Eaton Veterinary Pharmaceutical, Inc. v. Wedgewood Village Pharmacy, Inc.
Filing
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ORDER denying 6 motion to dismiss for lack of jurisdiction. Signed on 12/3/15 by District Judge Stephen R. Bough. (Amos, Gloria)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
EATON VETERINARY
PHARMACEUTICAL, INC
Plaintiff,
v.
WEDGEWOOD VILLAGE
PHARMACY, INC.,
Defendant.
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Civil No. 4:15-CV-687-SRB
ORDER
Before the Court is Defendant Wedgewood Village Pharmacy, Inc.’s (“Wedgewood”)
Motion to Dismiss Complaint or in the Alternative to Transfer Venue. (Doc. #6). For the reasons
stated herein, the motion is DENIED.
I.
BACKGROUND
On September 9, 2015, Plaintiff Eaton Veterinary Pharmaceutical, Inc. (“Eaton”) filed its
Complaint for patent infringement, an intentional tort. The patent at issue, U.S. Patent No.
6,930,127, covers a veterinary treatment of ophthalmic disease in animals using topical
tacrolimus. Defendant is a corporation organized in New Jersey with its principal place of
business in New Jersey, and is not a Missouri resident. Defendant used its license from the
Missouri Board of Pharmacy to sell its allegedly infringing product in Missouri.
On October 5, 2015, Defendant Wedgewood filed its motion to dismiss under Fed. R.
Civ. P. 12(b)(6) for failure to state a claim, 12(b)(2) for lack of personal jurisdiction, or 12(b)(3)
for improper venue. In the alternative, Defendant asked the Court to transfer the case to the
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District of New Jersey under 28 U.S.C § 1404(a). The Court heard oral arguments on
Defendant’s motion on November 17, 2015.
II.
LEGAL AUTHORITY
Under Fed. R. Civ. P. 12(b)(6), a claim may be dismissed for “failure to state a claim
upon which relief can be granted.” “To survive a motion to dismiss [for failure to state a claim],
a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal citations omitted); Zink v. Lombardi, 783
F.3d 1089, 1098 (8th Cir. 2015); Hamilton v. Palm, 621 F.3d 816, 817 (8th Cir. 2010). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678; Ash v. Anderson Merchs., LLC, No. 14–3258, 2015 WL 4978701, at *1 (8th Cir. 2015).
The court “must take all factual allegations [made by the plaintiff] as true when
considering a motion to dismiss.” Great Plains Trust Co. v. Union Pac. R.R. Co., 492 F.3d 986,
995 (8th Cir. 2007); Data Mfg., Inc. v. United Parcel Service, Inc., 557 F.3d 849, 851 (8th Cir.
2009) (noting “[t]he factual allegations of a complaint are assumed true and construed in favor of
the plaintiff, even if it strikes a savvy judge that actual proof of those facts is improbable”).
However, factual allegations which represent “legal conclusions or formulaic recitation of the
elements of a cause of action . . . may properly be set aside.” Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585, 594 (8th Cir. 2009) (quoting Iqbal, 556 U.S. at 677) (internal citations omitted).
The pleading standard “does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555) (internal quotations omitted). “[T]he complaint should be read as a
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whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible.”
Braden, 588 F.3d at 594.
For a motion to dismiss for lack of personal jurisdiction pursuant to Fed. R. Civ. P.
12(b)(2), “[t]he party seeking to invoke the jurisdiction of a federal court bears the burden of
establishing that jurisdiction exists.” Hicks v. Clay Cnty., 636 F. Supp. 2d 903, 907 (W.D. Mo.
2008). “[T]o defeat a motion to dismiss for lack of personal jurisdiction, the non-moving party
need only make a prima facie showing of jurisdiction.” Id. “The [prima facie showing] must be
tested, not by the pleadings alone, but by the affidavits and exhibits presented with the motions
and opposition thereto.” Miller v. Nippon Carbon Co., 528 F.3d 1087, 1090 (8th Cir. 2008).
