White v. Shoot-A-Way, Inc.
Filing
15
MEMORANDUM OPINION AND ORDER granting 10 MOTION to Change Venue. Case to be transferred to USDC ND/OH- Toledo. (Signed by Judge Sim Lake) Parties notified.(gclair, 4) [Transferred from txsd on 4/17/2019.]
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXA S
HOUSTON DIV ISION
ENTERED
April 17, 2019
David J. Bradley, Clerk
CYRIL WHITE ,
Plaintiff,
CIVIL ACTION NO . H-19-0343
SHOOT-A -WAY , INC .,
Defendant .
MEMONAHDUM OPINION AND ORDER
This is a trademark infringement action brought by plaintiff
Cyril White
(
nplaintiff' against defendant Shoot')
A-Way, Inc.
(MDefendant'
'). Pending before the court are Defendant ShootA-Way ,
Inc .'s Motion to Transfer to United States District Court Northern
District of Ohio Toledo Division (u
Defendant's Motion to Transfer'
')
(
Docket
Entry
Defendant
Shoot-A -Way ,
Plaintiff
Inc .'s
Cyril White's Response
Motion
to
('plaintiff's Responser (
A
') Docket Entry No.
Transfer
to
Venue
and Defendant
Shoot-A -Way , Inc .'s Reply in Support of Its Motion to Transfer to
United States District Court Northern D istrict of Ohio Toledo
Division (
Docket Entry No.
1 . Analy sis
Under 28 U . C . 5 14O4 (
S.
a), ' flor the convenience of parties
'l
and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or d ivision where
might have been brought.'
'
U. .
S C. 5 14O4 (
a).
nWhen
considering a 5 1404 motion to transfer , a district court considers
a number of private -and public-interest factors , 'none of which can
be said to be of dispositive weight .'' Wells v . Abe 's Boat Rentals
'
Inc., Civil Action No. H-l3-1112, 2014 WL 29590, at *1 ( D . Tex .
S.
Jan .
2014) (
quoting Action Industries , Inc . v . United States
Fiduciary & Guarantv Companv, 358
(
5th Cir. 2004)).
The private-interest factors are :
the relative ease of access
to sources of proof ;
the availability of compulsory process to
secure the attendance of witnesses; ( the cost of attendance for
3)
willing w itnesses ; and
trial
a
case
al1 other practical prob lems that make
easy , expeditiou s and
Volkswagen AG, 371 F.3d 201, 203 (5th
Volkswaqen Iq.
inexpensive .'
'
re
2004) (
hereinafter
The public-interest factors are:
administrative difficulties flowing from court congestion ;
local interest
In
the
the
having localized interests decided at home ;
the familiarity of the forum with the law that w ill govern the
case ; and
the avoidance of unnecessary problems of conflict of
laws ( inq the application of foreign law.' Id.
or
'
The court mu st Aweigh the relevant factors and decide whether ,
'
on balance, a transfer would serve 'the convenience of parties and
witnesses' and otherwise promote '
the interest of justice.''
'
Atlantic
Marine
Construction
Companv , Inc . v . United
States
District Court for the Wf atern District of Texas, l34 S . Ct. 568,
581 (
2013) (
quoting 28 U . C . 5 l4O4 (
S.
a))
Because the court must
give usome weight to the plaintiffp sq choice of forum ,' the party
'
seeking a transfer must show good cause .
Id . at 58l n .6; In re
Volkswagen of America, Inc. 545 F . 304,
3d
(
5th Cir. 2008) (
en
banc) (
hereinafter Volkswaqen II). The decision to transfer a case
under
1404 (
a) is 'committed to the sound discretion of the
l
transferring judge, and review of a transfer is limited to abuse of
that discretion .' M ills v . Beech A ircraft Corporation , Inc w
'
886
F. 758, 76l (
2d
5th Cir. 1989).
uThe prelim inary question under the change of venue statute , 28
U .S .C . 5 1404, is whether the suit could have been filed originally
in the destination venue .'
'
Wells, 2014 WL 29590, at *l .
Because
Defendant resides in the Northern District of Ohiox this action
could have originally been filed there. See 28 U . C . 5 l391(
S.
b).
