Exact Order Specialties v. Glow Industries, Inc. et al, No. 3:2012cv00631 - Document 49 (D. Or. 2012)

Court Description: OPINION AND ORDER: Defendant Jason Glowacki's motion to dismiss for lack of personal jurisdiction 36 is granted, and this case is dismissed without prejudice as to Jason Glowacki. The defendant Glow Industries, Inc.'s motion to transfer venue 31 is denied. Signed on 8/20/12 by Magistrate Judge Dennis J. Hubel. (kb)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF OREGON 3 PORTLAND DIVISION 4 5 EXACT ORDER SPECIALTIES, an Oregon ) Sole Proprietorship, ) 6 ) Plaintiff, ) No. 03:12-cv-00631-HU 7 ) vs. ) 8 ) GLOW INDUSTRIES, INC., an Ohio ) MEMORANDUM OPINION AND ORDER 9 corporation; JASON GLOWACKI, an ) ON MOTION TO TRANSFER VENUE individual; and DOES 1-10; ) AND MOTION TO DISMISS 10 ) Defendants. ) 11 ________________________________ 12 13 John E. Grant, III 14 Meltzer Grant LLC 107 S.E. Washington St., Suite 410 15 Portland, OR 97214 16 Attorney for Plaintiff 17 Christopher E. Hawk 18 Daniel J. Nichols Gordon & Rees LP 19 121 S.W. Morrison St., Suite 1575 Portland, OR 97204 20 Charles V. Choken 21 David A. Welling Choken Welling LLP 22 3020 W. Market St. Akron, OH 44333 23 Attorneys for Defendants 24 25 26 27 28 1 - MEMORANDUM OPINION AND ORDER 1 2 3 HUBEL, Magistrate Judge: 4 The plaintiff Exact Order Specialties ( Exact ) brings this 5 action for trademark infringement against the defendants Glow 6 Industries, Inc. ( Glow ); Jason Glowacki ( Glowacki ); and Does 17 10. The matter is before the court on Glow s Motion to Transfer 8 Venue (Dkt. #31), and Glowacki s Motion to Dismiss for Lack of 9 Personal Jurisdiction (Dkt. #36). 10 Exact, an Oregon corporation, is in the business of designing 11 and manufacturing various products, including musical instruments, 12 guitar jack sockets, and premium smoking pipes. 13 (citing Dkt. #27, First Am. Cmpt., ¶ 11). Dkt. #35, p. 3 Among other things, 14 Exact designs, manufactures, markets, and sells a small, portable 15 smoking pipe called the Monkey Pipe. According to Exact, the 16 pipe is made from high quality, hand finished hardwoods, and is 17 one of Exact s most popular products. Id. (citing Dkt. #27, ¶ 12). 18 On each Monkey Pipe, Exact places its Exact Order Specialties Eye 19 logo design (the EOS Eye Logo ). Exact maintains federally- 20 registered trademarks for the EOS Eye Logo (Reg. No. 3,060,212), 21 and the term Monkey Pipe (Reg. No. 3,883,064). Exact claims its 22 EOS Eye Logo is widely recognized by the consuming public of the 23 United States. 24 Dkt. #27, ¶ 19. According to Exact, a Glow employee named Brian Nupp contacted 25 Exact twice in February 2010, to express Glow s interest in whole26 saling Monkey Pipes. Dkt. #27, ¶¶ 25 & 26; Dkt. #35, p. 3. Jason 27 Davis, on behalf of Exact, corresponded with Nupp twice in March 28 2010, via e-mail, regarding Glow s inquiry. 2 - MEMORANDUM OPINION AND ORDER Exact claims that on 1 March 15, 2010, Nupp renewed Glow s interest in wholesaling Monkey 2 Pipes, if Glow could receive certain payment terms. 3 ¶ 28. However, Glow never submitted a purchase order for the 4 Monkey Pipes. 5 Dkt. #27, Dkt. #27, ¶ 29; Dkt. #35, p. 3. According to Glow, in October 2011, it purchased 1,010 pipes 6 at $3.00 per pipe ($3,030 worth of total product) from a company in 7 California that is not a party to this case. Dkt. #32, p. 2. 8 Glow then sold those pipes wholesale to various buyers, including 9 two sales to entities in Oregon: (1) a sale of ten pipes on 10 October 12, 2011, at a total cost of $62.50 to Magic Mushroom Lamp 11 Co. in Sutherlin, Oregon ; and (2) a sale of one pipe on Decem12 ber 6, 2011, at a total cost of $6.00 to Flashback T s in Coos 13 Bay, Oregon. 