Mot Transfer Navajo Nation V Urban Outfitters

Case 1:12-cv-00195-LH-WDS Document 38
Filed 09/20/12 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO THE NAVAJO NATION, et al. Plaintiffs, : : : URBAN OUTFITTERS, INC., et al. : : : Defendants. : _____________________________________ v. No. CIV 2012-00195 LH-WDS : :
DEFENDANTS MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. 1404(A) Defendants Urban Outfitters, Inc., UO.com, L.L.C., Urban Outfitters Wholesale, Inc., Anthropologie, Inc., Anthropologie.com, L.L.C., Free People of PA, L.L.C., and Freepeople.com L.L.C. (collectively the Defendants), each respectfully move the Court to transfer venue in this action to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. 1404(a). In support of their Motion, Defendants rely upon and incorporate the facts, law, and arguments set forth in the accompanying Memorandum in Support and attached Exhibits. Defendants sought, but did not obtain, Plaintiffs concurrence in the present Motion. WHEREFORE, Defendants each respectfully request that this Court enter an Order pursuant to 28 U.S.C. 1404(a) transferring this matter to the United States District Court for the Eastern District of Pennsylvania.
I:\Attorney\alg\20006\0001\PLEADING\00611146.DOC
Respectfully submitted, BUTT THORNTON & BAEHR PC /s/ Alfred L. Green, Jr. Alfred L. Green, Jr., Esq. Post Office Box 3170 Albuquerque, NM 87110 Phone: (505) 884-0777 H. Jonathan Redway, Esq. Nicole M. Meyer, Esq. DICKINSON WRIGHT PLLC 1875 Eye Street, N.W., Suite 1200 Washington, D.C. 20006 Phone: (202) 457-0160 Joseph A. Fink, Esq. DICKINSON WRIGHT PLLC 215 S. Washington Square, Suite 200 Lansing, MI 48933 Phone: (517) 487-4711 Attorneys for Defendants I HEREBY CERTIFY that on the 20th day of September, 2012, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Brian L. Lewis blewis@nndoj.org Henry S. Howe hhowe@nndoj.org Karin Swope kswope@kellerrohrback.com Mark Griffin mgriffin@kellerrohrback.com /s/ Alfred L. Green, Jr. Alfred L. Green, Jr.
I:\ATTORNEY\ALG\20006\0001\PLEADING\00611146.DOC
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO THE NAVAJO NATION, et al. : : Plaintiffs, : : v. : : URBAN OUTFITTERS, INC., et al. : : : Defendants. : _____________________________________
No. CIV 2012-00195 LH-WDS
MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. 1404(A) Defendants Urban Outfitters, Inc. (Urban Outfitters), UO.com, L.L.C., Urban Outfitters Wholesale, Inc., Anthropologie, Inc., Anthropologie.com, L.L.C., Free People of PA, L.L.C., and Freepeople.com L.L.C. (collectively the Defendants), for their Memorandum in Support of Defendants Motion to Transfer Venue Pursuant to 28 U.S.C. 1404(a),1 each state: I. INITIAL CONTEXT
Plaintiffs, The Navajo Nation, et al. (the Plaintiffs) filed this action against seven defendants, all of which are located in Pennsylvania, alleging various causes of action resulting from each individual Defendants purported misuse of the term Navajo. Despite being able to choose a forum that would be convenient for all the parties and, more importantly, critical third party witnesses, and despite Plaintiffs October 14, 2011, public representation that The Navajo Nation appreciate[d] actions such as those recently taken by Urban Outfitters, Plaintiffs, after
1
This Motion and its arguments are in addition to the those asserted in Defendants Motion to Dismiss the Amended Complaint and Memorandum in Support, Dkt. 33, and Reply Memorandum in Support, Dkt. 36. In that Motion, and in Defendants Motion to Dismiss Defendants (First) Complaint, the Defendants specifically stated their intentions to investigate and, if appropriate, file a motion to transfer venue. Defendants submit the present Motion having completed that investigation. See, Motion to Dismiss Complaint, Dkt. 16, p. 5, fn. 5. See also, Motion to Dismiss Amended Complaint, Dkt. 33, p. 7, fn. 5.