“Rule 12(b)(3) of the Federal Rules of Civil Procedure provides that a party may move to
dismiss an action for improper venue.” Bomkamp v. Hilton Worldwide, Inc., No. 4:13-CV-1569CAS, 2014 WL 897368, at *5 (E.D. Mo. Mar. 6, 2014) (quoting Sudden Valley Supply LLC v.
Ziegmann, No. 4:13-CV-53-JCH, 2013 WL 2099440, at *4 (E.D. Mo. May 14, 2013)). “The
moving party has the burden of establishing that venue is improper.” Id. “Under Rule 12(b)(3)
analysis, a district court need not accept the pleadings as true and may consider facts outside of
the pleadings.” Hesterly v. Royal Caribbean Cruises, Ltd., No. 06-3206-CV-S-RED, 2006 WL
2948082, at *2 (W.D. Mo. Oct. 16, 2006).
III.
DISCUSSION
A. Fed. R. Civ. P. 12(b)(6)
Plaintiff Eaton brings this suit against Defendant Wedgewood for alleged infringement of
U.S. Patent No. 6,930,127 (“Patent”). Plaintiff asserts that Defendant directly infringed the
Patent and induced its customers to infringe the Patent. Defendant argues that Plaintiff’s claims
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consist of wholly conclusory allegations of infringement and fail to allege sufficient facts to
support a claim for direct or induced infringement. The Court addresses Plaintiff’s claims below.
i.
Direct Infringement
Direct infringement is governed by 35 U.S.C. § 271(a). “In a complaint for patent
infringement under § 271(a), Form 18 of the Federal Rules of Civil Procedure provides the
pleading standard.” Superior Indus., LLC v. Thor Global Enters. Ltd., 700 F.3d 1287, 1295 (Fed.
Cir. 2012) (citations omitted). “Form 18 . . . requires (1) an allegation of jurisdiction; (2) a
statement that the plaintiff owns the patent; (3) a statement that defendant has been infringing the
patent ‘by making, selling, and using [the device] embodying the patent’; (4) a statement that the
plaintiff has given the defendant notice of its infringement; and (5) a demand for an injunction
and damages.” PB & J Software, LLC v. Acronis, Inc., 897 F. Supp. 2d 815, 818 (E.D. Mo.
2012). “Form 18 and the Federal Rules of Civil Procedure do not require a plaintiff to plead facts
establishing that each element of an asserted claim is met . . . [and] need not even identify which
claims it asserts are being infringed.” In re Bill of Lading Transmission & Processing Sys. Patent
Litig., 681 F.3d 1323, 1335 (Fed. Cir. 2012).
Plaintiff’s Complaint alleges jurisdiction (Doc. #1, ¶¶3–6); states Plaintiff owns the
patent (Doc. #1, ¶7); states Defendant “advertises, sells and offers to sell the tacrolimus
compound set forth in the [Patent]” and “actively and knowingly provides the tacrolimus
compound [in the Patent] to its customers” (Doc. #1, ¶¶32–34); gives Defendant notice of its
infringement through two separate notices (Doc. #1, ¶¶12, 19); and includes a prayer for relief in
the form of an injunction and damages (Doc. #1, p. 6–7). Because the Complaint contains each
of Form 18’s required elements, the Plaintiff has adequately stated a claim for direct
infringement. See, e.g., Superior Indus., LLC, 700 F.3d at 1295 (finding the “complaint []
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adequately pleads direct infringement of the [patents]” because the pleading “contains each
element of a claim for direct patent infringement” that Form 18 requires).
ii.
Indirect Infringement
Defendant argues that Plaintiff fails to state a claim for induced infringement because the
Complaint does not set forth facts that indicate Defendant had specific intent to induce, or took
active steps to encourage, infringement. Plaintiff contends that determining the “meaning and
scope” of the claims of the Patent is improper at the motion to dismiss stage, and nonetheless,
Plaintiff’s allegations are sufficient to state a claim.