The private-interest factors are neutral or weigh in favor of
transfer .
transferred
While
any
necessary
documents
could
likely
be
the Southern District of Texas electron ically ,
Defendant argues that
has evidence
(
such as its employees,
documents, and the device containing the allegedly
infringing
marksz that cannot easily be transported from its facilities in
)
l
see Declaration of John G . Joseph , Exhibit A to Defendant's
Motion to Transfer, Docket Entry No . 10-1 , pp . 2-3 ) Counties Served
by the Northern District of Ohio, https://www .
ohndv
uscourts.
gov/counties-served-division .
2
The udevice' is 'a basketball shooting machine .'
'
'
See
Defendant's Motion to Transfer, Docket Entry No . l0, p . 8; see also
Image of THE GUN , Exhibit 1 to Plaintiff 's Response , Docket Entry
No . 13-1, pp . 1-2 .
Ohio to Texas .
A ccess to sources of proof is therefore either
neutral or favors the Northern District
Ohio .
Defendant also
argues that the majority of the potential witnesses are Ohio
residents .
Plaintiff does not disagree , but instead argues that
Defendant's only named witness (
its owner, John Joseph) will likely
be a willing witness and compulsory process will not be required .
While unnamed witnesses are not given significant we ight in the
transfer
inquiry , Smith v . Colonial
Penn
Insurance
Co .,
F. Supp . 782, 784 ( . . Tex . 1996), any unnamed witnesses likely
S D
reside in Ohio because all of the allegedly infringing conduct took
p lace there . The only identified potential w itness residing in the
southern District of Texas is Plaintiff. Because the majority of
3
potential witnesses reside in the Northern D istrict of Ohio , the
private-interest
factors
regarding
compu lsory
process
over
w itnesses and the cost associated w ith transporting w itnesses to an
out-of-town forum favors the Northern District of Ohio . There are
no
additional
practical
transfer , and there
problems
counseling
for
or
against
no ev idence that a transfer would cause
unnecessary delay or prejudice either party.
The public-interest factors are neutral or weigh in favor of
transfer .
There
no evidence
court congestion
either the
Southern District of Texas or the Northern District o f Ohio that
counsels for or against transfer .
The ulocal interest' factor is
'
3See Declaration of Cyril White , Exhibit
Response, Docket Entry No . 13-5 .
-
4-
Plaintiff's
neutral or slightly
favors transfer .
Defendant operates its
business in Ohio , and the products bearing the allegedly infringing
marks were manufactured and shipped from Defendant's facilities in
Ohio .
The action 's only significant connection to the Southern
District of Texas is Plaintiff's residence in Houston . While Texas
has an interest in ensuring that the trademarks of its residents
are not infringed , Ohio also has an interest in determining whether
a
company
conducting business in Ohio has committed acts of
trademark infringement in Ohio.
Both jurisdictions have equal
familiarity with federal trademark law . To the extent that Texas
law applies to some of Plaintiff 's claims , there is no evidence
that the Northern District of Ohio is unab le to interpret and apply
Texas law . Neither party argues that a potential conflict of laws
makes either forum more favorable .
Having
considered
the
parties'
arguments
the
court
is
persuaded that requiring Defendant to bear the cost of litigating
this case in the Southern District of Texas would be unfair to
Defendant .
The balance of private-and-pub lic-interest factors
persuades the court that the Northern D istrict of Oh io
convenient forum .
a more
A transfer to the Northern District of Ohio ,
Toledo Division , is therefore appropriate .
II .
Conclusion and Order
For the reasons explained above , the court concludes that the
Northern D istrict of
Ohio
is the more
convenient
forum
and
Defendant Shoot-A-Way , Inc .'s Motion to Transfer to United States
District Court Northern District
Entry No .
Ohio Toledo Division (
Docket
is therefore GRANTED , and this action is TRANSFERRED
to the United States District Court for the Northern District of
Ohio , Toledo Div ision .
SIGNED at Houston , Texas , on this the 17th day of April, 2019.
<
SIM LAKE
UNITED STA TES DISTRICT JUDGE
-
6-
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