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LeMond Cycling, Inc. v. Trek Bicycle Corporation: US District Court : CIVIL PROCEEDURE - heavy burden of justifying venue transfer not met

LeMond Cycling, Inc.,
Civ. No. 08-1010 (RHK/JSM)
Trek Bicycle Corporation,
Christopher W. Madel, Denise S. Rahne, Jennifer M. Robbins, Robins, Kaplan, Miller &
Ciresi, L.L.P., Minneapolis, Minnesota, for Plaintiff.
Ralph A. Weber, Christopher P. Dombrowicki, Kristal S. Stippich, Gass Weber Mullins
LLC, Milwaukee, Wisconsin, Erik T. Salveson, Amanda M. Cialkowski, Benjamin R.
Rolf, Halleland Lewis Nilan & Johnson, P.A., Minneapolis, Minnesota, for Defendant.
In this action, Plaintiff LeMond Cycling, Inc. (LeMond Cycling) has sued
Defendant Trek Bicycle Corporation (Trek), alleging inter alia that Trek breached the
terms of a license agreement between the parties. Trek now moves to transfer this action
to the United States District Court for the Western District of Wisconsin, pursuant to 28
U.S.C. 1404(a). For the reasons set forth below, the Court will deny the Motion.
LeMond Cycling is a Minnesota corporation founded by Greg LeMond, a worldfamous
bicycle racer who is a three-time winner of the Tour de France. (Compl. 1.)
LeMond licensed his name and likeness to LeMond Cycling, which in turn sublicensed
1 Under Minnesota Rules of Civil Procedure 3.01 and 3.02, service of a summons and a
complaint is sufficient to commence a civil action.
2 Blumins Declaration was not made under penalty of perjury. See 28 U.S.C. 1746
(declaration has same evidentiary value as affidavit only if it is signed under penalty of
perjury). Because Trek has not objected to the Declaration on this ground, the Court will
consider it. See Cody v. Hillard, 139 F.3d 1197, 1199 n.1 (8th Cir. 1998).
various marks to Trek for use in connection with the manufacture and sale of LeMondbranded
bicycles in 60 countries. (Id. 5, 10.) According to LeMond Cycling, Trek has
failed to live up to its obligations under the sublicense, including failing to use its best
efforts to develop and promote sales of LeMond-branded bicycles. (Id. 10.)
On March 20, 2008, LeMond Cycling served Trek with the Summons and
Complaint in the instant action, which was then venued in Hennepin County District
Court; it did not file the Complaint at that time.1 In response, Treks counsel asked for
time to consider the allegations in the Complaint before LeMond Cycling filed it with the
court; LeMond Cycling agreed. (Blumin Decl. Ex. 1.)2 LeMond Cycling heard nothing
further from Trek until April 8, 2008, when Trek commenced an action in the United
States District Court for the Western District of Wisconsin (the Wisconsin Action).
(Salveson Decl. 2 & Ex. 1.) In the Wisconsin Action, Trek seeks a declaration that
(1) it has not violated the best-efforts clause in the sublicense agreement and (2) it may
terminate that agreement. (Id. Ex. 1.) LeMond Cycling then filed the Complaint in the
instant matter in Hennepin County District Court, and Trek removed it to this Court the
following day, April 9, 2008. Trek now moves to transfer this action to the Western
District of Wisconsin.
3 There is no dispute that the instant action might have been brought in the Western
District of Wisconsin, insofar as Trek is headquartered there. See 15 Wright, Miller & Cooper,
Federal Practice & Procedure: Jurisdiction 2d 3845 (2d ed. 1986) (noting that the phrase
might have been brought in Section 1404(a) refers to districts where venue would be proper
and where defendant would be subject to service of process and personal jurisdiction); see also
28 U.S.C. 1391(a) (civil action may be venued in district where defendant resides).
28 U.S.C. 1404(a) states that [f]or the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil action to any other district or
division where it might have been brought. 28 U.S.C. 1404(a).3 As the statutory
language makes clear, three general factors inform a district courts decision whether to
grant a motion under Section 1404(a): (1) the convenience of the parties, (2) the
convenience of the witnesses, and (3) the interests of justice. See also Terra Intl, Inc. v.
Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997). However, a district court may
also consider any other factors it finds relevant when deciding whether transfer is
warranted. Id.