Under “35 U.S.C. § 271(b)[,] [w]hoever actively induces infringement of a patent shall
be liable as an infringer.” Monsanto Co. v. Omega Farm Supply, Inc., 91 F. Supp. 3d 1132,
1137–38 (E.D. Mo. 2015). “Unlike direct infringement, plaintiff’s claims for indirect
infringement are not governed by Form 18, but by the Iqbal and Twombly plausibility standard.”
PB & J Software, LLC, 2012 WL 4893678, at *3. “To survive a motion to dismiss, a complaint
alleging induced infringement must contain facts plausibly showing that the defendant
‘specifically intended [another] to infringe the [plaintiff’s] patent and knew that [the other’s] acts
constituted infringement.’” Monsanto Co., 91 F. Supp. at 1137–38 (quoting In re Bill of Lading
Transmission & Processing Sys. Patent Litig., 681 F.3d at 1339). “This does not mean, however,
that [Plaintiff] must prove its case at the pleading stage.” Id.
Plaintiff’s Complaint alleges that the Defendant knew the Patent prohibits the use of the
tacromlimus compound for the treatment of certain eye diseases in dogs, and knew the
tacromlimus compound would be provided to and administered by its customers in a manner that
infringes the Patent. (Doc. #1, ¶¶18, 21). These allegations, in light of Plaintiff’s assertion that
Defendant “actively induces its customers . . . through advertis[ing] on its website, direct sales,
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publications and catalogs,” give rise to a plausible showing Defendant intended to infringe the
patent. (Doc. #1, ¶17). Thus, the Court finds Plaintiff has adequately pled an induced
infringement claim.
B. Fed. R. Civ. P. 12(b)(2)
Defendant argues this case should be dismissed for lack of personal jurisdiction.
Defendant disputes general jurisdiction arguing it does not have “continuous and systematic
activity” in Missouri, and disputes specific jurisdiction arguing it has only tenuous connections
to Missouri. (Doc. #16, p. 7; Doc. #16, p. 7–8). Plaintiff points to Defendant’s sales in, and
shipments to, Missouri, among other activities, to establish both general and specific jurisdiction.
Federal Circuit law governs the issue of personal jurisdiction in a patent case.
Autogenomics, Inc. v. Oxford Gene Tech. Ltd., 566 F.3d 1012, 1016 (Fed. Cir. 2009). To
determine whether personal jurisdiction exists over an out-of-state defendant, the Federal Circuit
analyzes both a forum state’s long-arm statute and whether the exercise of jurisdiction comports
with due process. Id. at 1017. However, “[t]he reach of a state’s long-arm statute is a matter of
state law, and ‘federal courts are required to accept the interpretation given the statute by the
state supreme court[.]’” Myers v. Casino Queen, Inc., 689 F.3d 904, 909 (8th Cir. 2012) (quoting
Mountaire Feeds, Inc. v. Agro Impex, S.A., 677 F.2d 651, 653 (8th Cir. 1982)). The Missouri
Supreme Court, like the Federal Circuit, requires “two separate inquiries: one inquiry to establish
if a defendant’s conduct was covered by the long-arm statute, and a second inquiry to analyze
whether the exercise of jurisdiction comports with due process requirements.” Myers, 689 F.3d
at 909. The Court addresses each inquiry below.
i. Missouri Long-Arm Statute
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“The basis for exercising personal jurisdiction over a non-resident party in Missouri is
Missouri's long-arm statute.” Myers, 689 F.3d at 910. “Although a plaintiff seeking to predicate
long-arm jurisdiction on the accrual of a tort action within the forum state need not make a full
showing on the merits that the nonresident defendant committed the tort, a prima facie showing
is required to defeat a motion to dismiss for want of jurisdiction.” Id. The Missouri long-arm
statute provides:
1. Any person or firm, whether or not a citizen or resident of this state, or any
corporation, who in person or through an agent does any of the acts
enumerated in this section, thereby submits such person, firm, or corporation,
and, if an individual, his personal representative, to the jurisdiction of the
courts of this state as to any cause of action arising from the doing of any of
such acts: . . . (3) The commission of a tortious act within this state[.]
