Opinion
CIVIL ACTION NO: 00-3110 SECTION: "R"
January 8, 2002
ORDER AND REASONS
Before the Court is defendants' motion to transfer venue under 28 U.S.C. § 1404. For the reasons stated below, the Court denies the motion.
I. Background
This copyright case involves the use of artwork created by plaintiff John Trevino, d/b/a Innovative Graphics Design, Inc. Trevino is a resident of Mississippi with his principal place of business in Biloxi, Mississippi. Trevino alleges that defendant Guice and Guice Advertising, Inc., a Mississippi Corporation, exceeded the scope of its licensing agreements with the plaintiff. Plaintiff further alleges that Louisiana-I Gaming, a Louisiana partnership that owns and operates a riverboat casino in Louisiana; Mississippi-I Gaming, a Mississippi limited partnership that owns and operates a riverboat casino in Biloxi, Mississippi; and Boomtown, Inc., a Mississippi corporation that owns and operates a riverboat casino in Biloxi, Mississippi (the "Boomtown entities"), infringed his copyrights through the use of his artwork in various products and advertisements.
Guice Guice has merged with Godwin Advertising Agency, Inc, which is the surviving Mississippi corporation. This motion was filed by both Guice Guice and Godwin.
Plaintiff amended his complaint to include BTN, Inc., a Mississippi corporation, that purchased the Boomtown Biloxi casino in about August 2000. See Pl.'s First Supplemental and Amending Cmplt. at ¶ 3.
Plaintiff alleges that he created original works of art entitled "Boomtown Alligator" and "Boomtown Gulfport" for which he obtained copyright registrations. Plaintiff also asserts that he created a number of derivative works bearing the same basic features as "Boomtown Alligator" and "Boomtown Gulfport." Plaintiff entered into a license contract with Guice Guice for the use of his artwork in connection with Guice Guice's advertising work for the Boomtown casinos, owned and operated by defendants. During the term of his contract with Guice Guice, plaintiff sent artwork along with purchase orders to Guice Guice for their acceptance. Plaintiff alleges that he included limitations on the use of his artwork in the purchase order forms and that Guice and Guice and the Boomtown entities used the artwork in violation of the limitations.
Plaintiff filed this lawsuit on October 20, 2000, and asserted a claim for declaratory and monetary relief under the Copyright Act, 17 U.S.C. § 101, et seq. Plaintiff also claims that Guice Guice breached the license agreement and the purchase order contracts. Defendants Guice Guice and Godwin filed this motion to transfer venue to the Southern District of Mississippi under 28 U.S.C. § 1404.
Defendants Louisiana Gaming-I and BTN, Inc. filed a joint motion to join this motion and adopt the arguments in favor of transfer. See Def.'s Joinder in Mot. to Transfer.
II. Discussion
Plaintiff filed this lawsuit in this Court under the general venue provision, 28 U.S.C. § 1391 (b), and the copyright venue provision, 28 U.S.C. § 1400 (a). Defendants move the Court to transfer the case under 28 U.S.C. § 1404. Section 1404 provides:
Section 1400, entitled "Patents and Copyrights, mask works, and designs," provides:
(a) Civil Actions, suits, or proceedings arising under any Act of Congress relating to copyrights . . . may be instituted in the district in which the defendant or his agent resides or may be found.28 U.S.C. § 1400 (a).
(a) 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. 28 U.S.C. § 1404.
The defendant bears the burden of demonstrating why the case should be transferred to an alternate forum. See Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). First, the defendant must demonstrate that the transferee forum is one in which the action could have commenced originally. See Hoffman v. Blaski, 363 U.S. 335, 343-44, 80 S.Ct. 1084, 1089-90 (1960). The court generally determines "where the action might have been brought" as of the time the action was filed in the transferor court. See Liaw Su Teng v. Skaarup Shipping Corp., 743 F.2d 1140, 1148 (5th Cir. 1984), overruled on other grounds by In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir. 1987). The transferee forum must be one in which personal jurisdiction and venue would be satisfied as to the defendant. See id. ( citing 15 WRIGHT MILLER, FEDERAL PRACTICE AND PROCEDURE § 3845).
Second, defendant must next show that a transfer of venue will serve the convenience of the parties and the interests of justice. The decision to transfer a pending case ultimately falls within the district court's sound discretion. See Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809 (1964); Peteet v. Dow Chemical Co., 868 F.2d 1428 (5th Cir. 1989); Jarvis Christian College v. Exxon Corp., 845 F.2d 523, 528 (5th Cir. 1988). In deciding a transfer motion, the district court considers the private and public interest factors articulated by the Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843 (1947). Private factors relate to the convenience of the litigants and include (1) the plaintiff's choice of forum; (2) the relative ease of access to sources of proof; (3) the cost of obtaining attendance of witnesses and other trial expenses; (4) the place of the alleged wrong; and (5) the possibility of delay and prejudice if transfer is granted. See id. The public interest factors include (1) the administrative difficulties resulting from court congestion; (2) the relationship to the litigation of the community from which jurors will be drawn; (3) the local interest in having localized controversies decided at home; (4) and choice of law issues. See id. Unless the balance of factors strongly favors the movant, the district court will not disturb a plaintiff's choice of forum. See In re McDonnell-Douglas Corp., 647 F.2d 515, 517 (5th Cir. 1981) (citation omitted); Continental Ins. Co. v. I.T.O. Corporation, 2000 WL 777909, *1 (E.D. La. 2000).
Plaintiff concedes that the Southern District of Mississippi is a forum in which the action could have brought originally. See Pl.'s Opp. to Transfer at 2. Defendants argue that the private factors favor transfer because a majority of the witnesses are in Mississippi and because the contracts between plaintiff and Guice Guice were entered into in Mississippi. See Def.'s Mot. to Transfer at 3-4. Defendants further contend that the public interest factors favor transfer because Mississippi has a greater interest in this case than Louisiana based on the presence of Mississippi corporate defendants and because Mississippi law will be applied to the breach contract claims. See id. at 4.
Despite defendants' assertions in favor of transfer, the Court finds that defendants do not meet their burden. Although most of the witnesses are located in and around Biloxi, Mississippi, the ninety miles between New Orleans and Biloxi will not overly inconvenience either the parties or the witnesses. See Rumore v. Wamstad, 2001 WL 1426680, *4 (E.D. La. 2001). Further, while the license agreements were entered into in Mississippi and some of the alleged unlawful use of plaintiff's artwork occurred in Mississippi, other alleged wrongs occurred in Louisiana. For example, some of plaintiff's works were used in advertisements for and at the Boomtown Casino in Harvey, Louisiana. See Pl.'s Opp. to Transfer at 2. Morever, the presence of Mississippi law issues does not outweigh the fact that much of this case involves a claim under the federal copyright laws. This Court is equally competent to adjudicate claims under federal laws as any federal court in Mississippi. In light of the foregoing analysis, the Court DENIES defendants' motion to transfer venue.