Opinion
02 Civ. 6191 (JGK).
July 8, 2003.
OPINION AND ORDER
The plaintiff, Hypoxico, Inc. ("Hypoxico"), brought an action for infringement of its United States Patents Nos. 5,964,222 and 5,799,652 (the "Patents"). The defendants, Colorado Altitude Training LLC ("CAT") and Lawrence Kutt ("Mr. Kutt"), have moved to dismiss the complaint for lack of personal jurisdiction or, in the alternative, to transfer this action to the District of Colorado for the convenience of the parties and witnesses and in the interests of justice pursuant to 28 U.S.C. § 1404(a).
While the plaintiff labeled its motion as brought pursuant to Fed.R.Civ.P. 12(b)(3), that provision relates to improper venue, while Fed.R.Civ.P. 12(b)(2) is the correct provision for lack of personal jurisdiction which is the substance of the defendants' motion.
I.
The relevant facts, as alleged in the Complaint and the affidavits and declarations submitted by the parties in connection with the current motion, are as follows. Hypoxico is a Delaware corporation with its principal place of business in New York, New York. (Compl. ¶ 1.) CAT is a Colorado limited liability corporation with its principal place of business in Boulder, Colorado. ( Id. at ¶ 2.) Lawrence Kutt, a citizen of Colorado, is the President of CAT. ( Id. at ¶ 3.) All parties are involved in the sale of hypoxic training equipment meant to simulate high altitude conditions for athletes to enhance their performance by simulating an environment, for example, whereby the athlete rests or sleeps at high altitude. (Declaration of Lawrence Kutt dated Sept. 18, 2002 ("Kutt Decl.") ¶ 5; Declaration of Igor Kotliar dated Nov. 11, 2002 ("Kotliar Decl.") ¶ 4.)The patents at issue in the complaint are directed to hypoxic training equipment invented by Igor (Gary) Kotliar, President of Hypoxico. (Kotliar Decl. ¶ 2). CAT produces products that Hypoxico claims infringe on its Patents. Although there is a question as to who initiated the contacts, it is admitted that CAT sent information regarding its products to three athletes in New York and supplied them with the accused systems in New York. (Kutt Decl. ¶ 10). The Plaintiff relies on these contacts for asserting personal jurisdiction in New York over both CAT and Mr. Kutt. The defendants claim that asserting personal jurisdiction in this case would violate their due process rights. In addition, the defendants argue that the Court has no personal jurisdiction over Mr. Kutt because he is protected by the fiduciary shield doctrine and is not covered by the New York State long-arm statute, N.Y. C.P.L.R. § 302.
In their original motion, the defendants argued that CAT was not covered by N.Y. C.P.L.R. § 302. (Def's Mot. to Dismiss ¶ II.C.). In their subsequent reply in support of the motion, the defendants withdrew this objection. (Def's Reply in Supp. Mot. to Dismiss ¶ II.A.). (See also Transcript of Mar. 28, 2003 Argument ("Tr.") at 4, 10.) Thus, it is undisputed that CAT is subject to jurisdiction in this Court pursuant to N.Y. C.P.L.R. § 302 and the only issue with respect to CAT is whether the exercise of that jurisdiction is consistent with due process.
Mr. Kutt signed each of the contracts with the three athletes. The agreements provided for CAT to set up the equipment in New York and also required the athletes to provide testimonials as to their use of the equipment, which presumably occurred in New York. (See Contracts attached as Ex. 3 to Kutt Decl.) After credits for the testimonial endorsements by the athletes, the New York athletes paid $21,850 to CAT. (Kutt Decl. ¶ 10.) When the equipment was shipped to the athletes in New York, it was shipped F.O.B. from CAT's Colorado facility. (Kutt Decl. ¶ 10.)
II.
