Raymarine v. Argonaut Computer CV-02-021-B 08/01/02
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Raymarine, Inc.
v. Civil N o . 02-021-B Opinion N o . 2002 DNH 147 Argonaut Computer, Inc.
MEMORANDUM AND ORDER
Raymarine, Inc. has filed suit seeking a declaration that it
properly terminated its contract with Argonaut Computer, Inc.
Argonaut moves to dismiss the action for lack of personal
jurisdiction and venue, o r , in the alternative, to transfer the
case to the United States District Court for the Southern
District of California. For the reasons that follow, I deny
Argonaut’s motion.
I. BACKGROUND1
Raymarine, a Delaware corporation, manufactures recreational
1 The background facts are drawn from the parties’ evidentiary submissions and are considered in the light most favorable to the plaintiffs. See Foster-Miller, Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995). Facts from the defendant’s evidentiary submissions are included to the extent they are uncontradicted. Mass. Sch. of Law at Andover, Inc. v . Am. Bar Ass’n, 142 F.3d 2 6 , 34 (1st Cir. 1998). marine products including marine radars, fishfinders, autopilots,
GPS instruments, VHF radios, and navigation software. Its
headquarters for North and South America is located in Nashua,
New Hampshire. The Nashua office oversees sales, customer
support, technical support, product line management, inventory
management, and contract purchase order management for both
regions. Raymarine also has a technical facility in Portsmouth,
United Kingdom, a facility in Ohio, and offices in Virginia and
Florida.
Argonaut, a California corporation, develops, produces and
markets rugged, high performance computer systems for use in
marine, industrial or military settings. Argonaut is not
licensed or registered to do business in New Hampshire, has no
employees in New Hampshire, has never maintained an office here,
and has never delivered any products to any address within the
state.
The Argonaut Marine PC (the “Marine PC”) is a rugged
personal computer that is used on commercial and recreational
boats. During January 2001, Argonaut and the recreational marine
division of the Raytheon Company engaged in discussions
concerning the potential purchase of Marine PCs. The discussions
-2- ceased around January 3 0 , 2001 (Raymarine’s date of
incorporation), when Raymarine purchased the assets of the
recreational marine division.
Following the asset purchase, Richard Kane, the President
and Chief Executive Officer of Raymarine, sent the President of
Argonaut, George Kioutas, a letter expressing his interest in
resuming discussions concerning the Marine P C . M r . Kane sent the
letter, dated February 9, 2001, from Raymarine’s Nashua office on
letterhead reflecting its Nashua address. M r . Kioutas
countersigned the letter and returned it to the Nashua office via
facsimile.
Between February 9 and the end of March, the two parties
negotiated a purchase agreement, with Mr. Kioutas and Terry
Startsman (an employee in Raymarine’s Virginia office) handling
most of the negotiations. The two conducted discussions between
California and Virginia via the telephone and on separate
occasions held meetings in Florida and California. Mr. Kane also
participated in telephone conversations concerning the purchase
agreement from his office in Nashua.
Mr. Kioutas signed the completed contract in California on
March 2 7 , 2001, and sent it to Mr. Kane in Nashua, who executed
-3- it on March 2 9 . The contract engaged the parties for three
years, gave Raymarine exclusive rights (within the recreational
and commercial marine markets) to the Marine P C , and provided a
list of specifications which, among other things, required the
Marine PC to be waterproof and resistant to high temperatures and
excessive movement. The agreement required Raymarine to purchase
at least 2,000 units at an approximate cost of $4,000 per unit,
giving the contract a minimum value of $8 million. Argonaut was
to ship the computers to Raymarine’s Ohio facility once
production began. The contract also stipulated that Argonaut
would purchase nine different sub-assemblies from Raymarine.
The Purchase Agreement, which identified Raymarine only as a
Delaware corporation, included no forum selection clause, but
designated New Hampshire law as the governing law. The contract
also referenced a non-disclosure agreement that the parties were
to agree to later. Raymarine ultimately drafted the disclosure
agreement in its Nashua office and printed it on letterhead
reflecting its Nashua address. Mr. Kioutas signed the agreement
in California on June 1 4 , 2001, and sent it Nashua were it was
executed by Mr. Kane on July 2 0 , 2001.
