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| Federal Motion for Change of Venue |
Research and Writing of state and federal motions is the foundation upon which our whole business is built upon. Here is a recent sample motion we wrote:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BONJOUR TOXICO ENTREPRENEUR, INC., an Illinois corporation,
Plaintiff,vs.NUTRI INTERTRO, INC., a New York corporation, NETBUENO.COM, LLC, a New York Corporation, FRANK GOMEZ, an individual, DENNIS RILEY, an individual, HEALTH CORPORATION, a Florida corporation SANTA BARBARA, an individual, and JOHN DOES FROM 1-10 and BONITA PRODUCTOS, INC., a California corporation
Defendants. Civil Action No. 1:09-cv-0000 --- Honorable James B. Zagel
MEMORANDUM IN SUPPORT OF DEFENDANT BONITA PRODUCTOS, INC.’S MOTION TO DISMISS FOR LACK OF JURISDICTION, IMPROPER VENUE AND INSUFFICIENT SERVICE OF PROCESS OR, IN THE ALTERNATIVE, TO TRANSFER PURSUANT TO 28 U.S.C. § 1404
I. INTRODUCTION
This case involves a litigious plaintiff with a history of filing federal lawsuits against its competitors. Plaintiff BONJOUR TOXICO ENTREPRENEUR, INC. (BONJOUR) has failed to list all of the cases related to this lawsuit and improperly filed this lawsuit in an inconvenient forum for defendant BONITA PRODUCTOS,, INC. (BONITA). BONJOUR’s main legal strategy is to make the high cost of litigation impossible for defendants, hence BONITA is the only defendant left in this lawsuit. Sardonically, plaintiff BONJOUR has been sued in federal court by its former legal counsel for failure to pay legal bills incurred in bringing this type of costly trade dress infringement lawsuit.
As set forth in greater detail below, this Court lacks jurisdiction of BONITA. BONITA is a small company that mainly does business in California and does not do business in Illinois.
Even if the Court did have jurisdiction over BONITA, the appropriate venue does not lie in the Northern District of Illinois. Most of defendant BONITA’s sales are in the Central District of California and hence that is where the witnesses who will be able to give competent testimony reside. All of BONITA’s employees, agents, vendors and contractors reside in the Central District of California. At a minimum, this matter should be transferred to the Central District of California because every factor to be considered weighs heavily in favor of a transfer:
•Most of defendant BONITA’s sales are in the Central District of California,
Most of defendant BONITA’s sales are in the Central District of California, •All of defendants witnesses reside in the Central District of California
All of defendants witnesses reside in the Central District of California•Defendant BONITA’S principal Jorge Gomez resides in the of California
Defendant BONITA’S principal Jorge Gomez resides in the of California•Defendant BONITA is incorporated and licensed to do business in California
Defendant BONITA is incorporated and licensed to do business in CaliforniaII. STATEMENT OF FACTS
The facts clearly establish that the present matter should not be heard by this Court. (See Declaration of Jorge Gomez).
III. LAW AND ARGUMENT
A.Plaintiffs’ Claims Against Defendant Should be Dismissed Because This Court Lacks Jurisdiction over the Defendant
Plaintiffs’ Claims Against Defendant Should be Dismissed Because This Court Lacks Jurisdiction over the DefendantThe Court does not have jurisdiction over Defendant BONITA because BONITA does not maintain contacts with Illinois sufficient for this Court to constitutionally exercise jurisdiction over them. See generally Asahi Metal Ind. Co. v. Superior Court, 480 U.S. 102 (1987).
Plaintiff bears the burden of proving facts sufficient to establish personal jurisdiction. Third National Bank in Nashville v. WEDGE Group, 882 F.2d 1087, 1089 (6th Cir. 1989).
The law is clear that California residents may not be subjected to litigation in a foreign jurisdiction unless that defendant has “certain minimum contacts with it such that the maintenance of the suit does not offend the ‘traditional notions of fair play and substantial justice.’” International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
Specific jurisdiction may be established where the claim asserted arises out of or is substantially related to the defendant’s minimum contacts with the forum state and general jurisdiction may be established where a defendant maintains substantial, systematic and continuous contacts with the forum state. See Conti v. Pneumatic Prods. Corp., 977 F.2d 978, 981 (6th Cir. 1992); Bridgeport Music v. Agarita Music, 182 F. Supp. 2d 653, 658 (M.D. Tenn. 2002). Plaintiffs can establish neither specific nor general jurisdiction as to each of the Defendants.
(1) Plaintiffs Have Failed to Establish Specific Jurisdiction
Before this Court can exercise specific jurisdiction over any of the Defendants, Plaintiff must establish that each Defendant purposefully directed its activities at Illinois and that the present litigation results from alleged injuries that arise out of, or relate to, Defendants’ resulting contacts with Illinois. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985). Plaintiffs have wholly failed to make any such showing for any of the Defendants named in this matter.
