EMCO INC. v. OBST

MANUEL REAL, District Judge

After consideration of the papers in support of an in opposition to plaintiff's motion for summary judgment and the oral argument of counsel, the Court determines that the following facts have been established as,

1. The Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1332(a)(1).

2. This action was originally brought in the United States District Court for the District of Nevada. [Declaration of Robert M. Shore ("Shore Decl."), ¶ 2.]

3. Defendants Scott Obst and Seam Consulting, Inc. moved to transfer the action to this District on the basis of convenience of the parties, pursuant to 28 U.S.C. § 1404(a). [Shore Decl., ¶ 2.]

4. By order entered on August 14, 2003, the Nevada Court granted the motion and transferred the case to this District. [Shore Decl., ¶ 2, Exh. A.]

5. DBW is an Illinois corporation with its principle place of business in Illinois. [DBW Counterclaims, ¶ 4.]

6. DBW is a citizen of the State of Illinois. [DBW Counterclaims, ¶ 4; Illinois Secretary of State search, Shore Decl., Exh. B.]

7. DBW's website also represents that besides the Illinois headquarters, its additional offices are located in Florida and Arizona. [Shore Decl., Exh. C.]

8. DBW does not have an office or any real property in California. [Transcript of March 15, 2004 Deposition of Alan Mansfield, Shore Decl., Exh. D at 138:22-139:4; DBW's Verified Response to Interrogatory No. 7, Shore Decl., Exh E.]

9. Plaintiff Mared Industries Incorporated ("Mared") is a California corporation with its principal place of business in California. [DBW Counterclaims, ¶ 5.]

10. DBW's First Counterclaim alleges violation of California Business Professions Code § 17200. [DBW Counterclaims, ¶¶ 6-12.]

Based on the foregoing Uncontroverted Facts, the Court now makes its,

1. Nevada choice-of-law rules govern this case because this action was originally filed in the United States District Court for the District of Nevada and transferred to this District pursuant to 28 U.S.C. § 1404(a), for the convenience of parties.Van Dusen v. Barrack, 376 U.S. 612, 639 (1964); Ferens v. John Deere Co., 494 U.S. 516, 523 (1990).

2. Nevada law governs DBW's First Counterclaim for unfair competition because in the Nevada courts "the law of the forum (the place where the action is brought) governs in a tort case, unless another state has an overwhelming interest," Motenko v. MGM Dist., Inc., 921 P.2d 933, 935 (Nev. 1996) (plurality opinion), and because California does not have an "overwhelming interest" under the mechanical four-factor test set forth inMotenko, id..

3. Because Nevada law governs DBW's First Counterclaim for unfair competition, DBW may not maintain such a cause of action under California Business Professions Code § 17200.

4. Judgment shall be entered in Mared's favor consistent herewith.