Envirocare Technologies, LLC. v. Simanovsky et al, No. 2:2011cv03458 - Document 17 (E.D.N.Y. 2012)
Court Description: MEMORANDUM AND ORDER denying 5 Motion to Dismiss for Lack of Jurisdiction; denying 5 Motion to Change Venue. For the foregoing reasons, Defendants' motion is DENIED in its entirety. So Ordered by Judge Joanna Seybert on 6/4/12. C/ECF (Valle, Christine)
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Envirocare Technologies, LLC. v. Simanovsky et al Doc. 17 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------X ENVIROCARE TECHNOLOGIES, LLC, Plaintiff, MEMORANDUM & ORDER 11-CV-3458(JS)(ETB) -againstROMAN SIMANOVSKY and ALEX SHLAEN (d/b/a NW Class Vacuum Supplies), Defendants. ---------------------------------------X APPEARANCES For Plaintiff: Gerard F. Dunne, Esq. Joseph Anthony Dunne, Esq. Law Office of Gerard F. Dunne, P.C. 156 Fifth Avenue, Suite 1223 New York, NY 10010 For Defendants: Geoffrey Robert Batsiyan, Esq. Law Office of Geoffrey Batsiyan 2753 Coney Island Ave, Suite 224 Brooklyn, NY 11235 SEYBERT, District Judge: Plaintiff EnviroCare Technologies, LLC (“Plaintiff” or “Envirocare”) commenced this action on July 19, 2011 against Roman Simanovsky and Alex Shlaen d/b/a NW Class Vacuum Supplies (collectively, “Defendants”) asserting a trademark infringement claim and various state law claims arising out of Defendants’ sale of ENVIROCARE-branded vacuum supplies. Presently before the Court is Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction and pursuant to Rule 12(b)(3) for improper venue, or, in the alternative, requesting a transfer of venue pursuant Dockets.Justia.com to 28 U.S.C. § 1404(a). For the reasons stated below, Defendants’ motion is DENIED. BACKGROUND Plaintiff is a New York limited liability company that manufactures, markets, and sells vacuum cleaner bags, filters, and other replacement accessories under the registered trademark ENVIROCARE. (Compl. ¶¶ 10, 14.) It is organized under the laws of New York, and its principle place of business is in Bohemia, New York. (Compl. ¶ 1.) Defendants, both Oregon residents, operate an “internet store” called NW Class, through which they market and sell accessories ENVIROCARE-branded products. for vacuum cleaners, including (Compl. ¶¶ 2-4, 17; Dunne Decl. Exs. 1-2; Shlaen Aff. ¶ 1(A), (D), (F); Simanovsky Aff. ¶ 1(A), (D), (F).) even an This “internet store” is not a physical store or independent website. Rather, customers access through “storefronts” hosted by Amazon.com and eBay.com. Decl. ¶¶ 2-3 & Exs. 1, 2.) it (Dunne As of October 3, 2011, NW Class had 40,312 reviewed transactions on eBay.com and 5,658 transactions on Amazon.com. (Dunne Decl. ¶¶ 2-3 & Exs. 1, 2.) In June 2011, Greg Seck, the president and founder of Envirocare, had his son purchase an ENVIROCARE-branded vacuum bag from Defendants’ Amazon-based store. (Seck Decl. ¶ 4.) The order confirmation stated that the product was “[s]old by Roman Simanovsky,” and the item was shipped by Amazon to Plaintiff’s 2 office in Bohemia, New York. (Seck Decl. 1.)1 Ex. After receiving the vacuum bag, Mr. Seck compared it to Envirocare’s vacuum bags and “several discrepancies were detected,” which, according to Mr. Seck, “indicate[d] that the bags shipped by Roman Simanovsky and branded products.” NW Class were (Seck Decl. ¶ 5.) not genuine Envirocare- Plaintiff commenced this trademark infringement action shortly thereafter. On September 20, 2011, Defendants moved to dismiss or, in the alternative, change venue. opposition on October 4, 2011. Plaintiff filed its Defendants did not file a reply. DISCUSSION Defendants move to dismiss on two grounds: of personal alternative, jurisdiction Defendants and move for for improper a change for lack venue. of In venue the in the interest of justice. I. Lack of Personal Jurisdiction A. Legal Standard under Rule 12(b)(2) A plaintiff bears the burden of demonstrating personal jurisdiction over the persons or entities sued. (USA), Inc. v. Am. Buddha, 609 1 F.3d 30, 34 (2d Penguin Grp. Cir. 2010) Mr. Seck’s son made two additional purchases of ENVIROCAREbranded products from Defendants’ Amazon-based store on August 2, 2011 and September 1, 2011. (Seck Decl. ¶¶ 7-8.) Both purchases were “[s]old by Roman Simanovsky” and shipped by Amazon to Plaintiff’s Bohemia, New York address. (Seck Decl. Exs. 2, 3.) 