Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

Feb 4 2004

PECOWARE COMPANY, INC., Plaintiff, -against- POSH INTERNATIONAL LTD (USA), et al, Defendants

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


Plaintiff and defendant Posh International Ltd (USA) ("Posh") are competing California-based wholesalers of stationery products and fashion accessories used by preteen and teen age school children. Plaintiff formerly was supplied with goods, made to its specifications and imprinted with its copyrighted designs, by defendant Shanghai Ying Yuan Stationery Co., Ltd. ("Ying Yuan"), a Chinese entity. When plaintiff discontinued purchases from Ying Yuan, Ying Yuan began to supply goods to Posh, including products that allegedly infringed plaintiffs copyrights. Plaintiff thereupon sued Posh, Ying Yuan, and a number of apparently related Chinese companies in this Court. Posh moves to dismiss for lack of personal jurisdiction or, in the alternative, to transfer the action to California under 28 U.S.C. § 1404(a).

The jurisdictional issue need not long detain us. It is undisputed that Posh sold at least a small amount of allegedly infringing goods to one or more buyers in New York, which is sufficient to satisfy the New York long arm statute. See N.Y. CPLR § 302(a), subds. 1-2. And while Posh apparently sells only a small portion of its volume to New York purchasers, it is likely that the Due Process Clause would not be offended by requiring it to defend here. That question, however, need not be decided in view of the disposition of the transfer motion.

  The principal places of business of plaintiff and Posh are in Chino and Alhambra, California, respectively. There is no suggestion that either has a regular place of business east of the Rockies. The other defendants all are alien corporations based in China and Taiwan. Thus, all of the witnesses to be provided by any of the parties are from California or the Far East. And while plaintiff claims that the only non-party witness identified thus far is located in Queens, the witness in question is of no real importance in this case, as she merely was a purchaser of allegedly Page 2 infringing goods for approximately $1,400.

  The factors pertinent to that determination are too well established to warrant repetition.*fn1 Suffice it to say that this is not a close case. While the plaintiff's choice of forum is entitled to deference, the degree to which that is so is undermined here by plaintiffs choice of a forum far from its home base in California. The convenience of the parties and witnesses obviously would be served by litigating a continent's-width closer to their home bases, a fact as true of any Chinese witnesses as of those associated with the parties. There has been no meaningful showing that this Court would have any advantage with respect to obtaining the testimony of unwilling non-party witnesses.

  Accordingly, the motion of defendant Posh International Ltd (USA) to dismiss or transfer is granted to the extent that this action is hereby transferred, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Central District of California and otherwise denied. The denial is without prejudice to Posh raising in the transferee court those aspects of its motion not passed upon here, although it would be difficult to see why it would raise the jurisdictional question again in view of its patent amenability to suit in California.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.