Mo. Ann. Stat. § 506.500 (2015). “[F]oreseeability is the standard to be applied when evaluating
whether jurisdiction is appropriate over a tortious act occurring in another state with actionable
consequences in Missouri.” Myers, 689 F.3d at 911; see also Robinson v. Reg’l Med. Ctr. at
Memphis, No. 15-00395-CV-W-DGK, 2015 WL 5853143, at *3 (W.D. Mo. Oct. 7, 2015) (“The
key to determining whether an act committed in another state has actionable consequences in
Missouri is foreseeability.”). The showing required of a plaintiff may be less where a nonresident provides a product through the stream of commerce, as opposed to providing a service.
Myers, 689 F.3d at 911.
Defendant’s conduct indicates it could foresee its actions would result in actionable
consequences in Missouri. Defendant gained licensure from the Missouri Board of Pharmacy,
presumably to do business in the state, knowing that Missouri residents would seek and use its
products. Defendant could have foreseen that Missouri customers to whom it sold and shipped its
products would likely use such products within the state. Because it was foreseeable that
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Defendant’s actions could have consequences felt in Missouri, jurisdiction is authorized under
Missouri’s long-arm statute.
ii. Due Process
“Even if personal jurisdiction over a defendant is authorized by the forum state’s longarm statute, jurisdiction can be asserted only if it comports with [the] Due Process Clause.”
Viasystems, Inc. v. EBM-Papst St. Georgen GmbH & Co., KG, 646 F.3d 589, 594 (8th Cir.
2011). “Due process requires that a defendant have certain ‘minimum contacts’ with the forum
state for personal jurisdiction to be exercised.” Myers, 689 F.3d at 911 (quoting Int’l Shoe Co. v.
Wash., 326 U.S. 310, 316 (1945)). “Contacts with the forum state must be sufficient that
requiring a party to defend an action would not ‘offend traditional notions of fair play and
substantial justice.’” Id. The Eighth Circuit applies “a five-factor test to evaluate whether a
defendant’s actions are sufficient to support personal jurisdiction: (1) the nature and quality of
the contacts with the forum state; (2) the quantity of those contacts; (3) the relationship of those
contacts with the cause of action; (4) Missouri’s interest in providing a forum for its residents;
and (5) the convenience or inconvenience to the parties.” Id. “The third factor distinguishes
between specific and general jurisdiction.” Id. Because Plaintiff asserts Defendant is subject to
both general and specific, the Court considers each below.
a. General Jurisdiction
“If a court has general jurisdiction over a defendant it can ‘adjudicate any cause of action
involving a particular defendant, regardless of where the cause of action arose.’” Viasystems,
Inc., 646 F.3d at 595 (quoting Miller, 528 F.3d at 1091). “The Missouri Supreme Court has held
that general jurisdiction is properly asserted over an out-of-state corporation, under Missouri
Law, when that corporation is ‘present and conducting substantial business in Missouri.’”
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Viasystems, Inc., 646 F.3d at 595 (quoting State ex rel. K–Mart Corp. v. Holliger, 986 S.W.2d
165, 167 (Mo. banc 1999)). “For a corporation, the paradigm forum is ‘one in which the
corporation is fairly regarded as at home,’ such as its place of incorporation and principal place
of business.” Jennings v. Bonus Bldg. Care, Inc., No. 4:13-CV-663-W-DGK, 2014 WL 1806776,
at *3 (W.D. Mo. May 7, 2014) (quoting Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014)).
Defendant is neither incorporated in Missouri, nor has its principal place of business here.
See, e.g., Neeley v. Wyeth LLC, No. 4:11-CV-00325-JAR, 2015 WL 1456984, at *3 (E.D. Mo.