14 Id. Exact alleges the pipes sold by Glow to customers in Oregon 15 were called USA Made Monkey Pipe[s], featuring a copy of the EOS 16 Eye Logo, and bearing a false trademark symbol. Exact claims these 17 pipes were an obvious, low quality knock-off of the Monkey Pipe, 18 that infringed Exact s marks. Dkt. #27, ¶¶ 30, 32; Dkt. #35, p. 3. 19 Exact alleges Glow s sale of the knock-off Monkey Pipes has damaged 20 Exact s business, reputation, and goodwill, and Glow s sale of the 21 counterfeit pipes is likely to cause confusion, mistake, and 22 deception by creating the false and misleading impression that 23 [Glow s] goods are manufactured or distributed by [Exact], or are 24 associated or connected with [Exact], or have the sponsorship, 25 approval, or endorsement of [Exact]. 26 Dkt. #27, ¶ 45. Exact filed this action on April 10, 2012, alleging federal 27 and state claims for trademark infringement and counterfeiting 28 against Glow, David Glowacki, Brian Nupp, and Does 1-10. 3 - MEMORANDUM OPINION AND ORDER Dkt. 1 #1. On May 25, 2012, Glow filed a motion to transfer venue, Dkt. 2 #22, and the defendants David Glowacki and Brian Nupp filed a 3 motion to dismiss for lack of personal jurisdiction, Dkt. #24. 4 Exact filed its First Amended Complaint on June 4, 2012, deleting 5 David Glowacki and Brian Nupp as defendants, and adding Jason 6 Glowacki as a defendant. Dkt. #27; see Dkt. #37, p. 2. As a 7 result of Exact s filing of the Amended Complaint, the court found 8 the motion to transfer venue and motion to dismiss to be moot. 9 Dkt. #29. Glow filed its current motion to transfer venue on 10 June 18, 2012, Dkt. #31, and the defendant Jason Glowacki filed his 11 current motion to dismiss for lack of personal jurisdiction on 12 July 3, 2012, Dkt. #36. According to Exact, Glowacki has been 13 served but has not yet appeared in this action. 14 Dkt. #35, p. 4. The current motions are fully briefed, and no party has 15 requested oral argument. I will address Glowacki s motion to 16 dismiss first, and then turn to consideration of Glow s motion to 17 transfer venue. 18 19 20 MOTION TO DISMISS Glowacki moves to dismiss Exact s case against him on the 21 basis that this court lacks personal jurisdiction over him. I 22 first will address Exact s argument that Glowacki failed to comply 23 with Local Rule 7-1, because he did not make a good faith effort 24 through personal or telephone conference to resolve the dispute 25 with [Exact] despite certifying that he had done so. Dkt. #40, 26 p. 2. Exact s counsel has filed a declaration stating he never had 27 any personal or telephone conversation with any attorney for Jason 28 Glowacki regarding the present motion to dismiss. 4 - MEMORANDUM OPINION AND ORDER Dkt. #41. 1 Counsel describes contacts he had with defense counsel regarding 2 the previous motion to dismiss filed by David Glowacki and Brian 3 Nupp, and a conversation with Jason Glowacki s attorney after the 4 current motion was filed, during which defense counsel indicated he 5 believed he had complied with the Local Rule. Id. Exact argues 6 Glowacki s motion should be denied on the basis that no good-faith 7 effort was made to comply with the Local Rule. 8 The obvious purpose of Local Rule 7-1(a) is to encourage 9 parties to resolve disputes amicably when possible, preserving 10 judicial resources for those matters that require the court s 11 intervention. Thompson v. Federico, 324 F. Supp. 2d 1152, 1172 12 (D. Or. 2004) (Mosman, J.); accord Gerke v. Travelers Cas. Ins. 13 Co., 815 F. Supp. 2d 1190, 1198 (D. Or. 2011) (citing Thompson). 