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Stross v. Active Network, LLC

United States District Court, W.D. Texas, Austin Division

May 22, 2019

ALEX STROSS, Plaintiff,



         Before the Court are several motions. The first is Defendant Active Network, LLC's (“Active”) Motion to Transfer Venue. (Dkt. 24). The next two are motions to strike filed by Plaintiff Alexander Stross (“Stross”): one to strike Active's third-party claim for contribution, (Dkt. 14), and the other to strike Active's affirmative defenses, (Dkt. 15). Each of the motions has become ripe, and the Court will resolve each of them in this order. Having considered the parties' briefs, the record, and the relevant law, the Court finds that all three motions should be denied.

         I. BACKGROUND

         Stross is a photographer who lives in Austin. (Compl., Dkt. 1, at 1-2). He took a photo of Monument Valley (the “Photo”) that he allegedly registered with the United States Copyright Office. (Id. at 2). He alleges that Active used the Photo on its website without permission. (Id. at 3). He is suing Active for copyright infringement for violation of his rights under 17 U.S.C. § 106. (Id. at 5-6).

         Active, meanwhile, alleges that it merely provides space on its website for customers to post their own content, and that Third-Party Defendant EPIC Adventures (“Epic”), one of its customers, is solely responsible for publishing the Photo. (3d Party Compl., Dkt. 7, at 2). Active has filed crossclaims against Epic for indemnity and contribution. (Id. at 3-4).

         Active, which is based in Dallas, now asks the Court to transfer this action to the Northern District of Texas pursuant to its discretionary authority under 28 U.S.C. § 1404. (Mot. Transfer, Dkt. 24, at 3). Stross opposes the motion, (Dkt. 26), and has separately moved to strike both (a) all of Active's affirmative defenses and (b) its crossclaim for contribution. (Dkts. 14, 15).


         Section 1404 provides that “[f]or 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(a). As such, “[t]he threshold question in applying the provisions of § 1404(a) is whether the suit could have been brought in the proposed transferee district.” In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004).[1] If so, the Court turns to consideration of “all relevant factors to determine whether or not on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.” Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989) (quoting 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3847, at 370 (1986)).

         The relevant factors include matters of both private and public interest. Volkswagen AG, 371 F.3d at 203; Action Indus., Inc. v. U.S. Fid. & Guar. Co., 358 F.3d 337, 340 (5th Cir. 2004). The private-interest factors include: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure witnesses' attendance; (3) the willing witnesses' cost of attendance; and (4) all other practical problems that make the case's trial easy, expeditious, and inexpensive. Volkswagen AG, 371 F.3d at 203 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)). The public-interest factors include: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having local issues decided at home; (3) the forum's familiarity with the governing law; and (4) the avoidance of unnecessary conflict-of-law problems involving the application of foreign law. Id. No. single factor is dispositive. Id.

         The Court must also “give some weight to the plaintiffs' choice of forum.” Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 63 n.6 (2013). However, the plaintiff's venue choice “is neither conclusive nor determinative. In Re: Horsehoe Entertainment, 337 F.3d 429, 434 (5th Cir. 2003). Rather, the party seeking transfer must show “good cause”: a moving party, in order to support its claim for a transfer, must satisfy the statutory requirements and clearly demonstrate that a transfer is “[f]or the convenience of parties and witnesses, in the interest of justice.” Humble Oil & Refining Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963). Thus, when the transferee venue is “not clearly more convenient than the venue chosen by the plaintiff, the plaintiff's choice should be respected.” In re Volkswagen of Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008). But when the movant demonstrates that the transferee venue is clearly more convenient, “it has shown good cause and the district court should therefore grant the transfer.” Id.

