Commercial Litigation and Arbitration

Filing Suit in a Proper but Inconvenient Forum Not Sanctionable Absent Improper Purpose — Location of Plaintiff’s Counsel as a Legitimate Purpose for Original Choice of Venue

From HR US LLC v. Mizco Int’l, Inc., 2010 U.S. Dist. LEXIS 103123 (E.D.N.Y. Sept. 28, 2010) (defense seeking attorney's fees arguing that the case is "exceptional" within the meaning of 35 U.S.C. § 285 but relying on sanctions precedents):

Plaintiff did not engage in litigation misconduct by filing in a proper, but ultimately inconvenient venue. Cf. Newtown v. Thomason, 22 F.3d 1455, 1464 (9th Cir. 1994) (holding that under Rule 11, filing in an "inconvenient but proper forum" is "sanctionable only where the choice is made for an 'improper purpose' such as harassment"); Sussman v. Bank of Israel, 56 F.3d 450, 457 (2d Cir. 1995) (noting that it is doubtful that "commencement of a suit in an inconvenient forum may be the basis of Rule 11 sanctions where venue was not improper" and holding that Rule 11 sanctions were improper where venue was proper, but district court exercised discretion to dismiss for forum non conveniens). Moreover, defendants have not shown that plaintiff's filing in the E.D. Va. was intended to harass them. The fact that plaintiff's counsel was located in the E.D. Va. shows that plaintiff had a legitimate purpose for filing there — it was convenient for plaintiff's counsel, who had represented plaintiff for a number of years. See Hr'g Tr. 25, May 22, 2007 (representation by plaintiff's attorney that he had counseled plaintiff for a number of years and that this was "certainly a factor" in filing in Virginia). There is no evidence that plaintiff decided to bring suit in the E.D. Va. in order to harass defendants and, only then, hired counsel in the E.D. Va.

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