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finding transaction of business in New York where out-of-state website permitted New York viewer to purchase products by providing payment and shipping information online
Summary of this case from Chanel, Inc. v. DoubinineOpinion
00 Civ. 1971 (AGS)
September 12, 2000
OPINION and ORDER
This action concerns competing attempts to sell discount programs to students. Both plaintiff and defendant are in the business of selling cards or memberships that entitle their holders to discounts from certain providers of goods or services. Plaintiff filed this action on March 13, 2000, seeking monetary and injunctive relief for alleged unfair competition, false advertising and business torts by defendant. Currently before this Court is defendant's motion to dismiss for lack of personal jurisdiction or improper venue, or in the alternative, to transfer the action to the District of Arizona. For the reasons set forth below, the motion is denied.
I. Factual Background
A. The Parties
Plaintiff Student Advantage, Inc. ("SA") is a Delaware corporation, with its principal place of business in Massachusetts. (Complaint ¶ 5.)
Defendant International Student Exchange Cards, Inc. ("ISEC") is alleged by SA to be an Arizona corporation, with its principal place of business in Arizona. (Complaint ¶ 6.) ISEC asserts that it is an Illinois corporation with its principal, and only, place of business in Arizona. (Declaration of Franz Jost in Support of Motion to Transfer or Dismiss Action dated June 12, 2000 ("Jost Decl.") ¶ 3, 5; Declaration of Franz Jost in Support of Motion to Transfer or Dismiss Action dated July 12, 2000 ("Jost Reply Decl.") ¶ 6.) ISEC maintains that it has "no corporate offices, business locations, bank accounts, or other facilities in order to do any business" in New York. ( Id. ¶ 5.)
Both parties sell to students programs that allow the student purchasers to obtain discounts from an assortment of vendors. SA "an on-line and off-line student membership organization" with more than 1,000,000 student members. (Complaint ¶ 7.) SA members are entitled to receive discounts when purchasing goods or services from various businesses operating at locations throughout the United States. ( Id. ¶ 8.) "Almost all" of the participating businesses have, according to SA, entered into exclusive contracts with SA. These exclusive contracts prohibit the participating businesses from entering into similar agreements with companies other than SA that provide discounts to students. ( Id. ¶ 9.) SA claims to rely heavily upon its website to provide services and substantive material, such as news and feature articles, to its members. ( Id. ¶ 10.)
Similarly, ISEC provides various services to college students. Foremost among these is a "discount card" that entitles its holder to discounts from member businesses that participate in ISEC's program. (Jost Decl. ¶ 4). ISEC also maintains a website. (Answer ¶ 12.) That website lists merchants offering discounts to at least holders of ISEC's cards. (Defendant International Student Exchange Cards, Inc.'s Reply Memorandum of Law in Support of Defendant's Motion to Dismiss Action or Alternatively to Transfer Action ("Reply Mem.") at 5; Complaint ¶¶ 12-14.) Similar information is also available in a booklet distributed to ISEC card holders. (Jost Reply Decl. ¶ 3.) SA also claims that ISEC sells its discount cards in New York via the ISEC website (Complaint ¶ 12; Cohen Decl. ¶ 2, 5-6, Exs. A, B.) and through businesses located in New York (Cohen Decl. ¶ 7 and Ex. C.) ISEC allegedly recruits students in New York to purchase its discount cards through these channels. (Cohen Decl. ¶ 20.)
B. Alleged Unfair Competition, False Statements, and Tortious Interference
SA alleges that ISEC's website claims that thousands of merchants offer discounts to holders of ISEC's discount cards. (Complaint ¶¶ 12-14.) Similar claims are supposedly made in a booklet that ISEC distributes to its members. ( Id. ¶ 21.) These claims, according to SA, are in many cases untrue; the merchants in question have no contract to provide discounts to ISEC's card holders. In fact, SA asserts that many of the listed merchants are under exclusive contracts to provide discounts only to SA's members. ( Id. ¶¶ 15-16, 21.) Moreover, SA asserts, ISEC is not even authorized to list some of the merchants on its website. (Declaration of Guy R. Cohen ("Cohen Decl.") ¶ 2, 23.) ISEC allegedly took some of these listings from SA's own website. (Complaint ¶ 17.) SA claims that ISEC, when contacted by SA's counsel, refused to remove the false statements from its website. ( Id. ¶¶ 18-19.)