3 (citation omitted). The Court has “considerable procedural leeway” in resolving these motions: it may decide the motion on the basis of the parties’ affidavits, “permit discovery in aid of the motion, or . . . conduct an evidentiary hearing on the merits of the motion.” Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). A plaintiff's precise burden depends on how the Court elects to address the jurisdiction issue. Id. Short of a “full-blown evidentiary hearing on the motion, the plaintiff need make only a prima facie showing of jurisdiction materials.” through Id. its own affidavits and supporting While a plaintiff will eventually have to establish jurisdiction by a preponderance of the evidence at trial or a pretrial evidentiary hearing, “until such a hearing is held, a prima facie showing suffices, notwithstanding any controverting presentation by the moving party, to defeat the motion.” Id. “A plaintiff can make this showing through [its] own affidavits and supporting materials, containing [a good faith] averment establish of facts that, jurisdiction if over credited . . . would the defendant.” In suffice re to Methyl Tertiary Butyl Ether Prod. Liab. Litig., 399 F. Supp. 2d 325, 330 (S.D.N.Y. 2005) (alterations in original) (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 208 (2d Cir. 2001)) (internal quotation marks omitted). 4 When the issue is addressed on affidavits, all allegations are construed in the light most favorable to the plaintiff and all doubts are resolved in the plaintiff's favor. Id.; DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 85 (2d Cir. 2001). Thus, the Court accepts Plaintiff's evidence as true. See In re Ski Train Fire in Kaprun, Austria on Nov. 11, 2000, 343 F. Supp. 2d 208, 213 (S.D.N.Y. 2004) (“[A] court may consider materials outside the pleadings, but must credit the plaintiff's averments of jurisdictional facts as true.”). B. Determining Personal Jurisdiction Whether or not a defendant is jurisdiction involves a two-part inquiry. subject to personal First, the Court asks whether Defendants’ acts bring them within reach of the long-arm statute of the state in which the Court sits. Grand River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 165 (2d Cir, 2005). Second, if the state's long-arm statute permits the Court's exercise of jurisdiction, then the Court determines whether such exercise would be consistent with the due process guarantees of the U.S. Constitution. 1. New York’s Long-Arm Statute Plaintiff personal See id. argues jurisdiction under that N.Y. Defendants C.P.L.R. are subject 302(a)(1), to which provides for the exercise of long-arm jurisdiction over an outof-state-defendant who “transacts any business within the state 5 or contracts anywhere to supply goods or services in the state.” See also Grand River, 425 F.3d at 166. A party need not be physically present in the state for the court to obtain personal jurisdiction. See Chloé v. Queen Bee of Beverly Hills, L.L.C., 616 F.3d 158, 169 (2d Cir. 2010). Rather, New York courts define transacting business as “purposeful activity--‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’” Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d Cir. 2007) (quoting McKee Elec. Co. v. Rauland-Borg Corp., 20 N.Y.2d 377, 382, 299 N.E.2d 604, 607, 283 N.Y.S.2d 34, 37-38 (1967)).2 “Moreover, where there is a showing that business was transacted [in New York], there must be a ‘substantial nexus’ between the business and the cause of action.” Grand River, 425 F.3d at 166 (citation omitted). Accordingly, courts in New York have explained that C.P.L.R. 302(a)(1) “is a ‘single act statute’ and proof of one transaction in New York is sufficient to invoke jurisdiction, 2 Courts have noted that this standard tends “to conflate the long-arm statutory and constitutional analyses by focusing on the constitutional standard: whether the defendant’s conduct constitutes ‘purposeful[] avail[ment]’ ‘of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’” Id. at 247 (alterations in original) (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958)). 