42 | November/December 2022 | BAEC Bulletin
BY KEVIN M. HOGAN AND SEAN C. MCPHEE Western District Case Notes
Venue In Bausch & Lomb, Inc. v. Zea Vision LLC, 20-cv-06452-FPG (Aug. 31, 2022)— an action for alleged patent infringement—defendant moved to dismiss for improper venue or, in the alternative, to transfer venue to Eastern District of Missouri, the location of its principal place of business. In response, plaintiff acknowledged that venue in the Western District of New York is improper, but argued that the action should be transferred rather than dismissed, and that the District of Delaware is a more appropriate venue than the Eastern District of Missouri. Noting that plaintiffs’ claim could be heard in either of the requested venues, the primary question before the Court was whether the relevant factors supported a transfer to Missouri or Delaware. To answer the question, the Court evaluated the multi-factor test under 28 U.S.C. § 1404, observing first that, while a plaintiff’s choice of forum ordinarily should not be disturbed, where the first choice of venue is improper, a plaintiff’s second choice of venue should not be accorded much weight. Next, the Court determined that convenience of the witnesses—which is generally considered the most important factor—weighed in favor of defendant because much of the alleged misconduct and witnesses allegedly involved would be in Missouri, where the vast majority of defendant’s operations are conducted. For the same reason, much of the evidence relevant to the parties’ dispute would also be located in Missouri, so the Court found that factor also weighed in favor of defendant. Regarding convenience of the parties, the Court assigned little weight to that factor, finding that plaintiffs and defendant would each be inconvenienced by the other’s requested forum. Finally, because plaintiffs’ financial means likely exceed those of defendant, the Court found that factor also favored defendant. Ultimately, because no factors weighed in favor of plaintiffs’ requested forum, but some factors favored defendant, the balance supported a transfer of the action to defendant’s preferred forum in the Eastern District of Missouri. In Van Bortel v. Ford Motor Co., 21-cv-06739-DGL (Aug. 10, 2022), plaintiffs alleged they entered into an oral agreement with defendant concerning the purchase of a car dealership. When the dealership was sold to another entity, plaintiffs filed suit in New York State Supreme Court. Defendant timely removed the action based on diversity of citizenship and then moved to dismiss. Remarking that the “first and most obvious element” of a claim for breach of contract “is the existence of a contract,” the Court outlined the elements that are required to form a valid contract under New York law—“there must be an offer, acceptance, consideration, mutual assent and intent to be bound.” The Court then found, “[o]n that score, the complaint fails in several respects.” Specifically, “glaringly absent from the complaint” was any allegation regarding sufficient consideration to support the alleged oral contract. And the fact that plaintiffs had entered into a non-disclosure agreement with defendant concerning a potential sale of the dealership did not constitute adequate consideration to support the alleged oral Motion to Dismiss Claim for Breach of Alleged Oral Contract agreement, because plaintiffs’ acceptance of the terms of that non-disclosure agreement did not require them to part with anything “of real value.” The Court noted that “[t]he problems with this claim do not end there” because it was “evident” from the allegations of the complaint no “meeting of the minds took place.” It was also “not surprising” to the Court “that the complaint fails to allege another element of a contract claim, performance by plaintiffs,” because “the alleged agreement did not impose any obligations on plaintiffs.” Finally, the Court disregarded defendant’s statute of frauds defense, explaining that, because “there never was any contract between the parties, matters concerning the statute of frauds are immaterial to this claim,”
KEVIN M. HOGAN Managing Partner Phillips Lytle LLP
SEAN C. MCPHEE Partner Phillips Lytle LLP
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