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
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.