6 even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted.” Chloé, 616 F.3d at 170 (quoting Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 522 N.E.2d 40, 43, 527 N.Y.S.2d 195 (1988)) (internal quotation marks omitted). this circuit counterfeit have goods jurisdiction. Paramount concluded in New that the York is In fact, courts in single act of selling sufficient to invoke See, e.g., Baron Philippe de Rothschild, S.A. v. Distillers, Inc., 923 F. Supp. 433, 436 (S.D.N.Y. 1996) (finding that the court had personal jurisdiction over defendants goods who into admitted New substantially to York: shipping “those related to the shipments plaintiffs’ allegedly were claim infringing purposeful of and trademark infringement”); Chloé, 616 F.3d at 170 (stating that the “single act of shipping sufficient, by a counterfeit itself, to Chloé subject bag [the might defendant] well to be the jurisdiction of a New York court under section 302(a)(1)”). In this case, the question of whether the transaction occurred in New York is more complicated because the sale of allegedly infringing goods occurred online through Defendants’ Amazon storefront and the goods were shipped to New York by Amazon. When analyzing whether a defendant’s internet activity provides the Court with jurisdiction, 7 “‘the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.’” Best Van Lines, 490 F.3d at 251 (quoting Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1122 (W.D. Pa. 1997)). Thus, courts apply a “sliding scale” test based on the level of a website’s interactivity. A website that merely provides information that is accessed by individuals in New York is not grounds for the exercise of personal jurisdiction. See, e.g., ISI Brands, Inc. v. KCC Int’l, Inc., 458 F. Supp. 2d 81, 86 (E.D.N.Y. 2006) (“Internet websites that are not of a commercial nature and do not permit the purchase of products on-line are not sufficient to confer 302(a)(1).”). personal jurisdiction pursuant to section However, if a website is interactive and allows a buyer in New York to submit an order online, courts typically find that the website operator is “transacting business” in New York and is therefore subject to the court’s jurisdiction. See Hsin Ten Enter. USA, Inc. v. Clark Enters., 138 F. Supp. 2d 449, 456 (S.D.N.Y. 2000) (“Generally, an interactive website supports a finding of personal jurisdiction over the defendant.”); see also, e.g., Mattel, Inc. v. Adventure Apparel, No. 00-CV-4085, 2001 WL 286728, at *3 (S.D.N.Y. Mar. 22, 2001) (“Here, Falsone ordered allegedly infringing merchandise from Adventure over its web site, using his credit card, and Adventure shipped that 8 merchandise into New York. This activity not only involved the exchange of payment and shipping information but, moreover, was a commercial transaction that was actually consummated on line. These activities were sufficient to bring Adventure into the category of a defendant ‘transact[ing] any business,’ via the internet, in New York within the meaning of N.Y. C.P.L.R. § 302(a)(1).”). Here, however, although Defendants sold their products online and consummated sales via the internet, they did not maintain the website(s) or personally ship their products to consumers. According to Defendants, they merely “created a username, posted an item for sale on Amazon, and shipped the item to the Amazon’s [sic] order fulfillment office.”3 Mot. 6.) (Defs. One court in New York noted that the “sliding scale” analysis discussed above “makes little sense in the eBay context since eBay, and not the user, controls the interactivity and marketing efforts of the website.” Sayeedi v. Walser, 15 Misc. 3d 621, 627, 835 N.Y.S.2d 840, 845 (Civ. Ct. Richmond Cnty. 2007). When faced with the use of Amazon or eBay to transact business, courts have instead focused on the extent to which the website “is used as a means for establishing regular business with a remote forum.” Boschetto v. Hansing, 539 F.3d 1011, 1019 3 Defendants do not address their use of eBay to market and sell their products, so the Court does not know whether Defendants or some third party fulfills the orders submitted through eBay. 9 (9th Cir. 2008). The “usual online auction process” where an unsophisticated seller uses eBay’s template to post an item for sale and sells and ships the item to the highest bidder typically “does not rise to the level of purposeful conduct required to assert specific jurisdiction,” Sayeedi, 15 Misc. 3d at 627-28, 835 N.Y.S.2d at 845-46 (collecting cases); see also Jones v. Munroe, 2 Misc. 3d 24, 25, 773 N.Y.S.2d 498, 498 (1st Dep’t 2003), whereas jurisdiction is proper when a sophisticated seller operates a commercial