Vinci et al v. V.F. Corp.

Filing 41

OPINION AND ORDER Granting 36 Defendant VF Outdoor LLC's Motion to Transfer Venue. The Vincis' claims are HEREBY TRANSFERRED to the United States District Court for the Northern District of California. Signed by Judge Christina Reiss on 7/10/2018. (pac)

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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

WILLIAM VINCI, LINDA VINCI,
Plaintiffs,
V.

VF OUTDOOR, LLC,
Defendant.

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201BJUL 10 PH f: 17
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Case No. 2:17-cv-00091

OPINION AND ORDER GRANTING
DEFENDANT VF OUTDOOR, LLC'S MOTION TO TRANSFER VENUE
(Doc. 36)
Plaintiffs William and Linda Vinci (the "Vincis") bring state law claims against
Defendant VF Outdoor, LLC ("VF Outdoor"), arising out of the Vincis' purchases of The
North Face branded products subject to a Multiparty Guaranty Agreement ("the
Agreement"). Pending before the court is VF Outdoor's motion to transfer the Vincis'
remaining claims to the United States Di~trict Court for the Northern District of
California pursuant to 28 U.S.C. § 1404(a). The Vincis oppose the motion, which the
court took under advisement on May 31, 2018.
Plaintiffs are represented by David E. Bond, Esq. Defendants are represented by
R. Jeffrey Behm, Esq.

I.

Factual and Procedural Background.
The court adopts as its factual and procedural background the factual allegations

set forth in its February 21, 2018 Opinion and Order. See Opinion & Order (Doc. 24),
Feb. 21, 2018, at 2-4. The Vincis are husband and wife and the sole shareholders ofTNF
Gear, Inc. ("TNF"), a Vermont corporation with its principal place of business in
Burlington, Vermont. In 2001, TNF opened The North Face Store @KL Sport in
Shelburne, Vermont, which was later moved to College Street in Burlington and then to

90 Church Street in Burlington. TNF's store sold only The North Face branded apparel
purchased at wholesale from V.F. Corp. and VF Outdoor. Plaintiffs allege that until
2015, "The North Face was positioned as a premium brand[,]" and V.F. Corp. and VF
Outdoor required them to adhere to manufacturer approved pricing plans that dictated
correspondingly high retail prices. (Doc. 5 at 3, ,r 11.) The Vincis allege that the two
companies "represented to Plaintiffs that these policies applied to all retailers selling The
North Face products." Id. at ,r 9.
In early 2015, TNF placed its yearly order for winter apparel, totaling
approximately $1.2 million in merchandise. In the fall of 2015, after TNF accepted
delivery of those products, V.F. Corp. and VF Outdoor allegedly dramatically reduced
their wholesale prices for sales made to third-party vendors. These third-party vendors,
in tum, sold the discounted merchandise at significantly reduced retail prices to the
general public, in violation of the marketing policies with which V.F. Corp. and VF
Outdoor required TNF and the Vincis to comply. The Vincis claim that they were unable
to compete with the significantly reduced prices, and that even if they could match them,
they were barred from doing so pursuant to their promise to adhere to Defendants'
manufacturer approved pricing plans. The Vincis allege that they fell "deeply into

,r 13, and reported this to their contacts at the two companies who promised
to "reign[] in" the third-party discounters. Id. at 4, ,r 14.
debt[,]" id.,

In 2016, the Vincis purchased $650,000 in winter apparel inventory through TNF,
and in the fall of that year V.F. Corp. and VF Outdoor again allegedly offered the same
apparel to third-party vendors at steep discounts. The Vincis allege that they were again
substantially underpriced by other retailers and were unable to maintain profitability.
"As a result of Defendants' actions, the Vincis exhausted their savings and their credit,
and in under 20 months saw their business go from a successful enterprise to the verge of
failure." Id.,

,r 17.