14 Here, the parties counsel had some conversation regarding the 15 defendants failure to comply with the Local Rule in connection 16 with the previous motion filed by David Glowacki and Brian Nupp. 17 Despite that conversation, Exact s counsel contends defense counsel 18 once again failed to comply properly with the Local Rule in 19 connection with Jason Glowacki s motion. According to Exact s 20 counsel, defense counsel asserted that because the parties had 21 discussed the jurisdictional issue in connection with the prior 22 motion to dismiss, he believed he understood [Exact s] position on 23 the issue and that the requirement for conference was therefore 24 satisfied. Dkt. #41, ¶ 12. Glowacki s attorney has filed a 25 declaration detailing the attorneys conversations from his point 26 of view, and indicating his belief that he did, in fact, make a 27 good-faith effort to comply with the Local Rule. 28 5 - MEMORANDUM OPINION AND ORDER Dkt. #45. 1 From the attorneys descriptions of their conversations, it 2 appears their respective intentions and understandings were less 3 than crystal clear. However, I find Glowacki s counsel complied 4 with the Local Rule for purposes of the current motion to dismiss. 5 Even if I found otherwise, however, I would not deny the motion on 6 that basis at this juncture. It is clear from the attorneys 7 conversations that if Glowacki s motion were denied on procedural 8 grounds, he immediately would seek leave to refile the motion. 9 Preservation of judicial resources is served by considering the 10 motion now, on its merits. 11 Turning, therefore, to the merits of Glowacki s motion, Chief 12 Judge Aiken of this court recently set forth the standards 13 applicable to motions of the type filed by Glowacki, in Videz, Inc. 14 v. Micro Enhanced Technology, Inc., slip op., 2012 WL 1597380 15 (D. Or. May 4, 2012): 16 17 18 19 20 21 22 23 24 Determining whether personal jurisdiction exists over an out-of-state defendant involves two inquiries: whether a forum state s longarm statute permits service of process, and whether the assertion of personal jurisdiction would violate due process. Avocent Huntsville Corp. v. Aten Int l Co., Ltd., 552 F.3d 1324, 1329 (Fed. Cir. 2080) (quoting Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1359 (Fed. Cir. 2001)). Oregon s catch-all jurisdictional rule confers personal jurisdiction coextensive with due process. Or. R. Civ. P. 4L. Thus, the analysis collapses into a single framework and the court proceeds under federal due process standards. Id.; Deprenyl Animal Health, Inc. v. Univ. of Toronto Innovations Found., 297 F.3d 1343, 1350 (Fed. Cir. 2002). 25 26 27 28 Due process requires that a defendant, if not present in the state, have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Avocent, 522 F.3d at 1329 (quoting 6 - MEMORANDUM OPINION AND ORDER 1 Int l Shoe Co. [v.] Washington, 326 U.S. 310, 316[, 66 S. Ct. 154, 158, 90 L. Ed. 95] (1945)). Minimum contacts may be demonstrated through facts supporting general or specific jurisdiction over the defendant. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 & n.8[, 104 S. Ct. 1868, 1872 & n.8, 80 L. Ed. 2d 404] (1984). A plaintiff need only make a prima facie showing that a defendant is subject to personal jurisdiction. Silent Drive, Inc. v. Strong Indus., Inc., 326 F.3d 1194, 1201 (Fed. Cir. 2003). 2 3 4 5 6 7 8 Videz, 2012 WL 1597380 at *1. 9 Here, Exact expressly acknowledges that it does not possess 10 facts sufficient to know whether Glowacki is subject to general 11 jurisdiction in Oregon. Dkt. #40, p. 5 n.1. Nor could Exact 12 show, on the facts as pled, that Glowacki has engaged in the type 13 of continuous and systematic general business contacts approxi14 mating a physical presence in Oregon, sufficient to assert 15 general jurisdiction over him. See id. Instead, Exact claims the 16 court has specific jurisdiction over Glowacki. Dkt. #40, pp. 6-10. 