Williamson vs. American Mastiff Breeders Council, et al.
Filing
40
ORDERED THAT the Ds' 8 Motion to Dismiss is DENIED . IT IS FURTHER ORDERED THAT the Ds' 8 Motion to Transfer Venue to the Southern District of Ohio is GRANTED. Signed by Judge Edward C. Reed, Jr on 3/6/2009. (Copies have been distributed pursuant to the NEF - DRM)
<![CDATA[
1 2 3 4 5 6 7 ) ) Plaintiff, ) 9 ) vs. ) 10 ) AMERICAN MASTIFF BREEDERS COUNCIL, ) 11 BILL & SANDY BERGER d/b/a ) AMERICAN MASTIFF, FLYING W FARMS, ) 12 CONNIE HAMMOND d/b/a SYCAMORE ) CREEK KENNELS, CAMERAN PRIDMORE, ) 13 d/b/a CAPELL CREEK RANCH AND ) KENNELS, DIANE ST. MARTIN d/b/a ) 14 HIDDEN ACRES FARM, KERRY MIKALCHUS ) d/b/a LAZY M AMERICAN MASTIFFS, ) 15 JIM & SANDY TAYLOR d/b/a DEEPWOOD ) ACRES AMERICAN MASTIFFS, TAMMY ) 16 VENKLER d/b/a MYSTIC AMERICAN ) MASTIFFS, FREDERICKA WAGNER, KEVIN ) 17 & MELANIE WARE d/b/a ORION FARMS, ) CANDACE WARE, Defendants Does I ) 18 through XX ) ) 19 Defendant. ) ) 20 ) 8 21 CRAIG W. WILLIAMSON, 3:08-CV-336-ECR-VPC UNITED STATES DISTRICT COURT DISTRICT OF NEVADA RENO, NEVADA
Order
In the world of dog breeding, sometimes, it's a dog-eat-dog Plaintiff Craig Williamson operates Circle W Mastiffs, a
22 world.
23 sole proprietorship that specializes in breeding what allegedly are 24 American Mastiff puppies. Williamson used to, or perhaps still
25 does, belong to the American Mastiff Breeders Council ("AMBC"), 26 which is the organization charged by the Continental Kennel Club 27 ("CKC") with "protecting" the purity of the American Mastiff breed. 28
1
Williamson and the AMBC have had a falling out.
Williamson
2 avers that the AMBC threatened to kick him out of the club when he 3 refused to abide by the group's scheme to fix prices for American 4 Mastiff puppies. The AMBC asseverates that Williamson has been
5 selling puppies that he represents to be American Mastiffs, but 6 which in fact are not breed-standard American Mastiffs because they 7 lack a "black mask." The AMBC filed suit against Williamson in
8 Ohio, alleging that he violated the Lanham Act by selling "maskless" 9 dogs as American Mastiffs. Williamson, in turn, brought suit in
10 Nevada against the AMBC and almost all of its members (herein 11 collectively, "the AMBC defendants") for violations of the Sherman 12 Antitrust Act and defamation. 13 The defendants have now filed a Motion to Dismiss, or in the
14 Alternative, to Transfer Venue (#8), seeking to get rid of the 15 Nevada suit. Williamson has opposed (#12) the motion, and the The motion is ripe, and we now rule
16 defendants have replied (#12). 17 on it. 18 19 20
I. Background Defendants Fredericka Wagner and Flying W. Farms created the
21 American Mastiff breed, which is a purebred dog as recognized by the 22 CKC. (P.'s Compl. ¶¶ 1-2 (#1).) Only certain people may breed
23 American Mastiffs, and these approximately twelve people are 24 recognized by the AMBC as breeders of the dog. (Id. ¶¶ 4, 6.) All
25 breeders of American Mastiffs are members of the AMBC. 26
(Id. ¶ 6.) As the
The members of the AMBC are located across the country.
27 community of American Mastiff breeders is quite small, the members 28
2
1 all know one another. 2 Williamson.
One member of the AMBC is Plaintiff Craig
Williamson lives in Nevada and owns and operates Circle (Id. ¶¶ 7, 13.)
3 W Mastiffs, which is also located in Nevada. 4
The members of the AMBC regularly meet and confer with each Because the members of the AMBC are
5 other about business issues.