         The public-interest factors are not seriously contested, nor are they of significant weight. Active admits, and Stross does not dispute, that the final two public-interest factors are neutral. (Mot. Transfer, Dkt. 24, at 12; Resp. Mot. Transfer, Dkt. 26, at 9-10). The time from filing to trial is six months shorter in this district, but the time from filing to disposition is one month shorter in the Northern District of Texas. (See Mot. Transfer, Dkt. 24, at 11). Although this factor “favors a district that can bring a case to trial faster, ” Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., 867 F.Supp.2d 859, 871 (E.D. Tex. 2012), the difference is slight and speculative; its weight is therefore marginal. Finally, both districts have an arguable interest in deciding this litigation, as the injury occurred in this district and Active's principal place of business is in the Northern District. See id. (“[T]he location of the alleged injury is an important consideration in determining how to weigh [the local-interest] factor.”); All Voice Developments US, LLC v. Microsoft Corp., No. 6:09-CV-366, 2010 WL 11468302, at *4 (E.D. Tex. Apr. 8, 2010) (finding that the party's “principal place of business is relevant when considering [the local-interest] factor”).

         As for the private interest factors, the first factor-access to evidence-weighs only barely in Active's favor, if at all. Active argues that this factor tilts in its favor because the server that hosted the webpage on which the Photo was displayed is in Dallas and “the relevant documents and records” are in Dallas. (Mot. Transfer, Dkt. 24, at 7). Missing is any explanation why it would be any more difficult to access evidence of online conduct-presumably, digitally stored evidence-in Austin than in Dallas. Meanwhile, Epic principal John Hardy (“Hardy”), whom Active says is responsible for posting the photo, lives and works in this district. (Id. at 8). Even if Hardy has no evidence, this factor would weigh only negligibly in Active's favor, given the ease of accessing and transmitting digitally stored evidence. See Mateos v. Select Energy Services, L.L.C., 919 F.Supp.2d 817, 822 (W.D. Tex. 2013) (“Typically, the accessibility and location of sources of proof should weigh only slightly in this Court's transfer analysis, particularly since these factors have been given decreasing emphasis due to advances in copying technology and information storage.”).

         The second and third factors are neutral. Active identifies as witnesses two of its employees who live in Dallas, over 200 miles from Austin, and Hardy, who lives less than 100 miles from Austin. (Mot. Transfer, Dkt. 24, at 9-10). But Active identifies no nonparty witnesses that live outside this district or more than 100 miles from Austin. (See id.). The Court's subpoena power “is not an important consideration when the only witnesses are party witnesses.” Broussard v. First Tower Loan, LLC, 135 F.Supp.3d 540, 546 (E.D. La. 2015). Similarly, “while the cost of attendance for party witnesses can be considered, the cost of attendance for nonparty witnesses is entitled to greater weight.” Id.; see also Mateos, 919 F.Supp.2d at 822 (quoting Dupre v. Spanier Marine Corp., 810 F.Supp. 823, 825 (S.D. Tex. 1993)) (“[W]hen ‘key witnesses are employees of the moving party,' courts are less likely to transfer venue for the convenience of those witnesses because ‘[i]n such cases, the moving party can compel those witnesses to attend the trial.'”). Moreover, two key witnesses-Stross and Hardy-live in this district. (Resp. Mot. Transfer, Dkt. 26, at 6-8). Transferring this action to the Northern District would simply shift the inconvenience for Active's two key witnesses to two others. In such circumstances, the cost of attendance for the movant's witnesses is of neutral value to a court's transfer analysis. See Affinity Labs of Texas v. Samsung Elecs. Co., Ltd., 968 F.Supp.2d 852, 858 (E.D. Tex. 2013) (“When inconvenience would exist in either potential venue, merely shifting inconvenience from one party's witnesses to the other's is insufficient to affect a transfer of venue analysis.”).

         As for the final factor, Active offers no practical problems with trying this action in this district; it only argues that it would not be impractical to transfer this action to the Northern District. (Mot. Transfer, Dkt. 24, at 10). This factor is therefore neutral at best. Considering all of the public and private factors together, and giving some weight to Stross's choice of forum, the Court finds that Active has not met its burden to establish that the Northern District of Texas is “clearly more convenient” than the ...

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