B. Venue Does Not Lie in the Northern District of Illinois
Under any venue analysis, the Northern District of Illinois is not the proper venue for the present action. Plaintiffs’ claims should be dismissed for failing to establish this District as a proper venue pursuant to the requirements of Federal Rule of Civil Procedure 12(b)(3), 28 U.S.C. §§ 1406(a) & 1391(b). Alternatively, the Court should transfer this matter to the Central District of California.
Plaintiffs’ allegation in paragraph fourteen of the Complaint that “Defendant API owns and operates a commercial website, www.bonitaproductos.com, accessible in this judicial district” is legally insufficient to establish grounds for venue or jurisdiction. “[A] plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions . . ..” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007).
Under any analysis, this matter should not be heard here.
-Plaintiffs’ Complaint should be dismissed for improper venue Pursuant to Fed. R. Civ. P. 12(b)(3) and 28 U.S.C. §§ 1391(b) & 1406(a)
28 U.S.C. § 1391(b) defines proper venue for federal question cases, such as the case before this Court: A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
Plaintiffs have the burden of establishing that at least one of these elements is met.
In the present matter, Plaintiffs have failed to meet their burden.
(a) 1391(b)(1) Does Not Apply Because the Defendants Do Not Reside in the Same State
Plaintiffs have failed to allege the state of residency of any Defendant in this matter, and instead merely alleged that Defendants do business in the Northern District of Illinois. (Complaint ¶¶ 4 through 13). Accordingly, Defendants do not reside in the same state and 1391(b)(1) is an improper basis for venue.
(b) 1391(b)(2) Does Not Apply Because a Substantial Part of the Alleged Events or Omissions Giving Rise to the Claims Did Not Occur in this District, Nor Is a Substantial Part of the Subject Property Situated in this District
Section 1391(b)(2) provides that venue is proper in a judicial district in which a substantial part of the events giving rise to the claim arose or where a substantial part of the subject property is situated. 28 U.S.C. § 1391(b)(2) (emphasis added). None of the property at issue is located in this District. The substantial events giving rise to the claim did not arise in this District. See Miles v. WTMX Radio, 15 Fed. Appx. 213, 215 (6th Cir. 2001) (holding that, when plaintiff had “not claimed that any event, act, or omission that is the basis of his claims occurred in any part of Michigan, let alone the Eastern District[,] [t]he court did not err in finding venue improper, and the court did not abuse its discretion by dismissing the suit.”).
First, none of Defendant BONITA’s business is located in this District. Second, Plaintiffs have not and cannot establish that any of the substantial events giving rise to the Plaintiffs’ claims arose in this District. Despite Plaintiffs’ contentions, Defendant BONITA’s sales all are based in the Central District of California.
Accordingly, this District is not the proper venue for Plaintiffs’ claims.
(c) 1391(b)(3) Does Not Apply Because the Central District of California is a District in Which This Suit May be Brought
1391(b)(3) allows for venue in “a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.” Because practically all of the events and transactions that are the subject of this case occurred in the Central District of California, this action may be brought in that District.
Because this District is not a proper venue under 1391(b), this Court should dismiss the present action in its entirety for improper venue.
(3) This Matter Should Be Transferred for Convenience to the Central District of California Pursuant to § 1404
This Court should transfer this case to the Central District of California under 28
U.S.C. § 1404(a) because a balance of convenience strongly favors such transfer. Section 1404(a) states: “For 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.”
In ruling on a motion to transfer under 1404(a), the Court should generally consider the private interests of the parties, including their convenience and the convenience of potential witnesses, as well as other public-interest concerns, such as systematic integrity and fairness, which come under the rubric of “interest of justice.” Moses v. Business Card Exp., Inc., 929 F.2d 1131, 1137 (6th Cir. 1991).
In addition to the significant weight afforded to a forum selection clause, this Court has set forth a number of factors for determining the issue of convenience under § 1404(a), including: (1) the location of witnesses; (2) the residence of the parties; (3) the location of the operative events; (4) the governing law; (5) the availability of compulsory process; and (6) the plaintiff’s choice of forum. See Nat’l Indep. Pharm. Coalition v. Am. Pharm. Coop., Inc., No. 3:05-1088, 2006 U.S. Dist. LEXIS 46538, at **8-9 (M.D. Tenn. July 10, 2006) (Echols, J.) (copy attached); Carborundum Co., Pollution Control Div. v. Bay Fabricators, Inc., 461 F. Supp. 437, 440 (E.D. Tenn. 1978); Vector Co. v. Urban Sys. Dev. Corp., 360 F. Supp. 864, 866 (E.D. Tenn. 1972).
Under any scenario, the factors weigh heavily on the side of transfer.
