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Ideavillage Products Corp. v. Bling Boutique Store

United States District Court, S.D. New York

April 21, 2017

IDEAVILLAGE PRODUCTS CORP., Plaintiff,
v.
BLING BOUTIQUE STORE D/B/A CASH29784729,, Defendants.

          OPINION & ORDER

          KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE

         The Court has reviewed the several Defendants' (collectively, “Moving Defendants”) Motion to Dismiss for Forum non Conveniens (Doc. No. 29) and Moving Defendants' Motion to Release Frozen Funds (“Mot. to Release”) (Doc No. 36). This Court DENIES the Motion to Dismiss for Forum Non Conveniens and DENIES the Motion to Release Frozen Funds.

         I. INTRODUCTION

         Plaintiff Ideavillage Products Corp. (“Plaintiff”) owns the trademark to Copper Fit, a line of products designed to relieve muscle and joint pain. (Complaint ¶ 28 (Doc. No. 5)). Plaintiff also owns registered and unregistered copyrights related to packaging and marketing materials for its Copper Fit products, (id. ¶ 33), which Plaintiff markets and sells primarily online and through television. (Id. ¶ 38). Plaintiff brings this action against Defendants Bling Boutique Store,, for manufacturing, marketing, selling, etc. counterfeit versions of Plaintiff's Copper Fit products. (Id. ¶ 1). The Complaint makes eight claims against Defendants: trademark counterfeiting, trademark infringement, and false designation of origin under the Lanham Act; copyright infringement under the Copyright Act; as well as violation of deceptive acts and practices, false advertising, unfair competition, and unjust enrichment under New York state law. (Id. ¶¶ 69-128).

         II. PROCEDURAL HISTORY

         This Court granted Plaintiff's Motion for a Preliminary Injunction on December 8, 2016 (Doc. No. 3) [“PI Order”], under Federal Rule of Civil Procedure 65 and Section 34 of the Lanham Act, to remain in place throughout the pendency of the litigation. The Preliminary Injunction enjoins all Defendants from manufacturing, importing, marketing, and selling, etc. any goods bearing Copper Fit, Plaintiff's trademark, or counterfeit versions of Copper Fit. The Preliminary Injunction also included an Asset Freeze Order, which restrains the transfer or dissipation of assets in Defendants' bank accounts. (See PI Order ¶ 2). On December 19, 2016, the Clerk of Court issued an entry of default due to Defendants' failure to answer the Complaint. (Doc. No. 21). On December 29, 2016, Moving Defendants filed a Motion to Vacate the Entry of Default and a Motion to Dismiss for Forum non Conveniens. (Doc. No. 29). The Court vacated the entry of default on February 8, 2017, in light of the Moving Defendants' assertion that the failure to appear or answer was unintentional, and due to the short time frame Moving Defendants were given to appear and respond. (See Doc. No. 33). On February 23, 2017, Moving Defendants filed a Motion to Release Frozen Funds (Doc. No. 36). This Opinion addresses both the Moving Defendants' Motion to Dismiss and the Motion to Release Frozen Funds.

         III. MOTION TO DISMISS FOR FORUM NON CONVENIENS

         Moving Defendants ask the Court to dismiss the Complaint based on forum non conveniens, which this Court has the discretion to do, if another forum would be a more efficient venue to litigate this case. See Am. Dredging Co. v. Miller, 510 U.S. 443, 448 (1994). However, the doctrine of forum non conveniens “has continuing application [in federal courts] only in cases where the alternative forum is abroad, and perhaps in rare instances where a state or territorial court serves litigational convenience best.” Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430 (2007) (internal citations and quotation marks omitted). The alternative forum Defendants choose is the District of New Jersey, which is not an international forum.

         Alternatively, the proper course of action would be for this Court to transfer the case to a sister federal court, under 28 U.S.C. § 1404(a), if that court is a more convenient venue for the litigation. Id. The moving party bears the burden to demonstrate that transfer is warranted “[f]or the convenience of the parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). The Second Circuit guides district courts, in determining whether to transfer a case, to consider factors such as: “(1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, and (7) the relative means of the parties.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006) (quoting Albert Fadem Trust v. Duke Energy Corp., 214 F.Supp.2d 341, 343 (S.D.N.Y. 2002) (Rakoff, J.)).

         Moving Defendants argue that Plaintiff should not be afforded deference for its choice of forum in the Southern District, because Plaintiff is incorporated in New Jersey. Nevertheless, the Court finds that the balance of factors does not warrant a transfer to the District of New Jersey.

         First, Plaintiff chose to bring this action in the Southern District of New York. Moreover, Plaintiff's New Jersey headquarters are a mere 50 miles from the Southern District; thus, litigating in the District of New Jersey would offer marginal, if any, convenience over litigating in the present forum. Second, Moving Defendants fail to identify witnesses for whom it would be more convenient to appear in the District of New Jersey as opposed to the Southern District of New York, or whom the Court could not compel to testify if they were unwilling to appear in the Southern District of New York. See Am. Eagle Outfitters, Inc. v. Tala Bros. Corp., 457 F.Supp.2d 474, 479 (S.D.N.Y. 2006) (Sweet, J.). Third, Plaintiff argues that many of the transactions that allegedly violated Plaintiff's trademark took place within the Southern District of New York. (Opp'n to MTD at 15-16 (Doc. No. 31)). Thus, a significant locus of operative facts is in the Southern District, which weighs in favor of maintaining this venue. See Am. Eagle Outfitters, 457 F.Supp. at 477. Finally, Defendants have not shown that litigating in the Southern District of New York would be unduly burdensome in comparison to litigating in the District of New Jersey. See NBA Props., Inc. v. Salvino, Inc., 2000 WL 323257, at *8 (S.D.N.Y. Mar. 27, 2000) (Schwartz, J.).

         Accordingly, the balance of factors and the interest of justice militate in favor of maintaining the action in this District. The Court denies Moving Defendants' Motion to Dismiss for Forum non Conveniens. The Court also finds that transfer of the case pursuant to 28 U.S.C. § 1404(a) is not warranted.

         IV. MOTION TO RELEASE FROZEN FUNDS

         Next, Moving Defendants ask this Court to revisit the Preliminary Injunction. (Mot. to Release at 5-8). Moving Defendants challenge the Preliminary Injunction by merely reciting the standard that this Court used and disagreeing with this Court's analysis. The Court denies the Moving Defendants' motion for the following reasons: (1) the Moving Defendants fail to present the Court any new evidence to show that the PI Order should be amended, vacated, or reconsidered, or any new or binding decisions to challenge the Court's decision in the PI Order; (2) Plaintiff has demonstrated irreparable harm, a likelihood of success on the merits, and that the balance of hardships tips in Plaintiff's favor-which Moving Defendants fail to rebut; (3) Plaintiff did not unreasonably delay in bringing this action; (4) the Court has the authority to freeze Moving Defendants' assets; (5) the Moving Defendants fail to meet their burden to show that the Asset Freeze Order should be lifted, or otherwise modified, ...


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