6 spread throughout the country, the AMBC often conducts meetings via 7 the internet, either by chat room, live messaging, or via email to 8 discuss regular business items. 9 One business topic that has become a hot button issue for the Via email,
10 AMBC is the pricing of purebred/breed-standard1 dogs.
11 the AMBC breeders agreed to set a price ceiling for purebred 12 American Mastiffs. (P.'s Compl. ¶ 8 (#1).) Williamson did not want
13 to comply with the proposed price ceiling, believing that he could 14 get a higher price for his animals. The AMBC insisted that
15 Williamson not charge a higher price than that established by the 16 AMBC. (Id.) Williamson alleges that this artificial price ceiling
17 has caused him to lose money because otherwise he could have charged 18 a higher price for his puppies. 19 (Id.)
When Williamson attempted to have the AMBC abandon its price (Id. ¶ 9.) In
20 ceiling, the group threatened him with sanctions.
21 particular, the AMBC threatened to kick Williamson out of the group, 22 to deny him future breeding stock, and to commence a boycott against 23 Circle W such that it would appear that Circle W did not breed true 24 25 26 27 28 There appears to be a technical difference between "purebred" and "breed-standard," where a dog with the proper bloodlines may be considered "purebred," but lack the physical characteristics necessary to make it a "breed-standard" animal. Parsing the difference in terminology is not necessary for purposes of this motion, and the Court will use the terms interchangeably.
3
1
1 American Mastiffs.
(See id.)
By preventing Circle W from having
2 access to other American Mastiff breeding stock, eventually it will 3 not be able to breed American Mastiffs. 4 (Id.)
In addition, and also via email, the members of the AMBC agreed
5 not to expand the number of American Mastiff breeders for the next 6 five years. (Id. ¶ 10.) This would serve two purposes: first, it
7 would make the existing breeders' stock more valuable by limiting 8 supply; but second, it would eliminate the ability of Williamson to 9 sell breeding puppies, which typically sell for two times the rate 10 of companion puppies. 11 (Id.)
Aside from the group taking action against him, Williamson also
12 alleges that Cameran Pridmore, another American Mastiff breeder and 13 member of the AMBC, has "repeatedly made untrue written statements 14 to customers and individuals regarding Circle W's standing within 15 the AMBC." (Id. ¶ 11.) Pridmore has allegedly posted "numerous
16 untrue statements regarding Circle W's breeding stock and puppies" 17 online. (Id.) Presumably, these comments relate to Williamson
18 selling maskless dogs, which Pridmore characterizes as not being 19 true American Mastiffs. The complaint does not allege where the
20 activities took place or originated, though Pridmore is a resident 21 of California. 22 (Id. ¶ 17.)
On May 6, 2008, the AMBC defendants filed suit against They alleged that
23 Williamson in the Southern District of Ohio.
24 Williamson violated the Lanham Act by diluting the American Mastiff 25 brand by selling dogs that purported to be, but were not, American 26 Mastiffs. On June 17, 2008, Williamson filed suit against the AMBC Williamson alleged four
27 defendants in the District of Nevada. 28
4
1 causes of action: (1) violation of the Sherman Act by conspiring to 2 fix prices; (2) defamation; (3) violation of the Sherman Act 3 resulting from the filing of a frivolous suit by the defendants in 4 Ohio; and (4) a request for declaratory judgment. 5 On July 21, 2008, the AMBC defendants filed a Motion (#8) to Williamson
6 Dismiss, or in the Alternative, to Transfer Venue.2
7 opposed (#12) the motion on August 8, 2008, and the AMBC defendants 8 filed a Reply (#16) on September 5, 2008. 9 we will now rule on it. 10 11 12 II. Motion to Dismiss The AMBC defendants seek to dismiss the present case on three The motion is ripe, and
13 grounds: (1) under the first-to-file rule, the Court should dismiss 14 the present action in favor of the previously filed suit in Ohio; 15 (2) the Court does not have personal jurisdiction over the 16 defendants; and (3) the Court should dismiss the action for improper 17 venue. Williamson counters that the first-to-file rule does not
18 apply, and even if it did, the Court should not apply it for 19 equitable reasons. Next, he asserts that the Court has personal
20 jurisdiction over the defendants and that venue is proper. 21 22 23 A. First-to-File Rule "The first-to-file rule is a generally recognized doctrine of
24 federal comity which permits a district court to decline 25 26 27 28 The AMBC defendants do not challenge the merits of Williamson's claims at this time, so we will assume for now that the claims are well taken and plausible.
