Case 1:08-cv-00613-OWW-GSA Document 71 Filed 04/07/09 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`
`XCEL DATA SYSTEMS, INC., a
`California corporation,
`Plaintiff,
`
`v.
`DEREK BEST, an individual, and
`DOES 1 through 25, inclusive,
`Defendants.
`
`1:08-CV-00613-OWW-GSA
`ORDER [GRANTING/DENYING]
`DEFENDANT’S MOTION TO TRANSFER
`VENUE (DOC. 5).
`
`1. INTRODUCTION
`On March 25, 2008, Plaintiff XCEL Data System (“XCEL”) filed
`a complaint in the Superior Court of the State of California,
`County of Kern, alleging breach of contract by Defendant Derek
`Best. Compl. On May 2, 2008, Defendant David Best (“Best”)
`removed the action to federal court on federal question and
`diversity jurisdiction grounds. Doc. 1, Def.’s Notice of Removal.
`Defendant Best moves to transfer the action to the Eastern
`District of Michigan. Doc. 5, filed May 12, 2008, Def.’s Mot.
`Change Venue. Oral argument was heard July 21, 2008.1
`On July 15, 2008, Plaintiff XCEL filed a notice that
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`its corporate status was suspended and requested that the pending
`motions before the court be continued pending revival of its
`corporate status. Doc. 20, Pl.’s Notice Corporate Status. XCEL
`alternatively requested the court to remand the action, sua
`sponte, on the ground that it does not have subject matter
`jurisdiction.
`Fed. R. Civ. P. 17 provides that a corporation’s capacity to
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`Case 1:08-cv-00613-OWW-GSA Document 71 Filed 04/07/09 Page 2 of 14
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`2. BACKGROUND
`From 1997 to 1998, Defendant David Best developed Microsoft
`Windows-based computer software known as XPAWN. Doc. 15, filed
`July 7, 2008, Def.’s Opp’n Pl.’s Mot. Remand, Ex. II, David Best
`Decl. Opp’n Pl.’s Mot. Remand ¶ 3. XPAWN is designed to manage
`transactions for small, independent pawnshops. Best began selling
`the software for commercial use in 1999 and launched the website
`“xpawn.com” during the same period. Id. ¶¶ 3, 6. On June 28,
`2000, Best received a certificate of copyright registration for
`the software. Doc. 15, Def.’s Opp’n Pl.’s Mot. Remand, Ex. I.
`That same month he moved to California and entered into a
`partnership with Michael Moreno, the author of another, older
`software program for pawnshops. Doc. 15, Def.’s Opp’n Pl.’s Mot.,
`
`sue or be sued is determined by the law of the state under which
`it was organized. Fed. R. Civ. P. 17(b)(2). The capacity to sue
`“is the right to come into court.” Color-Vue, Inc. v. Abrams, 44
`Cal. App. 4th 1599, 1604 (1996). Incapacity is a legal disability
`that deprives a party of the right to come into court. Id. Since
`California is the state in which XCEL was incorporated, XCEL’s
`capacity to be sued is tested under California law. Under
`California law, a court has the discretion to grant a continuance
`where a party’s corporate status is suspended and lacks capacity
`to sue. Id. at 1603.
`At oral argument, Plaintiff was directed to reinstate its
`corporate status within 30 days. On August 19, 2008, Plaintiff
`filed a request for extension of time to submit a certificate of
`revivor. (Doc. 36.) The request was granted and Plaintiff was
`given until September 30, 2008 to reinstate its corporate status.
`(Doc. 41.) On September 30, Plaintiff requested an additional
`extension because when it submitted its application to revive its
`corporate status, the application was denied because in the
`interim period the name “Xcel Data Systems, Inc.” had been taken
`by a third party. (Doc. 47.) For good cause show, Plaintiff’s
`request is GRANTED. On October 10, 2008, Plaintiff submitted a
`Certificate of Status from the Secretary of State of the State of
`California showing Plaintiff is a domestic corporation in good
`standing. (Doc. 53.)
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`Case 1:08-cv-00613-OWW-GSA Document 71 Filed 04/07/09 Page 3 of 14
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`Ex. II, David Best Decl. Opp’n Pl.’s Mot. Remand ¶¶ 7-9. A year
`later Best and Moreno formed XCEL Data Systems, the plaintiff in
`this action. Id. Best and Moreno were co-directors of XCEL Data
`Systems, which sold both Moreno’s older program and Best’s XPAWN
`software, and was based in Bakersfield, California. Id. As co-
`directors, Best and Moreno jointly leased property, took out
`loans, and operated XCEL. Id.