(a) The Forum Selection Clause Is To Be Given Deference
A court considering a § 1404(a) motion to transfer “must give the parties’ forum-selection clause significant weight in its transfer analysis . . ..” Viron Internat’l Corp. v. David Boland, Inc., 237 F.Supp. 2d 812, 820 (W.D. Mich. 2002) (citing Stewart v. Ricoh Corp., 487 U.S. 22, 29 (1988)). “The existence of a forum-selection clause is a ‘significant factor that figures centrally in the district court’s calculus.’” Outek Caribbean Distributors, Inc. v. Echo, Inc., 206 F. Supp. 2d 263, 266 (D.P.R. 2002) (quoting Stewart, 487 U.S. at 29)(copy attached).
(b) The Location of Potential Witnesses Favors Transfer
The convenience of the witnesses is generally considered the most important factor in evaluating a motion to transfer venue. Here, Defendant BONITA is and was at all relevant times to this action, located within the Central District of California. (Declaration of Jorge Gomez). Because Defendant BONITA has consistently been located in California and most of the non-party witnesses are also located in the Central District of California. Conversely, Plaintiffs have not alleged that any potential witnesses reside in this District. Thus, the balance of this factor also weighs in favor of transfer.
(c) The Residence of the Parties Favors Transfer
While the Plaintiffs have only alleged that Defendant BONITA operates a web site accessible in the Northern District of Illinois. (Complaint ¶ 13). Defendant BONITA actually resides in the Central District of California. (Declaration of Jorge Gomez).
See Returns Distrib. Specialists, LLC v. Playtex Prods., Inc., No. 02-1195-T, 2003 U.S. Dist. LEXIS 9004, at *21 (W.D. Tenn. May 28, 2003) (“The most significant factor when considering a transfer under § 1404 is the convenience of the witnesses.”) (copy attached); 15 Wright, Miller & Cooper, Federal Practice & Procedure § 3851 at 415 (2d ed. 1986) (“Probably the most important factor, and the factor most frequently mentioned, in passing on a motion to transfer under 28 U.S.C.A. § 1404(a) is the convenience of witnesses.”); 17 James Wm. Moore, Moore’s Federal Practice § 111.13[1][f][i] (3d ed. 2006) (“The convenience of witnesses has been called the most powerful factor governing the decision to transfer a case . . . .”) (internal quotation marks omitted); cf. Vector Co., 360 F. Supp. at 866 (considering the location of witnesses a “paramount” factor).
(d) The Location of the Operative Events Favors Transfer
The location of the operative events including the location of the relevant evidence also militates in favor of transfer. “A fundamental principle guiding the court’s analysis is that litigation proceed in that place where the case finds its center of gravity.” Audi AG and Volkswagen of America, Inc. v. D’Amato, 341 F. Supp. 2d 734, 751 (E.D. Mich. 2004) (copy attached). All of the trade dress design, manufacturing and sales that are the subject of this litigation occurred in the Central District of California. All of the relevant documents and records are located at Defendant BONITA’s principal place of business, which is located in the Central District of California. (See Declaration of Jorge Gomez, Exh. A). The Central District of California is clearly the center of gravity with respect to this suit. Thus, this factor also weighs in favor of transfer.
On timely motion, the issuing court must quash or modify a subpoena that . . . (ii) requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person – except that . . . the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held.
Because witnesses located in Los Angeles, California (the location of the fifty-
four subject gas wells), would have to travel more than 100 miles, this Court could not command their attendance. The Central District of California, however, could command those same witnesses to attend a trial because the witnesses are located in the same state where the trial is held.
As the Supreme Court held, “to fix a place of trial at a point where litigants cannot compel personal attendance and may be forced to try their cases on depositions, is to create a condition not satisfactory to the court, jury or most litigants.” Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508 (1947). This factor, therefore, also strongly favors transfer.
(g) Plaintiffs’ Choice of Forum Is Not Entitled to Any Weight
While the plaintiff’s choice of forum is typically afforded deference, “deference to a plaintiff's choice of forum is inappropriate where the plaintiff freely contracted to select a different judicial forum.” Inghram, 2006 U.S. Dist. LEXIS at *17. This factor, therefore, should not be granted any weight under the analysis because the parties contemplated and mutually agreed on the most convenient forum for disputes.
V. CONCLUSION
Based upon the forgoing, the question before this Court should not be whether to dismiss or to transfer, but rather why was this matter ever brought here in the first place. As every factor dictates that this matter should be heard in the Central District of California, Defendants respectfully request that this Court dismiss this action for lack of personal jurisdiction and/or lack of venue. In the alternative, Defendants request that the facts clearly establish that the present matter should not be heard by this Court. (See Declaration of Jorge Gomez).
Respectfully submitted,
Date: February 18, 2010__________________________________
__________________________________Jorge Gomez, Defendant Pro SeBONITA PRODUCTOS, INC.999 Main St.Malibu, CA 91331(310) 944-2055