Mar. 30, 2015) (“Defendants are not subject to [general] jurisdiction in Missouri [because]
[n]one of the [Defendants] are incorporated in Missouri, nor do they have their principal places
of business here”). Although Defendant is licensed to sell pharmaceutical products in Missouri
and ships a small amount of product there, without more, such contact cannot be said to establish
a “continuous and systematic” affiliation that would render it at home in the state sufficient to
support general jurisdiction. See Cromeans v. Morgan Keegan & Co., No. 2:12-CV-04269-NKL,
2014 WL 1375038, at *12 (W.D. Mo. Apr. 8, 2014) (finding no general jurisdiction where
“[Defendants do] not have any offices or own any real estate in Missouri . . . [are] not registered
to do business in Missouri . . . [do] not maintain an address, telephone number, or bank account
in Missouri, and [do] not employ any individuals in Missouri”). As a result, this Court finds it
lacks general jurisdiction.
b. Specific Jurisdiction
“Specific personal jurisdiction, unlike general jurisdiction, requires a relationship
between the forum, the cause of action, and the defendant.” Myers, 689 F.3d at 912. “The
exercise of specific jurisdiction is permissible if a defendant purposefully directs its activities at
residents of the forum state, ‘and the litigation results from alleged injuries that arise out of or
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relate to those activities[.]’” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472
(1985)). The Eighth Circuit finds “specific jurisdiction is warranted when the defendant
purposely directs its activities at the forum state and the litigation ‘result[s] from injuries . . .
relating to [the defendant’s] activities [in the forum state.]’” Id. at 912–13 (quoting Steinbuch v.
Cutler, 518 F.3d 580, 586 (8th Cir. 2008)). The Eighth Circuit also “consider[s] ‘the totality of
the circumstances in deciding whether personal jurisdiction exists[.]’” Id. (quoting K–V Pharm.
Co. v. J. Uriach & CIA, S.A., 648 F.3d 588, 592–93 (8th Cir. 2011).
Defendant purposefully directed its activities at Missouri residents when it gained
licensure from the Missouri Board of Pharmacy to sell pharmaceutical products in the state, sold
and shipped product to Missouri customers, and solicited business from Missouri residents
through its website and other advertising avenues. See Doc. #13-2; see, e.g., Cromeans, 2014
WL 1375038, at *13 (“Holding a Missouri bar license and using it to practice law in Missouri
would almost certainly subject these [Defendants] to specific jurisdiction for matters arising from
these Missouri contacts.”). This infringement claim relates to Defendant’s conduct because its
actions led Missouri residents to have access to purchase, and use, its products. After considering
the totality of the circumstances, and viewing the evidence in the light most favorable to the
Plaintiff, this Court finds it has specific jurisdiction.
Having determined the third factor satisfies due process, the Court applies the remaining
four factors. Although the first two factors—the nature, quality, and quantity of Defendant’s
contact with Missouri—do not warrant general jurisdiction, the Court finds that they weigh in
favor of specific jurisdiction in light of the connection between Defendant’s contacts with
Missouri and Plaintiff’s claim. The fourth factor also weighs in favor of exercising jurisdiction
because Missouri has an interest in providing a forum where disputes related to the
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pharmaceutical license Defendant holds there may be resolved. Finally, there is no other forum
that would be significantly more convenient to the parties. After considering the five-factor test,
the Court finds its exercise of specific jurisdiction comports with due process.
As required by the Federal Circuit and Missouri Supreme Court, this Court has analyzed
both inquiries necessary to determine personal jurisdiction. The Court finds Defendant’s conduct
falls within the scope of Missouri’s long-arm statute. Further, the exercise of specific personal
jurisdiction over the Defendant by this Court comports with the requirements of due process.
Thus, the Court finds Defendant is subject to personal jurisdiction in Missouri.
C. Fed. R. Civ. P. 12(b)(3)
Defendant argues that venue in Missouri is improper in this case because a substantial
part of the events giving rise to the action did not occur there, and Defendant has no regular and
established place of business in the state. Plaintiff contends that venue is proper because
Defendant is subject to personal jurisdiction in Missouri, which deems Defendant a resident for
venue purposes in a patent infringement case.
“Venue in patent infringement actions is controlled exclusively by 28 U.S.C. § 1400(b),”
which provides in part that “[a]ny civil action for patent infringement may be brought in the
judicial district where the defendant resides.” In re Cordis Corp., 769 F.2d 733, 734–35 (Fed.
