United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Talwani United States District Judge.
Magic Link Garment Limited (“Magic Link”) filed
its Complaint [#1-1] in Massachusetts Superior
Court. Defendant ThirdLove, Inc. (“ThirdLove”)
removed the case to this court. Notice of Removal [#1].
ThirdLove now seeks to transfer this matter to the Northern
District of California pursuant to 28 U.S.C. § 1404(a),
where it subsequently filed suit against Magic Link. Because
the court finds that the relevant factors weigh in favor of
transfer, the court ALLOWS ThirdLove's Motion to
Transfer [#13] and transfers this case to the Northern
District of California.
court has greater discretion to transfer a case pursuant to
28 U.S.C. § 1404(a) than it did to dismiss under the
common law forum non conveniens doctrine.
Mercier v. Sheraton Intern., Inc., 935 F.2d 419, 423
n.4 (1st Cir. 1991) (citing Piper Aircraft v. Reyno,
454 U.S. 235, 253 (1981)). Under § 1404(a), “a
district court may transfer any civil action to any other
district or division where it might have been brought”
“[f]or the convenience of the parties and witnesses, in
the interest of justice.” 28 U.S.C. § 1404(a).
When considering a request to transfer, the court may also
consider the availability of documents necessary to the
dispute, the possibility of consolidation with other pending
cases, and the order in which the district court obtained
jurisdiction. Cianbro Corp. v. Curran-Lavoie, Inc.,
814 F.2d 7, 11 (1st Cir. 1987). The burden to show that
transfer is warranted rests upon the party seeking transfer.
Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st
argues that transfer is warranted because the issues
underlying this dispute took place in California, Hong Kong,
elsewhere in China, Cambodia, and Indiana, and because
Massachusetts's connection to this case is minimal.
Def.'s Mem. in Support of Mot. to Transfer
(“Def.'s Mem.”) 3 [#14] (citing
Spector Aff. ¶¶ 10-19 [#13-1]).
ThirdLove, a corporation with headquarters in San Francisco,
California, contends that all but one of the critical
witnesses in this case are in California and Hong Kong, and
therefore Massachusetts is not a convenient forum for either
party or the necessary witnesses. Id. at 7-10.
ThirdLove argues further that California has a more
substantial interest in this case than Massachusetts does,
and is where ThirdLove has filed its counterclaims.
Id. at 13; see Thirdlove, Inc. v. Magic Link
Garment, Ltd., No. 3:18-cv-05644-MMC (N.D. Cal. Sept.
Link responds that its choice of forum deserves significant
weight, and that ThirdLove is trying to minimize the
case's connection to Massachusetts. Pl's Opp'n 5,
1 [#15]. Magic Link points out that ThirdLove approached
Magic Link and negotiated the parties' business
relationship in Massachusetts, and that ThirdLove relied upon
Magic Link, through its office in Massachusetts, to finance
the inventory upon which Third Love built its business.
Id. at 3-4 (citing Fink Aff. ¶¶ 3-7, 10-11
[#15-1]). Magic Link claims that ThirdLove is seeking to
shift the balance of inconvenience to Magic Link, but that no
special circumstances justify a transfer. Id. at 6.
Plaintiff's Choice of Forum
is a strong presumption in favor of the plaintiff's
choice of forum, Coady, 223 F.3d at 12, although a
plaintiff's choice is not a “trump card for all
plaintiffs opposing transfer, ” DSM Research, B.V.
v. Verenium Corp., 686 F.Supp.2d 159, 161 (D. Mass.