business through eBay or Amazon, see Dedvukaj v. Maloney, 447 F. Supp. 2d 813, 818-23 (E.D. Mich. 2006) (finding jurisdiction over an eBay “Power Seller” who displayed favorable marketing statistics, required a warehouse for the storage of goods, offered a toll-free number to customers, and encouraged viewers to visit the seller’s eBay store); Malcolm v. Esposito, 63 Va. Cir. 440, 446 (Cir. Ct. 2003) (finding jurisdiction over commercial “power sellers” with 213 sales on eBay who represented that they had local, national, and international eBay customers); cf. Boschetto, 539 F.3d at 1018 (finding no jurisdiction because the plaintiff did “not allege that any of the Defendants [were] using eBay to conduct business generally”); Sayeedi, 15 Misc. 3d at 628, 835 N.Y.S.2d at 846 (finding no jurisdiction, in part, because “[n]o evidence was provided statistics, by Plaintiff experience, or as of 10 to any Defendant’s marketing overall directed eBay at potential customers, designed for instance, to welcome bids from New Yorkers or any other acts that indicate Defendant may be purposefully availing himself specifically to the business of New Yorkers or any desire to take advantage of New York law”). Defendants in the present case fall into the second category. They marketed and sold their products exclusively through Amazon and eBay, and, as of October 2011, entered into at least 46,000 separate across the country. transactions with individual buyers They used eBay and Amazon to expand their market “literally to the world” and “avail[ed] themselves of the benefits of this greatly expanded marketplace.” F. Supp. 2d at 820. Dedvukaj, 447 As one court stated: It should, in the context of these commercial relationships, be no great surprise to sellers--and certainly no unfair burden to them--if, when a commercial transaction formed over and through the internet does not meet a buyer’s expectations, they might be called upon to respond in a legal forum in the buyer’s home state. Sellers cannot expect to avail themselves of the benefits of the internetcreated world market that they purposefully exploit and profit from without accepting the concomitant legal responsibilities that such an expanded market may bring with it. Id. So, even though Defendants did not personally manage the websites through which they sold their products, their internetbased activities established regular jurisdictions, including New York. 11 business with foreign Thus, the Court finds that Defendants’ sale of the allegedly counterfeit Amazon.com sufficient item amounted to to to Plaintiff transacting establish long arm in New business York in jurisdiction through New under York C.P.L.R. 302(a)(1). 2. The Due Process Clause Having established that Defendants fall within the reach of New York’s long-arm statute, the next issue is whether the Court’s exercise of jurisdiction over Defendants comports with the Constitution’s due process guarantees. Asahi Metal Indus. Co. v. Cal. Super. Ct., Solano Cnty., 480 U.S. 102, 10809, 107 S. Ct. 1026, 94 L. Ed. 2d (1987). These guarantees are satisfied when a defendant has certain minimum contacts with the forum state such that maintenance of the suit would not “offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945) omitted). The “minimum contacts” (internal analysis quotation involves inquiry and two the marks related and citation inquiries: “reasonableness” the inquiry. Chloé, 616 F.3d at 171. a. To minimum establish contacts Defendants Minimum Contacts with purposely that the availed Defendants forum, Plaintiff themselves 12 have of the must the requisite show that privilege of doing business in New York. Chaiken v. VV Pub. Corp., 119 F.3d 1018, 1028 (2d Cir. 1997). Here, Defendants marketed and sold their products nationwide through Amazon and eBay, and, on at least three occasions, received orders from Plaintiff in New York and arranged for products to be shipped to Plaintiff in New York. Such conduct is sufficient “minimum contacts” inquiry. to satisfy due process’s See, e.g., Chloé, 616 F.3d at 171 (finding a defendant who offered his product for sale to New York consumers on his company’s website and selling the product to New York consumers “‘purposefully avail[ed] [him]self of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws’” (alterations in original) (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985))); Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 243 (2d Cir. 1999) (finding personal jurisdiction agreement, which where contemplates an “‘exclusive that sales Kurz-Hastings rights’ will sell Navitas’s machines in North America and throughout the world, serves as evidence of Navitas’s attempt to serve the New York market, albeit indirectly”). b. Reasonableness Plaintiff must also demonstrate that the exercise of jurisdiction over Defendants would not “offend notions of fair play and substantial justice.” 