The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Associated Mills, Inc. ("Associated Mills") has filed a
multi-count Complaint against Rush-Hampton Industries, Inc.
1. Count I is brought under the Lanham Act,
charging infringement of Associated Mills'
federally-registered "Pollenex" trademarks.
2. Count II asserts the federal version of
commonlaw unfair competition under Lanham Act §
43(a), 15 U.S.C. § 1125(a).
3. Count III (asserting both diversity of
citizenship and pendent jurisdiction) charges unfair
competition and deceptive trade practices.
Rush-Hampton has both answered and gone on the attack via
affirmative defenses and a counterclaim against Associated Mills'
registrations, but its principal interest just now is in transfer
to the United States District Court for the Middle District of
Florida, Orlando Division under 28 U.S.C. § 1404(a) ("Section
1404(a)"). For the reasons stated in this memorandum opinion and
order, that motion is granted.
Analysis Under Section 1404(a)
In the days before enactment of Section 1404(a), the
judicially-created doctrine of forum non conveniens was the
courts' only vehicle to moderate the sometimes-unfair effects of
the expansion of in personam jurisdiction wrought by
International Shoe Co. v. State of Washington, 326 U.S. 310, 66
S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny. Those cases taught
it was constitutional to hale a defendant into court in a
far-away forum once that forum was shown to have enough contacts
with the defendant to support the assertion of jurisdiction
(either in "general jurisdiction" or "specific jurisdiction"
terms*fn1). But constitutionality was not necessarily controlling
where the burdens of defense away from home materially outweighed
the countervailing considerations favoring the forum — hence
"forum non conveniens."
At the same time, the remedy of outright dismissal on forum non
conveniens grounds involved substantial costs to the plaintiff.
Rejection of the forum as "inconvenient" forced a plaintiff to
begin all over again in a new forum: hiring new counsel, adapting
the complaint to the new jurisdiction's pleading requirements,
having to serve the defendant afresh, dealing with new
choice-of-law rules and perhaps new substantive law — and the
list can go on.
Understandably then the forum non conveniens doctrine gave a
good deal of weight to the plaintiff's forum selection. Gulf Oil
Co. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed.
1055 (1947) put it simply:
But unless the balance is strongly in favor of the
defendant, the plaintiff's choice of forum should
rarely be disturbed.
Only when general jurisdiction was involved and "none of the
conduct complained of occurred in the forum selected by the
plaintiff" was the plaintiff's preference viewed as having
"minimal value." Chicago, Rock Island & Pacific R.R. Co. v. Igoe,
220 F.2d 299, 304 (7th Cir. 1955).
Now Section 1404(a) transfers eliminate most of the adverse
effects of forum
non conveniens dismissal recited earlier.*fn2 It is therefore
equally understandable that the plaintiff's choice of forum is
not given the same heavy emphasis in Section 1404(a)
determinations as under forum non conveniens. Norwood v.
Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789
(1955); and see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253,
102 S.Ct. 252, 264, 70 L.Ed.2d 419 (1981). Instead choice of
forum is one relevant factor in the balancing among the
trichotomy identified in Section 1404(a): convenience of parties,
convenience of witnesses and the interest of justice. Assuredly
the forum choice is a component of plaintiff's "convenience," and
it may also enter into the "interest of justice" analysis, but it
no longer has overpowering force.
Here the facts do not literally fit the Chicago, Rock Island
mold, but they are not far from it. Rush-Hampton has no ongoing
Illinois presence as all: It maintains no executive,
administrative or sales offices in Illinois, nor does it have any
facilities or employees here. It has no Illinois bank accounts or
telephone listings, and it is not registered to do business here.
It insists it has never made a sale of the alleged infringing
products within this state, but Associated Mills retorts the
accused items were ...