17 The Ninth Circuit has established a three-part test to deter- 18 mine whether the court s exercise of specific jurisdiction over a 19 nonresident defendant is appropriate: 20 21 22 23 (1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws; 24 (2) the claim must be one which arises out of or relates to the defendant s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable. 25 26 27 28 7 - MEMORANDUM OPINION AND ORDER 1 Boschetto, 539 F.3d at 1016 (quoting Schwarzenegger v. Fred Martin 2 Motor Co., 374 F.3d 797, 802 (9th Cir. 2004), in turn citing Lake 3 v. Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)). 4 bears the burden on the first two prongs. Id. The plaintiff If the first two 5 prongs are established, then the burden shifts to the defendant to 6 come forward with a compelling case that the 7 jurisdiction would not be reasonable. exercise of Id. (citations omitted). 8 If the first two prongs are not established, then the case must be 9 dismissed. Id. Notably, if the court decides the motion without 10 an evidentiary hearing, which is the case here, then the plaintiff 11 need only make a prima facie showing of the jurisdictional facts. 12 Id., 539 F.3d at 1015 (quoting Caruth v. Int l Psychoanalytical 13 Ass n, 59 F.3d 126, 127-28 (9th Cir. 1995)). The court takes as 14 true the uncontroverted allegations in the plaintiff s Complaint, 15 and resolves conflicts between the parties affidavits in the 16 plaintiff s favor. 17 Exact makes Id. (citations omitted). only one allegation against Glowacki, indi- 18 vidually; i.e., it claims, [u]pon information and belief, that 19 Glowacki is Glow s President and CEO. Dkt. #27, ¶ 4. Exact 20 alleges its only contacts with Glow were through a Glow vice 21 president named Brian Nupp. Id., ¶¶ 25-28. Besides describing e- 22 mail contacts with Nupp, Exact s other allegations in its Amended 23 Complaint refer to the Defendants, without distinguishing any 24 actions allegedly taken by any individual on Glow s behalf. See 25 Dkt. #27. 26 Nevertheless, Exact argues Glowacki is subject to personal 27 jurisdiction because he is not merely associated with Glow: he is 28 the senior officer of Glow, the President and CEO, and presumably 8 - MEMORANDUM OPINION AND ORDER 1 director of its strategies and activities. Dkt. #40, p. 8 2 (emphasis added). Exact argues, therefore, that Glowacki must have 3 been a primary participant in the alleged offending activities, 4 rendering the fiduciary shield doctrine inapplicable to him. Id., 5 pp. 6-9. 6 The fiduciary shield doctrine, generally, protects a cor- 7 porate official from personal jurisdiction in a forum where the 8 individual s only contacts arose in the performance of official 9 duties on the corporation s behalf. See Sidco Indus. v. Wilmar 10 Tahoe Corp., 768 F. Supp. 1343, 1349 (D. Or. 1991) (Frye, J.) ( A 11 corporate officer who has contact with a forum only in the 12 performance of his official duties is not subject to the personal 13 jurisdiction 14 fiduciary of shield the may courts be in that disregarded forum. ). in However, cases in which the the 15 corporation is the agent or alter ego of the individual defendant 16 . . . or where there is an identity of interests between the 17 corporation and the individuals. Davis v. Metro Prod., Inc., 885 18 F.2d 515, 520-21 (9th Cir. 1989) (citations omitted). The mere 19 status of an individual as an employee of a corporation does not 20 insulate the individual from personal jurisdiction. 21 dant s contacts 22 vidually. with the forum State must be Each defen- assessed indi- Id. at 521 (quoting Calder v. Jones, 465 U.S. 783, 23 790, 104 S. Ct. 1482, 1487, 79 L. Ed. 2d 804 (1984)). 24 Here, Exact has made no allegations regarding Glowacki s 25 individual actions, either inside or outside the State of Oregon. 26 Exact s sole allegation is that Glowacki is President and CEO of 27 Glow, and he therefore presumably participated in Glow s activi28 ties within the state. This simply is not enough. 