White v. Shoot-A-Way, Inc. Case transferred to the Northern District of Ohio- Toldeo., No. 4:2019cv00343 - Document 15 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER granting 10 MOTION to Change Venue. Case to be transferred to USDC ND/OH- Toledo. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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White v. Shoot-A-Way, Inc. Case transferred to the Northern District of Ohio- Toldeo. Doc. 15 United States District Court Southern District of Texas IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXA S HOUSTON DIV ISION ENTERED April 17, 2019 David J. Bradley, Clerk CYRIL WHITE , Plaintiff, CIVIL ACTION NO . H-19-0343 SHOOT-A -WAY , INC ., Defendant . MEMONAHDUM OPINION AND ORDER This is a trademark infringement action brought by plaintiff Cyril White (nplaintiff'') against defendant Shoot-A-Way, Inc. (MDefendant''). Pending before the court are Defendant Shoot-A-Way , Inc .'s Motion to Transfer to United States District Court Northern District of Ohio Toledo Division (uDefendant's Motion to Transfer'') (Docket Entry Defendant Shoot-A -Way , Plaintiff Inc .'s Cyril White's Response Motion to ('Aplaintiff's Responser') (Docket Entry No. Transfer to Venue and Defendant Shoot-A -Way , Inc .'s Reply in Support of Its Motion to Transfer to United States District Court Northern D istrict of Ohio Toledo Division (Docket Entry No. 1 . Analy sis Under 28 U .S.C . 5 14O4 (a), ''lflor the convenience of parties and witnesses, in the interest of justice, a district court may Dockets.Justia.com transfer any civil action to any other district or d ivision where might have been brought.'' U .S .C. 5 14O4 (a). nWhen considering a 5 1404 motion to transfer , a district court considers a number of private -and public-interest factors , 'none of which can be said to be of dispositive weight .''' Wells v . Abe 's Boat Rentals Inc., Civil Action No. H-l3-1112, 2014 WL 29590, at *1 (S.D . Tex . Jan . 2014) (quoting Action Industries , Inc . v . United States Fiduciary & Guarantv Companv, 358 (5th Cir. 2004)). The private-interest factors are : the relative ease of access to sources of proof ; the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing w itnesses ; and trial a case al1 other practical prob lems that make easy , expeditiou s and Volkswagen AG, 371 F.3d 201, 203 (5th Volkswaqen Iq. inexpensive .'' re 2004) (hereinafter The public-interest factors are: administrative difficulties flowing from court congestion ; local interest In the the having localized interests decided at home ; the familiarity of the forum with the law that w ill govern the case ; and the avoidance of unnecessary problems of conflict of laws (or inq the application of foreign law.'' Id. The court mu st A'weigh the relevant factors and decide whether , on balance, a transfer would serve 'the convenience of parties and witnesses' and otherwise promote 'the interest of justice.''' Atlantic Marine Construction Companv , Inc . v . United States District Court for the Wf atern District of Texas, l34 S . Ct. 568, 581 (2013) (quoting 28 U .S.C . 5 l4O4 (a)) Because the court must give usome weight to the plaintiffp sq choice of forum ,'' the party seeking a transfer must show good cause . Id . at 58l n .6; In re Volkswagen of America, Inc. 545 F .3d 304, (5th Cir. 2008) (en banc) (hereinafter Volkswaqen II). The decision to transfer a case under 1404 (a) is 'lcommitted to the sound discretion of the transferring judge, and review of a transfer is limited to abuse of that discretion .'' M ills v . Beech A ircraft Corporation , Inc w 886 F.2d 758, 76l (5th Cir. 1989). uThe prelim inary question under the change of venue statute , 28 U .S .C . 5 1404, is whether the suit could have been filed originally in the destination venue .'' Wells, 2014 WL 29590, at *l . Because Defendant resides in the Northern District of Ohiox this action could have originally been filed there. See 28 U .S.C . 5 l391(b). The private-interest factors are neutral or weigh in favor of transfer . transferred While any necessary documents could likely be the Southern District of Texas electron ically , Defendant argues that has evidence (such as its employees, documents, and the device containing the allegedly infringing marksz) that cannot easily be transported from its facilities in lsee Declaration of John G . Joseph , Exhibit A to Defendant's Motion to Transfer, Docket Entry No . 10-1 , pp . 2-3 ) Counties Served by the Northern District of Ohio, https://www .ohndvuscourts. gov/counties-served-division . 2The udevice'' is 'a basketball shooting machine .'' See Defendant's Motion to Transfer, Docket Entry No . l0, p . 8; see also Image of THE GUN , Exhibit 1 to Plaintiff 's Response , Docket Entry No . 13-1, pp . 1-2 . Ohio to Texas . A ccess to sources of proof is therefore either neutral or favors the Northern District Ohio . Defendant also argues that the majority of the potential witnesses are Ohio residents . Plaintiff does not disagree , but instead argues that Defendant's only named witness (its owner, John Joseph) will likely be a willing witness and compulsory process will not be required . While unnamed witnesses are not given significant we ight in the transfer inquiry , Smith v . Colonial Penn Insurance Co ., F. Supp . 782, 784 (S .D . Tex . 1996), any unnamed witnesses likely reside in Ohio because all of the allegedly infringing conduct took p lace there . The only identified potential w itness residing in the southern District of Texas is Plaintiff.3 Because the majority of potential witnesses reside in the Northern D istrict of Ohio , the private-interest factors regarding compu lsory process over w itnesses and the cost associated w ith transporting w itnesses to an out-of-town forum favors the Northern District of Ohio . There are no additional practical transfer , and there problems counseling for or against no ev idence that a transfer would cause unnecessary delay or prejudice either party. The public-interest factors are neutral or weigh in favor of transfer . There no evidence court congestion either the Southern District of Texas or the Northern District o f Ohio that counsels for or against transfer . The ulocal interest'' factor is 3See Declaration of Cyril White , Exhibit Response, Docket Entry No . 13-5 . - 4- Plaintiff's neutral or slightly favors transfer . Defendant operates its business in Ohio , and the products bearing the allegedly infringing marks were manufactured and shipped from Defendant's facilities in Ohio . The action 's only significant connection to the Southern District of Texas is Plaintiff's residence in Houston . While Texas has an interest in ensuring that the trademarks of its residents are not infringed , Ohio also has an interest in determining whether a company conducting business in Ohio has committed acts of trademark infringement in Ohio. Both jurisdictions have equal familiarity with federal trademark law . To the extent that Texas law applies to some of Plaintiff 's claims , there is no evidence that the Northern District of Ohio is unab le to interpret and apply Texas law . Neither party argues that a potential conflict of laws makes either forum more favorable . Having considered the parties' arguments the court is persuaded that requiring Defendant to bear the cost of litigating this case in the Southern District of Texas would be unfair to Defendant . The balance of private-and-pub lic-interest factors persuades the court that the Northern D istrict of Oh io convenient forum . a more A transfer to the Northern District of Ohio , Toledo Division , is therefore appropriate . II . Conclusion and Order For the reasons explained above , the court concludes that the Northern D istrict of Ohio is the more convenient forum and Defendant Shoot-A-Way , Inc .'s Motion to Transfer to United States District Court Northern District Entry No . Ohio Toledo Division (Docket is therefore GRANTED , and this action is TRANSFERRED to the United States District Court for the Northern District of Ohio , Toledo Div ision . SIGNED at Houston , Texas , on this the 17th day of April, 2019. < SIM LAKE UNITED STA TES DISTRICT JUDGE - 6-
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