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Grady v. Brodersen

United States District Court, D. Colorado

September 11, 2014

JAMES S. GRADY, d/b/a Group Five Photosports, Plaintiff,
v.
EVAN BRODERSEN, a/k/a EFAN BRUDER, and JOHN DOES 1-5, Defendants.

ORDER DENYING MOTION TO TRANSFER VENUE

ROBERT E. BLACKBURN, District Judge.

This matter is before me on the Defendant's Motion To Transfer Venue Pursuant To 28 U.S.C. § 1404(a) [#36][1] filed February 22, 2014. The plaintiff filed a response [#45]. I deny the motion.

I. JURISDICTION

This court has jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and § 1338(a) (patent, copyright, trademark).

II. STANDARD OF REVIEW

"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." 28 U.S.C. § 1404(a). Because the current venue is proper, the burden of demonstrating increased convenience and the furtherance of justice through venue transfer 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. Those factors include:

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 there is considerable discretion regarding the weight afforded to each factor. Id.

III. FACTS

The plaintiff, James Grady, asserts claims against the defendants for copyright Infringement and trademark infringement. Mr. Grady alleges that he is the registered owner of the copyrights covering a collective group of photographs from the Colorado based web publication TrueTeenBabes.com. Mr. Grady alleges that the defendant, Evan Brodersen, a resident of Nebraska, has specifically targeted the protected works and trademarks of Mr. Grady for copyright and trademark infringement, either directly or indirectly, through the use of RegentImages.com and Facebook.com. Mr. Brodersen, a resident of Nebraska, seeks a transfer of this case to the District of Nebraska.

IV. ANALYSIS

§1404(a) Factors

1. Plaintiff's Choice of Forum:

The plaintiff's choice of forum weighs against transfer. The Tenth Circuit gives great deference to the plaintiff's choice of forum, and "[u]nless the balance is strongly in favor of the movant the plaintiff's choice of forum should rarely be disturbed.'" Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992) (quoting William A. Smith Contracting Co. v. Travelers Indem. Co., 467 F.2d 662, 664 (10th Cir.1972)); see also Deer Creek Dev., LLC v. Kim, No. 06-CV-00083-LTB-MJW, 2006 WL 1154213, *2 (D. Colo. May 1, 2006) ("[plaintiff's] choice of venue carries considerable weight"); Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010) ("The plaintiff's choice of forum weighs against ...


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