9 - MEMORANDUM OPINION AND ORDER Even in cases 1 where the individual defendant had some activities in Oregon (as 2 opposed to the complete lack of alleged activity in Oregon by 3 Glowacki), courts have held the minimal activities were insuffi4 cient to confer personal jurisdiction. See, e.g., Sidco, supra; 5 Pacific Cornetta, Inc. v. Jung, 218 F.R.D. 250, 255 (D. Or. 2003) 6 (Haggerty, J.); EQ Solutions, LLC v. Funk, 2004 WL 816850, at *1 7 (D. Or. Apr. 14, 2004) (Coffin, M.J.) (all dismissing individual 8 defendants whose minimal activities in Oregon were only conducted 9 in their capacities as corporate representatives). 10 Accordingly, Glowacki s motion to dismiss this action for lack 11 of personal jurisdiction is granted. However, the dismissal is 12 without prejudice, recognizing that as discovery progresses in the 13 case, additional evidence may come to light regarding Glowacki s 14 individual actions within the state. 15 16 17 MOTION TO TRANSFER VENUE Glow claims it does not regularly engage in business in 18 Oregon ; has few customers, transacted little business, and has no 19 regular contacts with the state of Oregon ; does not reside, or 20 regularly conduct business, in Oregon ; and does not have a 21 regular or established place of business in Oregon. 22 p. 3 (citing Dkt. #33, Affidavit of Jason Glowacki). Dkt. #32, Glow argues 23 that even if venue is proper in this court, the court should 24 exercise its discretion to transfer the case to the District of 25 Ohio, where, according to Glow, the case could have been brought, 26 and where all of Glow s witnesses reside. Glow maintains that its 27 sale of eleven pipes to two Oregon customers for a total of $68.50, 28 does not justify dragging Glow Ohio, its President, its employees, 10 - MEMORANDUM OPINION AND ORDER 1 and likely other witnesses literally across the county[ sic] to an 2 Oregon court. Dkt. #32, p. 8. Glow argues the dollar amount of 3 its sales to Oregon customers is so low that it really offends the 4 traditional notions of justice to require Glow to defend the 5 action in Oregon. 6 Id. Exact argues Glow s sale of the allegedly counterfeit pipes to 7 Oregon customers has created actual and potential customer 8 confusion as to the source of the goods . . . in Oregon, and Glow 9 is engaged in substantial and not isolated activities in Oregon. 10 Dkt. #35, p. 2. Exact notes Glow has not challenged personal 11 jurisdiction in this court, and Glow is considered a resident of 12 Oregon under 28 U.S.C. § 1391(b)(1)1 and (c)(2)2. Id., p. 6. 13 Although Glow does not contest its status as an Oregon resident 14 for purposes of section 1391(b)(1), Glow notes Glowacki is not a 15 resident of Oregon, under any interpretation, defeating Exact s 16 argument that venue is proper under that subjection. Glow further 17 argues venue is not proper in Oregon under section 1391(b)(2)3, 18 based on Glow s limited activities within the State. 19 20 1 A civil action may be brought in . . . a judicial district in which any defendant resides, if all defendants are residents of 21 the State in which the district is located[.] 28 U.S.C. § 1391(b)(1). 22 2 For all venue purposes . . . an entity with the capacity to sue and be sued in its common name under applicable law, whether or 24 not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court s 25 personal jurisdiction with respect to the civil action in question. . . . 28 U.S.C. § 1391(c)(2). 26 3 A civil action may be brought in . . . a judicial district 27 in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is 28 the subject of the action is situated[.] 28 U.S.C. § 1391(b)(2). 