`Best grew dissatisfied for reasons not relevant here and
`parted ways with Moreno. Id. ¶¶ 10, 14. On March 6, 2002, Moreno
`and Best entered into a Software Purchase Agreement (the
`“contract”) in which Best agreed to resign as co-director,
`surrender any shares he owned, and transfer to XCEL all rights
`associated with XPAWN, including intellectual property, among
`other things, such as the “xpawn.com” domain name and website.
`Contract §§ 1.01, 1.03(f)-(j). The contract required a third-
`party to keep the copyright and trademark certificates in escrow
`until “[XCEL’s] satisfactory performance,” and, until the
`certificates’ release, XCEL agreed not to remove from XPAWN’s
`opening screen the words “© Copyright: Derek Best.” Id. §§
`1.01(b), 3.06. In consideration of the sale, XCEL promised Best
`$69,154.30 (purchase price), profits or draws due as of March 31,
`2002, repayment of $12,500 in loans, a $150 royalty fee for each
`software package sold, rented, or licensed within 48 months of
`the contract’s execution, and $10,000 in fees for servicing Best
`agreed to render. Id. §§ 1.01(a)-(d). XCEL also agreed to assume
`all notes and leases Best had entered into as co-director. Id. §
`1.01(k). The contract also gave Best an exclusive license to
`sell, distribute, and use the software in the United Kingdom and
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`Case 1:08-cv-00613-OWW-GSA Document 71 Filed 04/07/09 Page 4 of 14
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`retain as security ownership in the software and associated
`intellectual property. Id. §§ 1.04(a), 3.05. The contract closed
`in Bakersfield, California “or such other location as may be
`agreed upon,” with a provision specifying California law as the
`choice of law and an attorneys’ fees provision. Id. §§ 1.07,
`5.14-15.
`After the contract was executed, Best allegedly developed
`substantial modifications to XPAWN, including additional modules
`and interface compatibility with the “Quickbooks” accounting
`system, which Best claims created an independent copyright in
`those modifications. Doc. 15, Def.’s Opp’n Pl.’s Mot., Ex. II,
`David Best Decl. Opp’n Pl.’s Mot. Remand ¶¶ 18, 20. Best claims
`these modifications constitute a derivative work not subject to
`the terms of the contract. Doc. 15, Def.’s Opp’n Pl.’s Mot.
`Remand at 4.
`Best apparently sent XCEL a cease-and-desist letter dated
`February 24, 2008 that claims XCEL breached the contract by
`failing to make payments. Doc. 14, filed July 2, 2008, James M.
`Duncan Decl., Ex. C, Cease and Desist Letter. The letter also
`claims ownership of XPAWN and associated intellectual property.
`Id. A month later XCEL filed a complaint alleging breach of
`contract arising from Best’s failure to place the copyrights and
`registration certificates in escrow, failure to transfer
`ownership in the domain name and other intellectual property, and
`competition against XCEL through the continued sale,
`distribution, and use of the software in the United States.
`Compl. ¶ 16. The complaint seeks a declaration that the contract
`was terminated by Best’s failure to perform and that
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`Case 1:08-cv-00613-OWW-GSA Document 71 Filed 04/07/09 Page 5 of 14
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`plaintiff is the owner of all copyrights, trademarks,
`and rights related to the software, and the plaintiff
`is the owner of the software itself, and all
`intellectual property rights in the software subject to
`no claim of right by the defendants.
`Compl. “Prayer.” In addition, the complaint seeks a declaration
`that XCEL is under no further obligation under the contract. Id.
`The complaint also seeks costs of suit incurred, including
`reasonable attorney’s fees allegedly in excess of $5,000 as
`authorized under the contract. Id.
`XCEL originally filed this action in the Superior Court of
`the State of California, County of Kern. Best removed the case to
`federal district court pursuant to 28 U.S.C. § 1446(b). Doc. 1,
`Def.’s Notice of Removal ¶ 2. Best asserts federal question
`jurisdiction exists under 28 U.S.C. § 1331 because the complaint
`alleges claims that arise under federal copyright laws. Best
`asserts that a declaration of the parties’ respective rights
`requires an application of federal copyright laws to determine
`the scope of the copyright assigned to XPAWN, given the existence
`of Best’s derivative work. Doc. 15, Def.’s Opp. Pl.’s Remand at
`16-17. Best argues the complaint alleges infringement and seeks a
`remedy expressly granted by the Copyright Act. Id. at 12-14. Best
`also claims diversity jurisdiction exists under 28 U.S.C. § 1332
`because plaintiff is a California corporation with its principal
`place of business in California, defendant resides in Michigan,
`and the amount in controversy allegedly exceeds $75,000 in
`potential pecuniary losses to defendant, exclusive of interest
`and costs. Id. at 11.
