-CWH Editorial Planeta Mexicana, S.A. DE C.V. v. Argov, No. 2:2011cv01375 - Document 21 (D. Nev. 2012)
Court Description: ORDER Granting 9 Motion to Dismiss or in the Alternative to Transfer Venue to Massachusetts. This case is hereby transferred to the United States District Court for the District of Massachusetts. Signed by Judge Gloria M. Navarro on 7/23/12. (Copies have been distributed pursuant to the NEF - MMM)
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-CWH Editorial Planeta Mexicana, S.A. DE C.V. v. Argov Doc. 21 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 EDITORIAL PLANETA MEXICANA, S.A. DE C.V., 5 6 7 8 Plaintiff, vs. SHERRY ARGOV, Defendant. ) ) ) ) ) ) ) ) ) Case No.: 2:11-CV-01375-GMN-CWH ORDER 9 10 This action was filed before the Court by Plaintiff Editorial Planeta Mexicana, 11 S.A. de C.V. (“Planeta”) against Defendant Sherry Argov. Pending before the Court is 12 Defendant’s Motion to Dismiss or in the Alternative Motion to Transfer Venue to 13 Massachusetts (ECF No. 9). 14 I. BACKGROUND 15 This case involves the Latin American foreign rights agreements to translate and 16 distribute two books written by Argov – Why Men Love Bitches and Why Men Marry 17 Bitches. (Compl., ECF No. 1.) The original Foreign Rights Agreement (“FRA”) for Why 18 Men Love Bitches (“2004 Love FRA”) was signed in 2004 by Planeta’s predecessor, 19 Editorial Diana S.A. de C.V., and Adams Media, Argov’s Massachusetts publisher. (2004 20 Love FRA Ex. A to Argov Aff., Ex. 1 to Def.’s Mot. to Dismiss, ECF No. 9-1.) In 2009 21 Adams Media assigned its rights to Argov, who then negotiated a new FRA with Planeta 22 (“2009 Love FRA”). (Colbert Aff. ¶ 3, Ex. 2 to Def’s Reply, ECF No. 14-2; 2009 Love 23 FRA Ex. B to Argov Supp. Aff., Ex. 1 to Def.’s Reply, ECF No. 14-1.) The FRA for 24 Why Men Marry Bitches (“Marry FRA”) was signed between Simon & Schuster and 25 Editorial Diana on June 23, 2006. (Marry FRA Ex. A to Compl.) Page 1 of 14 Dockets.Justia.com 1 In September 2010 Argov terminated both contracts and filed a lawsuit in 2 Massachusetts1 citing concerns that Planeta was underreporting sales of her books. 3 (Notice of Termination, Ex. C to Compl.; Argov Aff. ¶12, Ex. 1 to Def.’s Mot. to 4 Dismiss.) A year later, on August 25, 2011, Planeta filed its Complaint in this action 5 alleging breach of contract and defamation, and seeking a declaratory judgment.2 (Compl, 6 ECF No. 1.) 7 On September 21, 2011, Argov re-filed her complaint against Planeta in the 8 District of Massachusetts for breach of contract and copyright infringement.3 (Argov Aff. 9 ¶16.) Argov filed the instant motion on October 7, 2011, arguing that Planeta’s suit 10 should be dismissed pursuant to Federal Rules of Civil Procedure 12(b)(2) lack of 11 personal jurisdiction, 12(b)(3) improper venue, and 12(b)(5) insufficient service of 12 process. (Def.’s Mot. to Dismiss, 1:17-19.) Alternatively, Argov moves to transfer venue 13 to the United States District Court for the District of Massachusetts (Eastern Division), 14 pursuant to 28 U.S.C. § 1404(a). (Id.) 15 II. Legal Standard 16 “For the convenience of parties and witnesses, in the interest of justice, a district 17 court may transfer any civil action to any other district or division where it might have 18 been brought or to any district or division to which all parties have consented.” 28 U.S.C. 19 § 1404(a). Under § 1404(a), courts “adjudicate motions for transfer according to an 20 ‘individualized, case-by-case consideration of convenience and fairness.’” Stewart Org., 21 22 23 24 25 1 That lawsuit was voluntarily dismissed by Argov on March 1, 2011. Argov v. Grupo Planeta et al., No. 1:10-cv-11699-RGS (D. Mass. March 1, 2011). 2 Planeta alleges that Argov then “disparaged Planeta Mexicana repeatedly in the world press,” and that Argov now intends to distribute Spanish language versions of her book without Planeta, “in violation of [Planeta’s] copyright in the Spanish language title for each book.” (Compl. at 67, 2:9-10.) 3 Argov v. Editorial Planeta Mexicana et al., No. 1:11-cv-11677-JLT (D. Mass. Sept. 21, 2011). Page 2 of 14 1 Inc. v. Ricoh Corp., 487 U. S. 22, 23 (1988) (quoting Van Dusen v. Barrack, 376 12 U.S. 2 612, 622 (1964)). Multiple convenience and fairness factors may be weighed to 3 determine whether transfer would be “in the interest of justice” as required by § 1404(a), 4 including: 5 6 7 8 9 (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. 