The Vincis claim they offered to sell their business to V.F. Corp. and

VF Outdoor, but that they refused to entertain a fair market value purchase.
On May 23, 2017, the Vincis and TNF filed a Complaint naming only V .F. Corp.
as a Defendant and alleging breach of contract, promissory estoppel, breach of the
2

implied covenant of good faith and fair dealing, and fraudulent nondisclosure under
Vermont common law. On June 19, 2017, the Vincis and TNF amended their Complaint
to include VF Outdoor as a Defendant, stating that VF Outdoor "is a wholly-owned
subsidiary of [V. F. Corp.]. On information and belief, [VF Outdoor] is the owner of The
North Face brand, and operates a division under the tradename, 'The North Face."' Id. at
1, ,r 4. The Amended Complaint includes a jury demand and seeks five million dollars in
damages.
On July 18, 2017, VF Outdoor and V.F. Corp. filed three motions pursuant to Fed.
R. Civ. P. 12. First, VF Outdoor moved to enforce a binding forum selection clause in
the Agreement with TNF, arguing in the alternative either for dismissal of the Vermont
action or transfer of the case to the United States District Court for the Northern District
of California. On January 12, 2018, the court granted VF Outdoor' s motion and
transferred TNF's claims against it to the Northern District of California. Those claims
are presently pending in that court's San Francisco Division in Civil Docket No. 18-cv00253-JSC.1
Second, V .F. Corp. sought dismissal of all Plaintiffs' claims against it for lack of
personal jurisdiction. On February 21, 2018, the court granted V.F. Corp.'s motion,
dismissed all claims against it, and dismissed it as a party to this action. TNF was
subsequently dismissed as a party because, following transfer of its claims against VF
Outdoor and dismissal of its claims against V.F. Corp., none ofTNF's claims remained
pending in this court.

1

VF Outdoor has included copies of its pleadings in the California action as attachments to its
motion to transfer. The court may consider materials outside the pleadings in ruling on a motion
to transfer. See, e.g., Citibank, NA. v. Affinity Processing Corp., 248 F. Supp. 2d 172, 176
(E.D.N.Y. 2003) (citing Editorial Musical Latino Americana, S.A. v. Mar Int'! Records, Inc., 829
F. Supp. 62, 66 (S.D.N.Y. 1993)). Pursuant to Fed. R. Evid. 201(c)(l), the court also takes
judicial notice of the civil docket sheet in the California action, which reflects a pending case as
of July 9, 2018. See Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) ("docket sheets
are public records of which the court [can] take judicial notice"). The parties have fourteen (14)
days from the date of this Opinion and Order to establish why judicial notice is inappropriate.
See Fed. R. Evid. 201(e).

3

Third, both V.F. Corp. and VF Outdoor sought dismissal of the Vincis' individual
causes of action for failure to state a claim upon which relief could be granted. Having
determined that it lacked personal jurisdiction over V.F. Corp., the court denied V.F.
Corp.'s motion as moot. VF Outdoor's motion was thus granted in part and denied in
part. The court dismissed Counts I and III without prejudice, which alleged breach of
contract and breach of the implied covenant of good faith and fair dealing, but denied VF
Outdoor's motion with respect to Counts II and IV, which pleaded claims of promissory
estoppel and fraudulent nondisclosure. As a result, the Vincis' state law claims against
VF Outdoor for promissory estoppel and fraudulent nondisclosure are the only claims
that remain pending in this court. VF Outdoor seeks transfer of those claims to the
Northern District of California so that all of the claims arising out of the sale of The
North Face Branded products to TNF and the Vincis may be tried in a single action. The
Vincis oppose that outcome.

II.

Conclusions of Law and Analysis.
28 U.S.C. § 1404 governs VF Outdoor's motion to transfer and states that: "[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
or to any district or division to which all parties have consented." 28 U.S.C. § 1404(a).
"Section 1404(a) is merely a codification of the doctrine offorum non conveniens for the
subset of cases in which the transferee forum is within the federal court system; in such
cases, Congress has replaced the traditional remedy of outright dismissal with transfer."

Atl. Marine Constr. Co., Inc. v. US. Dist. Ct.for the W Dist. of Texas, 571 U.S. 49, 60
(2013). It "reflects an increased desire to have federal civil suits tried in the federal
system at the place called for in the particular case by considerations of convenience and
justice." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (footnote omitted).
As the Supreme Court has observed, § 1404 "was designed as a federal
housekeeping measure, allowing easy change of venue within a unified federal system."

