in the December 23, 1992 affidavit can reach the level of unacceptability and affect the credibility of counsel's arguments. It should not, however, be permitted to affect the judgments of courts on the merits of disputes or to induce an otherwise incorrect decision as to the proper forum for litigation.
Up & Adam does not deny that its products are sold in the Southern District of New York and promoted to customers here, thus causing it to be in the position of affirmatively seeking the protection of the laws of New York. Under the circumstances, I find dismissal for lack of personal jurisdiction inappropriate at this stage, although upon a further showing reconsideration might justify a different result or the holding of an evidentiary hearing under Fed.R.Civ.P. 12(d). See generally Coleman v. American Export Isbrandtsen Lines, 405 F.2d 250 (2d Cir. 1968).
The question of personal jurisdiction need not be determined, however, since I grant transfer to a district where personal jurisdiction concededly exists. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 8 L. Ed. 2d 39, 82 S. Ct. 913 (1962); Datasouth Computer v. Three Dimensional Technologies, 719 F. Supp. 446 (W.D.N.C. 1989); 28 USC § 1361. Up & Adam's submissions give primary stress to the contention that Massachusetts is the proper forum for resolution of the disputes between the parties; I construe its personal jurisdiction point as a backup one which would be waived if Up & Adam's transfer motion is granted.
Massachusetts is a more convenient district for adjudication of this case than is New York. Up & Adam is a small privately held business located on the outskirts of Boston with no place of business or officers located in the Southern District of New York; on the other hand, Up & Adam has produced as Exhibit K to the affidavit of Mitchell Schecter, a business card of Richard J. Drinkwater, purporting to be a Big Baby Director of Sales & Marketing, showing in addition to a printed New York address, a handwritten P.O. Box, telephone number and FAX number in Boston, the genuineness of which the patentees have not disputed.
The patentees took affirmative steps to seek to halt Up & Adam's business activities in Massachusetts, which they regarded as infringing the patent involved here, by writing to customers of Up & Adam threatening dire consequences if they continued to distribute Up & Adam's competing product. This activity affecting Up & Adam in Massachusetts is the counterpart under 15 USC § 1125(a) of the impact in the Southern District of New York of Up & Adam's sales in this district of the allegedly infringing product.
Were patentees free to conduct nationwide campaigns of notice to customers of rivals seeking to block sales of competing goods, and then successfully to insist that the resulting criss-crossing contentions be litigated in the patentees' home court, such patentees could create an uneven playing field. Up & Adam's Massachusetts action is not merely an anticipatory declaratory judgment suit; it also alleges other conduct by the patentee affecting the District of Massachusetts.
While neither party has invoked venue considerations, I note that while venue in this district may be sustainable as to the corporate defendant in the patent infringement suit under 28 USC § 1391(c),
the patentees have failed to establish venue or convenience here as to the individual defendant they have elected to sue.
The clerk is directed to transfer this case to the District of Massachusetts and to close it in this district.
Dated: White Plains, New York
February 18, 1993
VINCENT L. BRODERICK, U.S.D.J.