5
2
1 jurisdiction over an action when a complaint involving the same 2 parties and issues has already been filed in another district." 3 Inherent.com v. Martindale-Hubbell, 420 F. Supp. 2d 1093, 1097 (N.D. 4 Cal. 2006) (internal quotation marks omitted). Put another way, for
5 the rule to apply, three elements must be met: (1) two suits must be 6 filed in different federal districts, one before the other; (2) the 7 parties in the two suits must be the same; and (3) the issues in the 8 two suits must be the same. See id. With respect to the latter two
9 requirements, neither the parties nor the issues need be exactly the 10 same so long as they are substantially similar. Dumas v. Major
11 League Baseball Props., Inc., 52 F. Supp. 2d 1183, 1189, 1193 (S.D. 12 Cal. 1999), vacated on other grounds by Rodriguez v. Topps Co., Inc, 13 104 F. Supp. 2d 1224 (S.D. Cal. 2000), aff'd sub. nom., Chaset v. 14 Fleer/Skybox Int'l, L.P., 300 F.3d 1083 (9th Cir. 2002). 15 should not be disregarded lightly. The rule
Alltrade, Inc. v. Uniweld Prod.,
16 Inc., 946 F.2d 622, 625 (9th Cir. 1991). 17 Here, the temporal requirement of the first-to-file rule has The AMBC defendants filed a suit against Williamson, his
18 been met.
19 wife, and Circle W Mastiffs in the Southern District of Ohio before 20 Williamson filed his suit in Nevada. 21 Next, the parties in the two suits are substantially similar.
22 In the Ohio action, Williamson, his wife, and Circle W are named as 23 the defendants; Williamson is the plaintiff in the Nevada action. 24 All of the plaintiffs in the Ohio action are listed as defendants in 25 the Nevada action, with the exception of Candace Ware, who is a 26 defendant in the Nevada action, but not a plaintiff in the Ohio 27 action. 28
6
1
Finally, the issues in the two suits are substantially similar.
2 The Ohio action involves an alleged violation of the Lanham Act; the 3 Nevada action alleges two violations of the Sherman Act -- one of 4 which is based on the filing of the suit in Ohio -- and defamation. 5 While the elements of the claims are distinct in part, resolution of 6 the claims will turn on similar determinations of fact. For
7 example, whether Williamson and Circle W were selling purebred or 8 breed-standard American Mastiffs could depend on whether Fredericka 9 Wagner and Flying W sold Williamson American Mastiffs that were 10 breed-standard. Answering those issues would bear on whether
11 Williamson had a defense to the Lanham Act claim and also on whether 12 the AMBC defendants were trying to retaliate against Williamson for 13 not agreeing to fix prices for purebred/breed-standard American 14 Mastiffs. Due to the related nature of the underlying factual
15 disputes, the issues involved in the various claims seem 16 substantially similar. 17 Thus, all three elements of the first-to-file rule are Now we must examine whether there
18 implicated and the rule applies. 19 is an exception to the rule. 20
In its discretion, a district court may depart from the rule
21 for reasons of equity, such as when the filing of the first suit was 22 merely anticipatory, or evidences bad faith or forum shopping. 23 Inherent.com, 420 F. Supp. 2d at 1097. In order for a district
24 court to find that a first-filed suit was anticipatory, the 25 plaintiff in the initial action must have received "specific, 26 concrete indications that a suit by [the] defendant was imminent." 27 Ward v. Follett Corp., 158 F.R.D. 645, 648 (N.D. Cal. 1994). 28
7
It is
1 not enough that the defendant in the first action merely 2 contemplated litigation before the plaintiff brought suit; instead, 3 the defendant in the first action must have indicated that filing 4 suit was imminent, such that the plaintiff's motive for filing suit 5 first was to shop for the forum of its choice. See Mission Ins. Co.
