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Case 2:10-cv-04420-SJO-JC Document 17 Filed 08/20/10 Page 20 of 26 Page ID #:3361 D. The Interests of Justice Favor Transfer.2 In deciding whether to transfer this case, the Court also should consider the3 factors governingforum non conveniens motions, although transfer under 1404(a) is4 analyzed more liberally than dismissal pursuant to forum non conveniens. See, e.g.,5 Zeta-Jones v. Spice House, 372 F. Supp. 2d 568,575-76 (C.D. Cal. 2005) (applying6 forum non conveniens factors to § 1404(a) motion and granting transfer). This inquiry7 involves balancing the preference accorded plaintiff s choice of forum with the burden8 of litigation in an inconvenient forum. See id.9 The private interest factors, which involve "the convenience of the litigants,"10 include: (1) ease of access to sources of proof in the two forums; (2) availability of11 compulsory process for witnesses; (3) ability to view the premises, ifre1evant; and,12 (4) any other practical problems. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 &13 n.6 (1981). The public interest factors, which involve "the convenience of the forum,"14 include: (1) docket congestion; (2) interests in resolving the conflict locally;15 (3) governing law, including avoiding conflict of law issues; and, (4) unfairness of16 burdening citizens in an unrelated forum with jury duty. Id. Here, the private and17 public interest factors strongly favor transfer to New York.18192021222324252627281. Private Interest Factorsa. DONE's Choice of Forum Is Not Dispositive.Although the plaintiff s choice of forum is accorded significant weight, transferis warranted if "the private and public interest factors clearly point toward trial in analternative forum." Piper Aircraft Co., 454 U.S. at 255. Further, courts give lessdeference to the plaintiffs selected forum if, inter alia, "the operative facts have notoccurred within the forum." See, e.g., Metz, 674 F. Supp. 2d at 1146; Hernandez v.Graebel Van Lines, 761 F. Supp. 983, 990-91 (E.D.N.Y. 1991) (giving lesssignificance to plaintiffs chosen forum where accident occurred in Florida, mostwitnesses were in Florida, and only connection to New York was plaintiffs residenceGibson, Dunn &Crutcher <strong>LLP</strong>12
Case 2:10-cv-04420-SJO-JC Document 17 Filed 08/20/10 Page 21 of 26 Page ID #:3372345678910111213141516171819202122232425262728and medical treatment). Here, the operative actions took place in New York,including iVillage's agreement with Sedo as well as its alleged acceptance of DONE'soffer, and any performance would have occurred there.A plaintiff s choice of forum is also given less weight when it is a companywith the resources to litigate in either forum. See Gates Learjet Corp. v. Jensen, 743F.2d 1325, 1333 (9th Cir. 1984). Here, given DONE's asserted readiness to expendmillions of dollars to purchase and market the domain names at issue, it is fair toassume that DONE has sufficient resources to litigate in New York. Thus, the Courtshould not give significant deference to DONE's forum choice.b. Ease of Access to Sources of Proof, Availability of CompulsoryProcess, and Other Practical Problems Favor Transfer.Most of the documents relevant to this case are in New York, all NBCUwitnesses are in New York, and the Sedo nonparty witnesses are on the East Coast.Thus, the ease of access to sources of proof weighs in favor of transfer.Further, the unavailability of compulsory process in this Court for the Sedowitnesses weighs in favor of transfer. See Zeta-Jones, 372 F. Supp. 2d at 576; seegenerally Fed. R. Civ. P. 45(c)(3) (stating federal courts cannot require non-partywitnesses to travel more than 100 miles for non-trial proceedings and should notrequire non-party witnesses to travel more than 100 miles for trial where witnesseswill "incur substantial expense"). As discussed above, the Sedo witnesses,particularly Jeffrey Gabriel, will be critical to establishing the communicationsbetween Sedo and DONE, and between Sedo and iVillage. Securing testimony fromthese witnesses in California will be time-consuming, costly, and possiblyunsuccessful. See, e.g., Ironworkers Local Union No. 68 & Participating EmployersHealth & Welfare Fund v. Amgen, No. CV 07-5157 PSG (AGRx), 2008 WL 312309,at *6-7 (C.D. Cal. Jan. 22,2008) (finding in favor of transfer because many witnesseswithin reach of transferee court). Because East Coast witnesses are more likely to beavailable to testify in New York, this factor favors transfer.Gibson, Dunn &Crutcher <strong>LLP</strong>13
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