-4- In anticipation of the new product line, Raymarine hired
Louis Chemi as its Product Line Manager for the Marine P C . Mr.
Chemi’s responsibilities were to include the marketing and
coordination of the Marine PC line, and he was to be based out of
Raymarine’s Nashua office. Argonaut’s limited interaction with
Mr. Chemi occurred during his time in Virginia, prior to his
relocation to New Hampshire.
The Marine PC was developed in California and Texas by
Argonaut and its subcontractor Xplore. During the course of the
product’s development, Argonaut and Raymarine representatives met
in Florida, Texas and the United Kingdom. The first tests of the
prototypes took place at Raymarine’s facility in Portsmouth,
United Kingdom, on March 22 and 23 (prior to the Purchase
Agreement’s execution). The tests conducted by Raymarine
measured the product’s compliance with the Purchase Agreement’s
specifications. The Marine PC failed these tests.
As a result, numerous communications ensued between
Raymarine and Argonaut concerning technical modifications. The
discussions and meetings took place in California, Texas and the
United Kingdom and included a Raymarine technician on loan to
Argonaut to assist in rectifying the problems. During this time,
-5- Argonaut directed billing and invoicing questions by telephone,
in e-mails, and in correspondence to Raymarine’s office in New
Hampshire.
A second set of tests performed a month later (April 19-20)
at the Portsmouth facility met the same result. Again, more
communication took place between the Portsmouth facility and
Xplore’s Texas facility. A third round of tests was performed at
the Portsmouth facility on August 22 and 2 8 , and the prototypes
failed to meet the specifications for a third time. As a result
of the multiple product failures, Raymarine commenced discussions
with Argonaut concerning the continued viability of the Purchase
Agreement.
Employees at Raymarine’s Nashua office continued to
communicate with employees at Argonaut from late August until
late October. The communications culminated with Raymarine
declaring Argonaut in default and terminating the Purchase
Agreement. Included in these communications was a letter from
Mr. Kioutas to M r . Kane discussing the possibility that Argonaut
might sue Raymarine for breach of contract. This prompted
Argonaut to send Raymarine a draft complaint naming it as a
defendant in which New Hampshire was identified as the
-6- jurisdiction in which the complaint would be filed. In
anticipation of Argonaut’s threatened lawsuit, Raymarine filed
this action seeking a declaratory judgment that it did not breach
the Purchase Agreement.
II. PERSONAL JURISDICTION
A. Standard of Review
When a defendant contests personal jurisdiction under Fed.
R. Civ. P. 12(b)(2), the plaintiff bears the burden of showing
that a basis for asserting jurisdiction exists. See Mass. Sch.
of Law, 142 F.3d at 3 4 ; Rodriguez v . Fullerton Tires Corp., 115
F.3d 8 1 , 83 (1st Cir. 1997). In a case such as this, in which no
evidentiary hearing has been held, I hold the plaintiff to a
prima facie standard. See Sawtelle v . Farrell, 70 F.3d 1381,
1386 n.1 (1st Cir. 1995) (citing United Elec. Radio and Mach.
Workers of Am. (UE) v. 163 Pleasant S t . Corp., 987 F.2d 3 9 , 43
(1st Cir. 1993) [hereinafter Pleasant S t . I I ] ) .
To make a prima facie showing of jurisdiction, a plaintiff
may not rest on the pleadings. Rather, he or she must “adduce
evidence of specific facts” that support jurisdiction. Foster-
-7- Miller, 46 F.3d at 145; Pleasant S t . I I , 987 F.2d at 4 4 . In
conducting my analysis, I take the facts offered by the plaintiff
as true and construe them in the light most favorable to the
plaintiff’s jurisdictional claim. See Mass. Sch. of Law, 142
F.3d at 3 4 ; Foster-Miller, 46 F.3d at 145. I do not act as a
fact-finder; instead I determine “whether the facts duly
proffered, [when] fully credited, support the exercise of
personal jurisdiction.” Rodriguez, 115 F.3d at 84 (citing Boit
v . Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992)).
While the prima facie standard is liberal, I need not
“‘credit conclusory allegations or draw farfetched inferences.’”