13 traditional Asahi, 480 U.S. at 113 (internal quotation marks and citation omitted). A court must consider five factors in determining whether the exercise of jurisdiction is reasonable: (1) the burden on Defendants, (2) the interests of the forum state, (3) Plaintiff’s interest in obtaining relief, (4) “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,” and (5) “the shared interest of the several States in furthering fundamental substantive social policies.” 616 F.3d at 173. As Defendants to will Id.; accord Chloé, The Court will briefly address these factors. the be first burdened factor, by it is Plaintiff’s undisputed choice of that forum: Defendants are two individuals that live and work in Oregon. However, Defendants’ “generalized complaints of inconvenience arising from having to defend [themselves] from suit in New York do not add up to ‘a compelling case that . . . would render jurisdiction unreasonable.’” Chloé, 616 F.3d at 173 (quoting Burger King, 471 U.S. at 477). The second factor weighs in Plaintiff’s favor, as New York, or any forum state for that matter, has a “manifest interest in providing effective means of redress for its residents.” at 483). Id. (quoting Burger King, 471 U.S. The third factor also favors Plaintiff, as Plaintiff chose New York as a forum, Plaintiff is located in New York, and presumably its witnesses and evidence are located in New York. The fourth and fifth factors appear to be neutral. 14 There being no factors that favor Defendants, the Court finds that asserting jurisdiction over Defendants comports with “traditional notions of fair play and substantial justice,” Asahi, 480 U.S. at 113 and, accordingly, Defendants’ motion to dismiss for lack of personal jurisdiction is DENIED. II. Venue Defendants also move to dismiss under Rule 12(b)(3) for improper venue and, in the alternative, move to transfer venue to United States District Court for the District of Oregon under 28 U.S.C. § 1404(a). A. Motion to Dismiss for Improper Venue Rule 12(b)(3) allows a defendant to move to dismiss a claim based on “improper venue.” When considering a motion to dismiss for improper venue, the Court must accept the facts alleged in the Complaint as true and draw inferences in favor of the non-moving party. all reasonable Cartier v. Micha, Inc., No. 06-CV-4699, 2007 WL 1187188, at *2 (S.D.N.Y. Apr. 20, 2007). In ruling on the motion, however, the Court may rely on facts and consider documents outside of the Complaint. See id. Further, Plaintiff bears the burden of proving that venue is proper. See id. 15 Venue is governed by 28 U.S.C. § 1391(b)(1),4 which states, in relevant part, that venue is proper in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” Courts in trademark infringement cases have held that venue may be proper “in each jurisdiction occurred.” where infringement is properly alleged to have Mattel, 2001 WL 286728, at *4 (internal quotation marks and citation omitted); see also Pilates, Inc. v. Pilates Inst., Inc., 891 F. Supp. 175, 182 (S.D.N.Y. 1995). minimum, the advertising defendant efforts at must the have targeted district actually sold its products there.” in its “At a marketing question, or and have Mattel, 2001 WL 286728 at *4. (internal quotation marks and citation omitted). When the marketing activity or sale occurred via the internet, courts in New York apply the same principles website confers personal jurisdiction. which govern whether a See, e.g., id. at *5; Hsin Ten Enter., 138 F. Supp. 2d at 460. Accordingly, for the reasons discussed above, venue is proper in the Eastern District of New York, and the motion to dismiss for improper venue is DENIED. 