6 v. Puritan Fashions Corp., 706 F.2d 599, 600, 602-03 (5th Cir. 1983) 7 (insurance company told insured, who was facing policy deadline for 8 suit, to hold suit until carrier provided written opinion regarding 9 suit, but instead the insurance company filed suit against the 10 insured); Amerada Petroleum Corp. v. Marshall, 381 F.2d 661, 663 11 (5th Cir. 1967) (finding a suit to be anticipatory where the 12 defendant had sent a letter to the plaintiff threatening suit in a 13 specific forum if the plaintiff did not consent to jurisdiction in a 14 different forum); cf. Bryant v. Oxxford Express, Inc., 181 F. Supp. 15 2d 1045, 1048-49 (C.D. Cal. 2000) (finding that the anticipatory 16 suit exception did not apply because the defendant's letter to the 17 plaintiff did not indicate that a lawsuit was imminent and the 18 plaintiff already had a preexisting motive to go to court); Guthy19 Renker Fitness, LLC v. Icon Health & Fitness, Inc., 179 F.R.D. 264 20 (C.D. Cal. 1998) (finding that the defendant's letter informing the 21 plaintiff about possible patent infringements did not show 22 imminently threatened litigation). 23 Williamson argues that because he send a letter unambiguously
24 threatening legal action before the AMBC defendants filed their 25 suit, the anticipatory suit exception to the rule applies. The AMBC
26 defendants contend that the anticipatory suit exception does not 27 apply for two reasons: (1) they were already contemplating 28
8
1 instigating litigation when Williamson threatened to bring suit; and 2 (2) they did not seek any declaratory relief in the Ohio action, so 3 the exception is not implicated. 4 It is clear that Williamson, through counsel, threatened
5 imminent legal action against the AMBC defendants in his letter on 6 April 3, 2008, in which Williamson offered to set aside his 7 differences with the AMBC if certain conditions were met. 8 letter unequivocally indicated that a signed and notarized 9 acceptance of the offer "must be received . . . [by May 3, 2008,] in 10 order for Mr. Williamson to cease the commencement of a civil action 11 in Federal court regarding this matter. Only full and complete The
12 acceptance of this offer will prevent this matter from moving 13 forward into civil litigation." (P.'s Opp. Ex. 1 (#12-2).) On May
14 6, 2008, with notice of Williamson's intent to file suit in Nevada, 15 the AMBC defendants filed suit against Williamson in Ohio. 16 Williamson did not file suit in Nevada until June 17, 2008. 17 The AMBC defendants contend that they were already
18 contemplating litigation before Williamson's counsel sent his 19 letter. Ms. Wagner's response to Williamson's letter, however, Wagner, who responded to Williamson's
20 undermines this contention.
21 letter through counsel on April 16, 2008, was the only one of the 22 AMBC defendants to respond to Williamson's letter at all. In the
23 response letter, Wagner's attorney asked for an additional ninety 24 days, or until mid-July 2008, within which time to make a decision, 25 promising that if the extension of time were given, Wagner would be 26 "willing to take reasonable steps to address" the situation and 27 negotiate in "good faith." 28 (P.'s Opp. Ex. 5 (#12-6).)
9
Williamson's
1 counsel apparently declined the offer for extension and repeated 2 that a response was needed within ten days. 3 It does not appear to the Court that the AMBC's suit was Wagner promised to
4 contemplated before Williamson's letter.
5 negotiate in good faith and to avoid any litigation in her response 6 letter. It was only after Williamson's attorney refused to give the
7 AMBC defendants any more time that they ran to the courthouse to 8 file suit in Ohio. It is somewhat troubling that Williamson delayed
9 in bringing his suit until June 17, 2008, when he had indicated that 10 he would bring suit as early as May 4, 2008. Nevertheless,
11 Williamson's offer to attempt to resolve the dispute outside of 12 court should not work to his detriment when he had already 13 threatened imminent legal action. 14 We also reject the AMBC defendants' argument that only when
15 first-filed suits seek declaratory relief are they subject to the 16 anticipatory suit exception to the first-to-file rule. While the
17 cases cited by the parties in the briefings before the Court 18 countenance situations where the first-filed suits sought 19 declaratory relief, this is a symptom without significance. A
20 district court may find an anticipatory suit exception even when the 21 first-filed suit does not seek declaratory relief. See, e.g., Rico
22 Records Distribs., Inc. v. Ithier, 364 F. Supp. 2d 358 (S.D.N.Y. 23 2005); see also, e.g., Herbert Ltd. P'ship v. Electronic Arts, Inc., 24 325 F. Supp. 2d 282 (S.D.N.Y. 2004) (even where first-filed suit 25 sought declaratory relief, district court still transferred the 26 action). 27 28
10
1
We conclude that the Ohio action was filed in anticipation of Consequently, because we find that an
2 litigation by Williamson.