Mass. Sch. of Law, 142 F.3d at 34 (quoting Ticketmaster-New York,
Inc. v . Alioto, 26 F.3d 201, 203 (1st Cir. 1994)). I also
consider facts offered by the defendant, but only to the extent
that they are uncontradicted. See id.
B. Statutory and Constitutional Requirements
When assessing personal jurisdiction in a diversity of
citizenship case, the court “‘is the functional equivalent of a
state court sitting in the forum state.’” Sawtelle, 70 F.3d at
1387 (quoting Ticketmaster, 26 F.3d at 2 0 4 ) . Accordingly, I must
determine whether an exercise of jurisdiction is proper under
-8- both the New Hampshire long-arm statute and the due process
requirements of the federal constitution. See id.; Foster-
Miller, 46 F.3d at 144. Because New Hampshire’s long-arm statute
is coextensive with the federal due process standard, however, I
proceed directly to the constitutional due process analysis. See
Phelps v . Kingston, 130 N.H. 166, 171 (1987).
The “constitutional touchstone” for personal jurisdiction is
“whether the defendant purposefully established ‘minimum
contacts’ in the forum State.” Burger King Corp. v . Rudzewicz,
471 U.S. 4 6 2 , 474 (1985) (citing Int’l Shoe C o . v . Washington,
326 U.S. 3 1 0 , 316 (1945)); see also Sawtelle, 70 F.3d at 1388.
This “minimum contacts” inquiry is necessarily fact-specific,
“involving an individualized assessment and factual analysis of
the precise mix of contacts that characterize each case.”
Pritzker v . Yari, 42 F.3d 5 3 , 60 (1st Cir. 1994). The ultimate
objective of the due process Aminimum contacts@ standard is to
ensure that the exercise of personal jurisdiction over a
nonresident defendant does not offend A>traditional notions of
fair play and substantial justice.=@ United Elec. Radio and Mach.
Workers of Am. (UE) v. 163 Pleasant S t . Corp., 960 F.2d 1080,
1087 (1st Cir. 1992) [hereinafter Pleasant S t . I ] (quoting Int’l
-9- Shoe, 326 U.S. at 3 1 6 ) . If a defendant has even one meaningful
contact with the forum, the exercise of personal jurisdiction is
constitutionally proper. See Nowak v . Tak How Invs., Ltd., 94
F.3d 708, 717 (1st Cir. 1996) (citing McGee v . Int’l Life Ins.
Co., 355 U.S. 220, 223 (1957)); Pritzker, 42 F.3d at 6 1 .
A court may assert authority over a defendant by means of
either general or specific jurisdiction. Mass. Sch. of Law, 142
F.3d at 34 (citing Donatelli v . Nat’l Hockey League, 893 F.2d
459, 462-463 (1st Cir. 1990)); Foster-Miller, 46 F.3d at 144. A
defendant engaged in continuous and systematic activity in a
forum is subject to general jurisdiction in that forum with
respect to all causes of action, even those unrelated to the
defendant’s forum-based activities. Phillips Exeter Acad. v .
Howard Phillips Fund, Inc., 196 F.3d 284, 288 (1st Cir. 1999)
(citing Helicopteros Nacionales de Colombia, S.A. v . Hall, 466
U.S. 408, 414 (1984); Donatelli, 893 F.2d at 462-63).
Specific jurisdiction exists if there is Aa demonstrable
nexus between a plaintiff=s claims and a defendant=s forum-based
activities.@ Mass. Sch. of Law, 142 F.3d at 3 4 . That i s , a
court may exercise specific jurisdiction if the plaintiff=s case
Arelates sufficiently t o , or arises from, a significant subset of
-10- contacts between the defendant and the forum.@ Phillips Exeter,
196 F.3d at 288; see also Pleasant S t . I , 960 F.2d at 1088-89.
In this case, Raymarine argues only that this court has specific
personal jurisdiction over Argonaut.
C. Analysis
To determine whether the exercise of specific jurisdiction
is consistent with due process, the First Circuit has developed a
three-part test that evaluates: (1) relatedness, (2) purposeful
availment (or “minimum contacts”), and (3) reasonableness. See
Mass. Sch. of Law, 142 F.3d at 3 5 ; Nowak, 94 F.3d at 712-13. A
finding of specific jurisdiction requires that each of the three
components be satisfied. Phillips Exeter, 196 F.3d at 288.
