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United States ex rel FLFMC, LLC v. T.F.H. Publications

October 20, 2010

UNITED STATES OF AMERICA, EX REL., AND FLFMC, LLC., PLAINTIFFS,
v.
T.F.H. PUBLICATIONS, INC., DEFENDANT.



The opinion of the court was delivered by: David Stewart Cercone United States District Judge

Electronic Filing

MEMORANDUM OPINION

I. INTRODUCTION

Plaintiff, FLFMC, LLC ("Plaintiff" or "FLFMC"), brought this qui tam action on behalf of the United States of America against T.F.H. Publications, Inc. ("TFH") pursuant to 35 U.S.C. § 292, the false marking statute, alleging TFH is marking certain of its products with expired patents. TFH has filed a Motion to Transfer Venue to the District of New Jersey or, in the alternative to Dismiss. FLFMC has responded and the motion is now before the Court.

II. STATEMENT OF THE CASE

A. The Parties

FLFMC is a Pennsylvania LLC with its principal place of business in Pennsylvania. Complaint ¶ 1. The limited liability company was formed on January 29, 2010. Declaration of Russell Burnside ("Burnside Decl."), Exhibit E. The company was organized by Joshua M. Farber, Esq., an associate at Meyer, Unkovic & Scott, and his address is listed as "c/o Meyer, Unkovic & Scott, LLP." Id. Between February 17, 2010, and April 1, 2010, FLFMC filed seven (7) complaints in the United States District Court for the Western District of Pennsylvania, virtually identical in their wording, each asserting a claim for false marking in violation of 35 U.S.C. § 292. Burnside Decl., Ex. A, H -- N.

TFH is a Delaware Corporation with its principal place of business at 1 T.F.H Plaza, Third Avenue and Union Street, Neptune City, New Jersey 07753. Complaint ¶ 2. TFH, founded over fifty (50) years ago, manufactures and sells a broad array of pet products, is the world's largest publisher of books devoted to pets and animals, and is a leading publisher of pet magazines. Declaration of Mark E. Johnson ("Johnson Decl.") ¶¶ 2 & 5. All TFH's manufacturing, including the marking and production of the Frisbee(r) Flying Disc at issue in this case, takes place in New Jersey. Johnson Decl. ¶¶ 11 & 16.

B. The Claim

In its Complaint, FLFMC alleges that TFH marked the Frisbee(r) Flying Disc with the United States patent No. D310,691 (the "691 patent") and that TFH marked some versions of the same product with Patent No. 4,919,083 (the "083 patent"). Complaint ¶¶ 13 & 14. FLFMC further asserts that the 691 patent was issued in 1990 and expired on September 18, 2004, and that the 083 patent was issued on April 24, 1990 and expired on July 11, 2008. Complaint ¶¶ 8 & 11. FLFMC contends that TFH violated § 292 when it continued to include expired patent information, regarding the 691 and 083 patents, on its Frisbee(r) Flying Discs. Complaint ¶¶ 16 & 19.

Section 292, prohibits a person from marking an "unpatented article" with the word "patent" or any words "importing that the same is patented, for the purpose of deceiving the public." 35 U.S.C. § 292(a). The statute provides for a fine of "$500 for every such offense." Id.

It further provides that "any person" may sue for damages, and if damages are imposed under the statute, "the person suing" is to receive one-half of the statutory penalty and the United States is to receive the other half. 35 U.S.C. § 292(b). Because the documents and witnesses related to the subject matter of this action are located in New Jersey, TFH seeks to transfer venue of the action to the District of New Jersey. For the reasons that follow, the Court agrees that New Jersey is the proper forum for this qui tam action.

III. DISCUSSION

Change of venue in patent cases, like other civil cases, is governed by 28 U.S.C. § 1404(a)*fn1 . In re TS Tech United States Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008). Section 1404(a) provides: "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to another district court or division where it might have been brought." 28 U.S.C. § 1404(a). The decision to grant a motion for a transfer of venue lies within the discretion of the district court, but "the plaintiff's choice of venue should not be lightly disturbed." Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995); see also Shutte v. ARMCO Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970) (reminding that "plaintiff's choice of a proper forum is a paramount consideration in any determination of a transfer request"). The ...


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