To the extent that the website and booklet truthfully list merchants offering discounts, SA claims, some unspecified number of these merchants were induced by ISEC to violate their exclusive contracts with SA. ( Id. ¶ 24.) ISEC's agents, including agents in New York, allegedly procured contracts with merchants, including merchants in New York, to provide discounts to ISEC card holders. ( Id. ¶ 24; Cohen Decl. ¶¶ 4, 20-22.) In some cases, ISEC allegedly knew that the merchants were under exclusive contract with SA. (Complaint ¶ 24.) Furthermore, SA claims that ISEC's agents identified merchants through SA's list of merchants with which it had contracts, and sometimes even purported to be agents of SA. (Cohen Decl. ¶ 22.)
ISEC denies SA's allegations. ISEC denies that its website or its booklet contain false information. (Answer ¶ 15.) Merchants are not improperly listed on the website or in the booklet, according to ISEC. ( Id. ¶ 16.) ISEC insists that it has not entered into any contracts with merchants, but provides free listings for any merchant that desires one. (Jost Reply Decl. ¶ 3.) In fact, ISEC insists that it will remove the listing of any merchant that makes such a request. (Jost Reply Decl. ¶ 3.) ISEC denies that SA ever asked ISEC to remove inaccurate information or that ISEC ever refused such a request. (Answer ¶¶ 18-19.) ISEC has never, it claims, employed any person in New York to encourage businesses to participate in ISEC's discount program. ( Id. ¶ 2.) Lastly, ISEC denies knowledge of any agreements between businesses participating in its discount program, on the one hand, and any entity (other than ISEC) that offers discounts to its members, on the other. ( Id. ¶ 4; Answer ¶ 24.)
C. Procedural Posture
SA filed its complaint in the instant action on March 13, 2000. SA alleges (i) false advertising and unfair competition under the Lanham Act, 15 U.S.C. § 1125(a); (ii) false advertising under New York General Business Law § 350; (iii) deceptive acts and practices under New York General Business Law § 349; (iv) unfair competition under the common law of New York; and (v) tortious interference with contractual relations or prospective business advantage. SA seeks both monetary and injunctive relief.
ISEC now moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(2) or (3), or, in the alternative, transfer to the District of Arizona pursuant to 28 U.S.C. 1404(a).
Six days after filing the instant motion, ISEC filed its Answer.
II. Motion to Dismiss
A. Personal Jurisdiction
i. Legal Standard
Plaintiff bears the burden of establishing that the court has jurisdiction over the defendant. See Bank Brussels Lambert v. Fiddler, Gonzalez Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999). Where, however, the parties have conducted little, if any, discovery and the court has not held an evidentiary hearing, plaintiff need only make a prima facie showing of personal jurisdiction. See id. at 784; K.C.P.L., Inc. v. Nash, No. 98 Civ. 3773 (LLM), at *3, 1998 WL 823657 (S.D.N.Y. Nov. 24, 1998). In making such a showing, plaintiff may rely on factual allegations. See PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997); K.C.P.L., 1998 WL 823657 at *3, The court must construe the complaint and any affidavits in the light most favorable to plaintiff. See PDK Labs, Inc. v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997); A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79 (2d Cir. 1993); K.C.P.L., 1998 WL 823657 at *3 The court must also resolve all doubts in plaintiff's favor, even if defendant has offered contrary representations. See A.I. Trade, 989 F.2d at 80.
Personal jurisdiction in a federal court is determined by looking to the law of the forum state. See Bensusan Restaurant Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997). If the court finds jurisdiction appropriate under the relevant state statute, it must then decide whether the exercise of jurisdiction comports with due process. See id. The relevant forum state statute here is New York's long-arm jurisdiction statute, New York Civil Practice Law and Rules § 302. That statute provides, in relevant part:
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent:
1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or
2. commits a tortious act within the state . . .