months of inexplicable delay, filed the Complaint in this matter on February 29, 2012, in a materially inconvenient forum the District of New Mexico. For the reasons set forth below, this Court should transfer this action to the District Court that most clearly reflects the common sense statutory mandate that venue must be for the convenience of the parties and witnesses and represent the interests of justice the Eastern District of Pennsylvania. 28 U.S.C. 1404(a). As shown below, all but one of the factors that this Court is to look to in analyzing a motion to transfer venue brought pursuant to Section 1404(a), including (1) the accessibility of witnesses and other sources of proof, (2) the availability of compulsory process to insure attendance of witnesses, (3) the cost of making the necessary proof, and (4) the difficulties that may arise from congested dockets, strongly dictate a transfer. See Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991). The remaining factor plaintiffs choice of forum ordinarily would favor plaintiff, but in this instance should be considered neutral because the Defendants would have filed a declaratory judgment action of noninfringement in Philadelphia but for the Navajo Nations October 14, 2011 press release acknowledging Urban Outfitters Corporations recent removal of the Navajo name from its online marketing and retailing of its products and affirmatively representing a commitment to avoiding unnecessary controversy and beneficially resolving matters[.] See Ex. 2 to
Declaration of Ed Looram (Dkt. 33-9 at page 6) attached to the Motion to Dismiss Amended Complaint, Dkt. 33. Under these facts, Plaintiffs choice of forum is entitled to no weight because Plaintiffs were only able to file in this Court by reneging on their public representation that they were committed to avoiding what is now this lawsuit.
The accessibility of witnesses and the costs of making the necessary proof directly point to the Eastern District of Pennsylvania as the more appropriate venue to try this action. All seven named Defendants corporate headquarters are in Pennsylvania. At least four companies which could provide third-party witnesses for the Defendants in this matter are located in Pennsylvania or within the subpoena power of the Eastern District of Pennsylvania. Further, the document repositories of all seven of the Defendants are located in Philadelphia, Pennsylvania. Clearly, the costs associated with securing the attendance of these witnesses and arranging for the inspection, transportation, and production of documents will be reduced significantly if this action were transferred to the Eastern District of Pennsylvania. In addition, the Philadelphia court would have the necessary subpoena power to insure the attendance of important third-party witnesses at trial subpoena power reach the District of New Mexico does not possess. In addition, publically reported information regarding the relative case burdens demonstrates that all the parties will be able to have their day in court significantly sooner in the Eastern District of Pennsylvania than if the case were to remain in the District of New Mexico. As the facts demonstrate, an analysis of the relevant factors weighs in favor of transfer to the Eastern District of Pennsylvania. Accordingly, Defendants respectfully request, pursuant to 28 U.S.C. 1404(a), that this Court transfer venue to the United States District Court for the Eastern District of Pennsylvania for the convenience of the parties and in the interest of justice. II. FACTUAL BACKGROUND AND ADDITIONAL BASES FOR TRANSFER With no prior contact of any kind between the parties, Urban Outfitters received a cease and desist letter from the Navajo Nation Department of Justice on or around October 16, 2011, demanding that it cease use of the term Navajo. See, Cease and Desist Letter, attached to Amended Complaint, Dkt. 30, as Exhibit B. The letter, though dated June 30, 2011, was not sent to Urban Outfitters until months later, on October 12, 2011. See id. While under no legal 3
obligation to remove what were plainly lawful descriptive uses of the term, within a week of receipt of the letter, the term Navajo was removed by Urban Outfitters from its web pages, for the express purpose of avoiding just this type of dispute. A week later, a representative from the Navajo Nation publicly acknowledged the removal and in its press release commended The Urban Outfitters Corporation for its positive actions and represented that it was committed to avoiding unnecessary controversy and beneficially resolving matters[.] See, Ex. 2 to