Piper Aircraft Co. v. Reyno, 454 U.S. 235,254 (1981) (internal quotation marks omitted).
Therefore, "[d]istrict courts [are] given more discretion to transfer under§ 1404(a) than
4

they [have] to dismiss on grounds offorum non conveniens[,]" id., and "motions for
transfer ... are determined upon notions of convenience and fairness on a case-by-case
basis." Cuyahoga Equip. Corp. v. United States (In re: Cuyahoga Equip. Corp.), 980
F .2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988)).
Where no forum selection clause governs the parties' dispute, "a district court
considering a§ 1404(a) motion ... must evaluate both the convenience of the parties and
various public-interest considerations." At/. Marine, 571 U.S. at 62.
Factors relating to the parties' private interests include relative ease of
access to sources of proof; availability of compulsory process for
attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of view of premises, if view would be appropriate to
the action; and all other practical problems that make trial of a case easy,
expeditious and inexpensive. Public-interest factors may include the
administrative difficulties flowing from court congestion; the local interest
in having localized controversies decided at home; and the interest in
having the trial of a diversity case in a forum that is at home with the law.
The [c]ourt must also give some weight to the plaintiffs' choice of forum.

Id. at 62 n.6 (internal citations, alterations, and quotation marks omitted). 2 Where a
forum selection clause governs the dispute, it should be "given controlling weight in all
but the most exceptional cases." Id. at 63 (internal quotation marks omitted). It is the
moving party's burden to prove by clear and convincing evidence that a transfer is proper
under§ 1404(a). See NY. Marine & Gen. Ins. Co. v. Lafarge NA., Inc., 599 F.3d 102,
113-14 (2d Cir. 2010).

A.

Whether a Forum Selection Clause Applies.
VF Outdoor contends that the forum selection clause in its Agreement with TNF,

which requires disputes to be litigated in California, applies to the Vincis' remaining

2

The Second Circuit has articulated the relevant factors as follows: "(1) the plaintiffs choice of
forum, (2) the convenience of witnesses, (3) the location ofrelevant documents and relative ease
of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6)
the availability of process to compel the attendance of unwilling witnesses, and (7) the relative
means of the parties." NY. Marine & Gen. Ins. Co. v. Lafarge NA., Inc., 599 F.3d 102, 112 (2d
Cir. 2010) (internal quotation marks omitted).

5

claims and therefore requires their transfer. Although VF Outdoor concedes that the
Vincis are not signatories to the Agreement, it contends that their claims are nonetheless
subject to it under the "closely related doctrine." (Doc. 36 at 6) (internal quotation marks
omitted). The Vincis oppose the application of the forum selection clause to them,
arguing that it is unfair to deprive them of the right to enforce the Agreement and then
turn around and enforce a promise of it against them. They further assert that the forum
selection clause's application to claims arising from their "pouring money into their
business in an attempt[] to keep it afloat" is not reasonably foreseeable. (Doc. 37 at 4.)
VF Outdoor is correct "that the fact a party is a non-signatory to an agreement is
insufficient, standing alone, to preclude enforcement of a forum selection clause." Aguas
Lenders Recovery Grp. v. Suez, S.A., 585 F.3d 696, 701 (2d Cir. 2009). For example,

where a non-signatory party is a "successor in interest" to a party which agreed to a
forum selection clause, the clause is generally enforceable against the non-signatory
successor. Id. Although the Vincis' status as non-signatories to the Agreement makes
refusal to enforce the Agreement's forum selection clause against them appealing in
terms of fairness, it ignores the overlay of federal law. See Martinez v. Bloomberg LP,
740 F.3d 211,217 (2d Cir. 2014) ("The overriding framework governing the effect of
forum selection clauses in federal courts ... is drawn from federal law.").
The federal judicial system has a strong interest in the correct resolution of
these questions, not only to spare litigants unnecessary costs but also to
relieve courts of time-consuming pretrial motions. Courts should announce
and encourage rules that support private parties who negotiate such clauses.
Though state policies should be weighed in the balance, the authority and
prerogative of the federal courts to determine the issue, as Congress has
directed by§ 1404(a), should be exercised so that a valid forum-selection
clause is given controlling weight in all but the most exceptional cases.
Richo, 487 U.S. at 33 (Kennedy, J., concurring) (citing The Bremen v. Zapata Off-Shore

Co., 407 U.S. 1, 10 (1972)). In light of these policy considerations, the federal system's
willingness to enforce forum selection clauses against closely related non-signatories
which could reasonably foresee such enforcement is not incompatible with the state law
requirement that a party be a signatory to a contract to enforce its terms.

