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Gary Friedrich Enterprises, LLC. v. Marvel Enterprises

January 30, 2008

GARY FRIEDRICH ENTERPRISES, LLC., ET AL., PLAINTIFFS,
v.
MARVEL ENTERPRISES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Stiehl, District Judge

MEMORANDUM & ORDER

Before the Court is plaintiffs' motion to reconsider pursuant to Fed. R. Civ. P. 54(b) (Doc. 83), to which defendants filed a response (Doc. 86), and plaintiffs a reply (Doc. 87). Plaintiffs ask the Court to reconsider its previous Memorandum and Order (Doc. 79) which transferred this case to the Southern District of New York.

The Court first notes that although plaintiffs invoke Rule 54(b), the Court cannot grant the relief they seek. Under the federal rules, parties have only two options by which they can seek reconsideration of the Court's prior order. United States v. Deutsch, 981 F.2d 299, 300 (7th Cir. 1992). The Deutsch court explained that if the motion for reconsideration "is served within ten days of the judgment, the motion falls under Rule 59(e); if it is served after that time, it falls under Rule 60(b)." Id. Plaintiffs filed their motion for reconsideration on September 28, 2007, within ten days of the Court's Order transferring this case to the Southern District of New York, therefore, plaintiffs motion is properly considered under Rule 59(e).

Under Rule 59(e), a litigant may move the Court to alter or amend a judgment on any of three bases: (1) newly discovered evidence; (2) an intervening change in the controlling law; or (3) manifest error of law or fact. See Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995); Fed. R. Civ. P. 59(e). Before considering plaintiffs' arguments, the Court notes that litigants may not use Rule 59(e) to raise legal arguments that could have been raised in their prior pleadings, before the Court's Order. Id.

First, plaintiffs argue that the Court erred because its Order "inadvertently overlooks the substantial actions and impacts that occurred in this District, misapplies Chicago R.I., fails to hold Defendants to the burden of proof standard, and fails to accord proper deference to the forum chosen by the Plaintiffs." (Doc. 83). Plaintiffs also argue that the location of plaintiff GFE "was given no deference by the Court," and that the "choice of a forum by a Plaintiff should never be held in favor of transfer." (Doc. 87).

The Court first notes that it considered, in its ruling, the connections of this case to this District.*fn1 Not only did a majority of the material events occur outside of this district, the critical infringement allegedly occurred in New York.*fn2 Accordingly, the Court correctly applied Chicago R.I. & P.R. Co. v. Igoe and accorded the proper "minimal" deference to the forum chosen by the plaintiffs because none of the "conduct complained of" occurred in this district. 220 F.2d 229, 304 (7th Cir. 1955). Therefore, the Court cannot grant plaintiffs the relief they seek on this issue.

Second, plaintiffs argue that the Court erred because the "[m]ovants did not establish that jurisdiction and venue over all defendants is proper in the Southern District of New York." Contrary to plaintiffs' assertions, defendants established that venue would be appropriate in the Southern District of New York, as the Court's previous Order discusses. Moreover, 28 U.S.C. § 1404(a) does not require defendants to establish that "jurisdiction over all defendants" would be proper in the transferee district. (Emphasis added). Instead, § 1404(a) requires defendants to establish that jurisdiction and venue would be proper in the transferee district. See Vandeveld v. Christoph, 877 F. Supp. 1160, 1167 (N.D. Ill. 1995). Plaintiffs clearly could have filed this cause of action in the Southern District of New York because, as previously stated, the events giving rise to the cause of action, the alleged infringement and wrongdoing, occurred in that district. In addition, four of the named defendants reside within the Southern District of New York.*fn3 Therefore, the Court rejects plaintiffs' argument that jurisdiction and venue is improper in the transferee district.

Third, plaintiffs contend that the Court erred because of the "[m]ovants [sic] failure to file affidavits listing witnesses and their locations should doom their motion from the outset." In support of its argument, plaintiffs cite Champion Labs, Inc. v. Burch, 2006 LEXIS 84892, 11 (S.D. Ill. 2006), a case in which the court refused to consider the "convenience of the witnesses" factor in its transfer analysis because the defendant failed to make a generalized statement of what the witness testimony would include. Id. at *12. Plaintiffs' assertion that defendants' failure to provide a witness listing "dooms their motion from the outset" is overstated. Plaintiffs do, however, alert the Court to an error in its previous Order. As Champion Labs, Inc. instructs, the Court should not have considered the "convenience of the witnesses" factor in its previous analysis because defendants failed to make a generalized statement of what the witnesses' testimony would include. Id. at 11. The Court's previous Order stated that the "convenience of the witnesses" factor weighed "in favor of transferring this dispute." Upon review of the record, the Court finds that this factor weighs neither in favor of, nor against transfer.

Fourth, plaintiffs assert that the Court erred because transferring the action to New York actually increases the burden on both the California defendants and the plaintiffs. As the Court's previous Order explains, the "convenience of the witnesses" analysis takes into account not only the financial burden transfer would impose upon the parties, but also the residences of the parties. While plaintiffs correctly point out transferring this action increases the burden on plaintiffs, it does not necessarily increase the burden on the California defendants, who will be forced to litigate in a foreign jurisdiction whether in this district or in the Southern District of New York. A transfer that increases the inconvenience to one of the parties is not necessarily inappropriate, and does not end the Court's transfer analysis.

By transferring this litigation to the Southern District of New York, fewer parties to this dispute are inconvenienced. Plaintiffs sued many defendants, the majority of whom reside in New York and California. Only one party to this litigation resides in this district.*fn4 Ultimately, transferring this dispute does not simply "transform" the defendants' inconvenience into an inconvenience for the plaintiffs, it transfers what was otherwise an inconvenience for a majority of the parties to this lawsuit into an inconvenience for a minority.*fn5 Therefore, the Court cannot grant plaintiff the relief they seek on this issue.

Fifth, plaintiffs argue that the Court erred because its Order "incorrectly holds that a perceived lack of an ability of this District to compel witnesses to trial weighs in favor of transfer." Plaintiffs correctly argue that none of the named witnesses in this case reside in this district or in the Southern District of New York. Plaintiffs incorrectly argue, however, that it was error for this Court to determine that its inability to compel witnesses to testify here weighs in favor of transferring this dispute out of this district.

Finally, plaintiffs state that "the interests of justice weigh heavily in favor of denying transfer." At the outset, the Court notes that, if transfer is warranted in the interest of justice, the "convenience of the witnesses and parties" components of the transfer analysis becomes less significant. Coffee v. Van Doran Iron Works, 796 F.2d 217, 220-21 (7th Cir. 1986). The Court's previous Order explains why, in the interests of justice, transfer to the Southern District of New York is warranted. Plaintiffs do not allege any change in controlling law, offer newly discovered evidence, or correct a misapprehension of the Court such that reconsidering its ruling on this issue is appropriate. Therefore, the Court rejects plaintiffs' argument that the interest of justice weigh heavily in favor of denying transfer.

Accordingly, the Court DENIES plaintiffs motion to reconsider.

The plaintiffs submit that, in the alternative, the Eastern District of Missouri is a more convenient forum. Defendants correctly explain that plaintiffs failed to ask the Court to transfer this case to the Eastern District of Missouri before doing so in their current motion. Plaintiffs attempt to raise this argument for the first time on a motion for reconsideration is unavailing. See Russell, 51 F.3d at 749. Litigants may not use Rule 59(e) to raise arguments that could have been raised prior to the Court's Order. Id. Plaintiffs had the opportunity to request transfer to the Eastern District of Missouri when it opposed defendants' motion for transfer to ...


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