Declaration of Ed Looram (Dkt. 33-9 at page 6) attached to the Motion to Dismiss Amended Complaint, Dkt. 33. Without further communication, on February 28, 2012, Plaintiffs filed their action against the Defendants maintaining various causes of action stemming from Defendants alleged misuse of the term Navajo. On April 30, 2012, Defendants filed a Motion to Dismiss Plaintiffs Complaint, Dkt. 16, and at that time specifically noted that they intended to file a motion for change of venue. On May 21, 2012, and before the Court ruled on Defendants Motion to Dismiss, Plaintiffs filed an Amended Complaint seeking but failing to correct deficiencies in the original Complaint, Dkt. 30. On June 22, 2012, Defendants filed a Motion to Dismiss the Amended Complaint, Dkt. 33. Plaintiffs filed their Response on July 24, 2012, Dkt. 34, and Defendants filed a Reply on August 7, 2012, Dkt. 36. As of the date of this Motion, the Motion to Dismiss the Amended Complaint remains pending before the Court. The facts here demonstrate that Plaintiffs chose a forum: (1) where neither the Plaintiffs own respective corporate headquarters, nor even their own counsel, are principally located; See, Amended Complaint, Dkt. 30; Hoovers Report of Navajo Nation Tribal Government, attached as Exhibit 1, and websites of the Navajo Arts and Crafts Enterprise and the Dine Development Corporation; (2) where process of the court cannot be used by any Defendant to compel any of
their third-party witnesses attendance either for trial or for discovery; See, Fed. R. Civ.P. 45(b)(2)(B); see also, Declaration of Sheila Harrington, attached as Exhibit 2, Declaration of Chad Kessler, attached as Exhibit 3, Declaration of Ali Reich attached as Exhibit 4; (3) where no Defendants are headquartered; See, Declaration of Frank J. Conforti, attached as Exhibit 5, at 3-8; (4) where no document repositories or pertinent corporate witnesses of the Defendants are located; See id. at 3-8; (5) where the docket is materially overburdened with criminal matters and thus the time for civil dispositions can well be lengthy; See, Federal Judicial Profile by Volume, attached as Exhibit 6; and (6) where very few actions are filed concerning complex intellectual property matters such as are the subject of this case; See, Federal Judicial Profile by Case Type, attached as Exhibit 7. And, it is just as evident that the Plaintiffs sought to avoid the singularly appropriate forum, that being the Eastern District of Pennsylvania: (1) within which all seven of the Defendants corporate headquarters are located; See, Conforti Declaration, Ex. 5, at 3-8; (2) where, based on the information currently known, all pertinent corporate witnesses of Defendants are located or are within the surrounding area; See, Id. at 3-8; (3) where important third-party witnesses are located or are within reach of process for trial or discovery; See, Harrington Declaration, Ex. 2, at 3; see also, Kessler Declaration, Ex. 3, at 3-5; see also, Reich Declaration, Ex. 4, at 6; (4) where the document repositories of all seven of the Defendants are located; See, Conforti Declaration, Ex. 5 at 3-8; (5) where the court is not overburdened with criminal matters and has one of the fastest civil case processing times in the federal court system; See, Federal Judicial Profile by Volume, Ex. 6; and (6) where the court has particular expertise in complex intellectual property cases such as this one as it has, on average,
about one new intellectual property case filed each and every day the courts are open. See, Federal Judicial Profile by Case Type, Ex. 7. Accordingly, this case should be transferred to the Eastern District of Pennsylvania pursuant to 28 U.S.C. 1404(a). III. A. ARGUMENT
Courts May Transfer Venue Under 28 U.S.C. 1404(a) for the Convenience of the Parties
Pursuant to 28 U.S.C. 1404(a), this Court may, [f]or the convenience of the parties and witnesses, in the interest of justice . . . transfer any civil action to any other district or division where it might have been brought. 18 U.S.C. 1404(a). The Court has wide discretion in determining whether to transfer this case pursuant to 1404(a). See Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991). Indeed, Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness. Id. (citing Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). The Tenth Circuit has set forth the following specific, applicable factors that bear on the transfer analysis: the plaintiffs choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the advantage of having a local court determine questions of local law; and
all other considerations of a practical nature that make a trial easy, expeditious and economical.
