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Sidi Spaces LLC v. CGS Premier Inc.

United States District Court, D. Arizona

July 6, 2016

Sidi Spaces LLC, Plaintiff,
v.
CGS Premier Incorporated, Defendant.

          ORDER

          David G. Campbell United States District Judge

         Defendant moves to transfer this case to the U.S. District Court for the Eastern District of Wisconsin. Doc. 7. Plaintiff has filed an opposition, to which Defendant has replied. Docs. 15, 16. No party has requested oral argument. For the reasons that follow, the Court will deny the motion.

         I. Background.

         For purposes of this motion, the allegations in the complaint are accepted as true, unless contradicted by Defendant's declarations.[1] Plaintiff is an Arizona corporation, and Defendant is a Wisconsin corporation with operations in the Eastern District of Wisconsin. Doc. 1-1 at 4-9 (hereinafter Complaint), ¶¶ 1-2; Doc. 8, ¶ 2. On December 4, 2013, the parties entered an agreement (Doc. 1-1 at 10-19) whereby Plaintiff granted Defendant the exclusive right to manufacture and sell mobile stores employing its BizBox design.[2] Complaint, ¶ 4. Defendant agreed to pay a 15% royalty on each BizBox it sold and to refrain from selling any products below a specified minimum price. ¶¶ 10, 12. Defendant also agreed that Plaintiff would retain exclusive ownership rights to the BizBox design. ¶ 13. The parties agreed that the contract would be "construed under the laws of the state of Wisconsin." Doc. 1-1 at 14.

         Plaintiff alleges that Defendant has violated the agreement by stealing the BizBox design, building knock-off products, and selling its knock-offs without paying royalties to Plaintiff. Complaint, ¶ 17-18. "Moreover, on at least one occasion, Defendant sold BizBox Product at a discount, in violation of the Agreement, in order to steal a valuable client away from Plaintiff." ¶ 21. Based on these allegations, Plaintiff asserts claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and tortious interference with business expectancy or contractual relations. ¶¶ 22-40.

         Defendant has filed an answer and asserted a counterclaim. Defendant alleges that before initiating this action, Plaintiff's counsel sent a letter to Defendant demanding payment of $1, 766, 000 for alleged wrongdoing including "multiple counts of patent infringement." Doc. 6 at 13-16, ¶ 1. Defendant alleges that this letter constituted a "patent notification" letter for purposes of Wis.Stat. § 100.197. ¶ 4. Defendant further alleges that Plaintiff violated the Wisconsin statute by (1) failing to include certain required information in the letter, including the number of each relevant patent, and (2) including false, misleading, or deceptive information in the letter. ¶¶ 4-5.

         II. Legal Standard.

         "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 or to any district or division to which all parties have consented." 28 U.S.C. § 1404(a). The Court must decide a motion to transfer under this provision "according to an individualized, case-by-case consideration of convenience and fairness." Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quotation marks omitted). The Ninth Circuit has identified eight non-exclusive factors that are relevant to this determination:

(1) the location where the relevant agreements were negotiated and executed; (2) the state that is most familiar with the governing law; (3) the plaintiff's choice of forum; (4) the respective parties' contacts with the forum; (5) the contacts relating to the plaintiff's cause of action in the chosen forum; (6) the differences in the costs of litigation in the two forums; (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses; and (8) the ease of access to sources of proof.

Id. at 498-99. The movant has the burden of showing that transfer is appropriate, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-256 (1981), and "must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum, " Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

         III. Analysis.

         Because Defendant resides in the Eastern District of Wisconsin, this action could have been brought in that district, 28 U.S.C. § 1391(b)(1), and could be transferred there if such transfer would serve "the interest of justice, " 28 U.S.C. § 1404(a). But a review of the relevant factors shows that transfer would not serve the interest of justice.

         The first factor favors Arizona. Plaintiff's president, Charles Sidi, avers that he twice met with Defendant's CFO Tom Berte in Arizona during contract negotiations. Sidi Decl. ¶ 4(a), (b). Sidi also met with Berte in Arizona the day after the agreement was executed. Id. ¶ 4(d). Berte acknowledges that he met with Sidi more than once during contract negotiations. Berte Decl. ¶ 3. Defendant does not contend that Sidi ever travelled to Wisconsin during the negotiations.

         The second factor favors Wisconsin. Plaintiff concedes that Wisconsin law applies to its claims because of the choice of law provision in the agreement. Doc. 15 at 4. Moreover, Defendant's counterclaim is based on a Wisconsin statute. But the legal issues raised by the ...


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