N.Y.C.P.L.R. § 302(a) (McKinney's 1990). SA asserts that this Court has jurisdiction over ISEC under either § 302(a)(1) or § 302(a)(2). (Plaintiff Student Advantage, Inc.'s Memorandum of Law in Opposition to Defendant International Student Exchange Cards. Inc.'s Motion to Dismiss or to Transfer Venue ("Pl. Mem.") at 10-13.)
In quoting § 302(a), SA purports to quote § 302(a)(3). (Pl. Mem. at 10.) Examination of the quoted language ("'commits a tortious act within the state'" ( Id.)), as well as the rest of SA's memorandum of law (which omits any discussion of § 302(a)(3)), makes clear that SA meant to quote § 302(a)(2) rather than § 302(a)(3).
ii. Analysis
Under § 302(a)(1), jurisdiction is established if the defendant transacts business within the State of New York and the claim arises out of that business activity. See Bank Brussles Lambert, 171 F.3d at 787. To determine whether a party has transacted business in New York, courts examine the totality of the circumstances concerning the party's interactions with, and activities in, the state. See id. A single transaction may even be enough to fulfill the statute's requirement. See id. Accepting for the purposes of this motion SA's allegations, ISEC has transacted business within the State of New York. ISEC's agents in New York procured contracts with New York merchants for those merchants to provide discounts to ISEC's card holders. See supra p. 4. ISEC entered into such contracts with 176 New York merchants. (Cohen Decl. ¶ 15.) ISEC actively recruits students in New York to purchase ISEC's cards. (Cohen Decl. ¶ 20.) ISEC has also entered into agreements for several businesses located in New York to sell ISEC's discount cards. (Cohen Decl. ¶ 7 and Ex. C.)
ISEC's use of its website also supports a finding of transacting business in New York. Courts considering the issue of when internet activity provides personal jurisdiction have identified an array of fact patterns. These range from "passively" making information available on a website, to allowing people to exchange information with the website's operator, to clearly doing business through a website (e.g. by transmitting computer files to customers). See Citigroup Inc. v. City Holding Company, 97 F. Supp.2d 549, 565 (S.D.N.Y. 2000) (collecting cases). Activity at the lower end of the spectrum — making information available to people in other states without any interaction — does not create personal jurisdiction. See Bensusan, 126 F.3d at 26-29; Citigroup, 97 F. Supp. 2d at 565. "However, one who uses a web site to make sales to customers in a distant state can thereby become subject to the jurisdiction of that state's courts." National Football League v. Miller, No. 99 Civ. 11846 (JSM), at *1, 2000 WL 335566 (S.D.N.Y. Mar. 30, 2000); see also Citigroup, 97 F. Supp. at 565. ISEC's website is accessible in New York. (Cohen Decl. ¶ 5.) On that website, one can purchase ISEC's discount cards. ( Id. ¶ 6, Exs. A, B.) Such purchase requires the purchaser to exchange information with ISEC via the internet, including payment and shipping information. ( Id. Ex. B.) Construing the affidavits and pleadings in the light most favorable to SA, ISEC's discount cards are for sale in New York via ISEC's own "interactive" website. ISEC's activity is by definition commercial because it is selling things. The number of contracts entered into with merchants (176), the efforts to sell via the website and through New York business, and the active recruitment of New York purchasers render the activity significant. ISEC is, therefore, transacting business in New York. See Citigroup, 97 F. Supp. at 565-66 (finding that West Virginia defendant transacted business in New York when its website allowed New York customers to apply for loans on the web, electronically "chat" with defendant's lending representatives, or e-mail defendant's lending representatives about loans and receive a rapid response).
