Aec One Stop Group, Inc. v. Cd Listening Bar, Inc.

• Decision Date: 16 July 2004
• Docket Number: No. 03 Civ. 8463(DC).,03 Civ. 8463(DC).
• Citation: 326 F.Supp.2d 525
• Parties: AEC ONE STOP GROUP, INC., Plaintiff, v. CD LISTENING BAR, INC. dba Super D, Bruce Ogilvie and Jeff Walker, Defendants.
• Court: U.S. District Court — Southern District of New York

326 F.Supp.2d 525

AEC ONE STOP GROUP, INC., Plaintiff, v. CD LISTENING BAR, INC. dba Super D, Bruce Ogilvie and Jeff Walker, Defendants.

No. 03 Civ. 8463(DC).

United States District Court, S.D. New York.

July 16, 2004.

Donovan & Yee LLP, by Marya Lenn Yee, Esq., Francine Miller, Esq., New York, NY, for Plaintiff.

Thelen Reid & Priest LLP, by Michael S. Elkin, Susan B. McInerney, Alyson L. Redman, New York, NY, and The General Counsel Group, P.C., by Donald G. Ezzell, Los Angeles, CA, for Defendants.

MEMORANDUM DECISION

CHIN, District Judge.

In this copyright infringement suit, defendants CD Listening Bar, Inc., dba Super D ("Super D"), Bruce Ogilvie, Jr., and Jeffrey C. Walker move pursuant to 28 U.S.C. § 1404(a) for an order transferring the action to the United States District Court for the Central District of California. For the reasons set forth below, the motion is granted.

BACKGROUND

I. Facts

A. Parties

Plaintiff AEC One Stop Group, Inc. ("AEC") is a full-service entertainment distributor, shipping pre-recorded music and video products and information about such products to retail stores. (Compl.¶ 1).¹ It is a Delaware corporation with an office and principal place of business in Coral Springs, Florida. (Id. ¶ 4).

Super D is a volume wholesaler of CDs, DVDs, and video products. (Supp.Aff.¶ 9).² It is a California corporation with its principal place of business in Irvine, California. (Def. Mem. at 2).³ Ogilvie is the Chief Executive Officer of Super D and a resident of Southern California. (Supp.Aff.¶¶ 1-2). Walker is the Chief Financial Officer of Super D and a resident of Southern California. (Nigro Aff. Ex. B).⁴

B. Claims

On January 2, 2002, AEC purchased certain assets from non-party Valley Media, Inc. ("Valley Media"), pursuant to an order of the United States Bankruptcy Court for the District of Delaware. (Compl.¶ 4). The assets were purchased through an auction conducted by telephone from Valley Media's headquarters in Woodland, California. (Supp.Aff.¶ 6). One of the purchased assets was Audiofile, a business-to-business distribution database used by retailers in inventory management systems. (Compl.¶ 5). Over the course of a year, AEC created a derivative of Audiofile called AECFile that included additional data. (Pl. Mem. at 3).⁵ AEC alleges that defendants copied Audiofile to create SuperFile, which defendants license to AEC's potential customers. (Compl.¶¶ 15-17). AEC claims that defendants' actions constitute willful copyright infringement in violation of 17 U.S.C. § 101 et seq. and common law unfair competition. (Id. ¶¶ 7-8).

Defendants claim that AEC purchased only a non-copyrighted "data extract" from Valley Media. (Def. Mem. at 1). Defendants further claim that AEC abandoned the relevant market after the purchase of Audiofile and that defendants' copyright registration for its SuperFile product predates AEC's registration by sixteen months. (Id.).

C. Other Facts Regarding Venue

AEC has an office with at least ten employees in New York. (Pl. Mem. at 4). Ogilvie, a former member of AEC's Board of Directors, however, claims that AEC's New York office and employees are unrelated to Audiofile, no witness for AEC lives or works in New York, and that AEC has at least two offices and numerous employees in California. (Supp.Aff.¶¶ 4-5). AEC has specifically named one witness, Robert Ekizian, who is a resident of Florida and travels to New York for business. (Id.).

Defendants have identified Ogilvie and Walker as witnesses. (Def. Reply at 2).⁶ Defendants do not own any property, real or personal, in New York. (Nigro Aff. Ex. A, B). All of Super D's officers, directors and the bulk of their employees are in California. (Id. Ex. A). Any former employees who were involved with the sale of Audiofile are located in California. (Supp Aff.¶ 2). All of Super D's documents are located in California. (Nigro Aff. Ex. A). Super D does not do substantial business in New York, but has offered its SuperFile product to customers in New York, and has at least one customer in New York. (Def. Mem. at 4). Super D claims to be less than one-tenth the size of AEC. (Supp.Aff.¶ 11).

II. Procedural History

On October 27, 2003, AEC commenced the instant action under 17 U.S.C. § 101, claiming that defendants infringed its copyrights by copying AEC's Audiofile program and licensing it to AEC's potential customers. (Compl.¶¶ 15-17). On May 14, 2004, defendants filed this motion to transfer venue.

