Opinion
Civil Action No. 3:03-CV-2837-G, Consolidated With 3:04-CV-0348-G.
April 6, 2005
MEMORANDUM OPINION AND ORDER
Before the court is the motion of Donald McEvoy Limited, Inc. and Donald McEvoy (collectively, "McEvoy") for reconsideration of the court's order denying McEvoy's request to lift the previously imposed stay and to transfer venue of these cases to the United States District Court, Northern District of Georgia, Atlanta Division. For the reasons stated below, McEvoy's motion for reconsideration is denied.
The reference to "these cases" is used because this action consists of Civil Action No. 3:03-CV-2837-G, consolidated with Civil Action No. 3:04-CV-0348-G.
I. BACKGROUND
On December 8, 2004, McEvoy moved the court to reopen these cases, lift the previously imposed stay, and transfer venue, pursuant to 28 U.S.C. § 1404(a), to the Northern District of Georgia. See generally Defendants' Motion to Reopen the Case, Lift the Stay and Transfer Venue to the United States District Court, Northern District of Georgia, Atlanta Division ("Motion to Transfer"). In a memorandum order dated January 31, 2005, the court held that these cases could not be transferred pursuant to 28 U.S.C. § 1404(a) because "McEvoy ha[d] not demonstrated, by a preponderance of the evidence, that these cases could have been originally brought in the Northern District of Georgia." Memorandum Order (January 31, 2005) at 8. McEvoy now moves the court to reconsider its January 31, 2005 order. See generally Defendants' Motion for Reconsideration of the Court's Order Denying Defendants' Motion to Lift Stay and Transfer Venue and Brief in Support ("Motion for Reconsideration"). Along with his motion for reconsideration, McEvoy has submitted new evidence that, had it been included with his original motion to transfer, might well have justified transferring venue to the Northern District of Georgia. See generally Appendix to Defendants' Motion for Reconsideration of the Court's Order Denying Defendants' Motion to Lift Stay and Transfer Venue and Brief in Support ("Appendix to Motion for Reconsideration").
II. ANALYSIS
"Motions for reconsideration serve the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence." Texas Instruments, Inc. v. Hyundai Electronics Industries, Company, Ltd., 50 F. Supp. 2d 619, 621 (E.D. Tex. 1999) (quoting Lupo v. Wyeth-Ayerst Laboratories, 4 F. Supp. 2d 642, 643 (E.D. Tex. 1997)) (internal quotation marks omitted); see also McNamara v. Bre-X Minerals Ltd., 68 F. Supp. 2d 759, 760-61 (E.D. Tex. 1999) (quoting Waltman v. International Paper Company, 875 F.2d 468, 473 (5th Cir. 1989)). Such a motion is not "the proper vehicle for rehashing old arguments or advancing theories of the case that could have been presented earlier." Resolution Trust Corporation v. Holmes, 846 F. Supp. 1310, 1316 (S.D. Tex. 1994). A motion for reconsideration based on recycled arguments serves only to waste the court's resources. Texas Instruments, 50 F. Supp. 2d at 621. Accordingly, the court expects litigants to advance their strongest case the first time the court considers the matter. Id.In his motion for reconsideration, McEvoy asserts that the court found sua sponte that he did not demonstrate that these cases could have originally been brought in the Northern District of Georgia. Motion for Reconsideration at 1. He argues that "[t]his issue was not addressed in [his] original Motion, was not the subject of the Opposition to the Motion for which [he] could reply, and no argument was allowed such that [he] could have addressed the Court's concerns before the Court issued its Order." Id. The court concludes that McEvoy's argument is without merit.
The standard for a transfer of venue pursuant to 28 U.S.C. § 1404(a) is well-settled and clear. As a threshold matter, the language of section 1404(a) requires the court to determine whether the proposed transferee district is one in which the case could have originally been brought. In re Horseshoe Entertainment, 337 F.3d 429, 433 (5th Cir.), cert. denied, 540 U.S. 1049 (2003); Illinois Union Insurance Company v. Tri Core Inc., 191 F. Supp. 2d 794, 797 (N.D. Tex. 2002) (stating that the first prong of the section 1404(a) transfer analysis is to determine whether the case could originally have been brought in the proposed transferee district); Eastman Medical Products, Inc. v. E.R. Squibb Sons, Inc., 199 F. Supp. 2d 590, 595-96 (N.D. Tex. 2002) (same). The plaintiff must have "had an `unqualified right' to bring the action in the transferee forum at the time of the commencement of the action," Illinois Union, 191 F. Supp. at 797 (quoting Shutte v. Armco Steel Corporation, 431 F.2d 22, 24 (3d Cir.), cert. denied, 401 U.S. 910 (1971)), meaning that both personal jurisdiction and venue must have been proper in that forum. Id. The moving party bears the burden of showing by a preponderance of the evidence that transfer is appropriate. Bank One, N.A. v. Euro-Alamo Investments, Inc., 211 F. Supp. 2d 808, 812 (N.D. Tex. 2002) (citing Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966)). A movant's failure to address this issue does not relieve the court from its obligation to properly apply section 1404(a).