SA's claims arise out of the business activities of ISEC described above. The claim for tortious interference with contract or prospective business advantage arises, at least in part, out of the conduct of ISEC's New York agents, who allegedly induced New York merchants to contract with ISEC, in violation of the merchants' exclusive contracts with SA. The remaining claims arise, at least in part, out of that same conduct and out of ISEC's attempts to sell its discount cards to New York students through its website, which website also contains the (allegedly) false statements at issue in this case, and through New York businesses. Thus, this Court has personal jurisdiction over ISEC pursuant to § 302(a)(1). Since the Court finds that plaintiff has properly asserted personal jurisdiction pursuant to § 302(a)(1), it need not consider plaintiff's arguments under § 302(a)(2).
iii. Due Process
This Court's exercise of jurisdiction under § 302(a) must comport with the Due Process Clause of the United States Constitution. See International Shoe Co. v. Washington, 326 U.S. 310, 316(1945). ISEC has, for purposes of this motion, employed agents in New York, entered into contracts with New York merchants, recruited New York students to purchase its discount card, and offered its discount cards for sale in New York through New York businesses and through its website. By virtue of these business activities in New York, ISEC "purposefully avails itself of the privilege of conducting activities" such that it "should reasonably anticipate being hailed into Court [here]." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474(1985). Thus, the exercise of jurisdiction over ISEC comports with "our traditional conception of fair play and substantial justice." International Shoe, 326 U.S. at 320.
B. Venue
ISEC also moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(3), contending that venue in this District is improper. SA alleges that "[v]enue lies in this District pursuant to 28 U.S.C. § 1391(b) and (c). A substantial part of the events giving rise to plaintiff's claims occurred in this District." (Complaint ¶ 4.)
Although SA does not specify a subsection of § 1391(b), the Court construes the reference to § 1391(b) and (c) together as an assertion of venue under § 1391(b)(1) and the reference to a substantial part of the events giving rise to the cause of action as an assertion of venue under § 1391(b)(2). As discussed below, because the Court finds venue proper under § 1391(b)(1), it does not address § 1391(b)(2).
Section 1391(b)(1) provides that "(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides. . . ." 28 U.S.C. § 1391(b). Neither SA nor ISEC contend that ISEC is incorporated in New York or has its principal place of business in this State. See supra p. 2. SA, however, relies upon § 1391(c) to establish ISEC's residency within this District. (Complaint ¶ 4.) That subsection provides, in relevant part:
(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State. . . .28 U.S.C. § 1391(c).
As discussed above, ISEC was subject to personal jurisdiction in the State of New York at the time this action was commenced. See supra pp. 5-9. New York, however, has four judicial districts, see 28 U.S.C. § 112; therefore, the second sentence of § 1391(c) comes into play. SA has alleged that ISEC sells its discount cards in this District via the internet. See supra pp. 3, 8. As discussed above, this creates personal jurisdiction over ISEC. See supra pp. 5-9. In addition, SA has further alleged that ISEC has entered into contracts with multiple businesses in this District. (Complaint ¶ 24; Cohen Decl. ¶¶ 7, 14 -15. Exs. C, K.) These activities would be sufficient to subject ISEC to personal jurisdiction in this District if this district were a separate state. Pursuant to § 1391(c), then, ISEC resides in this district for purposes of venue under Chapter 87 of Title 28 of the U.S.C. It follows that venue lies in this District pursuant to 28 U.S.C. § 1391(b)(1). Since venue is proper in this District under § 1391(b)(1), the Court need not address SA's argument under § 1391(b)(2).
III. Motion to Transfer to the District of Arizona
In the alternative to its motion to dismiss, ISEC moves the Court to transfer this action to the District of Arizona pursuant to 28 U.S.C. § 1404(a). This section provides 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." 28 U.S.C. § 1404(a). On a motion under § 1404(a), the movant bears the burden of demonstrating that an alternative forum is available and that such forum is clearly more appropriate than the initial forum. See Toy Biz, Inc. v. Centuri Corp., 990 F. Supp. 328, 330 (S.D.N.Y. 1998). The movant must support its motion with a detailed factual affidavit. See Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F. Supp.2d 203, 208 (S.D.N.Y. 1998).