1. Relatedness
I focus first on the relatedness prong of the three-part
test; a prong intended to be a flexible and relaxed standard.
See Sawtelle, 70 F.3d at 1389; Pritzker, 42 F.3d at 6 1 . Under
the relatedness test I must determine whether the plaintiff’s
claims arise out o f , or are related t o , the defendant’s forum
contacts. See Mass. Sch. of Law, 142 F.3d at 3 5 ; Sawtelle, 70
F.3d at 1389. When, as here, the plaintiff asserts a contract
-11- claim, I must determine “whether the defendant’s contacts with
the forum were instrumental either in the formation of the
contract or in its breach.” Phillips Exeter, 196 F.3d at 289.
As discussed below, Argonaut’s New Hampshire contacts were
instrumental in both the formation and alleged breach of the
Purchase Agreement and thus satisfy the relatedness requirement.
Argonaut’s contacts with Raymarine’s Nashua office concerning the
contract’s formation included responding to the initial offer to
negotiate, conducting at least some negotiations with Nashua via
the phone, and forwarding the signed contract to Nashua for
execution. Additionally, the Confidentiality Agreement, an
integral part of the Purchase Agreement, was drafted in Nashua,
sent to Argonaut from Nashua, and returned to Nashua by Argonaut
for execution. These communications by Argonaut constitute forum
contacts for purposes of this analysis. See Sawtelle, 70 F.3d at
1389-90 (citing Burger King, 471 U.S. at 4 7 6 ) ; Rodriguez v . Dixie
S . Indus., 113 F. Supp. 2d 242, 251-52 (D.P.R. 2000).
Argonaut also had contacts with Raymarine’s Nashua office
that were instrumental to the alleged breach of the Purchase
Agreement. These communications included a letter from Mr.
Kioutas to Mr. Kane discussing Argonaut’s view that any
-12- termination by Raymarine would be considered a breach of the
contract and threatening legal action if Raymarine did not
complete its contract obligations. See id.
As a result, Argonaut’s contacts with New Hampshire are
sufficient to satisfy the due process requirement that the claims
arise directly out of, or are related to, its contacts with the
forum.
2. Purposeful Availment
In evaluating whether Argonaut purposefully availed itself
of the privilege of conducting business in New Hampshire, I
consider “whether a defendant has ‘engaged in any purposeful
activity related to the forum that would make the exercise of
jurisdiction fair, just, or reasonable.’” Sawtelle, 70 F.3d at
1391 (citing Rush v. Savchuk, 444 U.S. 320, 329 (1980)). The
purposeful availment requirement is intended to protect an out-
of-state defendant from the forum's exercise of personal
jurisdiction based upon the defendant's "'random, isolated, or
fortuitous' contacts with the forum state." Sawtelle, 70 F.3d at
1391 (quoting Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 774
(1984)). Accordingly, the First Circuit requires both
voluntariness and foreseeability to exist before the purposeful
-13- availment prong is satisfied. See id.; Ticketmaster-New York,
Inc., 26 F.3d at 207.
For a defendant=s contacts with the forum to be considered
voluntary, they must not be based upon Athe unilateral actions of
another party or a third person.@ For the forum=s exercise of
personal jurisdiction to be deemed foreseeable, the out-of-state
defendant must establish a Acontinuing obligation between itself
and the forum state.@ Sawtelle, 70 F.3d at 1393. In addition,
the defendant=s contacts must be such that the defendant would
Areasonably anticipate being haled into court there.@ Nowak, 94
F.3d at 716.
In a contract action, the mere existence of a contractual
relationship between a forum plaintiff and an out-of-state
defendant is insufficient to establish purposeful availment. See
Phillips Exeter, 196 F.3d at 290; Ganis Corp. of Cal. v. Jackson,
822 F.2d 1 9 4 , 197 (1st Cir. 1987). Rather, using a Acontract-
plus@ analysis, see Ganis Corp., 822 F.2d at 197, I must consider
additional factors, including: A(1) the prior negotiations
between the parties and the contemplated future consequences of
the [contract]; (2) the terms of [the contract]; and (3) the
parties= actual course of dealing.@ U.S.S. Yachts, Inc. v. Ocean
-14- Yachts, Inc., 894 F.2d 9, 12 (1st Cir. 1990); Ganis Corp., 822
F.2d at 197-98.