In his motion to transfer, McEvoy produced no evidence showing that Georgia would have had personal jurisdiction over him at the time this suit was filed. His own assertions, in fact, indicated otherwise. See Answer of Defendants Donald McEvoy, Ltd., Inc. and Donald McEvoy ¶ 3 (admitting that McEvoy is a Texas corporation); Declaration of Donald McEvoy (Filed Concurrently With the Motion to Dismiss Pursuant to FED. R. CIV. P. 12(b)(2)) ("McEvoy Declaration") ¶¶ 3-4, attached to Appendix to Wolf Designs' Opposition to Defendants' Motion to Transfer at 1-3 (stating that McEvoy is a Texas corporation with its offices in Dallas, and that its "sales territories are exclusively within the States of Texas, Oklahoma, Louisiana, Arkansas, and New Mexico") (emphasis added). For this reason, the court denied McEvoy's motion to transfer. Memorandum Order at 8. ("McEvoy has not demonstrated, by a preponderance of the evidence, that these cases could have been originally brought in the Northern District of Georgia.").
McEvoy himself admits this fact. Motion for Reconsideration at 6 ("It is within this Court's discretion to reconsider Don McEvoy's contacts with State of Georgia which were not presented in the Motion to Transfer Venue previously filed with this Court.") (emphasis added); Reply to Plaintiff Wolf Designs' Opposition to Defendants' Motion for Reconsideration of the Court's Order Denying Defendants' Motion to Re-Open the Case, Lift the Stay and Transfer Venue ("Reply to Motion for Reconsideration") at 2-3 ("[D]ue to the inadvertence of Defendants' counsel, Defendants did not include the first element that is required, i.e., establishing that the action could have been brought in the United States District Court, Northern District of Georgia in the first place.") (emphasis added).
It is only now, in his motion for reconsideration, that McEvoy has come forward to "offer sufficient evidence to support minimum contacts with the State of Georgia. . . ." Motion for Reconsideration at 2. McEvoy asserts that:
even though [he] has previously indicated that [his] exclusive sales territories are within the States of Texas, Oklahoma, Louisiana, Arkansas, and New Mexico, [he] has [actually] made sales of the alleged infringing products in the State of Georgia and has ongoing frequent contacts with the warehouse in Atlanta, Georgia, owned by Defendant Collectives (in the action now pending in Georgia) where all the products which are the subject of this litigation are shipped from.Id. (emphasis here added; emphasis in the original text omitted).
In support of these assertions, McEvoy has produced sales receipts showing sales to Georgia residents, Appendix to Motion for Reconsideration at 3-5, a declaration from McEvoy's sales manager Cindy Calhoun, id. at 1-2 (stating that McEvoy made sales of the allegedly infringing boxes within the state of Georgia), and interrogatory responses from the similar cases in California (now pending in the Northern District of Georgia after the California court granted a transfer). Id. at 9-44. As plaintiff Wolf Designs, Inc. ("Wolf Designs") correctly points out, however, there is every indication that McEvoy possessed all of this evidence at the time he filed his motion to transfer. Plaintiff Wolf Designs' Opposition to Defendants' Motion for Reconsideration of the Court's Order Denying Defendants' Motion to Reopen the Case, Lift the Stay, and Transfer Venue ("Response to Motion for Reconsideration") at 9. Each sales receipt pre-dates the December 8, 2004 filing date on the motion to transfer, Appendix to Motion for Reconsideration at 3-5, as do the interrogatory responses. Id. at 9-44. Further, McEvoy's sales manager undoubtedly knew at the time the motion to transfer was filed that the allegedly infringing jewelry boxes had been sold to Georgia residents.
The court did not commit a manifest error of law in denying McEvoy's motion to transfer. Instead, McEvoy wholly failed to carry his burden of demonstrating, by a preponderance of the evidence, that the Northern District of Georgia was a district in which these cases could have been originally brought. A motion for reconsideration should not be used, as McEvoy does here, simply to correct a prior motion's inadequacies and to proffer evidence "that could have been presented earlier." See Resolution Trust Corporation, 846 F. Supp. at 1316. As a result, McEvoy's motion for reconsideration is denied, thereby leaving these cases in the Northern District of Texas, stayed, and administratively closed.
III. CONCLUSION
For the reasons discussed above, McEvoy's motion for reconsideration is DENIED.
SO ORDERED.