Summary
refusing transfer where only 60 miles separated transferor and transferee courthouses
Summary of this case from Stearman v. Ferro Coals, Inc.Opinion
08 Civ. 2902 (TPG).
March 30, 2009
OPINION
This case concerns defendant's alleged infringement of plaintiffs trademark. Defendant has moved to transfer this case to the District of New Jersey. Plaintiff opposes the motion. The motion is denied.
Plaintiff, United Parcel Service ("UPS"), is a Delaware corporation with its principal place of business in Atlanta, Georgia. UPS owns the registered trademark "What Can Brown Do For You?," along with other trademarks based on the word "Brown."
Defendant is an attorney who runs a law firm in Lakewood, New Jersey, which is located approximately sixty miles from New York City. According to UPS, defendant's website infringed the UPS trademark by using the slogan, "See What Brown Can Do for You." The same website claims that defendant's firm "stay[s] on top of changes in New Jersey, New York and Pennsylvania law," describes the firm as a "Full Service Law Firm," followed by a line stating "NJ • NY • PA," and contains links to further information about the law in each of these states. Defendant claims that, except through this website, he does not solicit business in New York. He is, however, licensed to practice law in New York.
Defendant moves for a change of venue for "the convenience of parties and witnesses" under 28 U.S.C. § 1404(a). He does not contend that venue is improper in the Southern District of New York. Rather, he argues that the District of New Jersey would be more convenient because his firm and the individuals involved in designing the website are located in New Jersey. UPS responds that a transfer of venue is not justified because the advertisements were partially directed to New York residents, Lakewood is only sixty miles from New York City, and New Jersey would be less convenient for UPS.
A court may transfer a case for "the convenience of parties and witnesses" to another district "where it might have been brought." 28 U.S.C. § 1404(a). However, a "plaintiffs choice of forum is generally entitled to considerable weight" in this determination, unless the facts of the litigation have only a minimal connection to the forum. Berman v. Informix Corp., 30 F. Supp. 2d 653, 659 (S.D.N.Y. 1998). If a court finds that the plaintiff's choice of forum is not entitled to deference, the party seeking to transfer venue must show that transfer is justified by the convenience of witnesses and the parties, the ease of access to documents and other sources of proof, the locus of operative facts, and the availability of process to compel the attendance of witnesses. D.H. Blair Co. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006).
There is no dispute that this case could have been brought in the District of New Jersey. However, there is a clear connection between this district and the facts of this litigation. The accused website advertises defendant's expertise in New York law, indicates that his practice extends to New York, and provides links to information about New York law. Defendant does not dispute that he advertises to New York residents through his website. Plaintiff's choice of forum is therefore entitled to deference.
Even if the court were to consider the other factors governing a change of venue, defendant has failed to establish that the District of New Jersey would be a superior venue. Plaintiff is a large company that does business widely, including in New Jersey. However, plaintiff had a right to bring the action in New York, and did so. There is some inconvenience to plaintiff in relocating the case to New Jersey. This is not a case that is likely to require much discovery, or much in the way of witnesses, to be resolved by motion or trial. However, since Lakewood is only sixty miles from New York City, it is within this court's subpoena power and would not be significantly more convenient for defendant or his witnesses. The court concludes that plaintiff's choice of forum should not be disturbed. Defendant's motion is therefore denied.
SO ORDERED.