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Gnlv, Corp. v. Southeast Amusement, Inc.

United States District Court, D. Nevada

August 15, 2014

GNLV, CORP., Plaintiff,
v.
SOUTHEAST AMUSEMENT, INC., et al., Defendants.

ORDER

PEGGY A. LEEN, Magistrate Judge.

The court held a hearing on August 7, 2014, on a Motion to Transfer Pursuant to 28 U.S.C. § 1404(a) filed by Defendant Southeast Amusement, Inc. and Mikol Wilson (Dkt. #42), which was referred to the undersigned by the district judge. Laraine Burrell appeared on behalf of the Plaintiff, and Clyde DeWitt appeared on behalf of the moving Defendants. The court allowed Kory Kaplan to appear as a friend of the court on behalf of defaulted Defendants Kenneth R. Kampf, Sr., and Bonnie R. Kampf, individually and as Trustees of the Kenneth R. Kampf, Sr. and Bonnie R. Kampf Revocable Living Trust[1]. The court has considered the Motion, Plaintiff's Opposition (Dkt. #54), Defendants' Reply (Dkt. #58), a late-filed additional Exhibit (Dkt. #67) filing by moving Defendants, and the arguments of counsel at the hearing.

BACKGROUND

I. The Complaint and Procedural History.

Plaintiff GNLV, Corp. ("GNLV"), a Nevada corporation, has asserted claims for trademark infringement and counterfeiting under 15 U.S.C. § 1114, unfair competition under 15 U.S.C. 125(a), common law trademark infringement, deceptive trade practices under NRS 598.093, and intentional interference with prospective economic advantage. Complaint (Dkt. #1). The complaint seeks damages and injunctive relief.

GNLV is a Nevada corporation that operates the "Golden Nugget" resort hotel casinos in Las Vegas, Nevada, and Laughlin, Nevada. Complaint (Dkt. #1) ¶ 4. GNLV is a wholly owned subsidiary of Landry's, Inc. which owns and operates more than 400 restaurants nationwide. Id. Defendant Southeast Amusement, Inc. and Bar of Gold own and operate an illegal gaming hall out of a warehouse facility in Alvin, Texas. Id., ¶5. On information and belief, Defendant Mikol Wilson is a resident of Texas and owns and controls Southeast Amusement, Inc., and Bar of Gold. Id. Defendants' gaming establishment offers approximately one hundred slot and video poker machines. Id.

Plaintiff alleges that the Defendants have infringed their federal mark and registrations to Golden Nugget for restaurant services, casino services, and for hotel and resort hotel services. Id. ¶ 7.

The complaint alleges that on December 7, 2013, Plaintiff became aware that Defendants were using the Golden Nugget mark in connection with an illegal gaming hall located inside a warehouse in Alvin, Texas, a suburb of Houston. Id. ¶¶ 12-13. A large banner featuring the Golden Nugget trademark and its exact design logo was outside the warehouse. Plaintiff seeks injunctive relief prohibiting the Defendants from using Plaintiff's trademark or confusingly similar variations, and registering, owning, leasing, selling or trafficking in any names containing the Plaintiff's trademarks or confusingly similar variations, an award of compensatory, consequential, statutory, special and punitive damages, and interest, costs and attorney's fees.

On February 11, 2014, the district judge held a hearing and granted Plaintiff's motion for preliminary injunction. See Minutes of Proceedings (Dkt. #15) and Preliminary Injunction (Dkt. #17). Defendants Mikol Wilson and Southeast Amusement, Inc. filed an Answer and Crossclaim (Dkt. #19) on February 23, 2014, and an Amended Answer and Amended Crossclaim (Dkt. #22) on March 3, 2014. Defendants Robert Hutchinson, Bar of Gold, Kenneth Kampf and Bonnie Kampf did not file an answer or make an appearance, and on June 26, 2014, Plaintiff applied for entry of Clerk's default. See Motions (Dkt. ##43, 44, 45). On June 27, 2014, the Clerk entered default against these Defendants. See Clerk's Entry of Default (Dkt. #46).

II. The Parties' Positions.

The current motion to transfer was filed by Defendant Southeast Amusement, Inc. and Mikol Wilson June 25, 2014. Moving Defendants seek a transfer Pursuant to 28, U.S.C. § 1404(a) to the United States District Court for the Southern District of Texas, Galveston Division. Movants argue that the Plaintiff's proof in this case will consist of proof of: (1) Plaintiff's trademark ownership; (2) Defendants' direct or indirect use of the mark, and (3) damages, if the first two can be proven. Moving Defendants have admitted Plaintiff's ownership of the trademark in question. Movants argue the only question is whether they are or were in any way responsible for the infringing banner, and that all of the witnesses needed to establish their potential liability are located in Texas. Plaintiff's initial disclosures indicated that it cannot compute damages without further discovery of records in Defendants' possession. Moving Defendants understand that the measure of damages on which Plaintiff is relying are Defendants' alleged ill-gotten gains, and that Golden Nugget is not claiming any loss of revenue because this banner was displayed.

Under these circumstances, moving Defendants argue that this case should be transferred to the Galveston Division of the Southern District of Texas because all of the events at issue took place at or near Brazoria County, Texas which is in the Galveston division. Movants argue that the convenience of the parties, the convenience of the witnesses, and the interests of justice favor a transfer for several reasons. Movants also assert the court should not consider the convenience of counsel in evaluating whether the motion should be granted. Defendants claim that Plaintiff is forum shopping by filing this action in the District of Nevada because the parent company of Golden Nugget, Landry's Gaming, Inc., does business nationally, if not internationally. Nevada lacks any significant contact with the activities alleged in the complaint, and it will be more convenient for the witnesses who live in Brazoria County, Texas, to testify in nearby Galveston rather than in Las Vegas. Compulsory process will not be available to require these witnesses to attend and testify live at a trial in Las Vegas. Additionally, the court should consider the relative means of the parties in deciding a motion to transfer. The Plaintiff is a "Goliath" in the gaming/restaurant/hospitality industry, and Southeast is a relatively small amusement-machine company.

Movants also ask the court to consider the "relative docket congestion" in this district versus the Southern District of Texas. Movants have obtained information from the Administrative Office of the United States Courts which indicates that in 2013, the time from filing to trial in civil cases in this district was 37.8 months, versus 19.8 months for the Southern District of Texas. Additionally, because Plaintiff is seeking injunctive relief, the court should consider which district will be "closer to the action" and better able to monitor compliance with any injunction that may be granted.

Plaintiff opposes the motion on various grounds. First, this motion is only brought by two of the five sets of Defendants, three sets of which have had clerk's defaults entered against them. Plaintiff requests that the court maintain jurisdiction over the defaulted Defendants to insure they are compliant with any judgment entered against them. Plaintiff believes that the motion to transfer seeks to divide the Defendants between jurisdictions and create two separate actions. Plaintiff has filed a ...


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