10 Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). “Additionally, 11 the presence of a forum selection clause is a ‘significant factor’” as well as “the relevant 12 13 14 15 public policy of the forum state, if any.” Id. at 499. A “defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff’s choice of forum.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). Although § 1404 displaced the common law doctrine of forum 16 non conveniens for transfers between federal district courts, “forum non conveniens 17 considerations are helpful in deciding § 1404 transfer motions.” Decker Coal Co. v. 18 19 20 21 22 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986); Miskow v. Boeing Co., 664 F.2d 205, 207 (9th Cir. 1981), cert. denied, 455 U.S. 1020 (1982). Indeed, under § 1404 courts are permitted “to grant transfers upon a lesser showing of inconvenience” than that required by the doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955). 23 24 25 Page 3 of 14 1 2 III. DISCUSSION 3 Without reaching the question of whether personal jurisdiction exists here, the 4 Court finds that venue should be transferred to Massachusetts, and will grant the motion 5 to transfer pursuant to 28 U.S.C. § 1404(a).4 6 As discussed below, the Court finds that the present action might have been 7 brought in Massachusetts, and has considered the Jones convenience and fairness factors, 8 as well as any forum selection clause or public policy concerns and the first to file rule. 9 After weighing the relevant factors and considerations, the Court finds that Argov has 10 met her burden and that transfer is appropriate under § 1404(a). 11 A. The present action might have been brought in Massachusetts. 12 Pursuant to 28 U.S.C. § 1404(a), this action is one that might have been brought in 13 Massachusetts. A district is one where a suit might have been brought if “when a suit is 14 commenced, plaintiff has a right to sue in that district, independently of the wishes of 15 defendant…” Hoffman v. Blaski, 363 U.S. 335, 344 (1960). Under this standard, transfer 16 is appropriate when venue is proper and personal jurisdiction exists over the defendant in 17 the transferee jurisdiction. Id. at 343-44. For venue to be proper, a civil action may be 18 brought in “a judicial district in which a substantial part of the events or omissions giving 19 rise to the claim occurred.” 28 U.S.C. § 1391 (b)(2). 20 21 22 23 24 25 The Supreme Court has held that transfer of venue under 28 U.S.C. § 1406 is not “limited to actions in which the transferring court has personal jurisdiction over the defendants.” Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465 (1962). Courts in this circuit and district have held that the holding in Goldlawr extends to § 1404. E.g., Kawamoto v. CB Richard Ellis, Inc., 225 F.Supp.2d 1209, 1211 (D. Haw. 2002) (“many district courts . . . have concluded that a district court may also transfer an action under § 1404(a) regardless of whether it has personal jurisdiction over the defendant”); Reed v. Brown, 623 F.Supp. 342, 346 (D. Nev. 1985) (noting that a “district court has the power to transfer a case in which it lacks personal jurisdiction, as long as the considerations set forth in § 1404 have been satisfied”). Accordingly, this court also concludes that transfer may be granted under § 1404 without determining personal jurisdiction. 4 Page 4 of 14 1 As required in Hoffman, venue is proper in Massachusetts because a substantial 2 part of the events giving rise to the present claim occurred in that state. 363 U.S. 335, 344 3 (1960). Argov and Planeta negotiated “all of the relevant contracts in this case through 4 Adams Media . . . and Argov’s Lawyer in Massachusetts.” (Def’s Mot. to Dismiss at 5 11:23-26; see also, Argov Aff. ¶ 6-7.) Additionally, the 2009 Love FRA includes a 6 choice of law clause delineating Massachusetts law for the resolution of disputes. (2009 7 Love FRA.) Moreover, all communications between 2004 and 2009 “by and between 8 Planeta relating to the contract and royalty payments went to Adams Media in Avon, 9 Massachusetts.” (Argov Aff. ¶ 7.) Importantly, the notice of termination for the book 10 contracts, which Planeta alleges to be the basis of its cause of action, was sent from 11 Argov’s attorney’s office in Massachusetts. (Notice of Termination.) Finally, Planeta 12 argues that the assignment of the Spanish rights for Why Men Love Bitches to Adams 13 Media in Massachusetts constitutes copyright infringement. (Compl. at 2:9-11; Def.’s 14 Mot. to Dismiss at 10:22-24.) 