Excelsior Designs, Inc. v. Sheres

291 F. Supp. 2d 181, 2003 U.S. Dist. LEXIS 20436, 2003 WL 22697212
CourtDistrict Court, E.D. New York
DecidedNovember 15, 2003
Docket03 CV 2141(ADS)(ETB)
StatusPublished
Cited by28 cases

This text of 291 F. Supp. 2d 181 (Excelsior Designs, Inc. v. Sheres) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Excelsior Designs, Inc. v. Sheres, 291 F. Supp. 2d 181, 2003 U.S. Dist. LEXIS 20436, 2003 WL 22697212 (E.D.N.Y. 2003).

Opinion

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

This diversity case involves allegations by Excelsior Designs, Inc. (“Excelsior” or the “plaintiff’) against Gregory Sheres (“Sheres” or the “defendant”) for defamation, tortious interference with contractual relations, and unfair competition. Presently before the Court is the defendant’s motion to transfer venue to the District of Arizona pursuant to 28 U.S.C. § 1404(a).

I. BACKGROUND

A. The Parties and the Allegations in the Complaint

Excelsior is a nationwide distributor of upscale contemporary and transitional furniture collections manufactured in and imported from Italy. Excelsior is located in Amityville, New York, and does not maintain any offices outside the state. The plaintiff has a total of twelve employees: a president, a vice-president of operations, a director of design, a vice-president of sales, five clerical staff, a warehouse supervisor, and two warehouse workers. Excelsior also uses the services of twelve outside sales representatives, none of whom are located in Arizona. Six of these representatives are located on the East Coast in New Jersey, Maryland, North Carolina, Florida, Michigan, and Illinois; four are located on the West Coast in Washington, Colorado, and California; and two are in Missouri and Minnesota. None of the plaintiffs employees travel to the State of Arizona on business.

Sheres, a resident of Arizona, is the owner and sole shareholder of Sheres Studio, Inc., which designs distinctive furniture. Sheres maintains his principal place of business in Scottsdale, Arizona and does not have any offices outside that state. He employs two warehouse workers and two bookkeepers/customer service representatives.

By letter dated April 28, 2008 to Excelsior, Sheres alleged that the plaintiffs Cris-tallo Collection violated and infringed upon his intellectual property rights in his Marseille/Paris Collection. Among other things, this letter demanded that Excelsior immediately stop the manufacturing, distributing, marketing, and sale of its Cris-tallo Collection. Upon receiving this letter, the plaintiff contacted its attorney to prepare a response. Prior to responding to Sheres’ letter, one of the plaintiffs retail customers in New York, Nicoletti Italia, informed Excelsior that it had received a letter, dated April 28, 2003 (“April 28th Letter”), from the defendant. Among other things, the April 28th Letter stated:

*183 It has come to our attention that one of our competitors, Excelsior, has violated our intellectual property rights by knocking off our distinctive and popular Marseilles Paris dining collection
To protect ourselves from this violation we intend to initiate legal action against Excelsior if it refuses to cease selling its infringing knock-off. If necessary, we also will name retailers who do not cooperate with us and continue selling the infringing knock off.
If you do not carry this infringing collection in your store(s), please avoid ordering it from Excelsior and disregard this letter. If you know of retailers who carry it in their stores, please tell us so that we may contact them.
If you do carry this collection in your store, we are asking for your cooperation in not continuing to sell the infringing collection.
As part of this relationship we hope that now that you have been made aware of our intellectual property rights you will not continue selling an infringement on them. We therefore are asking that you immediately stop selling the infringing collection and return the samples to Excelsior.
We also request that you provide us with the names of any retailers that you know are carrying this collection.
We ... hope that you agree that this kid of pirating of our distinctive and unique designs should not be allowed.

The plaintiff asserts that it learned that the April 28th Letter was being sent to numerous Excelsior’s customers and that it ascertained that at least twelve of its retail customers received this letter from Sheres. On May 2, 2003, the plaintiff commenced this action for defamation, tortious interference with contractual relations, and unfair competition. On June 9, 2003, the defendant filed the present motion to change venue to the District of Arizona. To date, Sheres has not filed an answer.

B. The Motion

The defendant’s motion to transfer venue is supported by Sheres’ affidavit in which he asserts that he is the principal furniture designer for his business. Sheres states that he personally manages the day-to-day operations of his business and that litigating in New York would disrupt his business. The defendant further contends than 1 percent of his annual sales is generated from the State of New York, and a majority of those sales are made to an online furniture dealer located in Buffalo, New York. Most of Sheres’ customers are located on the West Coast, and 75 percent of his business is conducted west of the Mississippi River. Also, more than 30 percent of the defendant’s business, and two of his largest customers are located in Arizona. In addition, at least 25 percent of his business and customers are located in California. In contrast, only 25 percent of his business is conducted on the East Coast, with most of that business located in Florida and Georgia. Neither Sheres nor his employees travel to the State of New York on business.

Sheres concedes that, upon learning of Excelsior’s alleged infringement of his designs, he sent letters to dealers around the *184 country advising them that he considered Excelsior’s Cristallo Collection to be an infringement of his Marseilles/Paris Collection. Of the eighty-five letters sent, approximately ten went to addresses in the State of New York. Sheres also states that one letter went to a customer in Arizona and fifteen to customers in California.

According to the defendant, his four largest customers are located on the West Coast: Designer’s Choice (Arizona), Can-toni (California and Texas), Ralph Hayes Contemporary (California and Washington), and Robb and Stucky (Arizona, Dallas, and Florida). Sheres states that he anticipates that these customers may be called as witnesses in this action to testify concerning the similarity of and confusion with the plaintiffs Cristallo Collection. Furthermore, the plaintiff expects that certain other customers, including Floridian Furniture (Florida) and Rosenthal Furniture (Minnesota) may be called to proffer similar testimony. Sheres also states that several potential witnesses, each of whom are customers of both the defendant and Excelsior, are located in California. He asserts that none of his witnesses are located in the State of New York. The plaintiff also contends that nearly all the information involving his Marsailles/Paris Collection is located in Arizona.

In opposing this motion, the plaintiff provides an affidavit by Steven Kayne (“Kayne”), who is the president, sole principal and shareholder of Excelsior.

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291 F. Supp. 2d 181, 2003 U.S. Dist. LEXIS 20436, 2003 WL 22697212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/excelsior-designs-inc-v-sheres-nyed-2003.