Chrysler Credit Corp., 928 F.2d 1509 at 1516. B. The Alleged Facts of This Case Favor Transfer to the Eastern District of Pennsylvania
A proper balancing of the factors identified by the Tenth Circuit militates strongly in favor of transfer to the Eastern District of Pennsylvania. The only factor that arguably weighs against transfer here, the Plaintiffs choice of forum, is off-set by Plaintiffs deliberate decision to file its action in an inconvenient court, despite Urban Outfitters agreement to cooperate instead of filing for a declaratory action of non-infringement, and despite Plaintiffs public acknowledgment of the same. 1. The Accessibility of Witnesses and the Costs of Making the Necessary Proofs Weigh in Favor of Transfer to the Eastern District of Pennsylvania
The Tenth Circuit has specifically noted that [t]he convenience of the witnesses is the most important factor in deciding a motion under 1404(a). Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010) (emphasis added). Under this
principle, it is beyond question that the District of New Mexico is not a convenient forum for the trial of this action. The location of the prospective witnesses in this case, as well as the cost of producing those witnesses, strongly favors transfer to Pennsylvania. All seven of the named defendants are headquartered in Pennsylvania. See, Exhibit 5, at 3-8. The pertinent buyers for these separate defendants, and the pertinent marketing
personnel, as well as virtually all of the pertinent documents pertaining to each of the Defendants are located in Pennsylvania. See, Harrington Declaration, Ex. 2, 3; Kessler Declaration, Ex. 3, at 3-6. Although the Defendants goods do reach New Mexico, contrary to Plaintiffs
allegation in the Amended Complaint, Dkt. 30, a review of the FreePeople.com Internet web site 7
store locator shows that there is no Free People retail store anywhere in New Mexico, but on the other hand there are four (4) Free People retail stores in Pennsylvania. See, FreePeople.com Store Locations, attached as Exhibit 8. The Plaintiffs in-house counsel are located in Arizona, not New Mexico. See Exhibit B to Amended Complaint, Dkt. 30 (identifying Window Rock, Navajo Nation, Arizona as the geographic location of the office of the Navajo Nation Department of Justice).2 The Plaintiffs outside counsel is in Seattle, Washington, not New Mexico. See, Amended Complaint, Dkt. 30, at p. 38.3 And, the Navajo Nation and the other Plaintiffs are headquartered in Window Rock, Arizona, not New Mexico. See, Navajo Nation Hoovers Report, Ex. 1; websites of the Navajo Arts and Crafts Enterprise and the Dine Development Corporation. While both parties employee witnesses and documents (to the extent Plaintiffs may have any), and their respective legal counsel would have to travel for a trial in New Mexico, if the case were to be transferred to the Eastern District of Pennsylvania, all seven of the Defendants will be able to avoid significant travel costs when making their necessary proofs at trial. 4 In addition, important third-party witnesses for Defendants are located in or within the subpoena power of Pennsylvania. See, Harrington Declaration, Ex. 2; Kessler Declaration, Ex. 3; Reich Declaration, Ex. 4, at 6. Some are expected to testify at trial regarding goods central to the Plaintiffs allegations were marketed as Vintage Navajo because they were, in fact, items made
2
The Defendants in-house counsel are located in Philadelphia. The Defendants outside counsel are in Washington, D.C. and Michigan. It is of import in terms of analysis of relative convenience of the parties to note that the Navajo Nation has a material presence near Philadelphia as it has two offices in Washington, D.C., with over 30 employees and another office in College Park, Maryland. See, Navajo Nation Hoovers Location Reports, attached as Exhibit 9.
and sold by certified Navajo artisans. See id. Others employed or serving third-party suppliers are located in Pennsylvania as well. For example, supplier Woolrich, Inc., like all seven of the Defendants, is located in Pennsylvania. See, Woolrich Hoovers Report, attached as Exhibit 10. Courts have long recognized the importance of situating matters around the convenience of witnesses where there are arguably multiple eligible forums at play. In Metero Amusement Corp. v. Six Flags, 267 F. Supp. 2d 263, 279-280 (N.D.N.Y. 2003), for example, while some of the witnesses were inconvenienced by the proposed transfer of venue, the court nonetheless granted the defendants motion due to the fact that: (1) as here, defendants headquarters and, consequently, the majority of documents necessary to litigate the case were located in the proposed forum, (2) other than the presence of the plaintiffs CEO, there was simply no logical nexus between the forum chosen by the plaintiff and the claims at issue in the case, and (3) the geographic disparity separating the witnesses involved made it simply impossible to select a venue that was mutually convenient. Id. at 281. As such, and as here applicable, the Metero Amusement court sided with the defendant, selecting a venue central to the majority of witnesses and the location of known evidence. Id. Moreover, the Plaintiffs Amended Complaint is devoid of any suggestion that necessary witnesses or evidentiary sources are located in New Mexico. See, Amended Complaint, Dkt. 30. Given the Plaintiffs abject failure to allege any particular relationship between the chosen forum and the allegations bearing on the issues here, the Court should, as in Metero Amusement, consider a venue that is both jurisdictionally proper and most convenient to the majority of known witnessesthe Eastern District of Pennsylvania.