The first inquiry is whether the action "might have been brought" in the proposed transferee forum. See Orb Factory, 6 F. Supp. 2d at 208; Coloplast v. Amoena Corp., 25 U.S.P.Q.2d 1549, 1550 (S.D.N.Y. 1992). An action "might have been brought" in another forum if the transferee forum would have had personal jurisdiction over the defendant at the time the action was commenced and if venue properly lies there. See NBA Properties, Inc. v. Salvino, Inc., 99 Civ. 11799(AGS), 2000 WL 323257, at *3 n. 1 (S.D.N.Y. Mar. 27, 2000). Here, it is undisputed that this action "might have been brought" in the District of Arizona, where the parties agree that ISEC has its principal place of business.
The key inquiry, then, is whether the proposed transfer will promote convenience and fairness. See NBA Properties. 2000 WL 323257, at *3 n. 1; Orb Factory, 6 F. Supp. at 208. Courts in this Circuit consider several factors in assessing the balance of convenience and fairness: (1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the interests of justice based on the totality of the circumstances. See Haddad Brothers Inc. v. Little Things Mean a Lot, Inc., 00 Civ. 578 (AGS), 2000 WL 1099866, at *10 (S.D.N.Y. Aug. 4, 2000).
A. Convenience of witnesses
The convenience of witnesses may be the most important factor in the transfer analysis. See Coker v. Bank of America, 984 F. Supp. 757, 765 (S.D.N.Y. 1997). A party seeking to transfer based on the convenience of the witnesses must provide the Court with a specific list of probable witnesses who will be inconvenienced by the current forum and a general statement of what the witnesses' testimony will cover. See NBA Properties, 2000 WL 323257 at *5; Coker, 984 F. Supp at 765. The only probable witness specifically identified by ISEC is its president, Franz Jost. ( See generally Jost Decl.; Jost Reply Decl.) SA, on the other hand, has specifically identified twenty-six merchants who will likely provide testimony that they did not authorize ISEC to list them on ISEC's website (Cohen Decl. ¶ 3), and eleven merchants that will likely provide testimony that ISEC induced them to breach their exclusive contracts with SA. (Cohen Decl. ¶ 4). All thirty-seven of these businesses are located in either New York or Massachusetts. ( Id.) SA has also specifically identified four likely employee witnesses, two of whom are based in New York and two of whom are based in Massachusetts. (Declaration of David Liniado ("Liniado Decl.") ¶ 8.) Given the many probable witnesses located on the East Coast, and the single probable witness located in Arizona, this factor favors retention of this action.
B. Location of Relevant Documents
A defendant's assertion that documents are located in the transferee forum is entitled to little weight in the absence of a detailed showing as to the burden that defendant would incur in the absence of transfer. See NBA Properties, 2000 WL 323257, at *8. While ISEC does offer Jost's statement that "all documentary evidence would be located at [ISEC's] office in Arizona" (lost Decl. ¶ 8), ISEC provides no testimony whatsoever as to the quantity of documentary evidence nor the burden that would be imposed by providing documentary evidence in this District. SA does not specifically identify any documentary evidence in its possession, nor the location of any such evidence. Nevertheless, ISEC has failed to carry its burden of clearly demonstrating that this factor favors transfer.
C. Convenience of the Parties
As stated above, ISEC identifies only one party witness who would be inconvenienced by a denial of the transfer motion, while SA has identified four party witnesses who would be inconvenienced by the proposed transfer. ISEC asserts that all of its operations and documents are in Arizona. ( See generally Jost Decl.; Jost Reply Decl.) SA, in turn, asserts that the vast majority of its operations are centered in New York and Massachusetts. (Complaint ¶ 5; Liniado Decl. ¶¶ 4, 8; Declaration of Kevin Roche ¶¶ 2-7.) The Court cannot find that the convenience of the parties favors transfer where the transfer would merely shift any inconvenience from defendant to plaintiff. See NBA Properties, 2000 WL 323257, at *5; Orb Factory, 6 F. Supp. 2d at 209; Toy Biz, 990 F. Supp. at 331.
