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Nora Lily Dweck v. Meredith E. Perry

July 26, 2012

NORA LILY DWECK
v.
MEREDITH E. PERRY



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This is a diversity action brought in connection with an ultrasound-based charging system that the plaintiff alleges she developed together with the defendant. The complaint seeks damages, declaratory relief, and injunctive relief for breach of fiduciary duty, breach of contract, and fraud. The defendant has moved under 28 U.S.C. § 1404(a) to transfer venue in this action to the United States District Court for the Southern District of New York. The Court will deny the motion.

I. Facts*fn1

Dweck and Perry were full-time students at the

University of Pennsylvania ("Penn") in Philadelphia until each graduated in May 2011. Dweck and Perry were roommates beginning in August 2010 and were "close personal friends." Compl. ¶¶ 6-10; Declaration of Meredith Perry ("Perry Decl."), Ex. to Def.'s Mot. to Transfer Venue ¶ 3. Perry was raised in Belle Mead, New Jersey, where her parents still live; she moved to New York City in October 2011 and currently resides there. Id. ¶ 2, 17. Dweck was raised in Washington, D.C., lived there "for a time" after June 2011, and now resides in California. Id. ¶ 3; Compl. ¶ 54; Declaration of Nora L. Dweck ("Dweck Decl."), Pl.'s Opp. to Def.'s Mot. Ex. 1 ¶ 9.

During her senior year at Penn, Perry conceived of an idea for a wireless laptop charger called "uBeam," which would use ultrasound rather than electrical current to transmit charge. Perry Decl. ¶ 4; Compl. ¶¶ 10, 14-16. The uBeam invention was entered into a competition at Penn called "PennVention" in early 2011; Perry asked Dweck to assist in developing a business plan for the invention as required by the competition, and Dweck agreed. Dweck and Perry won the PennVention competition with uBeam in April 2011. They received a $5000 first prize as well as four other awards. Perry filed a provisional patent application for the uBeam technology in early May 2011, identifying herself as the sole inventor; in connection with that filing Dweck and Perry worked from Philadelphia with an attorney located in Ohio. Perry Decl. ¶¶ 5, 6; Compl. ¶ 25; Dweck Decl. ¶¶ 6, 14.

Shortly after the competition at Penn, Dweck and Perry were invited to present uBeam at the "All Things Digital" conference ("D Conference") in California on May 30 and June 1, 2011. Together they decided that an LLC should be formed prior to the D Conference. Articles of formation were filed for uBeam, LLC, establishing it as a Delaware limited liability company, and Dweck and Perry executed an operating agreement in connection with uBeam, LLC on May 28, 2011, identifying Dweck as Chief Financial Officer and Perry as Chief Executive Officer. Perry forwarded the agreement to Dweck while she was in New Jersey. The agreement was executed in Dweck's hotel room in Manhattan. Perry Decl. ¶ 7, 8, 10-12; Dweck Decl. ¶ 5-7.

Dweck and Perry presented uBeam at the D Conference on June 1, 2011. At the conference Perry held herself out as CEO and Dweck as CFO of uBeam, LLC. On June 6, 2011, Dweck told Perry that she had decided to resign to accept a job in Los Angeles, California. Perry then returned to her parents' home in New Jersey and moved to New York City in October 2011. Compl. ¶¶ 56, 57; Perry Decl. ¶¶ 12, 13, 17.

II. Analysis

Perry moves under Section 1404(a) to transfer the action from this Court to the United States District Court for the Southern District of New York, asserting that New York is a more convenient forum. The factors relevant to 1404(a) transfer counsel in favor of the action remaining in this Court.

Under 28 U.S.C. § 1404(a), "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented."*fn2 The Court is required to consider the above factors, namely the interest of justice and the convenience of the parties and witnesses, as well as several additional private and public interest factors. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995).

The private interest factors that a court considers include:

[1] [The] plaintiff's forum preference as manifested in the original choice; [2] the defendant's preference; [3] whether the claim arose elsewhere; [4] the convenience of the parties as indicated by their relative physical and financial condition; [5] the convenience of the witnesses--but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and [6] the location of books ...


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