6

The Second Circuit has cited with approval decisions from other Circuits which
conclude that a non-signatory may be subject to a forum selection clause where a "larger
contractual relationship" includes both signatories and non-signatories,3 where the party
seeking to avoid the forum selection clause is a "third-party beneficiary" of the contract
containing it, 4 and where a non-signatory plaintiff is '"closely related' to the disputes
arising out of the agreement[]" and "voluntar[ily]" joins with other plaintiffs who are
bound by the forum selection clause. 5 See Aguas Lenders, 585 F.3d at 701.
District courts applying the "closely related" doctrine in the Second Circuit have
focused on whether enforcement of a forum selection clause was "foreseeable" to the
non-signatory plaintiff. 6 Where a non-signatory party serves as a corporate officer or
principal of a corporate party bound by the terms of a forum selection clause, and the
non-signatory party's claims arise out of that party's "close business relationship" with
the signatory party, the enforcement of the forum selection clause is generally deemed
foreseeable. See Power UP Lending Grp., Ltd. v. Murphy, 2016 WL 6088332, at *7
(E.D.N.Y. Oct. 18, 2016) (internal quotation marks omitted) (collecting cases).

3

See Holland Am. Line, Inc. v. Wartsila NA., Inc., 485 F.3d 450,456 (9th Cir. 2007).

4

See E.l DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269
F.3d 187, 195 (3d Cir. 2001); TAAG Linhas Aereas de Angola v. Transamerica Airlines, Inc.,
915 F.2d 1351, 1354 (9th Cir. 1990).

5

See Marano Enter. of Kan. v. Z-Teca Rests., L.P., 254 F.3d 753, 757-58 (8th Cir. 2001)
(quoting Hugel v. Corp. of Lloyd's, 999 F.2d 206,209 (7th Cir. 1993)).
6

See Power UP Lending Grp., Ltd. v. Murphy, 2016 WL 6088332, at *6 (E.D.N.Y. Oct. 18,
2016) ("a valid forum selection clause may be enforced against a non-signatory who is so
closely-related to the actual signatories or the dispute that enforcement of the forum selection
clause against it is reasonably foreseeable.") (internal quotation marks omitted); Recurrent
Capital Bridge Fund l LLC v. JSR Sys. & Sensors Corp., 875 F. Supp. 2d 297, 307-08 (S.D.N.Y.
2012) ("Regardless of the specific application, the enforcement of the forum selection clause
against the non-party must have been foreseeable prior to suit"); In re Lloyd's Am. Tr. Fund
Litig., 954 F. Supp. 656,670 (S.D.N.Y. 1997) ("The relationship between the non-party and the
signatory must be sufficiently close so that the non-party's enforcement of the forum selection
clause is foreseeable by virtue of the relationship between the signatory and the party sought to
be bound.") (internal quotation marks omitted).

7

The Vincis' second argument, whether enforcement of the clause was reasonably
foreseeable to them, presents a closer question. In the Second Circuit, the enforceability
of a forum selection clause is governed by a four part test: ( 1) "whether the clause was
reasonably communicated to the party resisting enforcement"; (2) whether the clause is
"mandatory or permissive"; (3) "whether the claims and parties involved in the suit are
subject to the forum selection clause"; and (4) whether "enforcement would be
unreasonable or unjust, or that the clause was invalid[.]" Phillips v. Audio Active Ltd.,
494 F.3d 378, 383-84 (2d Cir. 2007) (citations omitted).
In this case, the Vincis are connected to the Agreement between TNF and VF
Outdoor because of their status as TNF's sole shareholders. In addition, Mr. Vinci signed
the Agreement on TNF' s behalf in his capacity as president. The Vincis then voluntarily
joined their claims with a closely related entity which they knew or should reasonably
have known was subject to a forum selection clause. Based on the totality of the
circumstances, there is little doubt that the Vincis are closely related to TNF.
The Vincis' claims, however, are not for breach of contract but are instead for
promissory estoppel and fraudulent nondisclosure. The issue is thus whether the scope of
the forum selection clause is broad enough to encompass those claims.
The forum selection clause states:
Each of the Beneficiary and the Guarantors
irrevocably agrees that any legal action or proceeding with respect to this
Guaranty, the Business Arrangement, any Alternative Arrangement or any
agreements, documents or instruments delivered in connection herewith or
therewith shall be brought in the courts of the State of California, County of
Alameda or the United States of America for the Northern District of
California, Oakland Division, as the Beneficiary may elect, and, by
execution and delivery hereof, each Guarantor accepts and consents to, for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts and agrees that such jurisdiction shall be
exclusive, unless waived by the Beneficiary in writing, with respect to any
action or proceeding brought by any or all of the Guarantors against the
Beneficiary. Each Guarantor hereby waives, to the full extent permitted by
law, any right to stay or to dismiss any action or proceeding brought before
said courts on the basis offorum non conveniens.
CONSENT TO JURISDICTION.