D. Locus of the Operative Facts
In an action for unfair competition and false advertising under the Lanham Act, the locus of the operative facts is in the initial forum if the acts of unfair competition and the false statements occur in that forum. See Orb Factory, 6 F. Supp. 2d at 209. Here, the allegation is that ISEC makes false statements and competes unfairly in selling its discount cards in this District via the internet and through businesses located here. The locus of operative facts is thus in this District, even if ISEC's principal place of business is elsewhere or ISEC sells its discount cards elsewhere. See NBA Properties, 2000 WL. 323257, at *4 (finding locus of operative facts in this district where defendant sold products accused of trademark infringement in New York on its website and through New York dealers and distributors). In addition, even when there have been no sales in the initial forum, the locus of operative facts is in the initial forum if the defendant has had other business dealings related to the litigation in the initial forum and the plaintiff does business in the initial forum. See Ontel Products, Inc. v. Project Strategies Corp., 899 F. Supp. 1144, 1154 (S.D.N.Y. 1995). As discussed above, SA alleges that ISEC has agents in this District, has contracts with businesses located in this District, and actively recruits students in this District to buy ISEC's discount card. See supra pp. 3-4, 7. SA also alleges that it does business in this District. (Roche Decl. ¶¶ 2-7.) This factor also favors retention of this action.
E. Compulsion of Unwilling Witnesses
Neither party identifies any witnesses that it believes will need to be compelled to testify in this action. Accordingly, the Court can make no judgment as to whether process to compel the attendance of unwilling witnesses is more readily available here or in Arizona.
F. Relative Means of the Parties
While the relative means of the parties is a factor for the Court to consider, this factor is entitled to little weight where both parties are corporations. See Toy Biz, 990 F. Supp. at 331. Moreover, any party arguing for a transfer on this basis must offer documentation showing that granting or denying the transfer would be unduly burdensome. See NBA Properties, 2000 WL 323257, at *10. The only evidence relating to this factor is Jost's statement that ISEC has only three full-time employees, (lost Reply Decl. ¶ 6), his unsupported assertion that "[i]t would be far more inconvenient for ISEC for this case to be tried in New York than it would be for STUDENT ADVANTAGE for the case to be tried in Arizona" ( Id.), and his vague and unsupported assertion that ISEC "would suffer economic hardship" if he had to travel to New York. (Jost Del. ¶ 8). This documentation is insufficient to demonstrate that this factor favors transfer.
G. Forum's Familiarity with the Governing Law
This factor strongly favors denying the transfer. The presence of state law claims supports retaining the case in that state. See NBA Properties, 2000 WL 323257, at *9 In the instant action, SA asserts one claim under federal law and four claims under New York law — two under New York common law, one under New York General Business Law § 349, and one under New York General Business Law § 350. (Complaint ¶¶ 27-50.) While the District of Arizona is no doubt equally familiar with the Lanham Act, there can be little question that this Court has greater knowledge of New York law.
H. Plaintiff's Choice of Forum
A plaintiff's choice of forum is generally given significant weight. See Orb Factory, 6 F. Supp. 2d at 210; Coker, 984 F. Supp. at 766. ISEC correctly points out, however, that a plaintiff's choice of forum is given less deference than usual where the forum is not the plaintiff's home district. See Coker, 984 F. Supp. at 766. SA admits that it is incorporated in Delaware and has its principal place of business in Massachusetts. See supra p. 2. This factor does not favor retention of this action.
I. Trial Efficiency and the Interests of Justice
Beyond vague and unsupported generalities by ISEC, neither party addresses this factor. Accordingly, the Court does not find that this factor favors transfer.
Taking into consideration and balancing all of the factors discussed above, it is clear that ISEC has failed to carry its burden of clearly demonstrating that a transfer is warranted under 28 U.S.C. § 1404(a). ISEC has demonstrated, at best, that one of nine factors favors transfer, while several other factors favor retention of this action in this District and the remainder are neutral.
IV. Conclusion
For the reasons set forth above, the Court denies defendant ISEC's motion to dismiss for lack of personal jurisdiction or improper venue, or in the alternative, to transfer the action to the District of Arizona.
SO ORDERED.