15 For its part, Planeta seeks to minimize its contacts with Massachusetts. Plaintiff 16 provides an affidavit from Jorge Luis Cameras, General Director of Planeta, that asserts 17 Planeta never conducted business in Massachusetts and “Planeta Mexicana never sent 18 any document to Argov in Massachusetts.” (Cameras Decl. ¶ 6, Pl.’s Resp.) 19 Additionally, “the Agreement contains no stipulation to or waiver of objection to 20 personal jurisdiction in Massachusetts by Planeta Mexicana.” (Id. at ¶ 8.) However, 21 Planeta does not refute the assertions in Edward Colbert’s affidavit that during the 22 negotiations for the 2009 Love FRA Colbert “communicated on a number of occasions to 23 and from [his] Massachusetts office” with Planeta. (Colbert Aff. ¶ 3.) 24 25 Planeta likewise does not refute that it communicated extensively with Adams Media or that it mailed royalty payments related to the present action “‘directly to Page 5 of 14 1 Adams’ in Massachusetts.” (Argov Aff. ¶ 7; Def.’s Mot. to Dismiss, Ex. C.) Indeed, the 2 copyright page of all books published under the Love 2004 FRA acknowledged the 3 connection to Massachusetts, stating in Spanish: “published under agreement with Adams 4 Media . . . 57 Littlefield Street, Avon, MA…” (Argov Aff. ¶ 6.) 5 Finally, this suit might have been brought in Massachusetts because personal 6 jurisdiction exists over her in that state. In addition to her contacts with Colbert and 7 Adams Media, Argov’s subsequent filing of a breach of contract suit against Planeta in 8 Massachusetts federal court, (Id.; Argov v. Planeta et al, 1:10-cv-11699-RGS, Ex. A to 9 Pl.’s Resp.), indicates her consent to personal jurisdiction in that state. See Burger King 10 Corp. v. Rudzewicz, 471 U.S. 462, 472, 490 n.14 (1985) (“personal jurisdiction 11 requirement is a waivable right”). Importantly, Planeta does not dispute that personal 12 jurisdiction exists over Argov in that forum. (See Pl.’s Resp.) 13 Because a substantial portion of the activities related to the present action occurred 14 in Massachusetts, and personal jurisdiction exists over Argov in that state, this suit is one 15 that could be been brought in Massachusetts. 16 B. Convenience and fairness factors 17 18 Transfer of venue to Massachusetts is in the interest of justice because the convenience and fairness considerations discussed in Jones weigh in favor of transfer. 19 1. Massachusetts is where the relevant agreements were negotiated and 20 executed 21 The first factor under Jones is the location where the relevant agreements were 22 negotiated and executed. The negotiations for the original Why Men Love Bitches 23 contract occurred between Editorial Diana, Planeta’s predecessor, and Adams Media 24 from Adams’ offices in Avon, Massachusetts. (Argov Aff. ¶ 5-7; Mot. to Dismiss at 25 11:23-25.) Furthermore, the 2009 Love FRA negotiations were conducted by Argov’s Page 6 of 14 1 counsel, Edward Colbert, from his office in Boston. (Colbert Aff. ¶ 3-4.) When the 2 “contracts were agreed upon and signed” Planeta mailed the documents to Colbert’s 3 office in Massachusetts. (Colbert Aff. at ¶ 5.) Additionally, Colbert received phone calls 4 and emails related to contract negotiations at his Boston office on at least nine occasions 5 during September and October 2009. (Id. at ¶ 4-5.) Although Plaintiff asserts that it 6 never sent any documents to Argov herself in Massachusetts, (Pl.’s Resp. at 7:17-18), it 7 does not dispute that it negotiated the terms of the 2009 Love FRA with Argov’s attorney 8 through his office in that forum. (See, e.g., Compl.; Pl.’s Resp.) 9 10 Because the relevant agreements were negotiated on Argov’s behalf by parties situated in Massachusetts, this consideration weighs in favor of transfer. 11 2. Massachusetts is the state that is most familiar with the governing law 12 The second Jones factor considers which state is most familiar with the governing 13 law. As stipulated in the 2004 Love FRA between Editorial Diana and Adams Media as 14 well as the 2009 Love FRA between Argov and Planeta, the parties “agreed that 15 Massachusetts law would govern any of their disputes.” (Def.’s Mot. to Dismiss at 11:25- 16 27.) Accordingly, a Massachusetts court would be more familiar with the application of 17 Massachusetts law. See Decker Coal, 805 F.2d at 843 (holding courts may consider “the 18 interest in having the trial of a diversity case in a forum that is at home with the law that 19 must govern the action”). Although Plaintiff properly points out that the choice of law 20 provision “is not a choice of venue provision,” (Pl.’s Resp. at 7:23-24), this provision is 21 still given weight under Jones when determining which venue is more qualified to hear 22 the present cause of action. 