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July 6, 2004.

MALIBU TOYS, INC., Defendant.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Roland Caville brings this suit against Malibu Toys, Inc. ("Malibu") alleging infringement of one or more claims of Caville's patent*fn1 through the sale and distribution of a product called the "Flashin' Lix" ("Malibu's product"). Malibu now moves for a change of venue to the Central District of California pursuant to section 1404(a).*fn2 For the following reasons, Malibu's motion to transfer is denied. I. BACKGROUND

  A. The Parties

  Caville is a French citizen residing and principally doing business in Hong Kong, China.*fn3 Caville owns the rights to the '606 Patent, which is an invention to hold and simultaneously illuminate translucent lollipops or other similar candies.*fn4 Caville distributes his candy products embodying the '606 Patent through Yanova, Inc. ("Yanova"), a company incorporated and principally doing business in New York City.*fn5 Yanova's co-owners and only employees are New York residents Lance Kushner and Glenn Rudin.*fn6

  Malibu is a California corporation with its principal place of business in Chatsworth, California.*fn7 All of Malibu's employees reside in the Central District of California.*fn8

  Malibu is in the business of purchasing and selling candy.*fn9 Although its 2003 calendar year sales were slightly more than $1,000,000, it ended the year with a net loss.*fn10 All of its products are manufactured in China and then shipped to a warehouse in California, from which they are then delivered to Malibu's customers.*fn11 Two such purchasers, Target and Toys 'R Us, have retail stores that allegedly sell Malibu's products in New York.*fn12 In addition, Malibu exhibited but did not sell any of its products at the annual International Toy Fair in February of 2004, which was held in New York City.*fn13 B. Facts

  In his Complaint, Caville alleges that Malibu's product embodies and thus infringes the '606 Patent.*fn14 Caville further avers that because Malibu had "knowledge of the '606 [P]atent," Malibu's infringement was "deliberate, willful, and wanton."*fn15

  To prove his claim, Caville intends to call the following witnesses: Mark Merryweather, an independent consultant who resides in Connecticut, to describe "the sales and marketing of [Malibu's allegedly] infringing products;"*fn16 Kushner, co-president of Yanova, to describe "the extent of damages [Yanova] and Caville have suffered;"*fn17 Rodolfo Fernandez and Blas Castor Perez, inventors of the '606 Patent who reside in North Carolina, to "testify about the scope of the patent-in-suit;"*fn18 and representatives of Frankford Candy & Chocolate Company ("Frankford"), located in Philadelphia, Pennsylvania, "to testify at trial on the issue of damages incurred. . . ."*fn19

  Malibu also expects to-call various witnesses to testify in its defense:*fn20 Helene Bartels, Malibu's Vice President of Sales, will "testify about sales and claimed damages;"*fn21 Winnie Lam, Malibu's Director of Operations, will "testify about the qualities of the subject item; about when and where items were shipped out of the warehouse and purchasing of [Malibu's] products;"*fn22 Brad Thayer, an employee of a warehouse used by Malibu, will testify "as to what was received and where and when it was shipped to customers;"*fn23 Andrew Lewis and Bob Kelly, Malibu's accountant and bookkeeper respectively, will testify on the issue of damages;*fn24 and Daryoush Aryapour, owner of Aryapour Designs, will testify on the issue of "design and packaging."*fn25 With the exception of Thayer (who appears to reside elsewhere in California), all of Malibu's witnesses reside within the Central District of California.*fn26


  Section 1404 provides: "For the convenience of the parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought."*fn27 The defendant must make a "convincing showing" that the action would be better litigated elsewhere.*fn28 Relevant factors include the: (1) deference accorded to plaintiff's choice of forum; (2) convenience to witnesses and parties; (3) situs of operative facts; (4) interests of justice and judicial economy; (5) relative ease of access to sources of proof; (6) availability of process to compel unwilling witnesses; (7) relative means of the parties; and (8) forum's familiarity with the governing law.*fn29 Of these factors, plaintiff's choice of forum is usually given the greatest weight, but when the plaintiff is a nonresident and the operative facts bear little connection to the chosen forum, plaintiff's choice is shown less deference.*fn30


  Although this action could have been brought in the Central District of California,*fn31 for the reasons that follow, Malibu has not made a ...

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