The defendants move to dismiss this action on the ground that the Court allegedly lacks personal jurisdiction over CAT and Mr. Kutt. This case relates to the infringement of patents and is therefore governed by the law of the Federal Circuit. See Hildebrand v. Steck Mfg. Co., Inc., 279 F.3d 1351, 1354 (Fed. Cir. 2002) ("We apply Federal Circuit law to determine whether the district court properly exercised personal jurisdiction over out-of-state defendants in patent infringement cases."). The law of the Federal Circuit requires the district court to construe the pleadings and affidavits in the light most favorable to the plaintiff when determining whether a prima facie showing of personal jurisdiction over the defendant has been made. See Deprenyl Animal Health, Inc. v. University of Toronto Innovations Found., 29 F.3d 1343, 1347 (Fed. Cir. 2002) (noting that Federal Circuit law requires the plaintiff to make only a prima facie showing when a motion to dismiss for lack of personal jurisdiction is decided based on the pleadings and affidavits and that all factual disputes are to be resolved in favor of the plaintiff) (citing Graphic Controls Corp. v. Utah Med. Prods., Inc., 149 F.3d 1382, 1383 n. 1 (Fed. Cir. 1998) ("For purposes of the 12(b)(2) motion, the district court's task was to construe the pleadings and affidavits in the light most favorable to [the plaintiff].")).
This approach is consistent with the law of the Second Circuit. Because there has not been an evidentiary hearing in this case, Hypoxico need only make a prima facie showing of personal jurisdiction over CAT and Mr. Kutt to survive a motion to dismiss, and the pleadings and any supporting affidavits are to be interpreted in the light most favorable to Hypoxico. 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, 79-80 (2d Cir. 1993). In any event, no party has sought an evidentiary hearing in this case, and it is clear from the affidavits, declarations, and concessions of the parties that the Court has personal jurisdiction over CAT and Mr. Kutt.
III.
When determining a personal jurisdiction case under Federal Circuit law, this Court must first apply the state long-arm statute and then determine whether asserting jurisdiction would violate federal due process. See Graphic Controls, 149 F.3d at 1385 n. 2. The Federal Circuit defers "to the interpretations of the relevant state and federal courts" when interpreting the meaning of state long-arm statutes. Graphic Controls, 149 F.3d at 1386. With respect to the federal constitutional due process analysis of the defendant's contacts with the forum state in patent cases, the Federal Court of Appeals does not defer to the interpretation of other federal or state courts. Id. at 1385.
The plaintiff argues that the Court has jurisdiction pursuant to §§ 302(a)(1), (2) and (3)(i) and (ii) of the New York long-arm statute. Initially, the defendants argued in their motion to dismiss that CAT should not be subject to personal jurisdiction under New York's long-arm statute. However, in their Reply in Further Support of their motion to dismiss, the defendants concede that CAT is "likely subject to personal jurisdiction under C.P.L.R. § 302(a)(2)" and withdraws its "objection as to whether [CAT] is subject to personal jurisdiction under the New York long-arm statute." (Def's Reply Supp. Mot. to Dismiss ¶ II.A.). At the argument on the motion, CAT's counsel conceded that CAT was subject to personal jurisdiction in this case under the New York long arm statute. (Tr. at 4, 10.)
In this case, the defendants correctly point out, and the plaintiff does not dispute, that there is no general jurisdiction over the defendants under N.Y. C.P.L.R. § 301, because it is clear that the defendants are not conducting continuous and systematic business in New York to warrant a finding of their "presence" in New York. See McGowan v. Smith, 437 N.Y.S.2d 643, 645 (N.Y. 1981).
N.Y. C.P.L.R. § 302(a)(2) provides for specific personal jurisdiction as to a cause of action arising from the acts enumerated for any non-domiciliary who in person or through an agent "commits a tortious act within a state. . . .".
Pursuant to N.Y. C.P.L.R. § 302(a)(1), this Court has personal jurisdiction over a nondomiciliary who transacts business in New York or contracts anywhere to supply goods or services to New York as long as the cause of action "arises" out of the subject matter of the business transacted. See Agency Rent A Car Sys., Inc. v. Grand Rent A Car Corp., 98 F.3d 25, 29 (2d Cir. 1996);see also Family Internet, Inc. v. Cybernex, Inc., No. 98 Civ. 637, 1999 WL 796177, at *5 (S.D.N.Y. Oct. 6, 1999).
The transacting business prong of section 302(a)(1) confers jurisdiction over a defendant who purposely avails itself of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its law. New York courts look to the totality of the circumstances to determine whether the defendant has engaged in some purposeful activity in New York in connection with the matter in controversy.Family Internet, 1999 WL 796177, at *5 (internal quotation marks and citation omitted) (alteration in original).
