Opinion
No. CV-08-3025-FVS.
October 6, 2008
ORDER GRANTING MOTION TO TRANSFER VENUE
THIS MATTER came before the Court on the parties' joint request for an order transferring venue to the United States District Court for the District of South Dakota, Southern Division. (Ct. Rec. 21). Plaintiff is represented by Brian G. Bodine and Brian N. Platt. Defendant is represented by Christine Lebron-Dykeman and John Christopher Lynch.
BACKGROUND
On April 1, 2001, Defendant brought suit against Plaintiff for infringement of certain patents in the United States District Court for the District of South Dakota, Southern Division. The patents related to a fifth-wheel towing device. Plaintiff made a "Fifth-Wheeler" for which Defendant claimed infringement of claims.
Pursuant to a Settlement Agreement executed by the parties on December 23, 2002, the United States District Court for the District of South Dakota, Southern Division, entered a Consent Order which, among other items, indicated that the South Dakota Court retained exclusive jurisdiction to enforce the Consent Order and Settlement Agreement.
In 2008, Plaintiff began selling a new Fifth-Wheeler which Defendant believes to be an infringement of its patents and in violation of the terms of the Settlement Agreement and Consent Order. (Ct. Rec. 10). Defendant contacted Plaintiff indicating its belief that the new design was in violation. Thereafter, Plaintiff initiated the instant action, in this Court, seeking a declaration that its new Fifth-Wheeler design does not infringe Defendant's patents.
On September 19, 2008, Defendant moved to either dismiss the complaint or to transfer venue to the United States District Court for the District of South Dakota, Southern Division. (Ct. Rec. 9). Defendant argues in its motion to dismiss that because any final determination of the current dispute requires an interpretation of the terms of the 2002 Settlement Agreement and the 2003 Consent Order and because under the terms of the Settlement Agreement and Consent Order, the South Dakota Court retains exclusive jurisdiction for enforcement, this action should be transferred to the South Dakota Court. (Ct. Rec. 10).
The parties have now jointly moved the Court to transfer the action to the United States District Court for the District of South Dakota, Southern Division, and to dismiss, without prejudice, Defendant's motion to dismiss. (Ct. Rec. 21).
DISCUSSION
I. LEGAL STANDARD
28 U.S.C. § 1404 28 U.S.C. § 1406 Continental Ins. Co. v. M/V Orsula, 354 F.3d 603608 See, 28 U.S.C. § 1406Starnes v. McGuire,512 F.2d 918932
II. SECTION 1406(a)
As noted by Defendant, pursuant to a Settlement Agreement between the parties executed on December 23, 2002, the United States District Court for the District of South Dakota, Southern Division, entered a Consent Order which ordered that the South Dakota Court retained exclusive jurisdiction to enforce the Consent Order and Settlement Agreement. (Ct. Rec. 10). In 2008, Plaintiff began selling a new Fifth-Wheeler which Defendant believes to be an infringement of its patents and in violation of the terms of the Settlement Agreement and Consent Order. Defendant contacted Plaintiff indicating this belief, and, thereafter, Plaintiff initiated the instant action seeking declaratory relief. Based on the foregoing, Plaintiff's case should have been filed in the Southern Division of South Dakota. As noted above, in the interest of justice, a federal court may transfer a case filed in the wrong district to the correct district. See 28 U.S.C. § 1406(a); Starnes, 512 F.2d at 932 (D.C. Cir. 1974). Based on the parties' stipulation, it is apparent that the parties agree that the interests of justice require the transfer of venue. The stipulation of the parties evidences their agreement that the proper venue is the Southern Division of South Dakota.
The Court finds that the requested transfer of venue is appropriate under Section 1406(a). Accordingly,
IT IS HEREBY ORDERED:
1. Defendant's Motion to Dismiss or in the Alternative to Transfer (Ct. Rec. 9) is dismissed without prejudice to Defendant's filing a motion to dismiss in the Southern Division of South Dakota.
2. Venue of this action is TRANSFERRED to the United States District Court for the District of South Dakota, Southern Division.
3. Each party shall bear its own costs and attorneys' fees in this matter.
IT IS SO ORDERED. The District Court Executive is hereby directed to enter this order, furnish copies to counsel and close the file.