211 F.3d at 498 (court considers state “most familiar with the 23 governing law”). The second factor favors transfer because a Massachusetts court will be 24 more familiar with the governing law of this contract dispute. 25 3. Plaintiff’s choice of forum is given reduced deference Page 7 of 14 1 The third factor considered under Jones is the Plaintiff’s choice of forum. Courts 2 generally give deference to a plaintiff’s choice of venue. Inherent.com v. Martindale- 3 Hubbell, 420 F.Supp. 2d 1093, 1100 (N.D. Cal. 2011) (citing Decker Coal Co. v. 4 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1996)). However, deference is 5 “substantially reduced when the plaintiff’s choice is not its residence or where the forum 6 lacks a significant connection to the activities alleged in the complaint.” Id. (quoting 7 Carolina Cas. Co. v. Data Broadcasting Corp., 158 F.Supp.2d 1044, 1048 (N.D. Cal. 8 2001)). Additionally, “a foreign plaintiff’s [forum] choice deserves less deference than 9 the forum choice of a domestic plaintiff.” Ravelo Monegro v. Rosa, 211 F.3d 509, 513 10 11 (9th Cir. 2000) (referring to Reyno v. Piper Aircraft Co., 454 U.S. 235, 237 (1981)). Here, Plaintiff is neither a resident of Nevada nor a domestic plaintiff. (Compl. at 12 2:17-19.) Instead, Plaintiff is a “Mexican corporation with its principle place of business 13 in Mexico City.” (Id. at 2:17-19.) Furthermore, and as discussed below, Nevada lacks a 14 significant connection to the activities alleged in the complaint. Therefore the Court 15 gives less deference to Plaintiff’s forum choice and the corresponding presumption 16 against transfer. Instead, this Court’s determination centers on the Defendant’s 17 allegations of inconvenience discussed elsewhere in this analysis. Because Plaintiff is not 18 a resident of this state and because Nevada lacks a significant connection to the activities 19 alleged in this complaint, this factor favors non-transfer only slightly. 20 4. Defendant Argov does have some contact with this forum 21 The fourth factor this Court considers is the respective parties’ contacts with the 22 forum state. Although Plaintiff claims Defendant is a resident of Nevada, (Compl. at 23 2:19-20), Argov alleges that she is in fact a resident of California. (Def’s Mot. to Dismiss 24 at 9:11-15.) In support of her claim of California residency, Argov provides tax receipts, 25 electricity billing statements, insurance receipts and other evidence to demonstrate her Page 8 of 14 1 continued presence in California. (Ex. A to Argov’s Supp. Aff.) Additionally, both books 2 published by Planeta specify, in Spanish, that “Sherry Argov writes for two newspapers 3 in the area of Los Angeles, where she currently resides.” (Argov Supp. Aff. at ¶ 3.) 4 However, the record shows that Argov does have some connection with this 5 forum. Argov maintains a post office box in Nevada, which she listed as her address in 6 the 2009 agreement with Planeta. (Love 2009 FRA; Pl’s Resp at 2-3). Argov also claims 7 to be a Nevada resident in her Massachusetts suit. (Argov, 1:10-cv-11699-RGS, Ex. A to 8 Pl.’s Resp.) However, Argov asserts that her claim of Nevada residence is “a good faith 9 representation . . . which did not come to pass” because her father became infirmed. 10 11 (Def.’s Reply at 3:1-7.) Because of her connections with Nevada, the fourth Jones consideration weighs 12 against transfer to Massachusetts. However, this factor is not accorded much weight 13 based on the conflicting evidence. 