Excelsior Designs, Inc. v. Sheres
| Decision Date | 15 November 2003 |
| Docket Number | No. 03 CV 2141(ADS)(ETB).,03 CV 2141(ADS)(ETB). |
| Citation | 291 F.Supp.2d 181 |
| Parties | EXCELSIOR DESIGNS, INC., Plaintiff, v. Gregory SHERES, individually and sometimes doing business as Sheres Studio, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Moritt, Hock, Hamroff & Horowitz, Garden City, NY (Alan S. Hock, of Counsel), for Plaintiff.
Greenberg Traurig, LLP, Phoenix, AZ (Steven M. Weinberg, of Counsel), for Defendant.
This diversity case involves allegations by Excelsior Designs, Inc. ("Excelsior" or the "plaintiff") against Gregory Sheres ("Sheres" or the "defendant") for defamation, tortious interference with contractual relations, and unfair competition. Presently before the Court is the defendant's motion to transfer venue to the District of Arizona pursuant to 28 U.S.C. § 1404(a).
Excelsior is a nationwide distributor of upscale contemporary and transitional furniture collections manufactured in and imported from Italy. Excelsior is located in Amityville, New York, and does not maintain any offices outside the state. The plaintiff has a total of twelve employees: a president, a vice-president of operations, a director of design, a vice-president of sales, five clerical staff, a warehouse supervisor, and two warehouse workers. Excelsior also uses the services of twelve outside sales representatives, none of whom are located in Arizona. Six of these representatives are located on the East Coast in New Jersey, Maryland, North Carolina, Florida, Michigan, and Illinois; four are located on the West Coast in Washington, Colorado, and California; and two are in Missouri and Minnesota. None of the plaintiff's employees travel to the State of Arizona on business.
Sheres, a resident of Arizona, is the owner and sole shareholder of Sheres Studio, Inc., which designs distinctive furniture. Sheres maintains his principal place of business in Scottsdale, Arizona and does not have any offices outside that state. He employs two warehouse workers and two bookkeepers/customer service representatives.
By letter dated April 28, 2003 to Excelsior, Sheres alleged that the plaintiff's Cristallo Collection violated and infringed upon his intellectual property rights in his Marseille/Paris Collection. Among other things, this letter demanded that Excelsior immediately stop the manufacturing, distributing, marketing, and sale of its Cristallo Collection. Upon receiving this letter, the plaintiff contacted its attorney to prepare a response. Prior to responding to Sheres' letter, one of the plaintiff's retail customers in New York, Nicoletti Italia, informed Excelsior that it had received a letter, dated April 28, 2003 ("April 28th Letter"), from the defendant. Among other things, the April 28th Letter stated:
It has come to our attention that one of our competitors, Excelsior, has violated our intellectual property rights by knocking off our distinctive and popular Marseilles Paris dining collection
. . . . .
To protect ourselves from this violation we intend to initiate legal action against Excelsior if it refuses to cease selling its infringing knock-off. If necessary, we also will name retailers who do not cooperate with us and continue selling the infringing knock off.
. . . . .
If you do not carry this infringing collection in your store(s), please avoid ordering it from Excelsior and disregard this letter. If you know of retailers who carry it in their stores, please tell us so that we may contact them.
. . . . .
If you do carry this collection in your store, we are asking for your cooperation in not continuing to sell the infringing collection.
. . . . .
As part of this relationship we hope that now that you have been made aware of our intellectual property rights you will not continue selling an infringement on them. We therefore are asking that you immediately stop selling the infringing collection and return the samples to Excelsior.
. . . . .
We also request that you provide us with the names of any retailers that you know are carrying this collection.
. . . . .
We ... hope that you agree that this kid of pirating of our distinctive and unique designs should not be allowed.
The plaintiff asserts that it learned that the April 28th Letter was being sent to numerous Excelsior's customers and that it ascertained that at least twelve of its retail customers received this letter from Sheres. On May 2, 2003, the plaintiff commenced this action for defamation, tortious interference with contractual relations, and unfair competition. On June 9, 2003, the defendant filed the present motion to change venue to the District of Arizona. To date, Sheres has not filed an answer.
The defendant's motion to transfer venue is supported by Sheres' affidavit in which he asserts that he is the principal furniture designer for his business. Sheres states that he personally manages the day-to-day operations of his business and that litigating in New York would disrupt his business. The defendant further contends than 1 percent of his annual sales is generated from the State of New York, and a majority of those sales are made to an online furniture dealer located in Buffalo, New York. Most of Sheres' customers are located on the West Coast, and 75 percent of his business is conducted west of the Mississippi River. Also, more than 30 percent of the defendant's business, and two of his largest customers are located in Arizona. In addition, at least 25 percent of his business and customers are located in California. In contrast, only 25 percent of his business is conducted on the East Coast, with most of that business located in Florida and Georgia. Neither Sheres nor his employees travel to the State of New York on business.
