United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION TO
TRANSFER VENUE (DOCKET ENTRY # 33)
MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE
before this court is a motion to transfer this action to the
United States District Court for the Southern District of
Ohio (“the Southern District of Ohio”) pursuant
to 28 U.S.C. § 1404(a) (“section 1404(a)”)
filed by defendant Schools Interoperability Framework
Association d/b/a Access 4 Learning Community
(“SIF”). (Docket Entry # 33). Plaintiff IMS
Global Learning Consortium, Inc. (“IMS”) opposes
a transfer. (Docket Entry # 37). After conducting a hearing
on January 11, 2018, this court took the motion (Docket Entry
# 33) under advisement.
action arises out of purportedly false and misleading
advertising in violation of the Lanham Act, 15 U.S.C. §
1125(a), by SIF, which “prepares educational data
standards” for “the collection, storage, and use
of educational data.” (Docket Entry # 1, p. 1) (Docket
Entry # 34-2). The verified complaint also includes two
statutory and two common law claims under Massachusetts law.
(Docket Entry # 1).
Delaware corporation which is registered to do business in
Massachusetts, also develops standards for use of educational
data. (Docket Entry ## 1, 34-2). IMS and SIF “are
comprised of members from school districts, government
agencies, and corporations” and they “collaborate
on the Common Education Data Standards, ” an
“education data management initiative” designed
“to streamline the understanding of data” across
educational institutions. (Docket Entry # 1, pp. 2-4). IMS
and SIF produce “standards and technology for a data
transfer framework” and are direct competitors. (Docket
Entry # 1, p. 4). According to its website, SIF “offers
state-wide implementation of its specifications in 12 states
including Massachusetts.” (Docket Entry # 37-1).
November 2016, SIF, a District of Columbia corporation with
three employees, published “Educational Technical
Standards 101, ” which the parties refer to as the
“White Paper.” (Docket Entry # 1, Ex. A) (Docket
Entry # 1, p. 5) (Docket Entry # 34-2). IMS alleges that the
White Paper, a “slide deck, ” and SIF's
website include false statements and misrepresentations
harmful to IMS. (Docket Entry # 1, pp. 5-10). In March 2017,
the Australian Ministry of Education, a longtime IMS member,
refused to renew its annual contract with IMS.
does not have an office in Massachusetts. Although
“[i]t has a small office in Washington, D.C., . . . its
main operating presence is in Columbus, Ohio, ” where
Larry Furth (“Furth”), the executive director of
SIF, lives and works. (Docket Entry # 34-2). A second
employee, John Lovell (“Lovell”) lives and works
in Bellingham, Washington, and a third employee, Penny Murray
(“Murray”), lives and works in England. (Docket
Entry # 34-2). Furth was the primary author and editor of the
White Paper. Working in Columbus, Furth collected and
implemented various comments and revisions suggested by
reviewers across the United States into the final document.
(Docket Entry # 34-2). “The preparation of the
Whitepaper and its posting on the Internet occurred entirely
outside Massachusetts, mainly in Ohio.” (Docket Entry #
located in Lake Mary, Florida. Rob Abel, Ed.D.
(“Abel”), the company's chief executive
officer, resides in Florida and lives near Orlando. (Docket
Entry # 34-2). The company conducts “board meetings
across the country” and held one such board meeting in
Massachusetts in June 2017. Comprised of 16 employees, IMS
has 19 members in Massachusetts and six members in Ohio.
(Docket Entry # 37-1). One employee, Tracy Fandel
(“Fandel”), IMS' finance and administration
manager, “works out of an office in
Massachusetts.” (Docket Entry # 37-1). Abel regularly
communicates with Fandel. SIF distributed the White Paper by
email in a press release on November 16, 2016. Fandel, in
turn, forwarded the press release and the White Paper by
email to Abel the following day. (Docket Entry # 37-1).
direct distance between Orlando, Florida and Columbus, Ohio
is 711 miles.” (Docket Entry # 34-1, pp. 1-2). The
direct distance between Orlando and Boston is 1, 115 miles.
(Docket Entry # 34-1).
that the connections of this case to Massachusetts are
nonexistent, SIS moves to transfer the action to the Southern
District of Ohio. (Docket Entry ## 34, 39). As a plaintiff,
IMS maintains that its choice of the Massachusetts forum is
afforded weight and “there is a presumption in favor
of” its choice. (Docket Entry # 37).
appropriate mechanism to transfer a case is section 1404(a)
where, as here, “the chosen forum is within the federal
system.” Aurora Casket Co., LLC v. Caribbean
Funeral Supply, Corp., CV 16-2937 (GAG/BJM), 2017 WL
5633102, at *2 (D.P.R. Nov. 22, 2017). Section 1404(a)
affords this court discretion “to adjudicate motions
for transfer according to an ‘individualized,
case-by-case consideration of convenience and
fairness.'” Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29, (1988); accord
Baskin-Robbins Fran. LLC v. Alpenrose Dairy, Inc., 825
F.3d 28, 41 n.7 (1st Cir. 2016) (section 1404(a) transfer
motion is “addressed to the district court's sound
discretion”); Astro-Med, Inc. v. Nihon Kohden Am.,
Inc., 591 F.3d 1, 12 (1st Cir. 2009).
initial inquiry is “‘whether the case
“might have been brought” in the suggested
transferee district.'” Group-A Autosports, Inc.
v. Billman, CA 14-10884-JGD, 2014 WL 3500468, at *2 (D.
Mass. July 9, 2014) (quoting section 1404(a)); 28 U.S.C.
§ 1404(a). The Southern District of Ohio is a court
where this action “may have been brought”
inasmuch as the majority of the alleged misconduct in
preparing and posting the White Paper took place in Columbus.
assessing a venue transfer under section 1404(a), the court
considers a number of private and public interest factors.
Garcia-Tatupu v. Bert Bell/Peter Rozelle NFL Player Ret.
Plan, 249 F.Supp.3d 570, 576 (D. Mass. 2017). The
applicable factors “include 1) the plaintiff's
choice of forum, 2) the relative convenience of the parties,
3) the convenience of the witnesses and location of
documents, 4) any connection between the forum and the
issues, 5) the law to be applied and 6) the state or public
interests at stake.” Avci v. Brennan, 232
F.Supp.3d 216, 219 (D. Mass. 2017); accord Kleinerman v.
Luxtron Corp., 107 F.Supp.2d ...