I conclude that Raymarine has alleged and provided evidence
of jurisdictional facts which, if true, demonstrate that
Argonaut=s contacts with New Hampshire (1) were voluntary, in
that they were not the product of Raymarine=s unilateral actions;
and (2) created an on-going relationship with a forum resident,
thereby making it foreseeable that Argonaut would be haled into
court in New Hampshire. Argonaut’s contacts were voluntary
because the relationship between the two parties began with a
letter from Raymarine’s Nashua office, which Argonaut signed and
returned, thus putting Argonaut on notice that it was dealing
with a New Hampshire company. Moreover, Argonaut initiated and
responded to numerous communications with the Nashua office once
the Purchase Agreement was executed. See Nowak, 94 F.3d at 716.
The parties= contract, which involves the purchase and sale
of relatively complex products modified to fit the specific
requirements of Raymarine=s project, was the result of extensive
negotiation. While Argonaut was not physically present in New
Hampshire during the negotiation and contract period, it did
direct communications, by telephone, fax, letter and e-mail, into
-15- the state. See Sawtelle, 70 F.3d at 1389-90 ("The transmission
of information into [the forum] by way of telephone or mail is
unquestionably a contact for purposes of our analysis."); see
also Mass. Sch. of Law, 142 F.3d at 36; Pleasant St. I, 960 F.2d
at 1090.
The terms of the parties' contract also support the exercise
of personal jurisdiction over Argonaut. The Purchase Agreement
included a choice of law clause which identified New Hampshire
law as the governing law. The terms of the contract thus put
Argonaut on notice that it was dealing with a New Hampshire
buyer. See Ganis Corp., 822 F.2d at 198 ("While not conclusive,
a [choice of law provision] further tips the scales in favor of
[plaintiff] since a contractual provision adopting a forum
state's laws combined with the five-year duration of the
relationship 'reinforce[s] [the nonresident defendant's]
deliberate affiliation with the forum State and the reasonable
foreseeability of possible litigation there.'") (quoting Burger
King, 471 U.S. at 482) (alterations in original).
Finally, the future consequences of the three-year
contractual relationship contemplated by the parties should have
put Argonaut on notice that it might be haled into court in
-16- Raymarine’s principal place of business, New Hampshire.2 New
Hampshire houses Raymarine’s headquarters for North and South
America and handles a number of important responsibilities for
the region. This being the case, any significant contract with
Raymarine in the Western hemisphere would inevitably entail
contact with its Nashua office.3 See Burger King, 471 U.S. at
480. Argonaut’s awareness that M r . Chemi (hired to oversee the
Marine PC line) would be located in New Hampshire further
supports this conclusion.
3. Reasonableness
The third prong of the specific jurisdiction analysis
focuses on the reasonableness of the forum=s exercise of
jurisdiction. In particular, reasonableness is assessed Ain
light of a variety of pertinent factors that touch upon the
fundamental fairness of an exercise of jurisdiction.@ Phillips
2 That Argonaut’s drafted complaint elected to use New Hampshire as its forum indicates at the very least that Argonaut was aware of the role and importance of Raymarine’s Nashua office to Raymarine as a whole. 3 Not only did some of the negotiations take place through the New Hampshire office, but Argonaut addressed billing and invoicing issues and contract termination issues with the Nashua office within the first six months of the contract.
-17- Exeter, 196 F.3d at 288. The First Circuit identifies five
fairness considerations, dubbed the “Gestalt" factors, that are
determinative of the reasonableness prong: "(1) the defendant's
burden of appearing; (2) the forum state's interest in
adjudicating the dispute; (3) the plaintiff's interest in
obtaining convenient and effective relief; (4) the judicial
system's interest in obtaining the most effective resolution of
the controversy; (5) and the common interests of all sovereigns
in promoting substantive social policies." Sawtelle, 70 F.3d at
1394; see also Pleasant St. I, 960 F.2d at 1088. While none of
these factors strongly favors either party’s position, on balance
they lend support to Raymarine’s claim that this court has
personal jurisdiction.
a. The Defendant’s Burden of Appearance
First, although Argonaut may be inconvenienced by litigating
this case in New Hampshire, it has not demonstrated that
defending itself here imposes a special or unusual burden on it.