3 exception to the first-to-file rule applies, the AMBC defendants' 4 motion to dismiss should be denied as to this basis. 5 6 7 B. Personal Jurisdiction The AMBC defendants next contend that the Nevada action should
8 be dismissed because they are not subject to personal jurisdiction 9 in Nevada.3 Williamson argues that the Court has personal
10 jurisdiction over the AMBC defendants. 11 "Where a defendant moves to dismiss a complaint for a lack of
12 personal jurisdiction, the plaintiff bears the burden of 13 demonstrating that jurisdiction is appropriate." Schwarzenegger v. If the
14 Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir. 2004).
15 Court proceeds without an evidentiary hearing on the matter, the 16 plaintiff "need only make a prima facie showing of jurisdictional 17 facts," Mattel, Inc. v. Greiner & Hausser GmbH, 354 F.3d 857, 862 18 (9th Cir. 2003), and the Court need only inquire into the 19 plaintiff's pleadings and affidavits to make its determination. See
20 Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1160 (9th Cir. 2007). 21 Under the Federal Rules of Civil Procedure, "filing a waiver of
22 service establishes personal jurisdiction over a defendant . . . who 23 24 25 26 27 28 We reject the AMBC defendants' contention that Williamson failed to plead jurisdiction in his complaint because he failed to include a specific "personal jurisdiction" heading. Here, the basis for jurisdiction is apparent from the complaint. See Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 839 (9th Cir. 2007) (stating that "whether a complaint gives the defendant sufficient notice of the court's jurisdiction" should be evaluated with liberality).
11
3
1 is subject to the jurisdiction of a court of general jurisdiction in 2 the state where the district court is located." 3 4(k)(1)(A). FED. R. CIV. P.
The AMBC defendants here all filed Waivers of Service
4 (Docket ## 19-31), so this Court has jurisdiction over the AMBC 5 defendants if a Nevada state court of general jurisdiction would 6 have jurisdiction over them. 7 In order for a Nevada state court to have jurisdiction over the
8 defendants, first there must be a statute that gives the court 9 authority to exercise such jurisdiction. Data Disk Inc. v. Systems Second, the
10 Tech. Assoc. Inc., 557 F.2d 1280 (9th Cir. 1977).
11 exercise of jurisdiction must meet Constitutional standards. 12 Abraham v. Augusta, S.P.A., 968 F. Supp. 1403, 1407 (D.Nev. 1997). 13 This Court is bound to follow the Nevada Supreme Court's 14 interpretation of Nevada state law. Id. The Nevada Supreme Court
15 has found that Nevada Revised Statute § 14.065(1) allows the 16 exercise of personal jurisdiction to the extent permitted by the 17 United States Constitution. Id. Thus, only the second part of the Whether the exercise of
18 Data Disk test is at issue here.
19 jurisdiction comports with the Constitution's due process 20 requirements is a question of federal law. 21 1286-87 n.3. 22 A court may have personal jurisdiction over a defendant in one Reebok Int'l Ltd. v. McLaughlin, If the defendant's activities Data Disk, 557 F.2d at
23 of two ways: general or specific. 24 49 F.3d 1387, 1391 (9th Cir. 1995).
25 and contacts with the forum state are substantial, continuous, or 26 systematic, a court will have general jurisdiction over the 27 defendant. 28 Id. Williamson does not argue that general jurisdiction
12
1 exists here; we proceed to the parties' arguments concerning 2 specific jurisdiction. 3 Specific jurisdiction may be established if the defendant has
4 sufficient "minimum contacts" with the forum state such that he can 5 reasonably anticipate being haled into court there. 6 Heitner, 433 U.S. 186 (1977). Shaffer v.
Specific jurisdiction is established
7 by an analysis of the "quality and nature of the defendant's 8 contacts with the forum state in relation to the cause of action." 9 Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987) (citing Data Disk, 10 557 F.2d at 1287). 11 The Ninth Circuit uses a tripartite test to determine if
12 specific jurisdiction exists: (1) the defendant must perform some 13 act or consummate some transaction within the forum or otherwise 14 purposefully avail himself of the privileges of conducting 15 activities in the forum; (2) the claim must arise out of or result 16 from the defendant's forum-related activities; and (3) the exercise 17 of jurisdiction must be reasonable. Bancroft & Masters, Inc. v.