In their motion to dismiss, the defendants argue that Mr. Kutt was protected from jurisdiction by the "fiduciary shield doctrine", citing Kreutter v. McFadden Oil Corp., 504 N.Y.S.2d 915, 916 (App.Div. 1986). Under the fiduciary shield doctrine, a corporate officer who acted only in his corporate role, and not for his own interest, was shielded from being subject to personal jurisdiction in New York for those corporate activities. See id. However, on appeal to the New York Court of Appeals, the Appellate Division's order was reversed and the Court of Appeals held that "the fiduciary shield rule is not available to defeat jurisdiction under the New York long-arm statute. . . ." Kreutter v. McFadden Oil Corp., 522 N.E.2d 40, 47 (N.Y. 1988). The New York Court of Appeals interpretation of the New York long arm statute is binding on this Court and has been followed in other cases. See Ahava Food Corp. v. Donnelly, 02 Civ. 4344, 2002 WL 31757449, at *4 n. 4 (S.D.N.Y. Dec. 9, 2002) ("New York has rejected the fiduciary shield doctrine."); Family Internet, 1999 WL 796177, at *4 ("Though the 'fiduciary shield' doctrine was once vigorously applied in this circuit to shield corporate officers and employees from long-arm jurisdiction where their activities were conducted solely in a corporate capacity, the New York Court of Appeals held in Kreutter v. McFadden Oil Corp. that this doctrine is not available to defeat long-arm jurisdiction that is otherwise valid under section 302.") (internal citations omitted); see also, G.A. Braun, Inc. v. Giarratano, No. 00 Civ. 1767, 2002 WL 1916368, at *3 (N.D.N.Y. July 30, 2002).
The fact that a corporate officer may not invoke the fiduciary shield doctrine does not mean that the corporate officer is automatically subject to long arm jurisdiction. Rather, the plaintiff must establish that the individual defendant's own contacts with the state satisfy the statute's requirements or that the Court's jurisdiction over the corporation should be imputed to the officer under an agency theory. Family Internet, 1999 WL 796177, at * 5; Kinetic Instruments, Inc. v. Lares, 802 F. Supp. 976, 982-85 (S.D.N.Y. 1992). To determine whether a corporation is acting as the officer's agent, the officer must be a "primary actor." Kinetic, 802 F. Supp at 984 (quoting Retail Software Services, Inc. v. Lashlee, 854 F.2d 18, 22 (2d Cir. 1988)). "Being a primary actor . . . requires that the officer have knowledge of and consent to the transaction carried out by the agent-corporation and that the officer have exercised control over the corporation in the transaction." Basquiat v. Kemper Snowboards, No. 96 Civ. 0185, 1997 WL 527891, at *3 (S.D.N.Y. Aug. 25, 1997) (internal citations omitted).
Mr. Kutt's actions plainly fall within in N.Y. C.P.L.R. § 302(a)(1). It was Mr. Kutt who signed the contracts to ship goods into the state and caused the allegedly infringing goods to be shipped into the state. Even if it were necessary to turn to the agency theory of jurisdiction over Mr. Kutt, based on the activities of CAT, Mr. Kutt would also meet the test for being subject to long arm jurisdiction for the activities of CAT.
As the president and sole manager of a small LLC, Mr. Kutt clearly exercised such control over the corporate activities in New York. Mr. Kutt signed the endorsement agreements that provided New York athletes with the alleged infringing products. In addition, he attempted to receive a license from the New York defendant for the alleged infringing products. Moreover, CAT is a small corporation. CAT's counsel advised at the argument on the motion that it has only three full time employees. Based on Mr. Kutt's high ranking position within the small company he would necessarily benefit from any sales of the infringing products in New York. See Basquiat, 1997 WL 527891, at *3. Therefore, Mr. Kutt transacted business in New York and supplied goods in New York. The claims in this case arise out of those activities. Therefore, it is plain that Mr. Kutt is also subject to long arm jurisdiction under N.Y. C.P.L.R. § 302(a)(1). Moreover, the individual employee defendants' status as employees provides them no insulation from jurisdiction. Their contacts had to be assessed individually. In this case the individual defendants were primary participants. See Calder v. Jones, 465 U.S. 783, 789 (1984).
It is unnecessary to reach the alternative bases for jurisdiction under § 302(a).
V.
