United States District Court, D. Colorado
ARTHUR LEE ALFRED II, EZEQUIEL MARTINEZ, JR., and TOVA LAITER, Plaintiffs,
THE WALT DISNEY COMPNAY, a Delaware Corporation, DISNEY ENTERPRISES, INC., a Delaware Corporation, WALT DISNEY MOTION PICTURES GROUP, INC, a California Corporation, DISNEY CONSUMER PRODUCTIONS, INC., a California Corporation, DISNEY CONSUMER PRODUCTIONS AND INTERACTIVE MEDIA, INC., a California Corporation, DISNEY BOOK GROUP, LLC, a Delaware Limited Liability Company, DISNEY INTERACTIVE STUDIOS, INC., a California Corporation, DISNEY STORE USA, LLC, a Delaware Corporation, WALT DISNEY ATTRACTIONS TECHNOLOGY, LLC, a Delaware Limited Liability Company, WALT DISNEY THEATRICAL RECORDINGS, a California Corporation, WALT DISNEY PARKS AND RESORTS WORLDWIDE, a Florida Corporation, ABC, INC., a New York Corporation, BUENA VISTA HOME ENTERTAINMENT, INC., a California Corporation, BUENA VISTA MEDIA, a California Corporation, BUENA VISTA PRODUCTIONS; a California Corporation, BUENA VISTA THEATRES, INC.; a California Corporation, BUENA VISTA THEATRICAL GROUP LTD., New York Corporation, BUENA VISTA VIDEO ON DEMAND, a California Corporation, BUENA VISTA BOOKS, INC., a California Corporation, BUENA VISTA CATALOGUE CO., a California Corporation, BUENA VISTA NON-THEATRICAL, INC., a California Corporation, and JOHN and JANE DOES 1-10, inclusive, Defendants.
A. BRIMMER UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' Motion to
Dismiss for Lack of Personal Jurisdiction or, Alternatively,
to Transfer Venue [Docket No. 46]. Defendants request that
the Court dismiss the case for lack of personal jurisdiction
or transfer this case to the United States District Court for
the Central District of California pursuant to 28 U.S.C.
§ 1404(a). Docket No. 46 at 15.
Arthur Lee Alfred II and Ezequiel Martinez, Jr. are
screenwriters and Tova Laiter is their producer. Docket No. 1
at 6, ¶¶ 16, 19. All three are California
residents. Docket No. 1 at 4, ¶ 5. They created a
“spec” screenplay for a movie about pirates,
which they re-titled “Pirates of the Caribbean”
after the name of a ride at defendants' theme parks.
Id. at 7, ¶¶ 24-26. Plaintiffs attempted
to sell their spec screenplay to defendants. Id.,
¶¶ 27-29. Defendants consist of The Walt Disney
Company,  a well-known media conglomerate, and a
number of its subsidiaries as well as unnamed individuals.
Id. at 1. Defendants declined to purchase
plaintiffs' spec screenplay, but later produced a number
of movies using the “Pirates of the Caribbean”
name and sold merchandise related to the movies. Id.
at 1-2, 9, ¶¶ 41, 49.
November 14, 2017, plaintiffs filed their complaint for
copyright infringement against defendants. Docket No. 1.
Plaintiffs claim that defendants copied the copyrightable
elements of their spec screenplay and used them in
defendants' movies and other products. See, e.g.,
id. at 14, ¶ 49. On February 12, 2018, defendants
filed their motion to dismiss or transfer. Docket No. 46.
Court may address whether transfer is appropriate under 18
U.S.C. § 1404 without first determining whether it has
personal jurisdiction, and the Court does so here. See
First Health Grp. Corp. v. Allcare Health Mgmt. Sys.,
Inc., 2001 WL 686777, at *1 (N.D. Ill. June 15, 2001)
(“Under 28 U.S.C. § 1404(a), a motion for transfer
may be granted without first making a determination regarding
personal jurisdiction.” (citing United States v.
Berkowitz, 328 F.2d 358, 361 (3d Cir. 1964);
Koehring Co. v. Hyde Construction Co., 324 F.2d 295,
297-98 (5th Cir. 1963))); Dworin v. Deutsch, 2006 WL
3095945, at *2 (D.N.J. Oct. 30, 2006) (“Where a
defendant has challenged a court's power over his person
and, at the same time, has moved alternatively for transfer,
the interests of judicial economy are best served by initial
address of the transfer issue.” (internal quotation
marks omitted)); Mining & Energy Int'l Corp. v.