Filed 09/20/12 Page 10 of 14
2.
The Eastern District of Pennsylvania Will Have Compulsory Process Available to Insure the Attendance of Witnesses
Obviously, it will be materially less expensive for the necessary witnesses from seven different companies (all seven of which are located in Pennsylvania), and important third-party witnesses (which are also located in Pennsylvania and neighboring New York) to attend and participate in this litigation if the Court were to transfer this action to the Eastern District of Pennsylvania. It is also imperative that the third-party witnesses be subject to the subpoena power of the court for trial, so that the jury can hear their testimony and evaluate their credibility in person. If the case is permitted to proceed in the District of New Mexico, these individuals, if called as third-party witnesses, will be beyond the reach of the subpoena power of the Court. See Fed. R. Civ. P. 45(b)(2)(B). Thus, in transferring this action to the Eastern District of
Pennsylvania, the Court will be ensuring that third-party witnesses, whose testimony is both relevant and important to the defense of this action, will be within the subpoena range of the court. See Hollander v. Hospira, No. 10-CV-00235-JD, 2010 U.S. Dist. LEXIS 124090, at *4 (E.D. Pa. Aug. 4, 2010) (non-party witnesses beyond subpoena power of the court weigh in favor of transfer); Gore v. Stryker Corp., 2010 U.S. Dist. LEXIS 78597, at *7 (E.D. Pa. Aug. 4, 2010) (transferring to Indiana when key witnesses were located more than 600 miles away from Philadelphia). 3. Public Information Regarding the Relative Congestion of the Courts Dockets Weighs in Favor of Transfer
The comparative dockets of the District of New Mexico and the Eastern District of Pennsylvania disclose additional facts that favor transfer. Publicly reported information supports the conclusion that the Eastern District of Pennsylvania will likely permit the parties to have
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Filed 09/20/12 Page 11 of 14
their day in court significantly sooner than if the case were to remain in the District of New Mexico: Measure Median time from filing to disposition, civil (in months) Median time from filing to trial, civil only (in months) New Mexico 8.5 (38th best in nation) 28.7 (53rd best in nation) E.D. Pennsylvania 2.9 (1st best in nation) 20.4 (24th best in nation)
See Federal Judicial Profile by Volume, Ex. 6. The Federal Judicial Profile also demonstrates that the District of New Mexicos criminal docket accounts for nearly seventy-five percent of the Courts caseload, and that the court is the third busiest federal court in the nation in that regard. See id. Measure Number of criminal felony filings per judgeship Criminal cases as percentage of total caseload New Mexico 430 (3rd highest in the nation) 70.9% E.D. Pennsylvania 29 (87th highest in nation) 1.3%
Thus, a transfer to the Eastern District of Pennsylvania will facilitate the Courts mission of providing for the most expeditious and cost-effective resolution of the parties claims in this matter. Additionally, public data discloses that the Eastern District of Pennsylvania is particularly well-versed in intellectual property matters. In the 12-month period ending on June 30, 2011, Measure Number of intellectual property cases filed July 1, 2010 to June 30, 2011 New Mexico 8 E.D. Pennsylvania 200
the Eastern District of Pennsylvania had some 200 intellectual property cases filed that is one a day for each day the court was in session. See, Federal Judicial Profile by Case Type, Ex. 7. Transfer of this case will ensure that that the judicial systems limited resources are used as efficiently as possible. 11
Filed 09/20/12 Page 12 of 14
4.