The defendants argue that it would be a violation of due process to subject CAT and Mr. Kutt to personal jurisdiction. Applying the law of the Federal Circuit, the defendants may be subject to personal jurisdiction in New York if they "have certain minimum contacts with [New York] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'" North American Philips Corp. v. American Vending Sales, Inc., 35 F.3d 1576, 1580 (Fed. Cir. 1994) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). The Federal Circuit applies a three-factor test when making the due process inquiry. See Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1360 (Fed. Cir. 2001) (citing Akro Corp. v. Luker, 45 F.3d 1541, 1545 (Fed. Cir. 1995)). The three factors are: "(1) whether the defendant purposefully directed its activities at residents of the forum; (2) whether the claim arises out of or relates to the defendant's activities with the forum; and (3) whether the assertion of personal jurisdiction is reasonable and fair."Id. (internal citations and quotation marks omitted). See 3D Systems, Inc. v. Aarotech Laboratories, Inc., 160 F.3d 1373, 1378 (Fed. Cir. 1998).
Addressing the first factor in the due process inquiry, it is clear that the defendants in this case purposefully projected themselves into New York by negotiating endorsement contracts with and delivering alleged infringing products to athletes in New York. Moreover, Mr. Kutt attempted to obtain a license to use the infringing products from the plaintiff. The defendants chose to do business in the State of New York, sending their products into the state and completing contracts with its residents. An integral part of the contracts was that the products be set up in New York and thereafter that the athletes would use them in New York and provide endorsements as a means of obtaining discounts from the contract price of the products. It cannot be argued that their products arrived in the state without the defendants' consent or knowledge, or that they were unaware that their endorsed athletes were residents of New York.
The fact that the endorsement agreements are to be governed by Colorado law does not dispose of the issue of whether defendants projected themselves into New York. The provisions within the contracts relate to the law that would govern disputes arising under those agreements and not to patent disputes with a third party.
The defendants argue that they did not purposefully direct their activities at New York because the goods were shipped "F.O.B." from Colorado. However, it is clear that the defendants knew that the goods were being shipped to New York and would be used there. The Court of Appeals for the Federal Circuit found that F.O.B. provisions in contracts where the goods were ultimately delivered to the forum state did not render personal jurisdiction in the forum state unconstitutional. See North American Phillips, 35 F.3d at 1580-81. The Court of Appeals noted that the defendants had placed a substantial quantity of infringing articles into the stream of commerce conscious that they were destined for the forum state and, in that case, that they would be resold there. In this case, as in North American Phillips, the F.O.B. provisions in the contracts do not render personal jurisdiction in New York unconstitutional because those provisions do not undercut the fact that the defendants purposefully directed the allegedly infringing goods into New York and indeed assisted their use in this state.
In this case the infringing products were delivered to residents of New York. The defendants claim that these contacts were initiated by the athletes. But CAT nevertheless finalized the contracts pursuant to which the allegedly infringing goods were shipped to and installed in New York. The substance of the contracts themselves, resulting in a contractual relationship with New York residents and the delivery of infringing products within the state, is sufficient to find the minimum contacts required to assert personal jurisdiction over the defendants.
At oral argument, the defendants argued that it was a violation of due process to subject Mr. Kutt to personal jurisdiction in New York because all of his actions were taken as President of CAT and not individually. The defendants relied on the decision in 3D Systems. In that case the Court of Appeals for the Federal Circuit held that although it was constitutional for a federal court in California to exercise personal jurisdiction over a non-domiciliary corporation that had offered to sell allegedly infringing products in California, it violated due process to exercise personal jurisdiction over a corporate officer because his "actions in relation to the state of California were taken in his role as an officer of [the corporation]" and he "did not direct any activities individually toward California." 3D Systems, 160 F.3d at 1380. The court went on to note that, although the plaintiff urged the corporate veil to be pierced, the plaintiff had presented no choice of law arguments as to which state's law should be applied. Moreover, the corporate form was not lightly to be cast aside. The Federal Circuit Court of Appeals has thus expressed a willingness even in the context of a due process analysis which is plainly governed by the law of the Federal Circuit to look to the law of other jurisdictions in determining whether the corporate form should be ignored in determining whether a corporate officer can be subject to jurisdiction in the forum state for the officer's activities.