18 Augusta Nat'l Inc., 223 F.3d 1082, 1086 (9th Cir. 2000) (citations 19 omitted). 20 When a group of defendants acts in concert, jurisdiction over
21 one defendant may give a court jurisdiction over all of the 22 defendants. This conspiracy theory of jurisdiction involves the
23 attempt to secure jurisdiction over one person alleged to have been 24 a co-conspirator with another, already subject to the court's power. 25 4A WRIGHT & MILLER, FEDERAL PRACTICE
AND
PROCEDURE, § 1069.5 (3d ed. 2002).
26 The Ninth Circuit has noted that "jurisdiction could only be 27 exercised" under such a theory "where substantial acts in 28
13
1 furtherance of the conspiracy were performed in the forum state and 2 the co-conspirator knew or should have known that the acts would be 3 performed in the state." Underwager v. Channel 9 Australia, 69 F.3d
4 361, 364 (9th Cir. 1995) (internal quotation marks omitted). 5 Here, then, Williamson must show that the Court has Failing
6 jurisdiction over all of the AMBC defendants individually.
7 that, he must show that the Court has personal jurisdiction over at 8 least one of the AMBC defendants, but that the rest of the 9 defendants were involved in a conspiracy, the acts of which were 10 largely performed in the state of Nevada. 11 Williamson alleges that the emails sent by members of the AMBC These emails
12 were directed to, among other places, Nevada.
13 demonstrate that the AMBC defendants allegedly sought to fix prices 14 for American Mastiff puppies in violation of the Sherman Act. The
15 emails are also evidence of the AMBC's alleged threats of sanctions 16 against Williamson and Circle W. 17 The complaint does not allege that all members of the AMBC sent The complaint
18 emails directed to a resident of Nevada in Nevada.
19 does, however, allege that at least one member of the AMBC did so. 20 The complaint also alleges that the AMBC defendants conspired 21 together to stamp out Williamson's business, which the AMBC 22 defendants knew was located in Nevada. 23 Exercising personal jurisdiction over the AMBC defendants seems
24 appropriate here because they purposefully directed their conspiracy 25 toward the forum state. The group conspired to fix prices for This conspiracy
26 American Mastiffs in violation of the Sherman Act.
27 involved sending targeted emails to a resident of Nevada and trying 28
14
1 to persuade that resident to join the illicit operation.
When the
2 attempts to further the conspiracy in Nevada failed, the group 3 sought retribution by seeking to harm a citizen of Nevada by 4 destroying his business in Nevada. The defendants' actions were
5 directed toward the forum state, and the effects of their actions 6 are being felt here as well. Haling the defendants into court thus
7 appears to be reasonable and to comport with traditional notions of 8 fair play and substantial justice. 9 Because we conclude that the Court has jurisdiction over the
10 AMBC defendants, their motion (#8) to dismiss for lack of personal 11 jurisdiction will be denied as to this basis. 12 13 14 C. Venue The AMBC defendants next ask the Court to dismiss this case for Williamson contends that venue is proper
15 considerations of venue. 16 in Nevada. 17
Williamson has asserted two bases for subject matter With
18 jurisdiction: federal question and diversity of citizenship.
19 diversity cases, venue is proper where any defendant is subject to 20 personal jurisdiction if there is no other district in which the 21 action may be brought. 28 U.S.C. § 1391(a)(3). With federal
22 question cases, venue may be appropriate in any judicial district 23 "in which any defendant may be found, if there is no district in 24 which the action may otherwise be brought." Id. § 1391(b)(3). In
25 either case, venue is also appropriate in a district where (1) any 26 defendant resides, if all defendants reside in the same state, or 27 28
15
1 (2) a substantial part of the events giving rise to the claim 2 occurred. 3 Id. § 1391(a)(1), (2); (b)(1), (2).
Here, not all defendants reside in the same state, so subpart We then must examine the location of where a
4 one does not apply.
5 substantial part of the events giving rise to the claim occurred. 6 If a harm suffered by a plaintiff is felt in a specific place, then 7 that place is one where the actions giving rise to the claim or 8 occurrence happened. See Myers v. Bennett Law Offices, 238 F.3d
9 1068, 1075-76 (9th Cir. 2001) ("As noted above, at least one of the 10 `harms' suffered by Plaintiffs is akin to the tort of invasion of 11 privacy and was felt in Nevada. Accordingly, a substantial part of Thus, venue
12 the events giving rise to the claim occurred in Nevada. 13 was proper.").
