United States District Court, E.D. Virginia, Alexandria Division
matter comes before the Court on Defendant's Motion to
Change Venue Pursuant to 29 U.S.C. § 1404. Dkt. No. 22.
For the following reasons, the Court denies the motion.
fifty-seven entertainment companies, have filed a Complaint
alleging that Defendants, internet service providers, have
contributorily and vicariously infringed upon Plaintiffs'
copyrights. This alleged contributory and vicarious
infringement stems from instances in which Defendants'
customers illegally downloaded songs to which Plaintiffs own
seek to transfer this case to the Northern District of
Georgia. None of the Plaintiffs are domiciled in the Eastern
District of Virginia. Neither are the Defendants. Seven of
ten witnesses the Defendants have identified as critical to
their case - as well as Defendants themselves - are at home
in the Northern District of Georgia.
instant case is not the first in which Defendants have come
before this Court. In November 2014 different plaintiffs
filed a complaint alleging contributory and vicarious
infringement of copyrights. BMG Rights Mgmt. et al. v.
Cox Comms., Inc. el al., 1:14-cv-1611. In the course of
that litigation, which lasted over a year, and culminated in
a jury finding Defendants liable, this court issued dozens of
orders, including a forty-five page summary judgment opinion.
At no point did Defendants move to transfer venue. The Fourth
Circuit reviewed this Court's summary judgment opinion,
upholding this Court's ruling precluding Defendants from
asserting a safe harbor defense under the DMCA, but remanding
the case for a new trial based on an error in the jury
instructions given. BMG Rights Mgmt. (US) LLC v. Cox
Commc'ns, Inc., 881 F.3d 293, 314 (4th Cir. 2018).
district court may transfer a civil action to any other
district where the action could have been brought "[f]or
the convenience of parties and witnesses, in the interest of
justice." 28 U.S.C. § 1404(a). "The decision
whether to transfer an action under the statute is committed
to the sound discretion of the district court."
Heinz Kettler GMBH & Co. v. Razor USA, LLC, 750
F.Supp.2d 660, 667 (E.D. Va. 2010) (citation omitted).
District courts determining whether to grant a motion to
transfer under § 1404(a) usually consider the following
factors: "(1) plaintiffs choice of forum; (2)
convenience of the parties; (3) witness convenience and
access; and (4) the interest of justice." Id.
The movant bears the burden of showing that the circumstances
of the case weigh strongly in favor of transfer. Id.
Because the statute gives no guidance regarding the weight to
give each factor it is a fact intensive inquiry and depends
on the circumstances in each case. SamsungElecs. Co. v.
Rambus, Inc., 386 F.Supp.2d 708, 716 (E.D. Va. 2005).
considering the factors relevant to a venue transfer this
Court finds the first factor, plaintiffs choice of forum,
weighs slightly in favor of Plaintiffs. The second factor,
convenience of the parties and witnesses, weighs slightly in
favor of Defendants. The third factor, the interest of
justice, weighs heavily in favor of Plaintiffs.
Plaintiff's Choice of Forum
plaintiffs choice of forum is entitled to substantial weight.
Id. A plaintiffs choice of forum will not be
entitled to substantial weight if plaintiff has chosen a
foreign forum and the cause of action bears little or no
relation to that forum. Id. "But, even then,
the plaintiffs choice of forum is certainly a relevant
consideration so long as there is a connection between the
forum and the plaintiffs claim that reasonably and logically
supports the plaintiffs decision to bring the case in the
chosen forum." Id.
an infringing product in the chosen forum alone is not
necessarily enough to tip this factor in a plaintiffs favor.
See Advanced Mktg. Sys., LLC v. Delhaize Am., LLC,
No. 2;I5CV74, 2015 WL 12806533, at *3 (E.D. Va. July 31,
2015); Lycos, Inc. v. Tivo, Inc., 499 F.Supp.2d 685,
696 (E.D. Va. 2007). In those cases it is important to look
to (1) whether the infringing use in the chosen forum was
unique as compared to the infringing use in other forums, and
(2) whether those who exercised control over the infringing
products or devices were located in the chosen forum. See
Advanced Mktg. Sys., LLC, 2015 WL 12806533, at *3;
Lycos, Inc., 499 F.Supp.2d at 696 ("The acts
relevant to this lawsuit... are those of the defendants, not
their customers and subscribers. The design and manufacture
of the allegedly infringing products, as well as the design
and development of the purportedly infringing online
services, occurred outside of Virginia.").
none of the Plaintiffs are at home in the Eastern District of
Virginia. Therefore, this factor will only be given
substantial weight if a significant ...