The opinion of the court was delivered by: Bua, District Judge.
Before the Court is defendants' motion to transfer this case to
the District Court for the Western District of Washington at
Seattle, Washington pursuant 28 U.S.C. § 1404(a). For the reasons
stated herein, defendants' motion to transfer is denied.
The following facts are set forth in the complaint filed by
plaintiff Gallery House on February 15, 1984, and affidavits
submitted by the parties.
Plaintiff Gallery House, Inc. ("Gallery House"), an Illinois
corporation with its principal place of business in Chicago,
Illinois, is in the business of designing and marketing brass
statues on a nationwide basis. Defendant Capital Trading Company
("Capital") is a sole proprietorship owned and operated by Alan
Yi, an individual having offices in Redmond, Washington. Capital
is an importer and nationwide distributor of brass statues and
works of art. Defendant Joy's Clock Shop, Ltd. ("Joy's"), an
Illinois corporation with its principal place of business in
Chicago, Illinois, is a retail outlet offering items for sale to
Gallery House brings this action to recover damages for Capital
and Joy's alleged infringement of the Copyright Laws of the
United States, 17 U.S.C. § 101 et seq. Capital purchases brass
statutes made by Keang Nam Brassware Company ("Keang Nam") of
Seoul, South Korea. Keang Nam formerly manufactured copyrighted
brass statues sold by Gallery House under the trade name
"Dolbi-Cashier." The statues in question sold by Capital are
indistinguishable from statues sold by Gallery House. Gallery
House claims to own copyrights on the statues in issue.
During the week of January 30, 1984, Mr. Alan Yi, owner and
operator of Capital, attended the Chicago Gift Show held in
Chicago, Illinois. At the show, Capital distributed its catalog
containing pictures of the alleged infringing works, offered
those items for sale, and sold certain items to the trade and
purchasing public. Two items were sold and delivered to Joy's,
which Joy's in turn sold to the purchasing public.
On February 17, 1984, pursuant to motion, this Court entered a
temporary restraining order enjoining Capital and Joy's from
further sale, offering for sale and distribution of the alleged
infringing works. On March 26, 1984, this Court granted
plaintiff's motion for a preliminary injunction enjoining Capital
and Joy's from selling, offering for sale, advertising or
displaying the alleged infringing items. On April 20, 1984,
Capital filed a notice of appeal in the United States Court of
Appeals for the Seventh Circuit. Prior to that filing, on April
9, 1984, Capital filed a motion to transfer venue to the Western
District of Washington under 28 U.S.C. § 1404(a).
Capital requests transfer to the Western District of Washington
at Seattle, Washington under 28 U.S.C. § 1404(a). Section 1404(a)
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.
The decision to transfer venue lies within the sound discretion
of the district court judge. Cunningham v. Cunningham,
477 F. Supp. 632, 634 (N.D.Ill. 1979). Although § 1404(a) evolved out
of the doctrine of forum non conveniens, the scope of a district
court's discretion is broader than under the common law. Norwood
v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955);
Brown v. Grimm, 624 F.2d 58 (7th Cir. 1980). The party seeking
transfer has the burden of proving transfer is proper and must
establish that the balance weighs strongly in favor of the
transferee's district. Cunningham, 477 F. Supp. at 634; Cinema
Systems, Inc. v. Lab Methods Corp., 545 F. Supp. 403 (N.D.Ill.
In order to show that transfer of venue is proper under
28 U.S.C. § 1404(a), the moving party must establish that (1) venue
is proper in the transferor district; (2) venue is proper in the
transferee district; (3) the transfer is for the convenience of
parties and witnesses and in the interest of justice. ...