Free Response to Motion - District Court of Delaware - Delaware

Case 1:O7—cv-00608-SLR-MPT Document 21 Filed O1/18/2008 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MAM BABYARTIKEL GMBH, and )
BAMED AG, )
Plaintiffs, I
v. l C.A. No. 07—608 · ***
LUV N’ CARE, LTD. and l
MUN CHKIN TNC., ) IURY TRIAL DEMANDED
Defendants. l
MUNCI·IKIN’S OPPOSITION TO DEFENDANT LUV NCARE, LTD.’S
MOTION TO TRANSFER TO THE EASTERN DISTRICT OF TEXAS
Defendant Munchkin, Inc. ("Muncl1kin") submits the following Opposition to
Defendant Luv N’Care, Ltd.’s ("LNC") Motion to Transfer to Eastern District of Texas
(tiie "Motion"). In support of its Opposition, Munchkin states as follows:
I. On December 31, 2007, LNC tiled its Motion seeking to have the case
against it transferred to the Eastern District of Texas or, in the alternative, dismissed for
lack of personal jurisdiction. (DI. 16).
2. As a co-defendant, Munchkin takes no position on whether the case
against LNC should be dismissed for lack of personal jurisdiction. Munchkin similarly
takes no position on whether the case between Plaintiffs and LNC should be transferred
to the Eastern District of Texas. Munchkin does, however, oppose the case between
Plaintiffs and Munchlcin being transferred to the Eastern District of Texas.
.3. LNC states in its Motion that it is only seeking to "t1"ansfer that portion of
the case involving plaintiffs and LNC to the Eastern District of Texas." (Motion at pp.4—
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Case 1:07-cv-00608-SLR-MPT Document 21 Filed O1/18/2008 Page 2 of 3
5). l\/lunclrlrin agrees that, if this Court grants LNC the relief it seeks, the case between
Plaintiffs and Munchkin should proceed in the District of Delaware.
4. indeed, transferring the case pursuant to 28 U.S,C. § l404(a) would be
inappropriate in the present circumstances. It is the movant’s burden to establish the
need to transfer, and "the plaintift”s choice of venue [will] not be lightly disturbed?
Truth Hardware Corp. v. Asirlczrxd Prods, Inc., 2003 WL il8005, at *1 (D.Del. Jan. 13,
2003) (quoting Jzrmom vi State Farm Ins. Co., 55 F,3d 873, 879 (3d Cir. 1995)). in
deterrnining whether to transfer a case, the Court should engage in a inulti—factor
balancing test which includes both public and private factors. Jzzmom, 55 P.3d 873r
5i The private factors to be considered include the piaiiitiffs choice of forum
and the defendanfs preference. Jumcrrcz, 55 F.3d 87.3 at 879. Where, as here, Plaintiffs
and l\/lunchkin agree that venue is proper in the District of Delaware, LNC’s Motion
should not disturb Plaiirtiffs choice of forum as between Plaintiffs and Munchkin,
WI·iEREFOR]5, for the foregoing reasons, Munchkin respectfully requests that the
Court, in deciding LNC’s Motion, decline to transfer the portion of the case between
Plaintiffs and Munchkin.
rv QL A
Frederick . ottrell, I(#255
cottrell f.co1n
OF COUNSEL: Jeffrey k oyer (#3309
rnoyer@r ». corn
John L. Knoble ichar , La e · L ~inger, P.A.
Knoble Yoshida & Dunleavy LLC 9 I orth King Street, P.O. Box 55}
Eight Penn Center, Suite 1350 Wilmington, DE 19899
l628 John P. Kennedy Boulevard (302) 651-7700
Philadelphia PA, l9l03 USA Aitorneys_for Dejhndanr Mzmchkfn, Inc.
Dated: January 18, 2008
2
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Case 1:07-cv-00608-SLR-MPT Document 21 Filed O1/18/2008 Page 3 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 18, 2008, 1 electronically filed the foregoing
document with the Clerk of Court using CM/ECF and caused the same to be served on the
plaintiff at the address and in the manner indicated below:
BY HAND DELIVERY:
Adam Wyatt Poff
Young, Conaway, Stargatt & Taylor
The Brandywine Building
1000 West Street, 17m Floor
Wilmington, DE 19899-0391
David L. Finger, Esquire
Finger & Slanina, LLC
One Commerce Center
1201 Orange Street, Suite 725
Wilmington, DE 19801
I further certify that on January 18, 2008, the foregoing document was sent to the
following nonwegistered participants in the manner indicated:
BY FEDERAL EXPRESS:
P. Branko Pejic
Greenblum & Bernstein, PLC,
1950 Roland Clarke Place
Reston, VA 20191
Morris E. Cohen
Law Ofiice ofMorris E. Cohen, P,C,
1122 Coney Island Avenue
Suites 216—~21 7
Broo1<1yn,NY 1 1230
rnirienzizsv-1

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