DISCUSSION

Defendants' motion to transfer this action to the Central District of California is granted because the action could have been brought there and the interests of convenience and justice favor transfer to California.

I. Applicable Law

Under 28 U.S.C. § 1404, a court may transfer any civil action to any other district where the case might have been brought if the transfer serves "the convenience of parties and witnesses, [and is] in the interest of justice." 28 U.S.C. § 1404(a); see Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). The purpose of § 1404(a) is "to prevent waste `of time, energy and money' and `to protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" Trehern v. OMI Corp., 98 Civ. 0242, 1999 WL 47303, at *1 (S.D.N.Y. Feb.1, 1999) (quoting Wilshire Credit Corp. v. Barrett Capital Mgmt. Corp., 976 F.Supp. 174, 180 (W.D.N.Y.1997) (internal quotations and citation omitted)).

The decision whether to transfer venue rests within the sound discretion of the district court. Air-Flo M.G. Co. v. Louis Berkman Co., 933 F.Supp. 229, 233 (W.D.N.Y.1996). In ruling on a motion to transfer venue, the trial judge is to give the plaintiff's choice of venue substantial consideration. Warrick v. Gen. Elec. Co., 70 F.3d 736, 741 (2d Cir.1995).

"The threshold question in deciding transfer of venue ... is whether the action could have been brought in the transferee forum." Millennium v. Hyland, 03 Civ. 3900, 2003 WL 22928644, *2, 2003 U.S. Dist. LEXIS 22239, at *5 (S.D.N.Y. Dec. 8, 2003). If this is established, the district court generally should disturb the plaintiff's choice of forum only if, on balance, the following factors clearly favor transfer: (1) the convenience of witnesses; (2) the convenience of the parties; (3) the locus of operative facts; (4) the location of relevant documents and relative ease of access to sources of proof; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the forum's familiarity with the governing law; (7) the relative financial means of the parties; (8) the weight afforded plaintiff's choice of forum; and (9) trial efficiency and the interests of justice generally. See Anadigics, Inc. v. Raytheon Co., 903 F.Supp. 615, 617 (S.D.N.Y.1995). "There is no rigid formula for balancing these factors and no single one of them is determinative." Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549, 561 (S.D.N.Y.2000).

II. Application

A. The Action Could Have Been Brought in California

Venue in a copyright infringement suit is governed exclusively by 28 U.S.C § 1400(a), which provides that "[c]ivil actions, suits, or proceedings arising under any Act of Congress relating to copyrights ... may be instituted in the district in which the defendant or his agent resides or may be found." 28 U.S.C. § 1400. As a corporation, Super D is "deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C. § 1391(c); see also VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1578-79 (Fed.Cir.1990) (holding that § 1391(c) applies to § 1400); accord Aerotel, Ltd. v. Sprint Corp., 100 F.Supp.2d 189, 194-95 (S.D.N.Y.2000). Super D is a California corporation, and Ogilvie and Walker are both residents of California. Hence, defendants would be subject to jurisdiction in the Central District of California.

Many of the events giving rise to the claim occurred in the Central District of California. Hence, venue would be proper in the Central District. 28 U.S.C. § 1391; see also VE Holding Corp., 917 F.2d at 1578-79. Accordingly, this action could have been brought in the Central District of California.

B. Transfer to California is Warranted

Super D has demonstrated that a balancing of the factors and the interests of justice weigh heavily in favor of transfer. The Court addresses each factor in turn.

1. Convenience of Witnesses

The convenience of party and nonparty witnesses is usually the most important consideration in deciding a motion to transfer venue. In re Stillwater Mining Co. Sec. Litig., 02 Civ. 2806, 2003 WL 21087953, *3, 2003 U.S. Dist. LEXIS 7983, at *9 (S.D.N.Y. May 9, 2003) (citations omitted). "When weighing the convenience of the witnesses, courts must consider the materiality, nature, and quality of each witness, not merely the number of witnesses in each district." Royal & Sunalliance v. British Airways, 167 F.Supp.2d 573, 577 (S.D.N.Y.2001). To succeed on a transfer motion, the moving party must "clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover." Marcotte v. Joyce Beverages, Inc., 87 Civ. 7412, 1990 WL 52123, *2, 1990 U.S. Dist. LEXIS 4336, at *7 (S.D.N.Y. Apr. 13, 1990).

This action relates to copyright infringement pursuant to 17 U.S.C. § 101. The key witnesses, accordingly, are those officers and employees who were involved in the design, production, and sale of the Audiofile and SuperFile products. Super D has identified two witnesses who will be testifying at trial, Ogilvie, CEO of Super D, and Walker, President and CFO of Super D. Both witnesses live and work in California. Moreover, as all of Super D's executives and key employees who will serve as witnesses reside in California, other Super D personnel are likely to be inconvenienced by suit in New York.

AEC has not identified any potential witnesses who reside in...