The Case Must Be Transferred Because of Plaintiffs Blatant Attempt at Forum Shopping
While the plaintiffs choice at forum is normally given deference, such deference is nullified when the weighing factors discussed above heavily favor trial in the alternative forum as they do in this case. See also Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010) (Courts also accord little weight to a plaintiff's choice of forum where the facts giving rise to the lawsuit have no material relation or significant connection to the plaintiff's chosen forum). Moreover, in this case, Plaintiffs choice of forum should be further nullified because of Plaintiffs misleading public expression of gratitude for Urban Outfitters removal of the Navajo name from its online marketing materials, as well as Plaintiffs public representation that it was committed to avoiding unnecessary controversy such as the filing of this lawsuit, only to later sandbag the Defendants by the filing of Complaint in a significantly inconvenient forum. After receiving the Cease and Desist Letter from the Navajo Department of Justice, Urban Outfitters voluntarily removed the term Navajo from its website, for the express purpose of avoiding this suit. A week later, a representative from the Navajo Nation publicly acknowledged the removal and in its press release commended The Urban Outfitters Corporation for its positive actions and represented that it was committed to avoiding unnecessary controversy and beneficially resolving matters[.] See, Dkt. 33-9 at page 6. Despite having no further communication with Urban Outfitters, or any other named Defendant, Plaintiffs filed suit on February 28, 2012. In creating the false impression through its October 2011 public press release that an amicable solution had been reached, and then never again contacting any of the Defendants, it is apparent that the Plaintiffs spent some four months selecting, under governing law, a materially inconvenient forum in which to file this action. Accordingly, the Court need not respect its choice of forum, and, based upon the above analysis
12
Filed 09/20/12 Page 13 of 14
of the individualized, case-by-case factors, should transfer to the more appropriate and demonstratively more convenient forum of the United States District Court for the Eastern District of Pennsylvania. IV. CONCLUSION
For the foregoing reasons, Defendants respectfully request that this Court enter an Order transferring this matter pursuant to 28 U.S.C. 1404(a) to the United States District Court for the Eastern District of Pennsylvania. Respectfully submitted, BUTT THORNTON & BAEHR PC /s/ Alfred L. Green, Jr. Alfred L. Green, Jr., Esq. Post Office Box 3170 Albuquerque, NM 87110 Phone: (505) 884-0777 H. Jonathan Redway, Esq. Nicole M. Meyer, Esq. DICKINSON WRIGHT PLLC 1875 Eye Street, N.W., Suite 1200 Washington, D.C. 20006 Phone: (202) 457-0160 Joseph A. Fink, Esq. DICKINSON WRIGHT PLLC 215 S. Washington Square, Suite 200 Lansing, MI 48933 Phone: (517) 487-4711 Attorneys for Defendants
I HEREBY CERTIFY that on the 20th day of September, 2012, I filed the foregoing electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing:
13
Filed 09/20/12 Page 14 of 14
Brian L. Lewis blewis@nndoj.org Henry S. Howe hhowe@nndoj.org Karin Swope kswope@kellerrohrback.com Mark Griffin mgriffin@kellerrohrback.com
/s/ Alfred L. Green, Jr. Alfred L. Green, Jr.
14
Case 1:12-cv-00195-LH-WDS Document 39-1
Filed 09/20/12 Page 1 of 2 Bates Number: 125
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
THE NAVAJO NATION, et al. Plaintiffs, v. URBAN OUTFITTERS, INC., et al. Defendants. No. CIV 2012-00195 LH-WDS
DECLARATION OF SHEILA HARRINGTON IN SUPPORT OF DEFENDANTS' MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.c. 1404(A)
Pursuant to 28 U.S.c. ~ 1746, I, Sheila Harrington, declare as follows: 1. 2. I am an employee of Free People, Inc. I am a legally competent adult and I am not a party to this proceeding. based upon my personal knowledge I make
this Declaration
and upon my review of the factual
circumstances surrounding the controversy at issue. 3. In Paragraph 77 of Plaintiffs First Amended Complaint, Plaintiff makes reference
to the "Magical Feather Bag," a product provided by third-party supplier Dukes. Defendants' point of contact with Dukes is located at 41 Great Jones Street, New York, NY 10012.