14 5. The contacts relating to Plaintiff’s cause of action occurred in both forums 15 The fifth factor under Jones considers the contacts relating to the Plaintiff’s cause 16 of action in this forum. As discussed above, Defendant provided a Nevada address in the 17 2009 Love FRA and also received correspondence from Planeta, including tax receipts 18 for royalty payments, in this state. (Ex. 2 to Cameras Decl.; Ex. 2 to Bravo Decl.) 19 However, much of the conduct relating to the present cause of action also occurred 20 in Massachusetts. As explained above, most of the contractual negotiations occurred 21 through Adams Media and Edward Colbert in Massachusetts. (Def.’s Mot. to Dismiss at 22 6:22-23; Colbert Aff. ¶ 3-4.) Additionally, all communications between 2004 and 2009 23 “by and between Planeta relating to the contract and royalty payments went to Adams 24 Media in Avon, Massachusetts.” (Argov Aff. ¶ 7.) The notice of termination for the book 25 contracts, which Planeta alleges to be a breach of contract, was also sent from Mr. Page 9 of 14 1 Colbert’s office in Massachusetts. (Notice of Termination.) Finally, after terminating the 2 agreements with Planeta, Argov assigned the Spanish language rights for Why Men Love 3 Bitches to Adams Media in Massachusetts. (Mot. to Dismiss at 10:22-26.) Planeta asserts 4 that this assignment violates its copyright on the Spanish language versions of Argov’s 5 works. (Compl. at 2:9-13.) 6 7 Because contacts relating to the present action occurred in both forums, this factor is neutral. 8 6. Litigation will be cheaper and more efficient in Massachusetts 9 The sixth factor considers the difference in the costs of litigation between the two 10 forums. Most of the potential witnesses in this case reside in Massachusetts, including 11 Colbert and three Adams Media employees who worked on the subject agreements. 12 (Def.’s Mot. to Dismiss at 6:3-5.) Additionally, Massachusetts is likely to be the most 13 active site for discovery because “five years of evidence,” including royalty accountings 14 from 2004-2009, exist in Massachusetts. (Id. at 5:13-20.) Finally, Adams Media, “which 15 is expected to intervene and is without a doubt is a necessary party” is located in 16 Massachusetts. (Id. at 10:24-26.) As a result, situating this case in Nevada would cause 17 needless time and discovery costs for both parties as well as potential witnesses. 18 In opposition to transfer, Planeta alleges that any “Massachusetts nexus” is 19 “simply not based in fact.” (Pl.’s Resp. at 7:12-15.) Nevertheless, Planeta does not 20 provide the names of any potential third-party witnesses or interested parties for trial who 21 reside in or near Nevada. (See Pl.’s Compl.; Pl.’s Resp.) Furthermore, as a citizen of 22 Mexico, either venue will be equally convenient for Planeta. Because litigation will be 23 cheaper and more efficient in Massachusetts, this factor weighs in favor of transfer. 24 25 Page 10 of 14 1 7. Availability of compulsory process to compel attendance of unwilling non- 2 party witnesses exists in Massachusetts 3 The seventh of the Jones factors considers the availability of compulsory process 4 to compel attendance of unwilling non-party witnesses. Pursuant to Fed. R. Civ. P. 5 45(c)(3)(A)(ii) a court must quash, upon timely motion, a subpoena that “requires a 6 person who is neither a party nor a party’s officer to travel more than 100 miles from 7 where that person resides, is employed, or regularly transacts business in person.” As a 8 result, this Court has no ability to compel the presence of the identified non-party 9 witnesses who live in Massachusetts. (Def.’s Mot. to Dismiss at 6:3-5.) This factor 10 weighs in favor of transfer because no known non-party witnesses exist in Nevada. 11 8. Massachusetts has greater access to sources of proof 12 The eighth and final Jones consideration weighs which forum has better ease of 13 access to sources of proof. As explained above, three Adams Media employees who may 14 serve as witnesses reside in Massachusetts and “five years of evidence,” including royalty 15 accountings from 2004-2009, exist in Massachusetts. (Def’s Mot. to Dismiss at 5:14-20.) 16 Additionally, Argov’s original attorney and pro hac counsel, Edward Colbert, is also 17 based in Massachusetts. (Argov Supp. Aff. ¶ 8; Colbert Aff. ¶ 2.) The eighth factor 18 weighs in favor of transfer because little evidence appears to be in Nevada, and the 19 primary location of evidence in the present case is Massachusetts.5 20 21 22 23 24 25 5 Courts may also consider the presence of a forum selection clause or public policy concerns. Jones, 211F.3d at 499 & n. 21 (referring to Stewart Organization v. Ricoh Corp., 487 U.S. 22, 30 (1988) (“public-interest factors of systematic integrity and fairness”)). Here, there is no forum selection clause in the agreements, and Nevada has no policy interest in adjudicating this matter. Unlike Jones, where the Ninth Circuit found California had a public interest in providing “protective local forum for local franchisees,” 211 F.3d at 499, Planeta is not a