Burroughs Wellcome Co. v. Giant Food, Inc., Civ. A. No. 74-194.
| Citation | 392 F. Supp. 761 |
| Decision Date | 18 April 1975 |
| Docket Number | Civ. A. No. 74-194. |
| Parties | BURROUGHS WELLCOME CO., Plaintiff, v. GIANT FOOD, INC., et al., Defendants. |
| Court | U.S. District Court — District of Delaware |
Andrew B. Kirkpatrick, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., Donald Brown, Sewell P. Bronstein, Esquire, and John D. Woodberry, of Dike, Bronstein, Roberts, Cushman & Pfund, Boston, Mass., for plaintiff.
Howard M. Handelman, of Bayard, Brill & Handelman, Wilmington, Del., Robert F. Rolnick, and Aaron L. Handelman, of Danzansky, Dickey, Tydings, Quint & Gordon, Washington, D. C., for defendants.
This is an action asserting claims for trademark infringement under the federal trademark statute, common law trademark infringement, and unfair competition. The plaintiff, Burroughs Wellcome Company ("Burroughs") complains that defendants, Giant Food, Inc., Giant of Virginia, Inc. and Giant of D. C., Inc. (sometimes collectively "Giant") have interfered with its rights in the trademark "Empirin" under which Burroughs markets an analgesic preparation. The matter currently before the Court is Giant's motion to transfer this case to the United States District Court for the District of Maryland.
The statute governing changes of venue in actions brought in the federal courts, 28 U.S.C. § 1404(a), provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
Thus, in order to obtain a transfer, a defendant must show both (1) that the action might have been brought in the proposed transferee district, and (2) that the convenience of parties and witnesses and the interests of justice require that the action be transferred to the proposed transferee district.
As to whether the present action "might have been brought" in the District of Maryland, the controlling statute, 28 U.S.C. § 1391(b) provides:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, except as otherwise provided by law.
The residence of the corporation for venue purposes is defined in 28 U.S.C. § 1391(c), which provides:
A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.
Since all the defendants in this case are conceded to be Delaware corporations, the question is whether all the defendants are either licensed to do business or are "doing business" in Maryland.
Defendants assert without contradiction that the corporate offices of all three corporations are located in Landover, Maryland.1 Moreover, it is asserted without contradiction that the corporate policies for all three defendants are formulated totally at the corporate offices in Landover.2 Plaintiff, tacitly conceding the accuracy of these assertions, points out that Giant of Virginia and Giant of D. C. are not registered to do business in Maryland and avers that it brought this action in Delaware in good faith, on the belief that this was the only jurisdiction in which the defendants could be simultaneously sued.3
The location of defendants' offices and records in Landover together with the fact that all the business policies of the defendants are established there is sufficient to establish that this suit could have been brought in Maryland. The continuous exercise of a corporation's important executive functions within a judicial district will support a claim that a defendant is "doing business" in the district for venue purposes. See Lightner v. Pilgrim Paper Corp., 152 F.Supp. 504, 506 (S.D.N.Y.1957); Pickthall v. Anaconda Copper Mining Company, 73 F.Supp. 694, 698 (S.D.N. Y.1947).
Thus, we must inquire whether the convenience of the parties and witnesses and the interests of justice require that the suit be brought in Maryland. At the outset, we are faced with a dispute over the proper standard to be applied. Burroughs understandably relies on the standard enunciated by the Third Circuit in Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (1970) cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971):
It is black letter law that a plaintiff's choice of a proper forum is a paramount consideration in any determination of a transfer request, and that choice `* * * should not be lightly disturbed.' . . . In accord with that sound doctrine, one district court recently correctly observed: `The decision to transfer is in the court's discretion, but a transfer is not to be liberally granted.' . . . The burden is on the moving party to establish that a balancing of proper interests weigh in favor of the transfer, . . . and `* * * unless the balance of convenience of the parties is strongly in favor of defendant, the plaintiff's choice of forum should prevail.' . . . (Emphasis supplied).
Giant argues, however, that this standard does not apply when the plaintiff has selected a district which neither is plaintiff's home base nor has any connection with the facts underlying the controversy.
While Shutte was a case where the plaintiff has selected his "home turf", this Court reads the quoted statement of "black letter law" as an across-the-board rule favoring plaintiff's choice of forum.4 This does not mean, however, that, in a case like the present one, plaintiff's choice of forum will necessarily have the same impact that it would in a "home turf" type of case. Where the forum selected by plaintiff is connected neither with the plaintiff nor with the subject matter of the lawsuit, meeting the burden of showing sufficient inconvenience to tip the "balance" of convenience "strongly in favor of defendant" will ordinarily be less difficult. In the present case, for example, Burroughs is headquartered in North Carolina and its claims allegedly arose in Maryland, Virginia and the District of Columbia. It is, therefore, not surprising that Burroughs has been unable to show that litigation of this case in Baltimore rather than Wilmington would...
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