Cir. 1985). “[The] test for venue under § 1400(b) with respect to a defendant that is a corporation
. . . is whether the defendant was subject to personal jurisdiction in the district of suit at the time
the action was commenced.” VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574,
1584 (Fed. Cir. 1990).
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As previously discussed, this Court finds it has specific jurisdiction over the Defendant.
Because Defendant is subject to personal jurisdiction in Missouri, Defendant “resides” in this
district within the meaning of 28 U.S.C. § 1400(b). Thus, venue is proper in Missouri.
D. 28 U.S.C. § 1404(a)
Pursuant to 28 U.S.C. § 1404(a), “[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[.]” Defendant asserts that even if the Court finds venue is
proper in the Western District of Missouri, the Court should transfer this case to the District of
New Jersey because the convenience of the parties, the convenience of the witnesses, and the
interests of justice favor transfer. Plaintiff opposes the motion in part because key witnesses are
located in Missouri, and the Western District of Missouri would provide an expeditious venue.
“In general, federal courts give considerable deference to a plaintiff’s choice of forum
and thus the party seeking a transfer under section 1404(a) typically bears the burden of proving
that a transfer is warranted.” Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 695 (8th
Cir. 1997); see also In re Apple, Inc., 602 F.3d 909, 913 (8th Cir. 2010). “The threshold inquiry
in ruling on a motion under § 1404(a) is whether this case ‘might have been brought’” in the
District of New Jersey. Midwest Mech. Contractors, Inc. v. Tampa Constructors, Inc., 659 F.
Supp. 526, 532 (W.D. Mo. 1987). The Court finds that this case could have been brought in the
District of New Jersey because Defendant—a corporation organized under New Jersey law with
its principal place of business in New Jersey—resides there. 28 U.S.C. § 1391(b)(1).
Although the case might have been brought in New Jersey, on a transfer motion, the court
must also “consider the convenience of the parties, the convenience of the witnesses, the interests
of justice, and any other relevant factors when comparing alternative venues.” Terra Int’l, Inc.,
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119 F.3d at 696. “Courts . . . have recognized that [transfer] determinations require a case-bycase evaluation of the particular circumstances at hand and a consideration of all relevant
factors.” Id. at 691. Under the “convenience” categories, the Eighth Circuit has stated the district
court may consider “(1) the convenience of the parties, (2) the convenience of the witnesses—
including the willingness of witnesses to appear, the ability to subpoena witnesses, and the
adequacy of deposition testimony, (3) the accessibility to records and documents, (4) the location
where the conduct complained of occurred, and (5) the applicability of each forum state’s
substantive law.” Id. at 696. Under the “interest of justice” category, the district court may
consider “(1) judicial economy, (2) the plaintiff’s choice of forum, (3) the comparative costs to
the parties of litigating in each forum, (4) each party’s ability to enforce a judgment, (5)
obstacles to a fair trial, (6) conflict of law issues, and (7) the advantages of having a local court
determine questions of local law.” Id.
The Court finds the convenience of the parties and the witnesses does not weigh in favor
of transfer given that the parties and relevant witnesses may be found at multiple locations across
the country. The interests of justice also weigh against transfer because within the past year the
Western District of Missouri has had a lower case load, a shorter case pendency time, and a
lower case load per judge than the District of New Jersey. See Docs. ##13-10, 13-11, 13-12.
Giving considerable deference to Plaintiff’s choice of forum in the Western District of Missouri,
and considering the factors as stated under § 1404(a), and Terra Int’l, Inc., the Court declines to
transfer this case.
IV.
CONCLUSION
Accordingly, it is hereby
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ORDERED Defendant Wedgewood Village Pharmacy, Inc.’s (“Wedgewood”) Motion to
Dismiss Complaint or in the Alternative to Transfer Venue. (Doc. #6) is DENIED.
/s/ Stephen R. Bough
STEPHEN R. BOUGH
UNITED STATES DISTRICT JUDGE
Dated: December 3, 2015
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