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Electronic Packaging Solutions, Inc. v. Dickstein Shapiro, Llp

United States District Court, D. Colorado

March 6, 2014



ROBERT E. BLACKBURN, District Judge.

This matter is before me on defendant Disckstein Shapiro, LLP's Motion to Transfer Venue [#14][1] filed July 29, 2013. The plaintiff filed a response [#16], and the defendant filed a reply [#17]. I deny the motion.


This is an action for declaratory judgment arising under C.R.C.P. 57 and §13-51-101, C.R.S. This court has jurisdiction under 28 U.S.C. §1332 (diversity).


Title 28 U.S.C. § 1404(a) allows a transfer of venue when, "[f]or 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." Because the current venue is proper, the burden of demonstrating increased convenience and the furtherance of justice through a transfer of venue rests squarely on the moving party. Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991) ("The party moving to transfer a case pursuant to § 1404(a) bears the burden of establishing that the existing forum is inconvenient.") (citation omitted). While convenience is determined by "the individualized, case-by-case consideration of convenience and fairness, " Van Dusen v. Barrack, 376 U.S. 612, 622 (1964), district courts weigh several factors in determining whether transfer is appropriate. The court considers:

the plaintiff's choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and, all other considerations of a practical nature that make a trial easy, expeditious and economical.

Chrysler at 1516 (quoting Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir.1967)). No single factor is determinative, and none is preponderant; instead, there is considerable discretion regarding the weight afforded to each factor. Id.


Plaintiff David Stark is the principal shareholder, officer, and director of both plaintiff EverSealed Windows, Inc. (ESW) and plaintiff Electronic Packaging Solutions, Inc. (EPS). Complaint [#35], ¶¶ 2-5. Mr. Stark is a citizen and full-time resident of Jefferson County, Colorado. While EPS is a Colorado corporation and ESW is a Delaware Corporation, both entities maintain their principal place of business in Jefferson County, Colorado. Defendant Dickstein Shapiro, LLP is a law firm based in Washington, D.C.

Mr. Stark, on behalf of EPS, entered into fee agreements for legal services with Dickstein Shapiro on January 12, 2005, May 25, 2005, and February 2, 2006. In the agreements, Dickstein Shapiro agreed to advise and represent EPS regarding a licensing program including "review of (EPS's) patent portfolio, developing a licensing strategy, identifying and selecting potential licensees, drafting and negotiating licensing agreements, and drafting and negotiating agreements with an investor." Complaint [#35], ¶ 10. The plaintiffs were to be billed on both a value-added and hourly basis. Dickstein Shapiro claims it is entitled to a value-added fee of three million dollars if certain contingencies are met. The plaintiffs and Dickstein Shapiro disagree on the amount of hourly fees billed, paid, and owed, but they agree that no fees have been paid since March 2007. After Dickstein Shapiro threatened to sue the plaintiffs for outstanding legal fees, the plaintiffs filed this complaint claiming: (1) Dickstein Shapiro is estopped from asserting any claim to Hourly Fees based on representations from an authorized representative of Dickstein Shapiro; (2) The fee claims are barred by applicable statutes of limitation and by laches; (3) The fees claimed by Dickstein Shapiro are patently unreasonable and excessive; (4) Conditions in the fee agreements preclude any fees until EPS generates revenue from licensing or sale of its assets; (5) The fee agreements also preclude payment from ESW or Stark because Dickstein Shapiro did not have a contractual relationship with them; and (6) The value added contingent fees are void ab initio under Colorado law.

The plaintiffs filed their complaint in the District Court. Jefferson County, Colorado, on June 3, 2013. Dickstein Shapiro filed a Notice of Removal [#1] on June 21, 2013, and removed the case to this court. On July 29, 2013, Dickstein Shapiro filed an Answer, Counterclaim, and Jury Demand [#13] and its Motion to Transfer Venue under 28 U.S.C. §1404 [#14].


§1404(a) ...

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