In this case, the parties have never disputed that it is the law of New York that governs whether Mr. Kutt should be protected by the corporate form. Indeed, it is the defendants who have relied on what they mistakenly thought was New York's fiduciary shield doctrine to protect Mr. Kutt. Hence, it is appropriate to look to the law of New York to determine whether the corporate form should be ignored in this case with respect to the issue of whether Mr. Kutt sufficiently directed his activities to New York even though as a corporate officer, to meet the first prong of the due process analysis. New York law is clear, for the reasons explained above, that Mr. Kutt would not be protected by the corporate form. New York courts would not refer to this as "piercing the corporate veil" but rather would determine that Mr. Kutt's individual activities were sufficient to subject him to personal jurisdiction. See also Calder v. Jones, 465 U.S. 783, 790 (1984) (". . . [Petitioners'] status as employees does not somehow insulate them from jurisdiction. Each defendant's contacts with the forum State must be assessed individually.")
Further, given Mr. Kutt's position, the size of the corporation, his benefits, his control over the corporation and the fact that the acts in New York were taken at his direction and with his consent, under New York law the corporation would be Mr. Kutt's agent and Mr. Kutt can be subjected to personal jurisdiction in New York for those acts. As the New York Court of Appeals noted in Kreutter, this analysis only answers the question whether the corporate official is subject to personal jurisdiction, it does not answer the question whether the corporate official is liable for substantive liability, which, in this case, will be answered under federal patent law as interpreted by the Court of Appeals for the Federal Circuit.See Kreutter, 522 N.E.2d at 45.
The second factor in the due process inquiry requires the Court to examine whether the claim arises out of or relates to the defendants' activities in the forum state. In this case, there is a clear nexus between the activities in the forum state and the claim made by the plaintiff. The defendants offered for sale and sold the allegedly infringing products in New York and induced others to infringe and contributed to the infringement of patents in New York.
The third factor in the due process analysis is whether asserting jurisdiction over the defendants would be "reasonable and fair." In order to make this determination, the Court must evaluate a number of factors: "(1) the burden on the defendant, (2) the interests of the forum State, (3) the plaintiff's interest in obtaining relief, (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and (5) the shared interest of the several States in furthering fundamental substantive social policies."Inamed, 249 F.3d at 1363 (citing Asahi Metal Indus. Co. v. Super. Ct. of Cal., 40 U.S. 102, 113 (1987)). Courts should find the assertion of jurisdiction unconstitutional in only rare circumstances:
[W]here a defendant who purposefully has directed activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable. Most such considerations usually may be accommodated through means short of finding jurisdiction unconstitutional. For example, . . . a defendant claiming substantial inconvenience may seek a change of venue.Burger King v. Rudzewicz, 471 U.S. 462, 277 (1985); see Inamed, 249 F.3d at 1363; Akro Corp., 45 F.3d at 1546. As the Federal Circuit Court of Appeals has explained, "such defeats of otherwise constitutional personal jurisdiction are limited to the rare situations in which the plaintiff's interest and the state's interest in adjudicating the dispute in the forum are so attenuated that they are clearly outweighed by the burden of subjecting the defendant to litigation within the forum." Akro Corp., 45 F.3d at 1549.
This is not the rare case in which the defendants have presented any compelling circumstances. The plaintiff has its principal place of business in New York and New York has a substantial interest in determining whether allegedly infringing products were sent into this state, used in the state, and endorsed in this state. Moreover, as explained below, this is not even a case where the balance of convenience suggests that the venue of this action should be transferred from New York. Therefore, maintaining this action in New York does not offend due process.
VI.
In the alternative, the defendants have also moved to transfer venue to the District of Colorado pursuant to 28 U.S.C. § 1404(a), which provides, "For 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." In ruling on a motion to transfer, the Court should consider both the interest of the litigants and the public interest. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). The interest of the litigants includes the plaintiff's initial choice of forum, the convenience of the parties and the witnesses, the relative ease of access to sources of proof, the availability of compulsory process for the attendance of witnesses, the location of relevant documents and other tangible evidence, questions as to the enforceability of a judgment if one is obtained, and "all other practical problems that make trial of a case easy, expeditious and inexpensive." Id. at 508; see Red Bull Assocs. v. Best Western Int'l, Inc., 862 F.2d 963, 966-67 (2d Cir. 1988); Calavo Growers of California v. Generali Belgium, 632 F.2d 963, 966-67 (2d Cir. 1980); Jasol Carpet, Inc. v. Patcroft Commercial Carpet, No. 96 Civ. 3064, 1997 WL 97831, at *3 (S.D.N.Y. Mar. 6, 1997); Elite Parfums, Ltd. v. Rivera, 872 F. Supp. 1269, 1271 (S.D.N.Y. 1995). The public interest includes administrative difficulties that follow from court congestion, a local interest in having localized controversies decided at home, and the appropriateness of having the trial of a diversity case in a forum that is at home with the state law that must govern the action. See Gulf Oil, 330 U.S. at 508-09.
