United States District Court, W.D. Washington, Seattle
ORDER GRANTING MOTION TO TRANSFER VENUE
L. ROBART, United States District Judge.
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,
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
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.)
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.)
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.)
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).
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).
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.
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).
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.
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,
Threshold Requirements for Transfer of Venue
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. § 1391(b)(2) ("A ...