2010). “[C]ourts have assigned less weight to a
plaintiff's choice if, for example, a district has no
obvious connection to the case or if the plaintiff is a
nonresident.” Id. (citing, e.g.,
United States ex rel. Ondis v. City of Woonsocket,
480 F.Supp.2d 434, 436 (D. Mass. 2007)); see also 15
Wright, Miller & Cooper, Federal Practice and
Procedure: Jurisdiction 3d § 3848 at 134-39 (2007)
(“[T]he plaintiff's venue choice is to be given
less weight if he or she selects a district court with no
obvious connection to the case or the plaintiff is a
nonresident of the chosen forum or neither element points to
Magic Link is not a resident of its chosen forum. Magic Link
is a Hong Kong limited company headquartered in Kowloon, Hong
Kong. Am. Compl. ¶ 1 [#9]. At the time the
Complaint was filed, Magic Link had not yet
registered to do business in Massachusetts. And while Magic
Link contends that much of its sales, marketing, costing,
accounting, litigation support, financing, and other
logistical matters “are run through”
Massachusetts as “various individuals residing in
Massachusetts, [Mathew Fink] included, perform these
functions, ” Fink Aff. ¶ 6 [#15-1], it has
identified none of these individuals as employees or
officers, and the corporate entity maintains no physical
is also little “obvious connection” to the case.
Although Magic Link required Third Love to make payments to a
Bank of America account “maintained in Massachusetts,
” id. ¶ 9, the alleged wrongful conduct
appears to be centered elsewhere. See Am. Compl.
[#9] ¶ 13 (“ThirdLove has attempted and continues
to attempt to induce Magic Link's suppliers to cease
doing business with it or to do business directly with
ThirdLove”), ¶ 14 (“ThirdLove has failed to
pay significant invoices for products that Magic Link already
has shipped”); ¶ 15 (ThirdLove “wrongfully
has sought to cancel . . . orders); ¶ 16
(“ThirdLove deducted [amounts] without
authorization” and “claimed, falsely, a right to
deduct ‘finance charges' from its payments”);
¶ 17 (ThirdLove refused to order product after Magic
Link had sent the styles and pattern to it”). The
Affidavits in support and in opposition to the pending motion
confirm that the events at issue in the litigation occurred
elsewhere. ThirdLove emailed purchase orders from its offices
in San Francisco to Magic Link's offices in Hong Kong.
Fink Aff. ¶ 8 [#15-1]; Spector Aff. ¶ 9 [#13-1].
Magic Link manufactured the ordered products in Asia and
shipped them to ThirdLove's offices in either California
or Indiana. See Fink Aff. ¶ 8 [#15-1];
Spector Aff. ¶ 10 [#13-1]. When ThirdLove accused Magic
Link of creating defective products, ThirdLove sent
inspectors to conduct testing of Magic Link's products in
Cambodia, see Pl's Ex. 2-5 [##15-2, 15-3, 15-4,
15-5]; Fink Aff. ¶¶ 16-22 [#15-1].
Magic Link's claim for misappropriation of trade secrets
and proprietary information, see Am. Compl.
¶¶ 23-27 [#9], Magic Link alleges that ThirdLove
provided- presumably from its headquarters in San
Francisco-Magic Link's product samples and work product
to another potential product supplier in an unidentified
location, id. ¶ 18.
considering what weight to give to Magic Link's choice of
forum, the court takes notes that Magic Link did not file in
this court but in Massachusetts state court. Had it filed
here, venue would not have been proper for no defendant
resides here and this is not a district “in which a
substantial part of the events or omissions giving rise to
the claim occurred.” 28 U.S.C. § 1391(b). Instead
of seeking its choice of a federal venue that satisfied the
federal venue statute, Magic Link filed in state court. At
the time, however, it was prohibited from initiating an
action under Massachusetts state law. See M.G.L.
156D § 15.02 (providing in pertinent part that
“[a] foreign corporation transacting business in the
commonwealth without delivering to the secretary of state for
filing the certificate required by section 15.03 shall not
maintain a proceeding in any court in the commonwealth until
the certificate is delivered and filed”).
Magic Link is not a resident of Massachusetts and was not
registered to do business at the time it initiated the state
court action, and as there is no obvious connection between
Massachusetts and the events or omissions giving rise to the