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Frazer Consultants, LLC v. Bass-Mollett Publishers, Inc.

United States District Court, W.D. Wisconsin

March 14, 2016

FRAZER CONSULTANTS, LLC, Plaintiff,
v.
BASS-MOLLETT PUBLISHERS, INC., and JIM MELLENTHIN Defendants.

OPINION AND ORDER

WILLIAM M. CONLEY District Judge

Plaintiff Frazer Consultants, LLC, alleges that defendants Bass-Mollett Publishers, Inc. and one of its agents, Jim Mellenthin, infringed its copyright of an angel figurine, among other claims. Before the court is defendants’ motion to transfer this case to the Southern District of Illinois under 28 U.S.C. § 1404(a). (Dkt. #13.) Because defendants have not met their burden of demonstrating that a transfer would be “clearly more convenient, ” the court will deny defendants’ motion.

FACTS

Plaintiff Frazer Consultants, LLC, is a Wisconsin limited liability company with its principal place of business located in Middleton, Wisconsin. Consequently, the plaintiff’s business records are located in the Western District of Wisconsin, including records relating to the copyrighted angel figurine. The principal of Frazer Consultants, Matt Frazer, personally resides within the Western District of Wisconsin.

Defendant Bass-Mollett Publishers, Inc., is an Illinois corporation with its principal place of business in Greenville, Illinois. Apart from two, isolated sales made by Bass-Mollett to Wisconsin residents, defendant asserts that all of the allegedly infringing actions took place in the Southern District of Illinois, including the design, approval and storage of the alleged infringing figurines. Sales of the same figurines also originate in that district. Finally, all of Bass-Mollett’s employees work in the Southern District of Illinois.

For his part, defendant Jim Mellenthin maintains a business that engages in a variety of activities and sells a variety of products and services in Wisconsin, including Bass-Mollett products.[1]

OPINION

I. Transfer of Venue under § 1404(a)

Under 28 U.S.C. § 1404(a), transfer may be granted where the moving party demonstrates that: (1) venue is proper in the transferor district; (2) venue and jurisdiction are proper in the transferee district; and (3) the transfer will serve the (a) convenience of the parties and witnesses; and (b) promote the interests of justice. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986). Since the parties neither dispute that venue is proper in the transferor district nor that venue and jurisdiction are proper in the transferee district, the court will focus, as did the parties, on the third factor -- convenience of the parties and the interest of justice.

A. Convenience

When determining whether a transferee forum is clearly more convenient the court considers: “(1) the plaintiff’s choice of forum; (2) the convenience to parties; and (3) the convenience to witnesses.” Illumina, Inc. v. Affymetrix Inc., No. 09-CV-277-BBC, 2009 WL 3062786, at *2 (W.D. Wis. Sept. 21, 2009). As the moving party, defendants carry the burden to establish “that the transferee forum is clearly more convenient.” Coffey, 796 F.2d at 219-20. Given that this is plaintiff’s home forum, defendants obviously face an uphill battle in attempting to meet this burden.

1. Plaintiff’s Choice of Forum

A plaintiff’s choice of forum is generally given deference because of its convenience to the plaintiff, especially when it is their home forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981). “Unless balance is strongly in Defendant’s favor, Plaintiff’s choice of forum should rarely be disturbed.” In Re National Presto Indus., 347 F.3d 662, 664 (7th Cir. 2003).

Defendants nevertheless argue that the court should place little weight on the plaintiff’s choice of forum given that it is not the “situs of material events.” Setting aside whether alleged injury to the value of plaintiff’s copyright should be considered a material event sited in the district, courts generally give less deference to plaintiff’s choice of forum when that forum is not its home forum or the situs of material events. Kimberly-Clark Worldwide, Inc. v. First Quality Baby Products, LLC, No. 14-CV-502-WMC, 2014 WL 6612881, at *3 (W.D. Wis. Nov. 20, 2014). Even in Kimberly-Clark, where the plaintiff’s choice was neither the home forum nor the situs of material events, this court gave meaningful deference to the plaintiff’s choice. While Wisconsin may not be the situs of material events (or at least ...


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