Case Information
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD
HAFCO FOUNDRY AND MACHINE
COMPANY, INCORPORATED,
Plaintiff,
v. CIVIL ACTION NO. 1:15-16143
GMS MINE REPAIR AND
MAINTENANCE, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is a motion to transfer filed by plaintiff Hafco Foundry and Machine Company, Incorporated
(“Hafco”). (Doc. No. 12). Defendant GMS Mine Repair and
Maintenance, Inc. (“GMS”) did not file a response to the motion
to transfer but plaintiff indicates that defendant opposes a
change of venue. Plaintiff has also filed a supplement to its
motion to transfer. (Doc. No. 21). For reasons expressed more
fully below, Hafco’s motion to transfer is DENIED .
BACKGROUND Hafco filed the instant action for patent infringement on December 15, 2015. According to the Complaint, Hafco owns the
patent for a Rock Dust Blower, U.S. Design Patent No. D681,684S.
See Complaint ¶ 9. Within the scope of the Rock Dust Blower
Patent, “Hafco makes, offers for sale and sells a rock dust
blower . . . within the Southern District of West Virginia and
throughout the United States.” Id. at ¶ 12. In 2014, Hafco
entered into an agreement with Pioneer Conveyor, alleged to be a
GMS affiliate, by which Pioneer Conveyor was to distribute Hafco
rock dust blowers to mining customers. See id. at ¶ 13. The
distribution agreement between Hafco and Pioneer Conveyor was
terminated in early May 2015. See id. According to Hafco,
following termination of the aforementioned distribution
agreement, GMS began selling infringing rock dust blowers within
the Southern District of West Virginia. See id. at ¶ 14. The
Complaint specifically references GMS’s marketing literature
distributed at the Bluefield Coal Show on September 16, 2015.
See id.
After defendant filed its Answer, plaintiff moved, pursuant to 28 U.S.C. § 1404, to transfer the case to the United
States District Court for the Northern District of West Virginia.
According to plaintiff, had it known at the time it filed its
complaint that defendant had an office within the Northern
District of West Virginia, it would have filed its complaint in
that court.
MOTION TO TRANSFER Title 28 U.S.C. § 1404(a), the operative provision in this case, provides as follows:
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.
A decision to transfer venue is committed to the sound discretion
of the trial court. Southern Railway Co. v. Madden, 235 F.2d
198, 201 (4th Cir.), cert. denied, 352 U.S. 953 (1956).
Furthermore, the burden is on the movant to show that a
discretionary transfer of venue is warranted. See Original
Creatine Patent Co., Ltd. v. Met-Rx USA, Inc., 387 F. Supp.2d
564, 566 (E.D. Va. 2005). “The general rule is well settled that
an order granting or refusing change of venue is not appealable
unless expressly made so by statute. There is no federal statute
expressly granting an appeal from such orders and the federal
decisions follow the general rule that they are not appealable.”
Jiffy Lubricator Co. v. Stewart-Warner Corp., 177 F.2d 360, 362
(4th Cir. 1949), cert. denied, 338 U.S. 947 (1950), (internal
citations omitted); see also Preston Corp. v. Raese, 335 F.2d
827, 828 (4th Cir. 1964).
The factors a court should consider in ruling on a motion to transfer include: (1) ease of access to sources of proof; (2)
the convenience of parties and witnesses; (3) the cost of
obtaining the attendance of witnesses; (4) the availability of
compulsory process; (5) the possibility of a view; (6) the
interest in having local controversies decided at home; and (7)
the interests of justice. Alpha Welding and Fabricating v. Todd
Heller, Inc., 837 F. Supp. 172, 175 (S.D.W. Va. 1993); see also
Telepharmacy Solutions, Inc. v. Pickpoint Corp., 238 F. Supp. 2d
741, 743 (E.D. Va. 2003).
Having given consideration to the relevant factors, [*] the court cannot conclude that a transfer of venue is appropriate.
Significantly, defendant does not join in the motion and prefers
for the case to remain in the Southern District of West Virginia.
Therefore, plaintiff’s arguments regarding the perceived
inconvenience to GMS and its counsel if the matter remains in
this court are not persuasive.
With respect to plaintiff’s arguments regarding the convenience to Hafco, the court does not believe that Hafco will
be unduly inconvenienced by trying this matter in the Southern
District of West Virginia rather than the Northern District. As
plaintiff mentions, Hafco itself is located in New Jersey.
Therefore, Hafco representatives would be required to travel even
if this case were pending in the Northern District of West
Virginia. Notwithstanding counsel for plaintiff’s efforts to
suggest otherwise, the distance between the points of holding
court in the Northern District of West Virginia and the Southern
District of West Virginia is not substantial enough to support a
change of venue. See, e.g., CIVIX-DDI, LLC v. Loopnet, Inc., No.
2:12CV2, 2012 WL 3776688, * (E.D. Va. Aug. 30, 2012) (“All of
Loopnet’s employees and potential witnesses are located in
California and thus the degree of inconvenience from a somewhat
longer flight from California to Virginia as opposed to
California to Illinois appears to be slight.”).
In support of its motion, plaintiff also contends that “one example of the allegedly infringing product in existence is
located in Cumberland, Maryland. Thus, access to the primary
source of proof, as well as the possibility of a view, is much
more convenient in the Northern District as opposed to the
Southern District.” Plaintiff’s Motion at p. 2. Plaintiff does
not contend that there are no examples of the allegedly
infringing product in the Southern District nor that one cannot
be made available in this district. Indeed, Exhibit B to the
Complaint, which plaintiff contends is an example of an
infringing product, does not appear to be so large or cumbersome
that a offsite view would be required.
Plaintiff also argues that it will be more convenient for its counsel if the matter is tried in the Northern District
rather than the Southern District of West Virginia because
Hafco’s attorneys are located in Morgantown, West Virginia and
New York City. However, this factor is entitled to little or no
weight in determining whether transfer is appropriate. See,
e.g., Acterna, LLC v. Adtech, Inc., 129 F. Supp.2d 936, 939 (E.D.
Va. 2001) (“[L]ocation of counsel for the litigant is not David A. Faber Senior
entitled to deference in a determination whether the Court should transfer venue.”); Cognitronics Imaging Sys., Inc. v. Recognition
Research, Inc., 83 F. Supp.2d 689, 698 (E.D. Va. 2000) (“The
convenience to counsel is not an appropriate matter for
consideration in resolving the appropriateness of a motion to
transfer venue.”).
CONCLUSION For the aforementioned reasons, plaintiff’s motion to transfer is DENIED .
The Clerk is directed to send copies of this Memorandum Opinion and Order to counsel of record.
IT IS SO ORDERED this 18th day of May, 2016.
ENTER:
[*] Plaintiff does not discuss factors 4, 6, or 7 in its motion. Accordingly, the court concludes that they do not weigh in favor of a transfer of venue.