The burden of establishing the propriety of a change of forum under 28 U.S.C. § 1404 rests on the movant. Factors, Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978); Jasol Carpet, 1997 WL 97831, at *3; Elite Parfums, 872 F. Supp. at 1271. The plaintiff's choice of forum should not be disturbed unless the balance of these factors tips decidedly in favor of a transfer. Jasol Carpet, 1997 WL 97831, at *3. There is no question that this action could have been brought in the District of Colorado but the defendants have not made a sufficient showing to justify a transfer.
The defendants argue that their witnesses will be inconvenienced. In their papers, the defendants refer to several witnesses from Colorado that were involved in the creation of the products at issue. At oral argument, the defendants represented that these engineers are not staff members and therefore are non-party witnesses residing in Colorado. However, the endorsed athletes in this case, also non-party witnesses, are residents of New York. As for convenience in general, New York is far more convenient for the New York-based plaintiff. While Colorado would be more convenient for the defendants, exchanging the burdens of inconvenience from one party to the other is not a basis for transfer particularly when the plaintiff's choice of forum should be given great weight.Finkielstain v. Seidel, 692 F. Supp. 1497, 1509-10 (S.D.N.Y. 1988) (denying motion to transfer when "[t]he result of a transfer would not be to convenience the 'parties' but merely to shift the inconvenience from one party to the other"), aff'd in part, rev'd in part, 857 F.2d 893 (2d Cir. 1988).
The defendants also point to the fact that their evidence, specifically books and records, is in Colorado. But the same is true for the plaintiff in New York and the defendants have made no showing that there are substantially more documents in Colorado or that it would be an undue burden to get them to New York. Therefore simply shifting the inconvenience is not a basis for transfer. In addition, the products at issue in this case are all in New York.
The defendants also assert that a transfer will help reduce the expense incurred by the courts because they claim it will avoid the need to invest resources in resolving the issues relating to jurisdiction. However, the preliminary motions must be ruled on and that task has now been accomplished.
The remaining factors do not support transfer. This Court is not so congested as to warrant transfer. New York has a significant interest in the resolution of a patent infringement case concerning the sale and use of allegedly infringing products in New York. The law to be applied will be federal patent law with which this Court is familiar.
The balance of the factors points to New York as the most convenient forum for this litigation. The defendants have failed to overcome the plaintiff's choice of forum. Therefore, the motion to transfer is denied.
VII.
The plaintiff has moved for an order awarding attorney's fees and costs pursuant to 28 U.S.C. § 1927 and the Court's inherent power. See Wilder v. GL Bus Lines, 258 F.3d 126, 130 (2d Cir. 2001). The imposition of sanctions pursuant to 28 U.S.C. § 1927 and the Court's inherent power requires a clear showing of bad faith. See Ted Lapidus, S.A. v. Vann, 112 F.3d 91, 96 (2d Cir. 1997) (§ 1927); Oliveri v. Thompson, 803 F.2d 1265, 1272-73 (2d Cir. 1986) (§ 1927 and inherent power); accord Succession Picasso v. Spedding, No. 96 Civ. 4546, 1997 WL 65911, at *3 (S.D.N.Y. Feb. 13, 1997) (inherent power). In this case, the plaintiff has not demonstrated the appropriateness of an award of attorney's fees or costs under 28 U.S.C. § 1927 or the Court's inherent power. It cannot be said that this motion was brought in bad faith or that the Court should exercise its discretion to award fees and costs.
CONCLUSION
For the reasons explained above, the defendants' motion to dismiss and motion to transfer venue are both denied. The plaintiff's motion for sanctions is denied.