See Pritzker, 42 F.3d at 64. While some of Argonaut’s employees
might find it more convenient if this case were tried in
California, other employees and employees of Argonaut’s Texas
subcontractor who are probable witnesses will be equally
-18- inconvenienced regardless of whether this action is tried here or
in California.
b. The Forum State’s Adjudicatory Interest
Second, New Hampshire has an interest in providing a
convenient forum for companies that maintain regional
headquarters here. See Burger King, 471 U.S. at 473. While a
state’s interest is certainly greater when the contract concerns
a product manufactured or used exclusively in the forum state,
the state’s interest does not dissipate entirely when these
circumstances are absent. See In-Flight Devices Corp. v . Van
Dusen Air, Inc., 466 F.2d 220, 232 (6th Cir. 1972).
c. The Plaintiff’s Interest in Obtaining Convenient Relief
Third, Raymarine has selected New Hampshire as the forum in
which to bring its action against Argonaut. With respect to
measuring Raymarine’s convenience, I must pay some deference to
its choice of forum. See Sawtelle, 70 F.3d at 1395 (A[A]
plaintiff=s choice of forum must be accorded a degree of
deference with respect to the issue of its own convenience.@).
d. The Administration of Justice
The judicial system=s interest in obtaining the most
-19- effective resolution to the controversy offers no particular
guidance for the present case.
e. Pertinent Policy Arguments
The final “Gestalt” factor considers the “common interests
of all sovereigns in promoting substantive social policies.@
Sawtelle, 70 F.3d at 1395. The only real argument falling under
this factor concerns the use of New Hampshire law to govern
issues arising under the contract. In general, courts in New
Hampshire will be better equipped to adjudicate cases involving
New Hampshire law then will courts in an alternative forum.
For the above-stated reasons, this court has personal
jurisdiction over Argonaut.
III. VENUE
While the First Circuit has not specified the standard a
district court should use in resolving venue disputes prior to
trial, it has determined the standard in the related context of a
challenge to personal jurisdiction. See Boit, 967 F.2d at 675-
77. In cases where no hearing is held, the court makes only a
-20- prima facie determination of jurisdiction. Id. Accordingly, the
court does not find facts, but rather accepts the truth of the
plaintiff=s factual averments to the extent that they are
supported by evidence of specific facts set forth in the record.
Id. Since at least one other circuit requires district courts to
use a similar standard in venue disputes, see Home Ins. C o . v .
Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th Cir. 1990), and
the parties have not drawn my attention to any precedent
suggesting a different approach, I will determine the venue
question under the prima facie standard outlined in Boit.
B. Analysis
The general venue statute provides that an action may be
brought in any Ajudicial district in which a substantial part of
the events or omissions giving rise to the claim occurred . . .
.@ 28 U.S.C. ' 1391(b). When applying this provision, a court
must look Anot to a single >triggering event= prompting the
action, but to the entire sequence of events underlying the
claim.@ Uffner v . La Reunion Francaise, S.A., 244 F.3d 3 8 , 42
(1st Cir. 2001). The test is the same whether the claim sounds
in contract or tort. See id. at 4 1 . In this circuit, a court
must not confine its inquiry to the acts of the defendant but
-21- instead must employ a more “holistic” view of the problem.
See id. at 42 n.6. Finally, an event need not be in dispute to
comprise a substantial event giving rise to the claim. See id.
at 4 3 . Using this standard, venue may well exist in several
different jurisdictions where a substantial part of the events
giving rise to the claim took place. See id. at 4 2 ; First of
Michigan Corp. v . Bramlet, 141 F.3d 260, 263 (6th Cir. 1998).
In this case, I determine that venue is proper for many of
the same reasons that this court has personal jurisdiction over
Argonaut. Argonaut’s forum contacts were instrumental in the
formation, maintenance and termination of the contract and thus
were a substantial part of the events which gave rise to this
claim. Accordingly, I reject Argonaut=s venue challenge.
