United States District Court, W.D. Louisiana, Lafayette Division
MEMORANDUM RULING AND ORDER
B. WHITEHURST, UNITED STATES MAGISTRATE JUDGE.
before the Court is the Motion to Transfer Venue Pursuant to
28 U.S.C. § 1404(a) [Rec. Doc. 16], filed by the
defendant, U.S. Highland, Inc. ("Highland").
Plaintiff Pro-Drive Outboards, LLC ("Pro-Drive")
filed an opposition brief [Rec. Doc. 23]; Highland filed a
reply brief [Rec. Doc. 36], and the plaintiff filed a
sur-reply brief [Rec. Doc. 39]. After considering the
applicable law and the briefs of the parties, the Court will
grant the motion to transfer.
action arises out of a business deal between Pro-Drive and
Highland. Pro-Drive is a Louisiana limited liability company,
while Highland (now known as Cruzani, Inc), is a Nevada
corporation. At the time of the event giving rise to this
litigation, however, Highland was an Oklahoma corporation.
Pro-Drive is the manufacturer of the first ever shallow water
outboard motor built for hunting, fishing, and commercial
purposes. R. 1, at ¶9. According to the Complaint, Pro-
Drive outboard motors utilize air-cooled engines because
air-cooled engines allow the outboard motors to be more
efficiently operated and/or less subject to breakdown when
the outboard motors are operated in very shallow water and in
swampy conditions. Id., at ¶10. Pro-Drive
utilizes air-cooled engines supplied by third-party
manufacturers. Accordingly, in September 2009, Pro-Drive
contacted Highland, operating at that time in Sweden, about
purchasing Highland engines for use on Pro-Drive products.
Id., at ¶13.
between the two parties continued until November 2009, when
Highland sent Pro-Drive a proposal for a prototyping and
licensing agreement between Pro-Drive and Highland.
Id., at ¶25. The prototyping proposal was for
the creation of a platform for a Highland engine and a
hydraulic system. Id. The prototyping fee was quoted
at $126, 000.00 and the licensing fee was quoted as $200,
000.00. Id. On January 12, 2010, Pro-Drive and
Highland signed an Exclusive Distribution Agreement for
Shallow Water Marine Applications ("the Distribution
Agreement"). Id., at ¶30. In the
Distribution Agreement, Highland represented itself as an
Oklahoma corporation and a subsidiary of Highland Group AP, a
Swedish company. Id. On January 12, 2010, Pro-Drive
transferred $126, 000.00 from its bank account into
Highland's bank account. Four payments of $50, 000.00
each followed, one each of the following months. Id.,
Distribution Agreement contains the following language:
Governing Law: Venue: Arbitration. This agreement
shall be governed by, and construed according with, the laws
of the State of Oklahoma. Actions and proceedings litigated
in connection with this Agreement, if any, shall be conducted
exclusively in the state and federal courts located in the
State of Oklahoma.
the next two years, the parties discussed, planned, and
tested various engines and platforms, none of which met the
specifications that were initially agreed upon, and none of
which resulted in an engine that could be used by Pro-Drive
in its watercraft. During that time period, the three
Highland principals that Pro-Drive had been dealing were
killed in a helicopter accident, and Highland relocated its
business venture with new principals. Id., at
¶42. Despite having paid $326, 000.00 up front,
Pro-Drive alleges it never received the engine for which it
contracted with Highland.
September 21, 2018, Pro-Drive filed the instant matter in
this Court, alleging claims for breach of contract,
detrimental reliance, and bad faith on the part of Highland.
In its complaint, Pro-Drive sued Highland and John R.
Fitzpatrick, III, who became CEO of Highland after the
initial principals died. Pro-Drive alleges that venue is
proper in this district because all or a substantial part of
the activities in the complaint were carried out in this
district and because the defendants transacted business in
March 3, 2019, Highland filed the instant motion to transfer
venue, as well as a Motion to Dismiss for Failure to State a
Claim [Rec. Doc. 17], which argues that, under Oklahoma law,
the plaintiffs claims are time-barred. The Court first
considers the motion to transfer, and because it concludes
that the motion should be granted, the motion to dismiss is
not addressed in this Ruling.
Law and Analysis
Standard for Change of Venue under 28 U.S.C. §
28 U.S.C. § 1404(a), "[f]or the convenience of the
parties and witnesses [and] 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 or to
any district or division to which all parties have
consented." 28 U.S.C. §1404(a). A defendant seeking
a transfer of venue must demonstrate that the plaintiff could
have originally brought the action in the transferee court.
In re Volkswagen AG, 371F.3d 201, 203
(5th Cir.2004) ("Volkswagen I")
("In applying the provisions of § 1404(a), we have
suggested that the first determination to be made is whether
the judicial district to which transfer is sought would have
been a district in which the claim could have been
filed."). After this initial showing has been made, the
defendant must then demonstrate "good cause" why
the case should be transferred. See In re Volkswagen of
Am., Inc., 545 F.3d 304, 315 (5th Cir.2008)
(" Volkswagen II"). A defendant can carry
this burden by showing, through the relevant private and
public interest factors enunciated in Gulf Oil Corp. v.
Gilbert, 330 U.S. 505, 508 (1947), that the transferee
district is a more convenient venue. Volkswagen II,
545 F.3d at 315.
private interest factors to be considered are: (1) the
relative ease of access to sources of proof; (2) the cost of
attendance for willing witnesses; and (3) all other practical
problems that make trial of a case easy, expeditious and
inexpensive. Volkswagen I, 371 F.3d at 203. The
relevant public interest factors are: (1) the administrative
difficulties created by court congestion; and (2) the
interest in having localized controversies decided at home.
Id. The ...