4 Section 1391 was amended in December 2011 after Defendants filed their motion to dismiss. However, it is the amended venue statute, not the version of the statute that was in effect when Plaintiff commenced its action, that applies to the present motion. See Moore v. Agency for Int’l Dev., 994 F.2d 874, 87879 (D.D.C. 1993); Setco Enters. Corp. v. Robbins, 19 F.3d 1278, 1280 (8th Cir. 1994). 16 B. Motion to Transfer Venue District courts may transfer a matter from one venue to another “[f]or the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). Courts have broad discretion in deciding whether a transfer is warranted, and they consider factors that include: (1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant 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. D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006) (alteration in original) (internal quotation marks and citation omitted). The party requesting transfer carries the “burden of making out a strong case for transfer,” N.Y. Marine & Gen, Ins. Co. v. Lafarge N. Am., 599 F.3d 102, 113-14 (2d Cir. 2010) (internal quotation marks and citation omitted), and the plaintiff’s choice of forum “should not be disturbed unless the balance of factors tips decidedly in favor of a transfer,” Wildwood Imps. v. M/V Zim Shanghai, No. 04-CV-5538, 2005 WL 425490, at *3 (S.D.N.Y. Feb. 20, 2005); see also N.Y. Marine, 599 F.3d at 114. 17 The Court finds that Defendants failed to meet their burden. Defendants argue that Plaintiff’s choice of forum is entitled to little or no weight seeking a declaratory judgment. of both the law and the facts. because this is an action This is an incorrect statement This action is not a declaratory action; rather, Plaintiff is seeking injunctive and compensatory relief. always (Compl. ¶¶ A-G.) given great And a plaintiff’s choice of forum is weight. D.H. Blair, 462 F.3d at 107.5 Defendants also argue that the “relative means of the parties strongly favors the Oregon forum.” (Defs. Mot. 12.) However, “[a] party arguing against or for transfer because of inadequate means must offer documentation to show that transfer (or lack therof) would be unduly burdensome to his finances.” MasterCard Int’l Inc. v. Lexcel Solutions, Inc., No. 03-CV-7157, 2004 WL 1368299, at *7 (S.D.N.Y. June 16, 2004) (internal quotation marks and citations omitted); see also Orb Factory, Ltd. v. Design Sci. Toys, Ltd., 6 F. Supp. 2d 203, 210 (S.D.N.Y. 1998). Yet, here, unsupported Defendants’ allegations only that provide the Plaintiff is Court a with the “powerful and established corporation” that has “many employees and several 5 The cases cited by Defendants are inapposite. The New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006), deals with whether a court abused its discretion in entertaining a declaratory judgment action, and Sentry Corp. v. Conal International Corp., 164 F. Supp. 770 (S.D.N.Y. 1958), deals with the first-filed rule. 18 millions of dollars in annual revenue” compared to Defendants who “are individuals running a small internet venture.” Mot. 12.) (Defs. They provide no information about their own resources and financial ability to defend this action in New York, and, accordingly, the Court places little weight on this factor. The Court finds that the balance factors weigh in favor of a New York forum. evidence related to this trademark of the remaining The majority of the infringement claim will likely come from Envirocare’s records: Envirocare holds the registered allegedly products trademark were in shipped to New York, and the tested in New Plaintiff’s office is located in New York. infringing York, and the Defendants even concede that “the location of documents and sources of proof is [sic] neutral.” (Defs. Mot. 11.) witnesses are in New York.6 Similarly, all of Envirocare’s Finally, while Defendants will undoubtedly be inconvenienced by travel to New York, Plaintiff would be equally inconvenienced by travel to Oregon. Accordingly, Defendants’ motion to change venue is also DENIED. 6 Defendants assert that Oregon would be a more convenient forum for its witnesses from Amazon and Northwest; however, Defendants failed to provide the Court with information regarding where these entities are located and why Oregon would be a more convenient forum that New York. 19 CONCLUSION For the foregoing reasons, Defendants’ motion is DENIED in its entirety. SO ORDERED /s/ JOANNA SEYBERT________ Joanna Seybert, U.S.D.J. DATED: June 4 , 2012 Central Islip, New York 20
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