There is no precise mathematical formula to be employed when balancing the
relevant factors. As one Court of Appeals has noted, [w]eighing and balancing are
words embodying metaphors which, if one is not careful, tend to induce a fatuous belief
that some sort of scales or weighing machinery is available. Of course it is not. At best,
the judge must guess, and we should accept his guess unless it is too wild. Ford Motor
Co. v. Ryan, 182 F.2d 329, 331-32 (2d Cir. 1950). Hence, a district court enjoys wide
discretion when deciding whether to grant a motion to transfer. E.g., Weber v. Coney,
642 F.2d 91, 93 (5th Cir. 1981) (per curiam); Culp v. Gainsco, Inc., No. 03-20854-CIV,
2004 WL 2300426, at *4 (S.D. Fla. Oct. 1, 2004).
Courts must be cognizant, however, that transfer motions should not be freely
granted. In re Nine Mile Ltd., 692 F.2d 56, 61 (8th Cir. 1982), abrogated on other
grounds by Mo. Hous. Dev. Commn v. Brice, 919 F.2d 1306 (8th Cir. 1990). A heavy
burden rests with the movant here, Trek to demonstrate why a motion to transfer
venue should be granted. E.g., Integrated Molding Concepts, Inc. v. Stopol Auctions
L.L.C., Civ. No. 06-5015, 2007 WL 2263927, at *5 (D. Minn. Aug. 6, 2007) (Schiltz, J.,
adopting Report & Recommendation of Erickson, M.J.); Radisson Hotels, Intl v. Westin
Hotel Co., 931 F. Supp. 638, 641 (D. Minn. 1996) (Kyle, J.). To do so, the movant must
demonstrate that the relevant factors weigh strongly in its favor. Id.
Cases discussing transfers under Section 1404(a) are legion, and it would be a
fruitless exercise for the Court to attempt to catalog them all here. Nor could the Court
persuasively distinguish all of the cases reaching the opposite result from that which it
finds appropriate in this case. Suffice it to say, each party relies upon decisions that
support its position. After balancing the relevant factors, however, the Court concludes
that transfer is unwarranted.
First, as to the convenience of the parties, there can be little doubt that the District
of Minnesota would be most convenient for LeMond Cycling and its principal, Greg
LeMond, while the Western District of Wisconsin would be most convenient for Trek and
its employees. Yet, Section 1404(a) provides for transfer to a more convenient forum, not
one that is equally convenient (or inconvenient) to the forum originally selected. See
Prod. Fabricators, Inc. v. CIT Commcns Fin. Corp., Civ. No. 06-537, 2006 WL 2085413,
at *5 (D. Minn. July 25, 2006) (Kyle, J.). Simply put, transfer should not be granted if
the effect is simply to shift the inconvenience from one party to the other. Graff v.
Qwest Commcns Corp., 33 F. Supp. 2d 1117, 1121 (D. Minn. 1999) (Doty, J.).
Moreover, although both parties are corporations, Trek is large indeed, the United
States largest bicycle manufacturer, according to its website, see
loss_of_its_founder_dick_burke (last visited May 27, 2008) while LeMond Cycling is a
far smaller company that employs only three people. (See LeMond Decl. 3.) While
not an overriding factor, the parties relative financial ability to undertake a trial in any
particular forum is a relevant consideration in determining the convenience of the
parties. Sitrick v. FreeHand Sys., Inc., No. 02 C 1568, 2003 WL 1581741, at *2 (N.D.
Ill. Mar. 27, 2003). Finally, although Trek correctly notes that a plaintiffs choice of
forum is no longer entitled to the great weight given it under the doctrine of forum non
conveniens, Ahlstrom v. Clarent Corp., Civ. No. 02-780, 2002 WL 31856386, at *3 n.9
(D. Minn. Dec. 19, 2002) (Kyle, J.), it nevertheless remains an important factor. Multi-
Tech Sys., Inc. v. Net2Phone, Inc., Civ. No. 00-364, 2000 WL 34494824, at *7 (D. Minn.
June 26, 2000) (Montgomery, J.). On balance, therefore, the convenience-of-parties
factor clearly favors retaining the instant dispute here.
4 The fact that Trek has identified numerous individuals it allegedly will call at trial,
while LeMond Cycling has not identified any, is not dispositive. See, e.g., Gardipee v.
Petroleum Helicopters, Inc., 49 F. Supp. 2d 925, 929 n.3 (E.D. Tex. 1999) (courts should be
[c]ognizant that motions to transfer venue should not turn solely upon . . . which [party] can
disclose a longer list of possible witnesses).
Second, as to the convenience of witnesses, Trek points to a plethora of persons
including its President, Director of Product Marketing, National Sales Manager, Product
Manager, International Sales Manager, Vice President of Finance, and others (Def. Mem.
at 7-8) who it asserts would be burdened by traveling to this district in order to testify at
trial. Certainly, if all of these individuals are in fact required to testify, it would be
somewhat disruptive to Treks business.4 This is not a case, however, in which the two
fora are separated by thousands of miles. Madison (the location of the Western District of
Wisconsin courthouse) and St. Paul (where the undersigned is chambered), though
perhaps not close, are in adjacent states and judicial districts, and it is a relatively short,
enjoyable and scenic drive across Interstate 94 from one to the other, or a quick flight
between them via the major international airport in the Twin Cities. Walter Oil & Gas
Corp. v. Teekay Shipping, 270 F. Supp. 2d 855, 861 (S.D. Tex. 2003); see also
Progressive Plastics, Inc. v. Natl Liquid Packaging, LLC, No. 1:07 CV 47, 2007 WL
593555, at *2 (N.D. Ohio Feb. 21, 2007) (noting proximity between Cleveland and
Chicago in denying motion to transfer); Leesona Corp. v. Duplan Corp., 317 F. Supp.