`Best moves to transfer venue to the Eastern District of
`Michigan, arguing that his medical condition makes travel to
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`Case 1:08-cv-00613-OWW-GSA Document 71 Filed 04/07/09 Page 6 of 14
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`California substantially burdensome, his key witnesses reside in
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`or near Michigan, the acts of alleged copyright infringement
`occurred in Michigan, and Michigan has a greater interest than
`California in the disposition of the action. Doc. 5, filed May
`12, 2008, Def.’s Mot. Change Venue. In support of his claim that
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`his medical condition makes travel to California burdensome, Best
`submits a letter written by his physician, Dr. Martin I. Belkin.4
` Best provides a partial list of key witnesses:
`2
`(1) Mr. Sheldon Stone of Cash City, Detroit, MI
`(2) A representative of Diamond Pawn, Mansfield, OH
`(3) Mr. Ronnie Berger of Main Street Pawn, Pontiac, MI
`(4) Mr. Lee Manes of Sam’s Loan Emporium of Toledo, OH
`(5) Mr. Brett Fine of Sandel’s Loan, Youngstown, OH
`(6) Mr. David Berke of Rich’s Pawn Shop, Dayton, OH
`(7) Mr. Aaron Tet of Fall River Pawn Shop, Fall River,
`MA, who is willing to travel to Michigan
`(8) Mr. Leslie Gold of American Jewelry, Detroit, MI,
`who is “intimately familiar with the business
`arrangements between the Plaintiff and the Defendant”
`(9) Mr. Edward Bean of Suffolk Jewelry, Boston, MA, who
`is also willing to travel to Michigan
`(10) Mr. Craig Rabiner of Kohns Loan, Lima, OH
`(11) Mr. David Adelman, Jerry’s Pawn Shop, Atlanta, GA
`(12) Mr. Ric Blum, Ohio Loan Co., Dayton, OH,
`(13) Mr. Thomas Labret of Zeidman Loan, Detroit, MI.
` Doc. 5, Def.’s Mot. Change Venue, Ex. II, Witness List.
` A filing error resulted in the issuance of a new case
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`number, 1:08-CV-00647-LJO-SMS, to defendant’s motion to transfer
`venue. Plaintiff moved to consolidate cases. Doc. 8, filed May
`28, 2008, Pl.’s Mot. Consolidate Cases. On May 28, 2008, U.S.
`District Judge Lawrence O’Neill issued an order dismissing 1:08-
`CV-00647-LJO-SMS as duplicative of this case. (Doc. 4.)
`Plaintiff’s motion to consolidate was denied as moot. (Doc. 69.)
`Dr. Martin I. Belkin’s letter states, in relevant part:
`4
`“It would be extremely difficult to arrange [] treatments outside
`this state [i.e., Michigan], and missing his [i.e. Best] regular
`scheduled therapy would place him at risk for further progression
`of his already significant muscle weakness . . . . At this point
`his ability to travel for any length of time is limited, as
`missing his regular scheduled treatment could very well have a
`detrimental effect on his health. Therefore, if appropriate
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`Doc. 24, filed July 17, 2008, Def.’s Br. Supp. Opp’n Pl.’s Reply,
`Ex. II, Physician’s Letter. In turn, XCEL asserts proper venue is
`in Kern County, California as the contract was entered into and
`the events occurred there. Doc. 10, Pl.’s Mot. Remand. XCEL
`opposes transfer to the Eastern District of Michigan on the
`ground that federal subject matter jurisdiction is lacking. Doc.
`13, filed on July 2, 2008, Pl.’s Opp’n Def.’s Mot. Change Venue.
`
`
`3. DISCUSSION
`A. Motion to Transfer Venue.
`A motion to transfer venue from one district court to
`another is governed by 28 U.S.C. § 1404(a), which provides, in
`relevant part: “[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. The goal behind 28 U.S.C. §
`1404(a) “is to prevent waste ‘of time, energy, and money,’ and
`‘to protect litigants, witnesses and the public against
`unnecessary inconvenience and expense.’” Van Dusen v. Barrack,
`376 U.S. 612 (1964) (citations omitted).
`The analysis involved in a motion to transfer is twofold.
`The court must first decide whether the action is one that “might
`have been brought” in the transferee court. Then the court must
`decide whether transfer is appropriate, considering “the
`convenience of parties and witnesses” and “the interest of
`arrangements can be made for him to provide any necessary
`information (testimony) by telephone, it would, without question,
`be in his best interest, medically and healthwise [sic].” Doc.
