Hello and thank you for your question.
You're probably aware that there are two main ways that federal courts
obtain their jurisdiction.
One is diversity jurisdiction. Under 28 USC 1391,
"§ 1391. Venue generally
(a) A civil action wherein jurisdiction is founded only on diversity
of citizenship may, except as otherwise provided by law, be brought
only in
(1) a judicial district where any defendant resides, if all defendants
reside in the same State,
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated, or
(3) a judicial district in which any defendant is subject to personal
jurisdiction at the time the action is commenced, if there is no
district in which the action may otherwise be brought."
But I'm going to assume for purposes of this answer that in your case
jurisdiction <is not> founded only on diversity, and therefore that §
1391(a) does not apply. I say this because (i) you probably don't
have diversity, if both the complainant (plaintiff) and the defendant
have their principal places of businesses or are incorporated in New
York, and (ii) even if this is not so, the action is being brought
under the federal copyright act, and so is not founded <only> on
diversity anyway.
That means that the venue test is under § 1391(b):
"(b) A civil action wherein jurisdiction is not founded solely on
diversity of citizenship may, except as otherwise provided by law, be
brought only in
(1) a judicial district where any defendant resides, if all defendants
reside in the same State,
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated, or
(3) a judicial district in which any defendant may be found, if there
is no district in which the action may otherwise be brought."
So the next question is, where do the defendants reside?
You didn't mention in your question whether the defendant employer is
a corporation or an individual/unincorporated entity. If the
defendant employer is a corporation, then under § 1391(c)
"(c) For purposes of venue under this chapter, a defendant that is a
corporation shall be deemed to reside in any judicial district in
which it is subject to personal jurisdiction at the time the action is
commenced. In a State which has more than one judicial district and in
which a defendant that is a corporation is subject to personal
jurisdiction at the time an action is commenced, such corporation
shall be deemed to reside in any district in that State within which
its contacts would be sufficient to subject it to personal
jurisdiction if that district were a separate State, and, if there is
no such district, the corporation shall be deemed to reside in the
district within which it has the most significant contacts. "
So if the employer if a corporation, then, besides residing in New
York, it can for these purposes also be deemed to reside in Maryland,
if under service-of-process rules a summons was or could be served on
that Maryland employee and the employer has sufficient contacts with
Maryland to make it subject to the Maryland court's jurisdiction. So
the Answer to your Question, if the defendant is a corporation, is as
follows:
The showing that needs to be made to justify holding the action in the
federal court in Maryland is that the defendant corporation was
subject to personal jurisdiction at the time the action is commenced.
This implicates the 'long arm' statute, and since we know there is a
Maryland-based employee, then yes, there is proper jurisdiction in the
Maryland federal district court.
If the employer is not a corporation, then we can assume that the
employer resides in New York and not in Maryland. So we should
disregard paragraph (b)(1)[because there's one defendant resident in
Maryland and one defendant resident in New York] and we need to
re-read 1391(b)(2) and (3) with that in mind:
"(b) A civil action wherein jurisdiction is not founded solely on
diversity of citizenship may, except as otherwise provided by law, be
brought only in
...
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part of
property that is the subject of the action is situated, or
(3) a judicial district in which any defendant may be found, if there
is no district in which the action may otherwise be brought."
So the Answer to your Question, if the defendant is a not corporation,
is as follows:
The showing that needs to be made to justify holding the action in the
federal court in Maryland is that a substantial part of the events or
omissions giving rise to the claim occurred in Maryland.
You know the facts better than I do, but again it looks to me like this is a 'yes.'
Since the case seems already to be in Maryland, it ought to stay
there. If the case were in New York and the defendant wanted it moved
to Maryland, there would be room for further argument:
"Within the Federal court system, the plaintiff?s choice of venue, the
location of the trial, which also chooses the body of applicable law,
is most often determinative. However, a defendant may seek a change of
venue by moving to transfer the case to a different District Court.
The judicial code, specifically 28 U.S.C. § 1404(a) governs the
discretionary transfer of an action:
for the convenience of parties and witnesses, in the interest of
justice, the district court may transfer any civil action to any other
district or division where it might have been brought.
There are any number of convenience factors considered by the courts
in weighing convenience under § 1404(a). Most courts consider the
three factors set forth in the statute and the "individualized,
case-by-case of convenience and fairness." Coffey v. Van Dorn Iron
Works, 796 F.2d 217, 219 (7th Cir. 1986)."
Forum Shopping in Trademark Litigation in the United States
Date: Oct 1998
Author(s): Kathleen Cooney-Porter, Jonathan Hudis, David J. Kera
http://www.oblon.com/media/index.php?id=77
But again, since you're already in Maryland, the showing that needs to
be made to stay there is as I've stated above.
Search terms used
federal court conveniens trademark
28 usc 1391 diversity
Thanks again for letting us help.
Richard-ga |