23 11 - MEMORANDUM OPINION AND ORDER 1 Despite the court s finding that it lacks personal juris- 2 diction over Glowacki, the court still must determine the venue 3 issue on the basis of the Complaint as-filed. Venue is to be 4 determined as of the time the complaint was filed and is not 5 affected by a subsequent change of parties. Sidco Industries, 6 Inc. v. Wimar Tahoe Corp., 768 F. Supp. 1343, 1346 (D. Or. 1991) 7 (Frye, J.) (citing Exxon Corp. v. Fed. Trade Comm n, 588 F.2d 895, 8 899 (3d Cir. 1978)). Because both defendants are not residents of 9 Oregon, venue cannot be based on 28 U.S.C. § 1391(b)(1).4 Thus, 10 the court looks to subsection (b)(2) to determine, at the outset, 11 whether venue is proper in this court. 12 Id. Under subsection (b)(2), venue is proper in any judicial 13 district in which a substantial part of the events or omissions 14 giving rise to the claim occurred, or a substantial part of proper15 ty that is the subject of the action is situated[.] 16 § 1391(b)(2). 28 U.S.C. With regard to the events . . . giving rise to the 17 claim, in a trademark action, such as this one, the wrong takes 18 place . . . where the passing off occurs, i.e., where the deceived 19 customer buys the defendant s product in the belief that he is 20 buying the plaintiff s. Sidco, 768 F. Supp. at 1346 (quoting 21 Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 639 (2d Cir. 22 1956)); see Woodke v. Dahm, 873 F. Supp. 179, 197-99 (N.D. Iowa 23 1995) (cataloguing cases; noting the rule that venue lies where 24 the passing off occurred is the traditional test; and finding 25 the rule still viable after amendments to section 1391(b)(2)). In 26 the present case, Exact has alleged that offending sales were made 27 28 4 See note 1, supra. 12 - MEMORANDUM OPINION AND ORDER 1 in Oregon. By purposefully avail[ing] itself of the privilege of 2 conducting activities within Oregon, Glow had clear notice that 3 it was subject to suit here. World-Wide Volkswagen Corp. v. 4 Woodson, 444 U.S. 286, 297, 100 S. Ct. 559, 567, 62 L. Ed. 2d 490 5 (1980). 6 I find, therefore, that venue is proper in this court. However, even though venue is proper in this court, the court 7 has discretion to transfer a civil action [f]or the convenience of 8 parties and witnesses, in the interest of justice, . . . to any 9 other district . . . where it might have been brought[.] 10 U.S.C. § 1404(a). 28 Glow s motion to transfer venue, therefore, 11 really hinges on the convenience of the forum. See Leroy v. Great 12 Western United Corp., 443 U.S. 173, 180, 99 S. Ct. 2710, 2715, 61 13 L. Ed. 2d 464 (1979) ( [V]enue . . . is primarily a matter of 14 choosing a convenient forum. ) (citing C. Wright, A. Miller, & 15 E. Cooper, Federal Prac. & Proc. § 3801, pp. 506 (1976)). Although 16 28 U.S.C. § 1404(a) somewhat displaces the common law doctrine of 17 forum non conveniens, similar considerations 18 deciding a motion to transfer under that section. are useful in Decker Coal Co. 19 v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). 20 Section 1404(a) is intended to place discretion in the district 21 court to adjudicate motions for transfer according to an individu22 alized, case-by-case consideration of convenience and fairness. 23 Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 24 S. Ct. 2239, 2244, 101 L. Ed. 2d 22 (1988) (quoting Van Dusen v. 25 Barrack, 376 U.S. 612, 622, 84 S. Ct. 805, 812, 11 L. Ed. 2d 945 26 (1964)). The court is charged with balancing the preference 27 accorded plaintiff s choice of forum with the burden of litigating 28 in an inconvenient forum. Decker Coal Co. v. Commonwealth Edison 13 - MEMORANDUM OPINION AND ORDER 1 Co., 805 F.2d 834, 843 (9th Cir. 1986) (citations omitted); accord 2 Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 3 2000). Notably, [t]he defendant must make a strong showing of 4 inconvenience 5 forum. 