`24, Def.’s Br. Supp. Opp’n Pl.’s Reply, Ex. II, Letter.
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`justice.” § 1404(a). “If it serves the convenience of the parties
`and witnesses, and if it is consistent with the interests of
`justice, a court may, in its discretion, transfer an action to
`any district where the case could have originally been filed.”
`Deputy v. Long-Term Disability Plan of Sponsor Aventis Pharms.,
`2002 WL 31655328 at *2 (N.D. Cal. 2002) (citing 28 U.S.C. §
`1404). The defendant has the burden of making a “strong showing
`of inconvenience to warrant upsetting the plaintiff's choice of
`forum.” L.L. Smith Trucking Co., Inc. v. Hughes Bros.
`Aircrafters, Inc., 2001 WL 267694 at *9 (D. Or. 2001) (citing
`Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843
`(9th Cir. 1986); see also Deputy, 2002 WL 31655328 at *2;
`Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 278-279
`(9th Cir. 1979).
`
`1. “For the convenience of parties and witnesses” and “In
`the interest of justice.”
`“The decision whether to transfer venue lies in the
`discretion of the district court.” L.L. Smith Trucking, Inc.,
`2001 WL 267694 at *9 (citing 28 U.S.C. § 1404); see also Creative
`Tech., Ltd. v. Aztech Sys. Pte Ltd., 61 F.3d 696, 699 (9th Cir.
`1995) (forum non conveniens determination committed to sound
`discretion of the trial court); Deputy, 2002 WL 31655328 at *2.
`“A motion to transfer venue under § 1404(a) requires the court to
`weigh multiple factors in its determination whether transfer is
`appropriate in a particular case.” Jones v. GNC Franchising, Inc.
`211 F.3d 495, 498 (9th Cir. 2000). These factors include:
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`(1) convenience of the parties;
`(2) convenience of the witnesses;
`(3) the location where the relevant agreements were
`negotiated and executed;
`(4) the state most familiar with the governing law
`(5) plaintiff’s choice of forum;
`(6) the differences in the costs of litigation in the two
`forums;
`(7) the availability of compulsory process to compel
`attendance of unwilling nonparty witnesses;
`(8) the ease of access to sources of proof;
`(9) in the interest of justice.
`Id. at 498-499.
`“The difference in substantive law will not be relevant to
`transfer under 28 U.S.C. § 1404(a), the statutory replacement for
`domestic forum non conveniens in federal courts. A transfer under
`§ 1404(a) results in a change of courtrooms, not a change of
`law.” Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000)
`citing Van Dusen, 376 U.S. at 636-37; see also Ferens v. John
`Deere Co., 494 U.S. 516, 524-25 (1990).
`Each factor is discussed.
`(1) Convenience of the parties. Defendant Best requests a
`transfer which Plaintiff XCEL opposes. Defendant Best resides in
`Michigan, does no business in California, and has a progressive
`neurological disorder known as multifocal motor neuropathy that
`requires four or five consecutive days of intravenous treatment
`every four weeks that is closely monitored by a trained IV nurse.
`Doc. 5, Def.’s Mot. Change Venue, Ex. I, David Best Aff. ¶ 4;
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`Doc. 27. Dr. Martin Belkin, Best’s physician, states that his
`insurance provider likely will not make arrangements for
`treatment in California and that travel outside Michigan for any
`length of time should be limited since missing regularly
`scheduled treatment is detrimental to Best’s health. Doc. 24,
`Physician’s Letter. Dr. Belkin also explains that Best is
`significantly impaired with weakness in his upper extremities
`that limits his ability to perform routine daily activities. Doc.
`27. He requires assistance to perform activities of daily living,
`which is currently provided by his wife. Id. With the regular
`treatments he receives, Defendant maintains reasonable motor
`function in his hands and arms.
`Plaintiff XCEL is based in Bakersfield, California and its
`director, Michael Moreno, resides in Bakersfield. It would be
`more convenient for Plaintiff to proceed with the litigation in
`the Eastern District of California, given that he resides and
`operates a business in this district.
`Although courts have held that “any inconvenience that might
`enure to counsel is unpersuasive and generally not a factor to
`consider,” Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 988
`(E.D.N.Y. 1991), the inconvenience to Best would be substantially
`burdensome, given his medical condition. While Best provides no
`evidence from his insurance carrier or physician establishing
`that treatment cannot be performed in California, aside from
`stating it would be difficult to make arrangements, it would
`likely be very inconvenient for him to do so. However, hearings
`and trial may be scheduled to accommodate Best’s treatment
`schedules. Moreover, although no estimate has been provided by
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`the parties as to how long they expect trial to last, it is
`highly unlikely trial will last four weeks. This factor weighs
`slightly against transfer.