Nevada business and Nevada has no corresponding interest in providing a protective local forum. In determining whether transfer will further public policy concerns, courts also may consider the interests of judicial economy. Van Dusen, 376 U.S. at 616. Here, through combining the present action with Argov’s Massachusetts suit, transfer will prevent duplicative Page 11 of 14 1 C. First to file rule does not apply 2 Planeta argues that the first to file rule applies in the present action because it filed 3 the present action on August 25, 2011 while Argov filed the current Massachusetts suit 4 on September 21, 2011. (Pl.’s Resp. at 6:24-27.) However, the Court finds that the first 5 to file rule does not apply to the present case because transfer to Massachusetts is in the 6 interest of sound judicial administration and because the suits are not identical. 7 The “first to file rule” is “a generally recognized doctrine of federal comity which 8 permits a district court to decline jurisdiction over an action when a complaint involving 9 the same parties and issues has already been filed in another district.” Pacesetter Systems, 10 Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982). In order for this rule to apply, 11 the issues in both suits must be “identical.” Alltrade, Inc. v. Uniweld Products, Inc., 946 12 F.2d 622, 625 (9th Cir. 1991). Finally, the first to file rule is not “rigid or inflexible” but 13 is instead “to be applied with a view of the dictates of sound judicial administration.” 14 Pacesetter Systems, 678 F.2d at 95. Indeed, the purpose of this rule is the promotion of 15 “judicial efficiency” but should “not be disregarded lightly.” Id. (quoting Church of 16 Scientology of California v. United States Department of the Army, 611 F.2d 738, 750 17 (9th Cir. 1979)). In making this determination, trial courts are given “an ample degree of 18 discretion, appropriate for disciplined and experienced judges…” Id. (citing Kerotest 19 Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183-84 (1952)). 20 Here, unlike Pacesetter Systems, Inc., where the first to file rule was invoked 21 because “the goal of judicial efficiency would not have been served by accepting 22 jurisdiction,” transfer to Massachusetts of the present action would further judicial 23 24 25 litigation and prevent waste of time and money. Planeta provides no public policy rationale against transfer to Massachusetts. (See Compl.; Pl.’s Resp.) Therefore, because Nevada has no interest in providing a protective local forum and there is no forum selection clause these factors do not weigh against transfer. Page 12 of 14 1 efficiency. 678 F.2d at 96. As discussed earlier, transfer to Massachusetts would allow 2 the case to be tried in a court with better knowledge of the governing law and with better 3 access to relevant evidence and witnesses. 4 Furthermore, as in Alltrade, which explained that the first to file rule is not 5 applicable when the issues in two suits are not “identical,” the issues in the Nevada and 6 Massachusetts actions do not completely align. 946 F.2d at 625. Although the suits arise 7 from the same business relationship, the two parties lodge different claims relating to 8 differing sets of facts. Planeta alleges that Argov breached the Love 2009 FRA and 9 Marry 2006 FRA by terminating the agreements before their expiration and then 10 infringed on its copyrights by finding a new publisher. (Compl. at 1:23-27). Planeta also 11 alleges defamation because Argov “disparaged Planeta repeatedly in the world press.” 12 (Compl. at 2:6-8.) In contrast, Argov claims breach of contract and copyright 13 infringement arising from Planeta’s alleged undercounting of royalty payments from the 14 sale of Argov’s books in Latin America. (Pl.’s Resp., Ex. A.) 15 16 Because the suits are not identical and convenience favors Massachusetts, the first to file rule does not prevent transfer to Massachusetts. 17 IV. CONCLUSION 18 IT IS HEREBY ORDERED that the Motion to Dismiss or in the Alternative to 19 Transfer Venue to Massachusetts (ECF No. 9) is GRANTED. This case is hereby 20 transferred to the United States District Court for the District of Massachusetts. 21 22 23 July DATED this _____ day of ______________________, 2012. 23 24 _________________________ Gloria M. Navarro United States District Judge 25 Page 13 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 14 of 14
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