6 to warrant upsetting the plaintiff s choice of Decker, 805 F.2d at 843. In conducting this balancing of interests, the courts have 7 considered a number of factors as relevant to the determination of 8 a proper forum. These factors are similar to those the court 9 weighs to determine jurisdictional issues. Eight factors that have 10 been identified by the Ninth Circuit include: (1) plaintiff s 11 choice of forum, (2) convenience to the parties, (3) convenience to 12 the witnesses, (4) ease of access to evidence, (5) familiarity of 13 each forum with the applicable law, (6) feasibility of consolida14 tion of other claims, (7) local interest in the controversy, and 15 (8) the relative court congestion and time of trial in each forum. 16 Benchmade Knife Co. v. Benson, 2010 WL 988465, at *6 (D. Or. 17 Mar. 15, 2010) (Haggerty, J.) (citing Decker, supra). If the 18 balance of these factors is relatively even, the law favors 19 deference toward the plaintiff s choice of forum. Adidas America, 20 Inc. v. Herbalife Intern., Inc., 2010 WL 596584, at *7 (D. Or. 21 Feb. 12, 2010) (Mosman, J.) (citing Dole Food Co. v. Watts, 303 22 F.3d 1104, 1117 (9th Cir. 2002)). The standard to defeat the 23 plaintiff s chosen forum is high: the defendant must make a clear 24 showing of facts which . . . establish such oppression and vexation 25 of a defendant as to be out of proportion to plaintiff s conveni26 ence, which may be shown to be slight or nonexistent. Dole Food 27 Co. v. Watts, 303 F.3d 1104, 1118 (9th Cir. 2002) (internal 28 quotation marks, brackets, and citations omitted). 14 - MEMORANDUM OPINION AND ORDER Indeed, the 1 Dole Food court observed that the doctrine of inconvenient forum 2 is an exceptional tool to be employed sparingly, [not a] . . . 3 doctrine that compels plaintiffs to choose the optimal forum for 4 their claim. Id. (quoting Ravelo Monegro v. Rosa, 211 F.3d 509, 5 514 (9th Cir. 2000)). 6 None of the factors listed by the Benchmade Knife court weighs 7 strongly in Glow s favor. 8 plaintiff. This is the forum selected by the The convenience to the parties is equal; i.e., Oregon 9 is inconvenient for Glow, and Ohio would be inconvenient for Exact. 10 There are witnesses in both states. Concerns regarding inconveni- 11 ence to Glow s witnesses, or to difficulties in compelling their 12 appearance for trial in Oregon, can be resolved easily by the 13 taking of trial depositions in Ohio, or elsewhere. Most of Glow s 14 witnesses seem to be affiliated with Glow, and thus are likely to 15 be cooperative. 16 traditional Evidence discovery also methods 17 accessible to both parties. exists will make in the both states, evidence and equally To the extent Exact s claims arise 18 under federal law, both courts have equal familiarity with the law. 19 However, Exact also brings claims under Oregon law, with which this 20 court has greater familiarity than the District of Ohio. The last 21 three factors have little or no relevance here. In short, applying 22 these factors to the present case leads to the conclusion that Glow 23 has not shown a degree of oppression and vexation that is 24 sufficiently out of proportion to Exact s choice or forum. 25 Accordingly, Glow s motion to transfer venue is denied. 26 / / / 27 / / / 28 / / / 15 - MEMORANDUM OPINION AND ORDER CONCLUSION 1 2 For the reasons discussed above, the defendant Jason 3 Glowacki s motion to dismiss for lack of personal jurisdiction 4 (Dkt. #36) is granted, and this case is dismissed without prejudice 5 as to Jason Glowacki. 6 The defendant Glow Industries, Inc. s motion to transfer venue 7 (Dkt. #31) is denied. 8 9 IT IS SO ORDERED. Dated this 20th day of August, 2012. 10 /s/ Dennis J. Hubel 11 12 Dennis James Hubel Unites States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 - MEMORANDUM OPINION AND ORDER

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