue Under § 1404(a) Is Not Warranted
Assuming, without deciding, that the Southern District of
Indiana is a proper venue for this action, the defendants failed to
satisfy their burden of establishing that the Southern District of
Indiana is a clearly more convenient forum than the Middle District
of

Louisiana.

The

private

interest

factors

concerning

the

availability of compulsory process to secure the attendance of
witnesses and the cost of attendance for willing witnesses favor
retaining the action in this district.

Plaintiff’s Complaint

demonstrates that he will rely heavily on witnesses from the
Livingston Parish Sheriff’s office, the District Attorney’s office,
and the Office of Homeland Security, which are located in this
district.

These witnesses include Sgt. Brandon Browning, Asst.

District Attorney Greg Murphy, and Homeland Security Agent Richard
Lovell.

Because these are non-party witnesses and the requested

venue is more than 100 from this where they reside, work or
regularly conduct business, the court’s subpoena power over several
important witnesses would be ineffective if venue was transferred.2
Defendants asserted that Southern District of Indiana is
better equipped to handle the plaintiff’s claims because of its
familiarity with the prior litigation between plaintiff and H & K.
However, as the plaintiff persuasively showed, the claims asserted
in these two actions are factually and conceptually distinct; the
2

See, Rule 45 (c)(1), Fed.R.Civ.P.
A court may issue a
subpoena commanding attendance a trial, hearing or deposition if
the person resides within 100 miles.

defendants have not shown how these cases could possibly be
consolidated.

In fact, the plaintiff pointed to evidence showing

that both the defendants and the Indiana court acknowledged that
defendant Continental’s investigation at issue in this litigation
is not related to the former lawsuit, particularly noting that it
involves a different type of gun alleged to be counterfeited.
Because the defendants also failed to show that the remaining
private factor weigh in favor of the proposed transfer, they have
failed to show that any private interest factor supports transfer
to the Southern District of Indiana.
Defendants have also failed to show that the public interest
factor favor transfer of venue.

In causing the plaintiff’s to be

arrested, the defendants relied on a trademark registered under
Louisiana law, and they used Louisiana courts and governmental
agencies in their effort to obtain protection from the plaintiff’s
allegedly wrongful conduct.

There can be no doubt that Louisiana

has a strong local interest in preventing misuse of her

laws and

law enforcement authorities by private entities and persons seeking
to obtain a business advantage over a competitor.
This district is also more familiar with the Louisiana laws
upon which the plaintiff relied to support his tort claims.

The

alleged potential ability of the Southern District of Indiana to
bring the case to trial faster does not outweigh the local interest
factor and cannot be the sole basis for finding that the transferee
venue is clearly more convenient.

Conclusion
The Middle District of Louisiana is an proper venue for the
Plaintiff’s Complaint.

Defendants failed to establish good cause

to transfer this action to the Southern District of Indiana.
Accordingly, the Defendants’ 12(B)(3) Motion to Dismiss for
Improper Venue or, Alternatively, Motion to Transfer Venue Under 28
U.S.C. § 1404(a) is denied.
Baton Rouge, Louisiana, June 4, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE