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Nelson v. Peregrine Sports, LLC

United States District Court, W.D. Washington, Tacoma

October 11, 2017

TODD NELSON, Plaintiff,
v.
PEREGRINE SPORTS, LLC, a Delaware limited liability company, doing business as PORTLAND TIMBERS, Defendant.

          ORDER ON DEFENDANT'S MOTION TO TRANSFER, OR IN THE ALTERNATIVE, DISMISS

          ROBERT J. BRYAN United States District Judge

         THIS MATTER comes before the Court on Defendant Peregrine Sports, LLC, d/b/a Portland Timbers' Motion to Transfer, or in the Alternative, Dismiss. Dkt. 5. The Court has considered the motion, Plaintiff Todd Nelson's Response (Dkt. 13), Defendant's Reply (Dkt. 16), and the remainder of the file herein.

         Defendant seeks to transfer this action from the Western District of Washington to the District of Oregon, which Defendant argues is a more convenient forum under 28 U.S.C. §1404. Defendant argues in the alternative that the Complaint (Dkt. 1) fails to state a claim upon which relief can be granted and, particular to the Third Cause of Action, to state a claim with the requisite particularity under Fed.R.Civ.P. 9(b).

         I. MOTION TO TRANSFER

         A. Facts.

         For purposes of this motion, the parties agree-or at least do not substantively oppose, by declaration or otherwise-the majority of the relevant facts, which are either found in the Complaint or declarations submitted by the parties, to wit, Mr. Nelson, for Plaintiff, and Joseph Cote for Defendant. See Dkt. 1, 6, 14, 15.

         The case centers on the allegation that Portland Timbers denied Mr. Nelson the chance to renew season tickets. According to the Complaint, Mr. Nelson has purchased season tickets since 2009 until July 2016, when Portland Timbers told Mr. Nelson that his “right to acquire season tickets” had been “unilaterally terminated . . . [even though] Plaintiff Nelson was ready, willing, and able to pay, in full, the price for his season tickets.” Dkt. 1 at ¶21. See also, Dkt. 14 at ¶3. Mr. Nelson purchased tickets for commercially for profit, buying as many as 111 “very valuable . . . specific seats which Nelson carefully selected.” Id. at ¶¶16, 17. Because Mr. Nelson did not purchase tickets in July 2016, it is alleged that Mr. Nelson can no longer be a member of The Axe Society, an “exclusive” club with membership contingent on the purchase of tickets for the 2010 season and thereafter. Dkt. 14 at ¶¶4, 5. The Complaint alleges common law causes of action for breach of contract and misrepresentation, as well as a cause of action for violations of the Washington Consumer Protection Act and Federal Trade Commission Act. Id. at ¶¶30-56.

         Mr. Nelson currently resides in Cathlamet, Washington, where he has resided “at all material times.” Dkt. 14 at ¶2. Defendant does not dispute that Mr. Nelson currently resides in Washington, but contends that membership data show an Oregon address in connection with purchase of 2010 season tickets. Dkt. 15 at 3. According to Defendant's internal data, Mr. Nelson, on several occasions, submitted address information to purchase tickets from Oregon addresses. Dkt. 15 at ¶¶3, 4.

         Portland Timbers Senior Vice President, Joseph Cote, represents that Portland Timbers' stadium is in Portland, Oregon, where the team plays its home games. Dkt. 6 at ¶3. Mr. Cote oversees the sales, strategy and services of all tickets for the team and represents that all staff and documentation connected to the purchase of “Season Tickets, ” which Portland Timbers now refers to as “Annual Memberships, ” are also located in Portland, Oregon. Id. at ¶¶4-7. Mr. Cote declares that Portland Timbers do not direct advertisements into the State of Washington, “[w]ith the exception of a single billboard . . . in 2010, and any Portland metro area-based digital advertising that spills into southwest Washington, ” for example, in Vancouver, Washington. Dkt. 15 at ¶5.

         B. 28 U.S.C. §1404 legal standard.

         Under 28 U.S.C. §1404(a) “[f]or 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[.]” Section 1404(a) “requires two findings-that the district court is one where the action ‘might have been brought' and that the ‘convenience of the parties and witnesses in the interest of justice' favor transfer.” Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985).

         C. Discussion.

         1. Might have been brought.

         There does not appear to be any dispute that the case might have been brought in the District Court of Oregon. As Defendant points out-and Plaintiff does not counter-the District Court of Oregon could have subject matter jurisdiction and personal jurisdiction over this case, and venue could be proper. Dkt. 5 at 3, 4. Subject matter could be based on diversity jurisdiction, 28 U.S.C. §1332, because the amount in controversy is greater than $75, 000, Plaintiff resides in Washington, and Defendant is based in Oregon. Personal jurisdiction could be established because of Defendant's contacts with Oregon, the ...


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