IV. TRANSFER OF VENUE
Motions to transfer are governed by 28 U.S.C. ' 1404(a),
which applies if venue is proper in the court where the action
was filed, and ' 1406(a), which applies when venue is improper in
the original court. Since venue is proper in the instant case, I
-22- focus only on the requirements of ' 1404(a).
A district court may transfer an action to another district
pursuant to ' 1404(a) if two requirements are met. First, the
court must determine that the action Amight have been brought@ in
the transferee district court originally. Van Dusen v . Barrack,
376 U.S. 6 1 2 , 616 (1964). Second, the court must determine that
the transfer will enhance the convenience of the parties and the
witnesses and promote the interest of justice. Id.
If the first requirement is met, the district court enjoys
considerable discretion in making the transfer decision. Norwood
v . Kirkpatrick, 349 U.S. 2 9 , 3 0 , 32 (1955). When a court
contemplates a transfer based on ' 1404(a), it should consider:
(1) the convenience of the parties and witnesses; (2) the
relative ease of access to documents needed for evidence; (3) the
cost of procuring willing witnesses; and (4) any practical
problems associated with trying the case most expeditiously and
inexpensively. Coady v . Ashcraft & Gerel, 223 F.3d 1 , 11 (1st
Cir. 2000); F.A.I. Elecs. Corp. v. Chambers, 944 F. Supp. 7 7 , 80-
81 (D. Mass. 1996) (citation omitted). AOf those factors, the
convenience to the expected witnesses is probably the most
important factor . . . .@ Fairview Mach. & Tool Co., Inc. v .
-23- Oakbrook Int=l, Inc., 56 F. Supp. 2d 1 3 4 , 141 (D. Mass. 1999)
(citation and internal quotation marks omitted).
A defendant seeking to transfer venue bears the Asubstantive
burden@ of showing that the factors Apredominate@ in favor of
transfer. Buckley v . McGraw-Hill, Inc., 762 F. Supp. 4 3 0 , 439
(D.N.H. 1991). AThe Supreme Court has held that >[u]nless the
balance is strongly in favor of the defendant, the plaintiff=s
choice of forum should rarely be disturbed.=@ Id. (quoting Gulf
Oil Corp. v . Gilbert, 330 U.S. 501, 508 (1947)).
Argonaut argues that even if personal jurisdiction and venue
are proper in New Hampshire, I should exercise my discretion and
transfer the case to the Southern District of California. In
support of this argument, Argonaut alleges that: (1) the claim
could be brought in California because a substantial part of the
events or omissions giving rise to the claim occurred there; (2)
few evidentiary items are located in New Hampshire while many
relevant materials are located in California; and (3) witnesses
essential to establishing Argonaut=s case reside in California
-24- while few of Raymarine’s witnesses reside in New Hampshire.4
On balance, Argonaut has not demonstrated that transferring
this action will enhance the convenience of the parties and
witnesses and promote the interest of justice. See Van Dusen,
376 U.S. at 616. Although the Marine PC’s were manufactured in
California and Texas and employees at both locations will likely
be called on to testify, so too will Raymarine employees in New
Hampshire and the United Kingdom. In fact, New Hampshire serves
as a far better geographic midpoint for the many locations from
which witnesses might come than does California. Moreover,
documents relating to the claim are easily transportable to this
district. Finally, the vast majority of witnesses likely to be
called are employees of one of the two parties, substantially
lowering risk that venue will preclude their appearance. For
these reasons, I will not disturb Raymarine’s choice of forum.
See Buckley, 762 F. Supp. at 439.
4 Since Argonaut fails to demonstrate that transferring the case enhances the parties’ and witnesses’ convenience or promotes the interest of justice, I need not address whether the action may have been brought in California originally.
-25- V. CONCLUSION
For the reasons stated above, Argonaut’s motion to dismiss
for lack of personal jurisdiction and venue o r , in the
alternative, to transfer venue to the United States District
Court for the Southern District of California (Doc. N o . 5 ) is
denied.
SO ORDERED.
Paul Barbadoro Chief Judge
August 1 , 2002
cc: W . Wright Danenbarger, Esq. David B . Wilson, Esq.
-26-