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Colida v. Panasonic Corporation of North America

November 10, 2005


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


This case involves the alleged infringement by Panasonic Corporation of North America*fn1 ("Panasonic") of the rights of Tony Colida, the holder of a design patent for a cellular phone. Panasonic is a Delaware corporation having a principal place of business in New Jersey. Panasonic moves pursuant to 28 U.S.C. § 1404(a) to transfer this case to the District of New Jersey for the convenience of the parties and witnesses and in the interest of justice. For the reasons that follow, the motion is granted.


Tony Colida, a resident of Montreal, Canada, is the owner of a United States design patent for a cellular telephone. (Complaint ("Compl."), ¶¶ 1, 5; U.S. Patent No. 321,184 issued Oct. 29, 1991, attached to Compl. as Exh. P-1). Mr. Colida contends that Panasonic infringed on his rights in marketing and selling the Panasonic Model KX-TG 6502B cordless telephone, which Mr. Colida claims "reproduces the overall distinctive . . . appearance" of his patented design. (Compl., ¶¶ 9, 14).

Upon learning of the offending phone, Mr. Colida sent Panasonic a cease-and-desist letter, in which he offered to sell Panasonic a non-exclusive license to the design for $1 million. (Letter of Tony Colida dated April 6, 2005, attached to Compl. as Exh. P-3). Panasonic responded on April 15, 2005, in a letter to Mr. Colida's attorney declining the license offer and denying any infringement. (Letter of Tadashi Horie dated April 15, 2005, attached to Compl. as Exh. P-4). Panasonic noted Mr. Colida's previous patent infringement suits against other corporations, and threatened to seek sanctions against Mr. Colida and his counsel should Mr. Colida pursue litigation.

Proceeding pro se, Mr. Colida filed the present complaint on June 22, 2005, seeking $10 million in damages. Panasonic counterclaimed for malicious use of process and malicious prosecution, and cited a previous patent infringement suit initiated by Mr. Colida against Panasonic in 2003, decided on summary judgment in Panasonic's favor. Colida v. Matsushita Electric Corp. of America, No. 03 Civ. 2904, 2004 U.S. Dist. LEXIS 23116 (D.N.J. March 26, 2004), aff'd, 114 Fed. Appx. 383 (Fed. Cir. 2004); (Defendant's Answer to Complaint, Affirmative Defense and Counterclaims ("Ans.") at 7-12).

On September 30, 2005, Panasonic filed a motion requesting a transfer of venue to the District of New Jersey. Panasonic argues that New Jersey, as the company's principal place of business and the location of all witnesses and relevant documents, is the more appropriate forum. (Lasorsa Decl., ¶ 4; Ans. at 7).


The statute governing transfer of cases provides that "[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." 28 U.S.C. § 1404(a). Here, there is no dispute that this action could have been brought in the District of New Jersey, as Panasonic is headquartered in New Jersey and subject to personal jurisdiction there. Indeed, Mr. Colida's previous litigation against Panasonic was filed in New Jersey. See Colida v. Matsushita Electric Corp. of America, 2004 U.S. Dist. LEXIS 23116. The determination whether to transfer on grounds of convenience lies "within the broad discretion of the district court." Palace Exploration Co. v. Petroleum Development Co., 41 F. Supp. 2d 427, 437 (S.D.N.Y. 1998) (quoting In re Cuyahoga Equipment Corp., 980 F.2d 110, 117 (2d Cir. 1992)). The burden of demonstrating the desirability of transfer rests with the moving party. Palace Exploration Co., 41 F. Supp. 2d at 437; see also Filmline (Cross-Country) Productions, Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989).

In evaluating a motion to transfer venue, courts take into account a variety of factors including: (1) the plaintiff's choice of forum, (2) the locus of operative facts, (3) the convenience and relative means of the parties, (4) the convenience of the witnesses, (5) the location of and relative ease of access to evidence including documents, and (6) the interests of justice. See Amersham Pharmacia Biotech, Inc. v. Perkin-Elmer Corp., 11 F. Supp. 2d 729, 730 (S.D.N.Y. 1998).*fn2

A. Plaintiff's Choice of Forum

A plaintiff's choice of venue is entitled to significant consideration and will not be disturbed unless other factors weigh strongly in favor of transfer. See In re Warrick, 70 F.3d 736, 741 (2d Cir. 1995). Mr. Colida filed this action in United States District Court for the Southern District of New York, thus indicating New York, not New Jersey, to be his forum of choice.

However, the weight accorded to a plaintiff's choice of venue is significantly diminished where the operative facts have no connection to the chosen district. See 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F. Supp. 128, 135 (S.D.N.Y. 1994); Dostana Enterprises LLC v. Federal Express Corp., No. 00 Civ. 0747, 2000 WL 1170134, at *7 (S.D.N.Y. Aug. 16, 2000) ("A plaintiff's choice of forum is not entitled to the weight which it is generally accorded where there is no material connection between the forum and the events underlying the cause of action."). Furthermore, where a plaintiff's chosen forum is not his home state, his choice of forum is given less weight. See Herbert Limited Partnership v. Electric Arts, Inc., ...

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