Banerjee et al v. Continental Incorporated, Inc., et al

Filing 46

ORDER Adopting Magistrate Judge Ferenbach's 40 Report and Recommendation. Defendants' 25 Motion to Transfer is Denied. Signed by Judge James C. Mahan on 10/11/2016. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 8 ADRISH BANERJEE, an individual, and YAN HE, an individual, ORDER Plaintiff(s), 9 v. 10 11 Case No. 2:16-CV-669 JCM (VCF) CONTINENTAL INCORPORATED, INC., et al., 12 Defendant(s). 13 14 Presently before the court is Magistrate Judge Ferenbach’s report and recommendation 15 (“R&R”). (ECF No. 40). Defendants Continental Incorporated, Inc. and Leapers, Inc. filed an 16 objection (ECF No. 41), to which plaintiffs Adrish Banerjee and Yan He replied (ECF No. 42). 17 With leave of the court, defendants filed a reply in support. (ECF No. 45). 18 I. Facts 19 Plaintiffs are online retailers of outdoor products, including rifle scopes bearing the 20 “SNIPER” trademark. (ECF No. 20). Defendant Leapers, Inc. (“Leapers”) manufactures rifle 21 scopes, to which it claims intellectual property rights. (ECF No. 20). Defendant Continental 22 Incorporated, Inc. (“Continental”) is a private investigation firm. (ECF No. 20). 23 Suspecting that plaintiffs were infringing on its trademark, Leapers hired Continental to 24 investigate the alleged infringement in 2014. (ECF No. 20). As part of the investigation, 25 Continental made two purchase orders online for rifle scopes from plaintiffs in July and August of 26 2014. (ECF No. 20). Later, in early September 2014, Continental made another rifle scope 27 purchase from plaintiffs at a Las Vegas gun show and expressed an interest in becoming plaintiffs’ 28 dealer in Indiana. (ECF No. 20). James C. Mahan U.S. District Judge 1 Subsequently, defendants met with a detective from the Vanderburgh County sheriff’s 2 office to examine the rifle scopes purchased from plaintiffs, during which the rifles were deemed 3 counterfeits. (ECF No. 20). The Vanderburgh County superior court issued a warrant for the 4 arrest of plaintiffs in December 2014, based on the detective’s affidavit of probable cause. (ECF 5 No. 20). 6 In February 2015, Las Vegas Metropolitan Police Department (“LVMPD”) arrested 7 plaintiffs at another Las Vegas area gun show pursuant to the arrest warrant. (ECF No. 20). 8 Plaintiffs were held for approximately one week before being freed on bond. (ECF No. 20). 9 Later, in March 2015, the governor of Indiana issued an executive warrant, which 10 empowered law enforcement to arrest and transport plaintiffs to Indiana. (ECF No. 20). In April 11 2015, LVMPD arrested plaintiffs at their home. (ECF No. 20). In May 2015, plaintiffs were 12 transported to Indiana, wherein they were released on their own recognizance. (ECF No. 20). In 13 August 2015, the Vanderburgh County district attorney dismissed all charges against plaintiffs. 14 (ECF No. 20). 15 On February 24, 2016, plaintiffs filed the instant complaint in state court. (ECF No. 1). 16 Defendants removed the case to this court on March 28, 2016. (ECF No. 1). On May 9, 2016, 17 plaintiff filed their first amended complaint. (ECF No. 20). 18 In their first amended complaint, plaintiffs allege fourteen causes of action: (1) 19 constitutional rights violation under 42 U.S.C. § 1983; (2) abuse of process; (3) false 20 imprisonment; (4) defamation; (5) intentional infliction of emotional distress; (6) civil conspiracy; 21 (7) negligence; (8) malicious prosecution under 42 U.S.C. § 1983; (9) malicious prosecution under 22 common law; (10) Racketeer Influenced and Corrupt Organizations Act (“RICO”) under 18 U.S.C. 23 § 1964; (11) RICO under NRS 207.470; (12) tortious placing in false light; (13) interference with 24 prospective economic advantage; and (14) respondeat superior liability of Leapers. (ECF No. 20). 25 In the underlying motion, defendants move to transfer the instant action to the Southern 26 District of Indiana. (ECF No. 25). Plaintiffs filed a response (ECF No. 36), to which defendants 27 replied (ECF No. 39). 28 James C. Mahan U.S. District Judge -2- 1 In his R&R, Magistrate Judge Ferenbach recommends that defendants’ motion to transfer 2 (ECF No. 25) be denied. (ECF No. 40). Defendants object to the R&R, arguing that the magistrate 3 failed to give the factors that weighed in favor of transfer their proper weight. (ECF No. 41). 4 II. Legal Standard 5 A party may file specific written objections to the findings and recommendations of a 6 United States magistrate judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B); 7 LR IB 3-2. Where a party timely objects to a magistrate judge’s report and recommendation, the 8 court is required to “make a de novo determination of those portions of the [report and 9 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). The court “may accept, 10 reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 11 Id. 12 Pursuant to Local Rule IB 3-2(a), a party may object to the report and recommendation of 13 a magistrate judge within fourteen (14) days from the date of service of the findings and 14 recommendations. Similarly, Local Rule 7-2 provides that a party must file an opposition to a 15 motion within fourteen (14) days after service of the motion. 16 III. Discussion 17 “For the convenience of parties and witnesses, in the interest of justice, a district court may 18 transfer any civil action to any other district or division where it might have been brought . . . .” 19 28 U.S.C. § 1404(a). A district court’s decision on whether to transfer a case requires the court to 20 conduct a case specific “consideration of convenience and fairness.” Jones v. GNC Franchising, 21 Inc., 211 F.3d 495, 498 (9th Cir. 2000). 22 The moving party bears the burden of showing the balance of conveniences favors the 23 transfer. See Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). 24 “The defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff’s 25 choice of forum.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 26 1986). 