EXHIBIT 2006
`
`
`Order Denying Tristar’s
`Motion to Transfer
`
`
`
`
`Order Denying Tristar’s
`Motion to Transfer
`
`
`
`2:14-cv-10848-VAR-DRG Doc # 18 Filed 05/08/14 Pg 1 of 4 Pg ID 483
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`CHOON’S DESIGN INC.,
`a Michigan corporation,
`
`Plaintiff,
`
`CASE NUMBERS: 14-10848
`HONORABLE VICTORIA A. ROBERTS
`
`v.
`
`TRISTAR PRODUCTS, INC.,
`a New Jersey corporation,
`
`Defendant.
` /
`
`
`ORDER DENYING MOTION TO TRANSFER
`DOC. # 12
`
`Choon’s Design LLC (“Choon”) makes rubber bands used as links to form
`
`bracelets, necklaces and other crafts. Choon calls its product the “Rainbow Loom” and
`
`holds a patent to it. Choon alleges that several companies are infringing on its patent;
`
`many cases are pending within this district and it anticipates filing similar actions here.
`
`On February 24, 2014, Choon filed suit against Tristar Products Inc. (“Tristar”)
`
`alleging patent infringement of its Rainbow Loom. Tristar makes a product that looks
`
`and appears to be a similar craft toy.
`
`Tristar’s Answer does not challenge this Court’s jurisdiction and venue; it did,
`
`however, file a motion to transfer under 28 U.S.C. 1404(a) to a federal district court
`
`located in New Jersey where it is incorporated and has its principal place of business.
`
`Tristar also filed a counterclaim, which among others, challenges Choon’s patent.
`
`Tristar’s motion is DENIED.
`
`1
`
`
`
`2:14-cv-10848-VAR-DRG Doc # 18 Filed 05/08/14 Pg 2 of 4 Pg ID 484
`
`Under 28 U.S.C. 1404 (a), “[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 or to any district or division to which all
`
`parties have consented,” Id., at its “broad discretion.” Reese v. CNH Am. LLC, 574 F3d
`
`315, 320 (6t Cir. 2009)(“As the permissive language of the transfer statute suggests,
`
`district courts have "broad discretion" to determine when party "convenience" or "the
`
`interest of justice" make a transfer appropriate.”).
`
`While normally district courts consider whether venue would be proper in the
`
`transferee court, this Court need only consider convenience and fairness: Choon
`
`concedes that New Jersey is a proper venue. Stewart Org., Inc. v. Ricoh Corp., 487
`
`U.S. 22, 29 (U.S. 1988)(“Section 1404(a) is intended to place discretion in the district
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`court to adjudicate motions for transfer according to an "individualized, case-by-case
`
`consideration of convenience and fairness."); Van Dusen v. Barrack, 376 U.S. 612, 622
`
`(1964)(analyzing whether venue existed in the transferee court).
`
`Tristar agues that all factors weigh heavily in favor of transfer. It says that Choon
`
`has filed one of its patent infringement actions in New Jersey, which suggests that New
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`Jersey is a convenient forum for Choon. It says that all of its witness -- primary and
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`third party -- who will testify about the development of its product are located in New
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`Jersey. And, New Jersey could try the case quicker because this case would only make
`
`the second pending action filed by Choon there.
`
`Choon argues that New Jersey is not convenient for it; Choon says that it filed
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`one -- out of several -- actions, against an unrelated defendant, in New Jersey because
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`that was the only state where jurisdiction and venue were proper with respect to that
`
`2
`
`
`
`2:14-cv-10848-VAR-DRG Doc # 18 Filed 05/08/14 Pg 3 of 4 Pg ID 485
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`particular party. Choon maintains that all fifteen of its employees are Michigan citizens,
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`located within this district. It says that because the validity of its patent is being
`
`challenged it must call these witnesses. Choon also argues that it is a smaller company
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`with limited sales, while Tristar is a billion dollar entity. Lastly, Choon argues that the
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`average case takes a year longer to be resolved in New Jersey than in Michigan.
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`To weigh convenience and fairness, courts consider:
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`(1) the convenience of the parties; (2) the convenience of the witnesses; (3)
`the relative ease of access to sources of proof; (4) the availability of
`processes to compel attendance of unwilling witnesses; (5) the cost of
`obtaining willing witnesses; (6) the practical problems associated with trying
`the case most expeditiously and inexpensively; and (7) the interest of justice.
`
`Audi AG v. D'Amato, 341 F. Supp. 2d 734, 749 ( E.D. Mich. 2004).
`
`These factors don’t favor either party. As Judge Berg held in his order declining
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`to transfer one of Choon’s cases to New Jersey: “[m]erely shifting the inconvenience
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`from one party to another does not meet the defendant’s burden.” Choon's Design, LLC
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`v. Larose Indus., No. 13-13569, 2013 U.S. Dist. LEXIS 156695, at *12 ( E.D. Mich. Nov.
`
`1, 2013).
`
`Further, as Choon argues, the pubic interest factors weigh in Choon’s favor as a
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`Michigan entity that employs Michigan citizens, it is best left for this locale to decide
`
`questions impacting its citizen’s patent. B.E. Tech., LLC v. Barnes & Noble, Inc., No.
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`2:12-cv-02823-JPM-tmp, 2013 U.S. Dist. LEXIS 97497, at *29-31 (W.D. Tenn. July 12,
`
`2013).
`
`Even if the Court required a tie breaker, the Court would award Choon’s selected
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`forum deference, which would slant in favor of case retention. Stewart v. Am. Eagle
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`Airlines, Inc., No. 3:10-00494, 2010 U.S. Dist. LEXIS 117308, at *2 (M.D. Tenn. Nov. 3,
`
`3
`
`
`
`2:14-cv-10848-VAR-DRG Doc # 18 Filed 05/08/14 Pg 4 of 4 Pg ID 486
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`2010)("balance between the plaintiff's choice of forum and defendant's desired forum is
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`even, the plaintiff's choice of [forum] should prevail."). Tristar purposefully availed itself
`
`to Michigan’s jurisdiction by selling its product to citizens who reside here. Choon
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`operates primarily in Michigan. It was foreseeable that litigation would ensue here.
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`Accordingly, Tristar has not met its burden to show that convenience and
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`fairness warrant transfer. Its motion is DENIED.
`
`IT IS ORDERED.
`
`S/Victoria A. Roberts
`Victoria A. Roberts
`United States District Judge
`
`Dated: May 8, 2014
`
`The undersigned certifies that a copy of this
`document was served on the attorneys of
`record by electronic means or U.S. Mail on
`May 8, 2014.
`
`s/Linda Vertriest
`Deputy Clerk
`
`4
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