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Hong v. Recreational Equipment, Inc.

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

October 25, 2019

TONY HONG, Plaintiff,


          JAMES L. ROBART, United States District Judge.


         Before the court is Recreational Equipment, Inc. ("REI") and Samuel Krieg's (collectively, "Defendants") motion to dismiss Plaintiff Tony Hong's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, to transfer this action to the District of Idaho. (Mot. (Dkt. # 8).) The court has considered Defendants' motion, the parties' submissions related to the motion, the relevant portions of the record, and the applicable law. Considering itself fully advised, [1] the court GRANTS in part and DECLINES in part to rule on Defendants' motion. Specifically, the court GRANTS Defendants' motion to transfer venue to the District of Idaho pursuant to 28 U.S.C. § 1404(a), and DECLINES to rule on Defendants' motion to dismiss in deference to the transferee court.


         This is a copyright infringement case. (See generally Compl. (Dkt # 1).) In his complaint, Mr. Hong alleges that Defendants violated certain provisions of the Copyright Act of 1976, 17 U.S.C. §§ 101, et seq. (See Compl. ¶ 5.) Mr. Hong seeks both damages and injunctive relief. (Id. at 34-36.)

         The parties' dispute concerns two types of rock climbing chalk bags sold by Defendants. Mr. Hong asserts that the outer canvases of both chalk bags feature reproductions of an illustration entitled "Tree Rings." (Id. ¶ 11.) Mr. Hong created "Tree Rings" and registered the two-dimensional artwork with the United States Copyright Office. (Id. ¶ 8, Ex. A at 2.) Mr. Hong claims that "Tree Rings" consists of "wholly original material that constitutes copyrightable subject matter." (Id. ¶ 15.) Mr. Hong further claims that Defendants infringed upon his copyright by affixing versions of "Tree Rings" on the outside canvases of the chalk bags without his consent or license. (Id. ¶¶ 11-16.)

         Mr. Krieg created both chalk bags at issue in this case. (See Krieg Decl. (Dkt, # 8-1) ¶ 4.) Mr. Krieg does business as "Krieg Climbing," which operates as Krieg LLC. (Id. ¶ 1.) Mr. Krieg sews, creates, and sells chalk bags for rock climbing. (Id. ¶ 3.) In July 2015} Mr. Krieg created two bags, which allegedly displayed tree-ring-inspired designs, known as the "Krieg Tree Rings Green Chalk Bag" and the "Krieg Special K Chalk Bag - Bigfoot" (See Id. ¶ 4; Compl. ¶ 11.) Mr. Krieg allegedly sold the two bags directly via the Krieg Climbing website, (Compl. ¶ 11, Ex. B at 2-7.) Additionally, REI served as a retailer through which Krieg LLC featured and sold its climbing chalk bags, including the chalk bags at issue. (Id. ¶ 10-12, Ex. C at 2-6.)

         Before filing the instant action in Washington, Mr. Hong filed a similar suit alleging copyright causes of action against Mr. Krieg and REI in the Central District of California. (See Krieg Decl. ¶ 2; Ardalan Decl. (Dkt. # 13) ¶ 3.) The California court granted Defendants' motions to dismiss for lack of personal jurisdiction. Hong v. Recreational Equip., Inc., No. C18-08519DDP, 2019 WL 2124529, at *4 (CD. Cal. May 15, 2019).

         Mr. Hong is a resident of Los Angeles, California. (Compl. ¶ 1.) Mr. Krieg is a resident of Pocatello, Idaho. (Krieg Decl. ¶ 3.) REI is a Washington corporation (Ardalan Decl. ¶ 2, Ex. A at 2-3) with its principal place of business in Kent, Washington (Compl. ¶ 2).

         III. ANALYSIS

         On August 9, 2019, Defendants moved to dismiss and to transfer venue to the District of Idaho. (See Mot.) Defendants argue that "for reasons of convenience to the parties and witnesses under 28 U.S, C. § 1404(a), this [c]ourt should exercise its discretion in favor of transferring ... this action ... to the District of Idaho." (Id. at 6.) Defendants further argue that such transfer is warranted "in order to reduce litigation costs and relieve the burden on [Mr.] Krieg," (Id. at 8.) As discussed below, because the court concludes that it should grant Defendants' motion to transfer, it declines to rule on Defendants' motion to dismiss in deference to the transferee court.

         A. Legal Standard

         A party may move to transfer venue pursuant to 28 U.S.C. § 1404(a) if transfer would serve "the convenience of the parties and witnesses" and "the interest of justice." See 28 U.S.C. § 1404(a). As a threshold matter, the moving party must first show that the transferee court possesses subject matter jurisdiction over the action, venue would have been proper in the transferee court, and the parties would be subject to personal jurisdiction in the transferee court. See Hoffman v. Blaski, 363 U.S. 335, 344 (1960); A. J. Indus., Inc. v. U.S. Dist. Ct. for the Cent. Dist. of Cal, 503 F.2d 384, 386-88 (9th Cir. 1974).

         Once the threshold questions are resolved, the court considers whether the convenience of the parties and witnesses and the interest of justice favor transfer. See 28 U.S.C. § 1404(a). In a "typical case not involving a forum selection clause, a district court... must evaluate both the convenience of the parties and various public-interest considerations." Atl. Marine Constr. Co., Inc. v. U.S. Dist Ct. for the W. Dist. of Tex., 571 U.S. 49, 62 (2013). The Ninth Circuit Court of Appeals instructs district courts to apply a nine-factor balancing test to determine whether to transfer a case under Section 1404(a). See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). The balancing test weighs: "(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiffs choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiffs 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 public policy considerations of the forum state. See Id. at 498-499.

         Defendants bear the burden of showing that transfer is appropriate. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56 (1981); Organo Gold Int'l, Inc. v. Aussie Rules Marine Services, Ltd., No. C18-0108JLR, 2018 WL 2359132, at *3 (W.D. Wash. May 24, 2018). The decision to transfer, however, is ultimately left to the district court's discretion based on an "individualized, case-by-case consideration of convenience and fairness." Stewart Org, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting VanDusen v. Barrack, 376 U.S. 612, 622 (1964)).

         B. Discussion

         1. Threshold Requirements for Transfer of Venue

         Neither party addresses whether the threshold requirements are met. (See generally Mot.; Resp.) The facts in the record indicate that the threshold requirements are satisfied for the purposes of a transfer to the District of Idaho. First, the District of Idaho has subject matter jurisdiction because Mr. Hong pleads exclusively federal claims. See 28 U.S.C. § 1331; (Compl. ¶¶ 14-36). Second, because Mr. Hong alleges that Mr. Krieg's chalk bags infringe his copyright and those bags were created and designed in Idaho, venue is proper in the District of Idaho. See 28 U.S.C. ยง 1391(b)(2) ("A ...

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