The defendants' actions here were directed at
14 Williamson in Nevada; Williamson felt the harm in Nevada; venue is 15 proper in Nevada. 16 The defendants' motion to dismiss (#8) for improper venue
17 should be denied as to this basis. 18 19 20 III. Motion to Transfer Pursuant to 28 U.S.C. § 1404(a) In the alternative to dismissing the case, the AMBC defendants
21 have moved to have the case transferred to the Southern District of 22 Ohio. Pursuant to 28 U.S.C. § 1404(a), "a district court may
23 transfer any civil action to any other district or division where it 24 might have been brought," if such a transfer is convenient for the 25 parties and witnesses and in the interest of justice. A motion to
26 transfer calls on the district court to "balance the preference 27 accorded the plaintiff's choice of forum with the burden of 28
16
1 litigating in an inconvenient forum. . . .
The defendant must make
2 a strong showing of inconvenience to warrant upsetting the 3 plaintiff's choice of forum." Decker Coal Co. v. Commonwealth
4 Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (internal citations 5 omitted). The Ninth Circuit has identified a list of eight
6 non-exclusive factors that may influence a district court's decision 7 to transfer under § 1404(a): 8 9 10 11 12 (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.
13 Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). 14 15 The first factor favors no party. While Williamson likely
16 purchased his American Mastiffs from Flying W in Ohio, the AMBC 17 defendants targeted Williamson and his business in Nevada. 18 sites are locations where relevant acts occurred. 19 The second factor likewise favors no particular side. Both Both
20 federal courts are well equipped to handle any matter of federal 21 question, and the parties have not addressed what state law will 22 govern the defamation claim. Presumably the defamatory language was
23 directed at, and felt, primarily in Nevada; however, the language 24 was likely published in a different forum. 25 Both sides would prefer to have their chosen forum be the one Both sides have filed
26 in which the litigation ultimately proceeds. 27 suits as plaintiffs. 28
We find this third factor to be in equipoise.
17
1
The respective parties' contacts with Nevada are discussed
2 above: Williamson is a Nevada resident and the defendants' actions 3 were targeted toward the forum state. This factor weighs slightly
4 in favor of finding Nevada to be the proper forum. 5 Similarly, the contacts relating to the plaintiff's cause of
6 action in the chosen forum weighs in favor of finding Nevada to be 7 the proper forum. 8 With respect to the difference in costs of litigation in the
9 two fora, both sides face considerable expense in trekking across 10 the country in pursuit of resolving this dispute. Since there are
11 more parties located in the eastern part of the country than in the 12 western part, presumably it might be marginally cheaper to make the 13 west head east. 14 The availability of compulsory process to compel attendance of Since most of
15 unwilling non-party witnesses greatly favors Ohio.
16 the non-party witnesses will come from east of the Mississippi 17 River, and this Court's authority over a non-resident-non-party 18 stops 100 miles from the federal courthouse in Reno, virtually no 19 non-party witnesses would appear in a trial in Nevada. 20 Last, the ease of access to sources of proof probably is of no The sources of proof mainly are found in hard drives and
21 moment.
22 dogs throughout the country. 23 Most of the factors do not weigh significantly into the Court's Nevertheless, at least one factor -- the availability of
24 calculus.
25 compulsory process to compel attendance of unwilling non-party 26 witnesses -- greatly favors transferring venue to Ohio. 27 // 28
18
1 2
IV. Conclusion The first-to-file rule applies; however, we conclude that the We also
3 Ohio action was filed in anticipation of the Nevada action.
4 conclude that this Court has jurisdiction over the defendants. 5 Nevertheless, we find transfer of the case appropriate pursuant to 6 28 U.S.C. § 1404(a). 7 8 IT IS THEREFORE HEREBY ORDERED THAT the defendants' Motion to
9 Dismiss (#8) is DENIED. 10 IT IS FURTHER ORDERED THAT the defendants' Motion to Transfer
11 Venue (#8) to the Southern District of Ohio is GRANTED. 12 13 14 DATED: March 6, 2009. 15 16 17 18 19 20 21 22 23 24 25 26 27 28
19
____________________________ UNITED STATES DISTRICT JUDGE
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