27 ... 28 James C. Mahan U.S. District Judge -3- In considering a motion to transfer venue under § 1404(a), the court may weigh a number 1 2 of factors, including: 3 (1) the location where the relevant agreements were negotiated and executed; (2) the state that is most familiar with the governing law; (3) the plaintiff’s choice of forum; (4) the respective parties’ contacts with the forum; (5) the contacts relating to the plaintiff’s cause of action in the chosen forum; (6) the differences in the costs of litigation in the two forums; (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses; and, (8) the ease of access to sources of proof. 4 5 6 7 Jones, 211 F.3d at 498–99. 8 In considering these factors, Magistrate Judge Ferenbach found that the factors weighed 9 against transfer and recommended that defendants’ motion to transfer be denied. (ECF No. 40 at 10 3–7). Specifically, the magistrate found factors (1), (4), (5), and (6) to be inapplicable/neutral and 11 factors (2), (3), (7), and (8) to weigh against transfer, ultimately holding that defendants failed to 12 make the requisite strong showing of inconvenience. (ECF No. 40). 13 In their objection, defendants make four arguments, only three of which are objections to 14 the R&R. (ECF No. 41). In particular, defendants object to the magistrate’s weighing of factors 15 (2), (3), and (7). (ECF No. 41). 16 Defendants contend that factor (2) should be neutral rather than weighed against 17 transfer because both Indiana and Nevada are equally capable of hearing the matter. (ECF 18 No. 41 at 10). In support, defendants cite to Miracle Blade, LLC. v. Ebrands Commerce 19 Grp., LLC., in which the court found factor (2) to be neutral on the basis that the plaintiff 20 alleged both California and Nevada state law claims. 207 F. Supp. 2d 1136, 1157 (D. Nev. 21 2002). 22 However, the magistrate’s finding is consistent with Miracle Blade, LLC, except 23 that the magistrate further found that transfer would merely shift the inconvenience. In 24 particular, the magistrate found that factor (2) weighed against transfer because federal 25 courts in Nevada and Indiana would be equally familiar with the governing law so as to 26 shift, rather than eliminate, the inconvenience associated with factor (2). (ECF No. 40 at 27 4). 28 James C. Mahan U.S. District Judge -4- Second, defendants argue that factor (3) weighs in favor of transfer rather than the neutral 1 2 designation recommended by the magistrate. (ECF No. 41 at 10). 3 Courts must “balance the preference accorded plaintiff’s choice of forum with the burden 4 of litigating in an inconvenient forum.” Decker Coal Co., 805 F.2d at 843. A plaintiff’s choice of 5 forum is normally given substantial deference if the plaintiff, as here, is a resident of the district in 6 which the action is brought. See Miracle Blade, LLC., 207 F. Supp. 2d at 1155. Nevertheless, 7 “[i]f the operative facts have not occurred within the forum of original selection and that forum 8 has no particular interest in the parties or the subject matter, the plaintiff’s choice is entitled only 9 to minimal consideration.” Pacific Car & Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 10 1968). 11 The magistrate did not find factor (3) to be neutral. Rather, the magistrate found that factor 12 (3) weighed slightly against transfer because the operative events took place in both Nevada and 13 Indiana so as to accord plaintiffs’ choice in forum minimal weight. (ECF No. 40 at 4–5). 14 Accordingly, the court agrees with the magistrate’s finding that factor (3) weighs slightly against 15 transfer. 16 Third, defendants argue that factor (7) should be weighed neutrally rather than 17 against transfer because similar number of nonparty witnesses are unavailable in both 18 forums. (ECF No. 41 at 4). For the same reasons discussed in factor (2), the magistrate 19 found factor (7) to weigh against transfer because the limitations of each district’s power 20 to compel nonparties to testify at trial. (ECF No. 40 at 6). 21 Last, defendants contend that Indiana has a compelling state interest in 22 investigating the allegations surrounding its officials. (ECF No. 41 at 11). Defendants 23 assert that Nevada’s interests in this matter are outweighed by Indiana’s interest in 24 investigating these allegations so as to weight in favor of transfer. (ECF No. 41 at 11). 25 This argument fails because no Indiana officials are named as defendants in the 26 action, nor does the amended complaint state any claims against Indiana officials. (ECF 27 No. 20). Following defendants’ logic, Nevada would have an equally compelling interest 28 since the amended complaint also includes allegations regarding the conduct of the James C. Mahan U.S. District Judge -5- 1 LVMPD. Thus, the interests of justice would not weigh in favor of transfer. 2 In light of the foregoing, the court agrees with Magistrate Judge Ferenbach’s determination 3 that defendants failed to make a strong showing of inconvenience to warrant upsetting the 4 plaintiffs’ choice of forum as set forth in Decker Coal Co. See 805 F.2d at 843. Even weighing 5 factors (2), (3), and (7) as defendants contend, they still fail to satisfy their burden of making a 6 “strong showing” since the factors would still weigh against transfer regardless of how slight. Accordingly, upon reviewing the recommendation and underlying briefs, the court finds 7 8 good cause appears to adopt Magistrate Judge Ferenbach’s findings in full. 9 IV. Conclusion 10 Accordingly, 11 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Magistrate Judge 12 Ferenbach’s report and recommendation (ECF No. 40) be, and the same hereby is, ADOPTED in 13 its entirety. 14 15 16 17 18 IT IS FURTHER ORDERED that defendants’ motion to transfer (ECF No. 25) be, and the same hereby is, DENIED. DATED October 11, 2016. __________________________________________ UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -6-

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