8

(Doc. 9-3 at 6.) The Agreement further defines the "Business Arrangement" as follows:
North Face [identified as "a division of VF Outdoor, Inc."] has been selling
goods and related products and services (hereinafter collectively referred to
as "Goods") and may continue to sell Goods to or for the benefit of all the
Guarantors [identified as "TNF Gear Inc." and another company controlled
by the Vincis ], but for purposes of administrative convenience and pursuant
to the request of the Guarantors, North Face has been shipping such Goods
and billing for such Goods to or through the Company [identified as "TNF
Gear Inc."] (hereinafter, this arrangement shall be referred to as the
"Business Arrangement").
Id. at 1. "Alternative Arrangement(s)" are defined as "any alternative business

arrangement whereby North Face may sell Goods to or for the benefit of any of the
Guarantors[.]" Id.
The forum selection clause is cast in mandatory language that encompasses any
litigation arising out of the sale of The North Face branded products to TNF, any third
party acting for TNF's benefit, or any related collateral agreement, document, or
arrangement. This language sweeps broadly to include the Vincis' promissory estoppel
claim which is based on allegations that VF Outdoor "represented to the Vincis that all
retailers of The North Face branded apparel would be required to adhere to manufacturer
approved pricing plans, and subsequently promised the Vincis that third-party discounters
would be reigned in after Plaintiffs complained about reduced prices." Opinion & Order,
Feb. 21, 2018 (Doc. 24), at 13. It similarly reaches the Vincis' fraudulent nondisclosure
claim which is based on their course of dealing with VF Outdoor and allegations "that VF
Outdoor deliberately withheld its plans to reduce its wholesale prices in 2016, after the
Vincis complained about the practice in 2015 and VF Outdoor promised that third-party
discounters would be reigned in." Id. at 16. Both of these claims derive from the sale of
The North Face branded products to TNF and are thus included within the Business
Arrangement or the Alternative Arrangement(s) as defined in the Agreement. In light of
the Vine is' close relationship with TNF as its officers and sole shareholders, they may be

deemed to have foreseen the applicability of the forum selection clause to their remaining
claims in this lawsuit.

9

In addition, because the forum selection clause was "plainly printed" in the
Agreement and Mr. Vinci signed it in his capacity as president of TNF, the Vincis
received constructive notice that they would be bound by it. See D.H Blair & Co. v.
Gottdiener, 462 F.3d 95, 103 (2d Cir. 2006) (observing that neither party disputed

whether a forum selection clause was "reasonably communicated" where it was "plainly
printed" in the governing agreements). Because this "mandatory" clause was "reasonably
communicated" to parties whose claims are "subject" to its provisions, it is presumptively
enforceable, absent a showing of unreasonableness or injustice. See Martinez, 740 F.3d
at 211.
When a forum selection clause is presumptively enforceable, "the plaintiffs
choice of forum merits no weight. Rather, as the party defying the forum-selection
clause, the plaintiff bears the burden of establishing that transfer to the forum for which
the parties bargained is unwarranted." At/. Marine, 571 U.S. at 63. Similarly, the court
"should not consider arguments about the parties' private interests. When parties agree to
a forum-selection clause, they waive the right to challenge the preselected forum as
inconvenient or less convenient for themselves or their witnesses, or for their pursuit of
the litigation." Id. at 64. Against this backdrop, Plaintiffs have not demonstrated that
enforcement of the forum selection clause would be unjust or that the circumstances are
sufficiently "exceptional" to merit disregarding it. Id. at 62. The disparity in the parties'
economic means is not enough to retain jurisdiction especially when the Vincis are
already litigating in the Northern District of California.