290, 300 (D.R.I. 1970) (denying motion to transfer from Rhode Island to New York based
on witnesses having to travel 200 miles). Were the case to remain here, it is not as if Trek
or its witnesses would be consigned to the wastelands of Siberia. Jarvis Christian Coll.
v. Exxon Corp., 845 F.2d 523, 528 (5th Cir. 1988); accord Contl Airlines, Inc. v. Am.
Airlines, Inc., 805 F. Supp. 1392, 1397 (S.D. Tex. 1992) (it is not as if the key witnesses
will be asked to travel to the wilds of Alaska or the furthest reaches [of] the Continental
United States).
More importantly, however, the inconvenience caused to Trek employees is not
the Courts paramount concern rather, the focus is on the inconvenience caused to nonparty
witnesses, because it is generally assumed that witnesses within the control of the
party calling them, such as employees, will appear voluntarily in a foreign forum. FUL
Inc. v. Unified Sch. Dist. No. 204, 839 F. Supp. 1307, 1311 (N.D. Ill. 1993); accord
Contl Airlines, 805 F. Supp. at 1397. The vast majority of the witnesses Trek has
identified are officers and other senior-level employees of the company. While it also
asserts that it may need to call former employees who reside in Wisconsin and who dealt
with LeMond (Def. Mem. at 8), it conceded at oral argument that such individuals, in all
likelihood, would be just as willing as current employees to travel to Minnesota to testify.
For these reasons, the convenience-of-witnesses factor favors transfer, but only slightly.
Finally, as to the interests of justice, courts consider a myriad of factors, most of
which neither party has addressed because they are of little import here: judicial
economy, docket congestion, each partys ability to enforce a judgment, obstacles to a fair
trial, conflict-of-law issues, each courts relative familiarity with the applicable law, and
the desire to avoid multiplicity of litigation. Integrated Molding, 2007 WL 2263927, at
*9; Prod. Fabricators, 2006 WL 2085413, at *3. Trek argues that the sublicense
agreement is governed by Wisconsin law (see Def. Mem. at 9), but that is not altogether
clear the agreement contains no choice-of-law clause, it is by and between Minnesota
and Wisconsin companies, and it concerns the manufacture, sale, and promotion of
LeMond-branded bicycles on a national and international basis. (See Salveson Decl. Ex.
1.) In any event, even were Wisconsin law to control, that fact would pose little
impediment to resolving the parties dispute in this Court: federal courts are often called
upon [to] apply the law of other states. Sovereign Bank, F.S.B. v. Chicago Title Ins.
Co., No. Civ. A. 00-596, 2000 WL 1308796, at *2 (E.D. Pa. Sept. 14, 2000).
Trek also argues that judicial economy and increased efficiency militate in favor of
transfer because this action, once transferred, could be consolidated with the Wisconsin
Action. (Def. Mem. at 9.) The prospect of duplicated effort has reared its head, however,
only because Trek chose to commence the Wisconsin Action instead of resolving the
parties dispute here. Moreover, Trek can avoid any duplication of effort by simply
consenting to the transfer of the Wisconsin Action to this Court or by dismissing the
Wisconsin Action without prejudice. And, even if Trek declined to do so, there is no
reason why discovery used in this case could not be used in the Wisconsin Action, and
vice versa.
Finally, although Trek goes to great lengths to deny it, the commencement of the
Wisconsin Action suggests forum shopping. It appears that Trek filed that action as a
preemptive strike, in order to obtain a more convenient forum for the parties dispute and
to put a favorable spin on it for the press. Indeed, Trek invited the press to a meeting at
its headquarters concerning the commencement of the Wisconsin Action before the
instant case was filed in Hennepin County District Court and, hence, became public
knowledge. (See Rahne Decl. Exs. 1-2.) In the Courts view, these facts demonstrate that
the interests-of-justice factor weighs against transfer.
When all three pertinent factors discussed above are balanced, they weigh in
LeMond Cyclings favor or, at most, are in equipoise. Because they do not strongly
favor Trek, it has failed to satisfy its heavy burden of demonstrating that transfer is
warranted. Radisson Hotels, 931 F. Supp. at 641. Accordingly, its Motion will be
In many cases involving a proposed change of venue, there are factors [that]
support each side. That is true here. There will be some inconvenience to someone no
matter where this action is prosecuted. Ahern v. N. Techs. Intl Corp., 206 F. Supp. 2d
418, 422 (N.D.N.Y. 2002). For the reasons set forth above, Trek has failed to
demonstrate that the Western District of Wisconsin is a more convenient forum for the
case sub judice.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Treks Motion to Transfer (Doc. No. 3) is DENIED.
Dated: May 29, 2008 s/Richard H. Kyle
United States District Judge


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