`(2) Convenience of the Witnesses. “The convenience of both
`the party and non-party witnesses is probably considered the
`single-most important factor in the analysis of whether a
`transfer should be granted.” Hernandez, 761 F. Supp. at 988.
`Best’s witnesses, primarily pawnshop owner-operators who need to
`be present in their businesses on a daily basis and for whom
`travel to California is burdensome, reside in Michigan, a
`surrounding state, or on the east coast. Doc. 5, David Best Aff.
`¶ 7. XCEL also sells software to customers, many of whom are
`located in California and others are located throughout the
`country and Mexico. This factor is neutral because one party’s
`witnesses would be inconvenienced no matter in which district the
`action is venued.
`(3) Location where Agreement was Negotiated and Executed.
`The contract was negotiated and executed in California. Contract
`§ 1.07. This factor weighs against transfer.
`(4) State most familiar with the governing law. The
`substantive law governing those aspects of the suit involving
`contract issues is California law. Best claims that because this
`action does not involve complex questions of state law, a
`Michigan court may safely adjudicate it. Doc. 5, Def.’s Mot.
`Change Venue 14. That is not the criterion. The criterion is to
`consider the state most familiar with the governing law, and that
`state is California. This factor weighs against transfer.
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`(5) Plaintiff’s Choice of Forum. XCEL brought this action in
`California, and plaintiff’s choice of forum is given deference.
`See Compl. This factor weighs against transfer.
` (6) Differences in the costs of litigation in the two
`forums. Best alleges that the location of nonparty witnesses and
`documentation makes trial less expensive in Michigan. Doc. 5,
`Def.’s Mot. Change Venue 13. However, Best does not say how or
`why it would be less expensive, other than he would not have to
`travel. A party’s expense is more relevant if one is claiming
`financial hardship. Plaintiff’s evidence and witnesses are
`largely located in California. No evidence has been presented to
`show a cost of litigation differential depending on the forum.
`This factor is neutral.
`(7) Compelling Attendance of Unwilling Nonparty Witnesses.
`Fed. R. Civ. P. 45 provides that a court must quash or modify a
`subpoena when it requires a nonparty witness to travel more than
`100 miles from that person’s residence or place of business or
`within the state where the trial is held. Fed. R. Civ. P.
`45(3)(A). Best contends there are essential nonparty witnesses
`available within the Eastern District of Michigan not subject to
`compulsory process within California because they are located
`more than 100 miles away from the Eastern District of California.
`Doc. 5, Def.’s Mot. Change Venue 13. The same is true of
`Plaintiff’s witnesses if the Eastern District of Michigan is the
`forum. Accordingly, this factor is neutral.
`(8) Ease of access to sources of proof. Best claims that the
`physical evidence of infringement is located in Michigan,
`including documentation in possession of defendant and witnesses.
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`Doc. 5, Def.’s Mot. Change Venue 13-14. Since the contract was
`negotiated and executed in California, evidence regarding
`contract formation is located in California. Evidence of contract
`performance is located in Michigan for defendant and in
`California for plaintiff. This factor is also neutral.
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`(9) In the Interest of Justice. Best alleges the public
`interest is better served by adjudicating the action in Michigan
`because the outcome will affect the pawn industry, given that
`pawnbrokers rely on the proper functioning of the software and
`are concerned with the possibility of losing much needed
`technical support that defendant provides. Doc. 5, Def.’s Mot.
`Change Venue 14. This argument is irrelevant. The pawnbrokers are
`not parties to this action, the proper functioning of the
`software is not in dispute, and the outcome of this action should
`not affect services defendant or plaintiff provides the pawn
`industry in many states. This concerns who owns a particular
`piece of software, which does not concern the industry the
`software supports.
`Balancing all of the material circumstances in light of the
`factors set forth above, the motion to transfer venue is DENIED.
`CONCLUSION
`For all the reasons stated above, Defendant’s Motion to
`Transfer pursuant to 28 U.S.C. § 1404 is DENIED WITHOUT
`PREJUDICE. Defendant shall submit an order consistent with this
`decision, within five (5) days following the date of service of
`this decision.
`
`IT IS SO ORDERED.
`Dated: April 6, 2009
`b2e55c
`
` /s/ Oliver W. Wanger
`UNITED STATES DISTRICT JUDGE
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