Naylor, No. 04-cv-00179-WDM-BNB, 2005 WL 1994242, at *1
(D. Colo. Aug. 16, 2005). Section 1404(a) of Title 28
provides, in pertinent part, that, “[f]or the
convenience of 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.” Section 1404(a) is “intended to place
discretion in the district court to adjudicate motions for
transfer according to an ‘individualized, case-by-case
consideration of convenience and fairness.'”
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988) (quoting Van Dusen v. Barrack, 376 U.S. 612,
622 (1964)). To warrant a transfer, the moving party must
establish that: “(1) the action could have been brought
in the alternate forum; (2) the existing forum is
inconvenient; and (3) the interests of justice are better
served in the alternate forum.” Wolf v. Gerhard
Interiors, Ltd., 399 F.Supp.2d 1164, 1166 (D. Colo.
2005) (citing Chrysler Credit Corp. v. Country Chrysler,
Inc., 928 F.2d 1509, 1515 (10th Cir. 1991)).
does not dispute that the Central District of California
would be a proper venue. See Docket No. 50; 28
U.S.C. § 1391(b)(2).
determining whether transfer is appropriate for the
convenience of the parties and the interest of justice,
courts consider factors including
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 Credit Corp. v. Country Chrysler, Inc., 928
F.2d 1509, 1516 (10th Cir. 1991) (internal quotation marks
chose this forum, but that choice bears little if any weight
here because plaintiffs do not reside in this district and
the “facts giving rise to the lawsuit have no material
relation or significant connection to the plaintiff's
chosen forum.” Employers Mut. Cas. Co. v.
Bartile Roofs, Inc., 618 F.3d 1153, 1168 (10th Cir.
2010) (internal quotation marks omitted). Indeed, it is
because of the complete lack of any significant connection
between Colorado and this lawsuit that the Court finds that
all other relevant factors overwhelmingly favor transfer,
namely, accessibility of witnesses and other evidence, costs
of making necessary proof, and practical considerations that
would make a trial easy. Plaintiff does not dispute that all
of the main events at issue in this lawsuit occurred in
California, including the creation of the spec screenplay,
plaintiffs' attempted sale of the screenplay, and
defendants' production of the “Pirates of the
Caribbean” movies. See Docket No. 50 at 8-9.
While plaintiffs argue that defendants have not
“present[ed] sufficient facts demonstrating
inconvenience, ” the facts presented by defendants show
that, in contrast to California, nobody with any connection
to the facts at issue has ties to Colorado. Id. at
8; see also Employers Mut. Cas. Co., 618 F.3d at
1169 (“The convenience of witnesses is the most
important factor in deciding a motion under §
1404(a).” (internal quotation marks omitted)).
argue that transfer would be inconvenient because their
attorneys live in Colorado and are not admitted to practice
in California or any federal court there. Docket No. 50 at 7.
As defendants point out, however, convenience to counsel is
not a factor in the analysis. Docket No. 51 at 7 (citing
S.E.C. v. Kasirer, 2005 WL 645246, at *2 (N.D. Ill.
Mar. 21, 2005)); see also In re Horseshoe
Entm't, 337 F.3d 429, 434 (5th Cir. 2003)
(“The factor of ‘location of counsel' is
irrelevant and improper for consideration in determining the
question of transfer of venue.”); Solomon v.
Cont'l Am. Life Ins. Co., 472 F.2d 1043, 1047 (3d
Cir. 1973) (“[C]onvenience of counsel is not a factor
to be considered.” (citing Chicago, Rock Island and
Pacific R. R. Co. v. Igoe, 220 F.2d 299, 304 (7th Cir.
1955)); cf. Crop Hail Mgmt. v. Fed. Crop Ins. Corp.,
1994 WL 1890927, at *2 (N.D. Miss. Oct. 7, 1994) (“The
choice or convenience of counsel is the least important
consideration in resolving an issue of this nature.”
(internal quotation marks omitted)). Because the relevant
factors overwhelmingly favor transfer, the Court will order
this case transferred to the Central District of California.
that Defendants' Motion to Dismiss for Lack of Personal
Jurisdiction or, Alternatively, to Transfer Venue [Docket No.
46] is GRANTED in part. It is further
that, pursuant to 18 U.S.C. § 1404(a), this case is
transferred to the United States District Court for ...