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vPersonalize Inc. v. Magnetize Consultants Ltd.

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

September 12, 2019

vPersonalize Inc., Plaintiff,
v.
Magnetize Consultants Ltd. dba Kit Builder, Defendant.

          ORDER DENYING MOTION TO TRANSFER VENUE

          BARBARA JACOBS ROTHSTEIN U.S. DISTRICT COURT JUDGE.

         Defendant Magnetize Consultants Ltd. (Magnetize) filed a motion to transfer this case to what it claims is the “more appropriate and convenient” venue of the Eastern District of Pennsylvania. The choice of the Eastern District of Pennsylvania appears to be based solely on the fact that non-party Inksewn USA Corp., referred to in the First Amended Complaint as an entity through which Magnetize allegedly misappropriated trade secrets, has its place of business in Philadelphia, Pennsylvania. Magnetize's place of business is the United Kingdom, and it claims that none of its employees, agents, or operations are located in the United States (or the State of Washington). Plaintiff vPersonalize, Inc. is a California company with its principal place of business in San Francisco.

         Defendant claims that vPersonalize chose to file its complaint in the Western District of Washington: (1) for the convenience of Plaintiff's counsel of record (whose law firm-which also handles patent prosecution for vPersonalize before the USPTO-is in Seattle); and (2) for the inconvenience of Defendant.

         28 U.S.C. § 404(a), on which Magnetize's motion is based, provides “For the convenience of the 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 statute has two requirements on its face: (1) that the transferee district is one in which the action ‘might have been brought,' and (2) that the transfer be for the convenience of parties and witnesses, and in the interest of justice. There appears to be no disagreement as to the first requirement; vPersonalize has alleged that Magnetize, among other things, “improperly obtained access to vPersonalize's proprietary product, patterns, software code and technical documents through at least one third-party, Inksewn USA Corp, ” which is based in Philadelphia, Pennsylvania. Am. Compl. ¶ 26.

         Thus the only issue for the Court to resolve is whether a transfer would be “for the convenience of parties and witnesses, and in the interest of justice.” The Ninth Circuit has outlined factors to weigh in such consideration:

(1) the location where the relevant agreements were negotiated and executed,
(2) the state that is most familiar with the governing law,
(3) the plaintiff's choice of forum,
(4) the respective parties' contacts with the forum,
(5) the contacts relating to the plaintiff's cause of action in the chosen forum,
(6) the differences in the costs of litigation in the two forums,
(7) the availability of compulsory process to compel attendance of unwilling non-party witnesses,
(8) the ease of access to sources of proof, and
(9) the relevant public policy of the forum ...

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