B.

Whether the Vincis' Claims Should be Transferred Under a
Traditional§ 1404(a) Analysis.

Even if the Vincis' remaining claims were not subject to the Agreement's forum
selection clause, the totality of the circumstances merit a transfer to the United States
District Court for the Northern District of California by clear and convincing evidence.
As a threshold issue, venue is proper in the Northern District of California because it is
both "a judicial district in which [the] defendant resides" and "a judicial district in which
a substantial part of the events or omissions giving rise to the claim occurred[.]" 28

10

U.S.C. § 139l(b). As a result, the pending case "might have been brought" in the
Northern District of California and transfer under§ 1404(a) is permissible. See Van
Dusen, 376 U.S. at 623 ("There is no valid reason for reading the words 'where it might

have been brought' to narrow the range of permissible federal forums beyond those
permitted by federal venue statutes") (quoting 28 U.S.C. § 1404(a)).
With regard to the factors governing a § 1404 transfer, the Vincis' choice of forum
is entitled to some weight. See NY Marine, 599 F.3d at 112 ("Among the factors to be
considered in determining whether to grant a motion to transfer venue" is "the plaintiffs
choice of forum"). The court's prior transfer of several related claims, arising out of the
same operative facts, however, is a compelling countervailing consideration weighing
heavily in favor of the transfer of the Vincis' remaining causes of action. See, e.g., APA
Excelsior III L.P. v. Premiere Techs., Inc., 49 F. Supp. 2d 664, 668 (S.D.N.Y. 1999) ("It

is well established that the existence of a related action pending in the transferee court
weighs heavily towards transfer.") (collecting cases).
Consolidation in the Northern District of California will be more efficient and cost
effective for all involved, as opposed to pursuing parallel actions involving many of the
same witnesses and documents in two different courts on opposite sides of the country.
See Durham Prods., Inc. v. Sterling Film Portfolio, Ltd., Series A, 537 F. Supp. 1241,

1244 (S.D.N.Y. 1982) (observing that transfer to Georgia where "five related cases" were
pending "would pose no great burden ... and would in fact avoid much duplicative
litigation."). Indeed, the Vincis are named as counterclaim-Defendants in VF Outdoor's
Answer to TNF's Complaint in the transferred action pending in the Northern District of
California and will necessarily be involved in Californian litigation. Assuming arguendo
that the Vincis' remaining claims will be consolidated with the related matters pending in
California, transfer will lead to more streamlined and cost-effective discovery and
presumably more expeditious resolution.
VF Outdoor further points out, as an Alameda, California based company, the vast

majority of its fact witnesses reside in California and will be substantially inconvenienced
if they must appear in Vermont as part of this litigation. In light of the nature of the
11

Vincis' claims, VF Outdoor's witnesses are likely to exceed the Vincis' and this factor
must also weigh in VF Outdoor's favor. 7 In the event that the Vincis wish to subpoena
witness to appear at trial to testify, they will not be able to do so for any non-party
witness who does not live or work within one hundred miles of Burlington, Vermont or
any party witness who lives outside of the state. See Fed. R. Civ. P. 45(c)(l) ("A
subpoena may command a person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or regularly transacts
business in person; or (B) within the state where the person resides, is employed, or
regularly transacts business in person, if the person ... is a party"). Because the majority
of VF Outdoor's employees reside and work in California, such process is unavailable in
the District of Vermont. In light of these considerations, both "the convenience of the
parties and witnesses" and "the interest of justice" are best served by a transfer. NY

Marine, 599 F.3d at 112.
CONCLUSION
For the foregoing reasons, VF Outdoor, LLC's motion to transfer venue to the
United States District Court for the Northern District California (Doc. 36) is GRANTED
and the Vincis' claims are hereby TRANSFERRED to that court.
SO ORDERED.
0

Dated at Burlington, in the District of Vermont, this / ~ay of July, 2018.

C h e1ss, · J dge
nstma ~ 1stnct u
United States District Court

7

Moreover, under Fed. R. Civ. P. 45(c)(l)(A), Defendant cannot subpoena non-party witnesses
to appear for a deposition more than one hundred miles from their home or place of business,
which may require it to invest time and resources traveling to Vermont to conduct a pre-trial
depositions if any are required. The same is true of non-party witnesses the Vincis seek to
depose. See id

12