Sheres concedes that, upon learning of Excelsior's alleged infringement of his designs, he sent letters to dealers around the country advising them that he considered Excelsior's Cristallo Collection to be an infringement of his Marseilles/Paris Collection. Of the eighty-five letters sent, approximately ten went to addresses in the State of New York. Sheres also states that one letter went to a customer in Arizona and fifteen to customers in California.
According to the defendant, his four largest customers are located on the West Coast: Designer's Choice (Arizona), Cantoni (California and Texas), Ralph Hayes Contemporary (California and Washington), and Robb and Stucky (Arizona, Dallas, and Florida). Sheres states that he anticipates that these customers may be called as witnesses in this action to testify concerning the similarity of and confusion with the plaintiff's Cristallo Collection. Furthermore, the plaintiff expects that certain other customers, including Floridian Furniture (Florida) and Rosenthal Furniture (Minnesota) may be called to proffer similar testimony. Sheres also states that several potential witnesses, each of whom are customers of both the defendant and Excelsior, are located in California. He asserts that none of his witnesses are located in the State of New York. The plaintiff also contends that nearly all the information involving his Marsailles/Paris Collection is located in Arizona.
In opposing this motion, the plaintiff provides an affidavit by Steven Kayne ("Kayne"), who is the president, sole principal and shareholder of Excelsior. Kayne asserts that he is responsible for the overall day-to-day operations and runs the majority of Excelsior's business from the New York office. Kayne is principally responsible for the design of Excelsior's distinctive furniture, including the Cristallo Collection. According to Kayne, he is the person most knowledgeable and competent to testify on Excelsior's behalf regarding the Cristallo Collection, its design and distinctiveness. He further states that the only other persons having relevant knowledge regarding the design and manufacture of Excelsior's furniture, including its Cristallo Collection, is Excelsior's manufacturer in Italy. As such, any relevant documents or sources of information relating to the design and manufacture of the Cristallo Collection are located in New York or Italy. No documents or course of information relating to the design and manufacture of Excelsior's Cristallo Collection are located in Arizona or on the West Coast.
Furthermore, Kayne states that, although Excelsior distributes its furniture collections on a nationwide basis with respect to the Cristallo Collection, almost 75 percent of Excelsior's annual sales of that collection have been made to customers on the East Coast, while only approximately 8 percent of sales have been made to customers on the West Coast. Kayne also asserts that approximately 7.5 percent of Excelsior's annual sales of the Cristallo Collection have been made to customers in the State of New York, while only approximately 1.5 percent of its annual sales of the Cristallo Collection have been made to customers in Arizona. Excelsior therefore claims that the majority of any potential witnesses who are most familiar with the facts in this case, and may be called to testify by Excelsior regarding its Cristallo Collection, its distinctiveness, its sales, and a lack of any customer confusion between the Cristallo Collection and Sheres' collection, are located in New York or on the East Coast.
In addition, the plaintiff claims that at least twelve of its own retail customers have received the letter, all of which customers either sell, have sold or are otherwise familiar with the Cristallo Collection, including, Designs for Living by Gil (New York), Nicoletti Italia, Inc. (New York) Decorators Signature, Inc. (Florida), Biltwell (Pennsylvania), Furniture Land South, Inc. (North Carolina), Sherwood Studios (Michigan), Elan Furniture (Nebraska), Italy 2000 (California), Lawrance Furniture (California), Foster's Furniture (Washington), Parnian Furniture (Arizona...
To continue reading
Request your trial
-
Pecorino v. Vutec Corp.
...(1950); Neil Bros. Ltd. v. World Wide Lines, Inc., 425 F.Supp.2d 325, 327 (E.D.N.Y.2006) (Spatt, J.); Excelsior Designs, Inc. v. Sheres, 291 F.Supp.2d 181, 185 (E.D.N.Y.2003) (Spatt, J.); Citibank, N.A. v. Affinity Processing Corp., 248 F.Supp.2d 172, 176 (E.D.N.Y.2003); Hernandez v. Blackb......
-
Phillips v. Reed Grp., Ltd.
...New York Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 113–114 (2d Cir.2010) (citing cases); Excelsior Designs, Inc. v. Sheres, 291 F.Supp.2d 181, 185 (E.D.N.Y.2003) (citing Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.1950)). A district court has the “power to transfer......
-
Mak Marketing, Inc. v. Kalapos
...The movant bears the burden of establishing the propriety of transfer by a clear and convincing showing. Excelsior Designs, Inc. v. Sheres, 291 F.Supp.2d 181, 185 (E.D.N.Y.2003) (citing Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.1950)); see also United Rentals, Inc. v. Pruett, 296 F.......
-
Johnsen, Fretty & Co., LLC v. Lands South, LLC
...an unreasonable financial burden by burdensome, it must offer evidence supporting such an assertion. See, Excelsior Designs, Inc. v. Sheres, 291 F.Supp.2d 181, 187 (E.D.N.Y.2003); Argent Funds Group, LLC v. Schutt, 3:05CV01456 (SRU), 2006 WL 2349464, at *4 (D.Conn. June 27, 2006). The Defen......