I declare under penalty of perjury of the law of the United States that the foregoing is true and correct. Executed ou this
4~
of
' 2012.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO THE NAVAJO NATION, et al. Plaintiffs, v. URBAN OUTFITTERS, INC., et al. Defendants. No. CIV 2012-00195 LH-WDS
DECLARATION
OF CHAD KESSLER IN SUPPORT OF DEFENDANTS' TRANSFER VENUE PURSUANT TO 28 U.S.c. ~ 1404(A)
MOTION TO
Pursuant to 28 U.S.C. 1. 2.
S 1746, I, Chad
Kessler, declare as follows:
I am an employee of Urban Outfitters, Inc. I am a legally competent adult and I am not a party to this proceeding. based upon my personal knowledge I make
this Declaration
and upon my review of the factual
circumstances surrounding the controversy at issue. 3. In Paragraph 41 of Plaintiffs First Amended Complaint (and by reference Exhibit
A, P.17), Plaintiff makes reference to the "Navajo Weekender Bag," a product provided by thirdparty supplier Pendleton Woolen Mills, Inc. ("Pendleton"). Pennsylvania. 4. In Paragraph 41 of Plaintiffs First Amended Complaint (and by reference Exhibit Pendleton has a branch location in
A, P.6), Plaintiff makes reference to the "Lucca Couture Navajo Pullover Sweater," a product provided by third-party supplier Lucca Cuture. ("Lucca"). Urban Outfitters, Inc.'s point of
contact with Lucca is located at 231 West 39th Street, Suite 402, New York, NY 10018.
5.
In Paragraphs 75 and 105 of Plaintiff's First Amended Complaint, Plaintiff makes
reference to the "Vintage Men's Woolrich Navajo Jacket," a product provided by third-party supplier Woolrich, Inc. ("Woolrich"). Woolrich is located in Pennsylvania.
I declare under penalty of perjury of the law of the United States that the foregoing is true
1'---
and correct. Executed on this)l
day of SEf
1~
,2012.
Chad Kessler
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO THE NAVAJO NATION, et al. Plaintiffs, v. URBAN OUTFITTERS, INC., et al. Defendants. DECLARATION OF ALI REICH IN SUPPORT OF DEFENDANTS' MOTION TO . TRANSFER VENUE PURSUANT TO 28 U.S.C. & 1404(A) Pursuant to 28 U.S.C. 1. No. CIV 2012-00195 LH-WDS
S 1746, I, Ali Reich,
declare as follows:
I am an employee of Free People. I hold the positions of Vintage Buyer, and have
held that position since April 2010. As Vintage Buyer, I have responsibility for the purchasing and marketing ofthe Vintage items sold by Free People. 2. I previously submitted a declaration in this case dated April 26, 2012, which I
understand was filed with the Court on April 30, 2012, as Ex. C, Dkt. 16-3, in support of the Motion of Defendants to Dismiss the Complaint, Dkt. 16, and again on June 22, 2012, as Ex. J., Dkt. 33-10, in support of the Motion of Defendants to Dismiss the Amended Complaint, Dkt 33. 3. "one-of-a-kind" All of the vintage products marketed and sold by Free People are pre-owned, items. Because our Vintage items are "one-of-a-kind," we endeavor to
accurately describe them in our marketing efforts, particularly because some of the items may have flaws, damage, or other imperfections. 4. A number of the items depicted in .Exhibit A to Plaintiffs Amended Complaint,
Dkt. 30, are pre-owned, "one of a kind" items and they are believed to have been made by
individuals who self-identify as Navajo Indian or who are otherwise enrolled in the Navajo Indian tribe. In other words, they are believed to be products of the Navajo tribe. 5. These items include the following: (1) Vintage Handmade Navajo Necklace; (2)
Vintage Navajo Squash Necklace; (3) Vintage Navajo Handmade Necklace; (4) Vintage Navaho Cuff; (5) Vintage Navajo Squash Necklace; (6) Vintage Navajo Handmade Cuff; and (7) Vintage Navajo Cuff. See, Dkt. 30-1 pp. 27-33. 6. These "one-of-a-kind items" are typically purchased from a vendor believed to be
located in Lambertville City, New Jersey, which is approximately 50 miles from Philadelphia, Pennsylvania.
I declare under penalty of perjury of the law of the United States that the foregoing is true and correct. Executed on this
i!1 day of Je..ereroQx?lL,2012.
Ali Reich
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
THE NAVAJO NATION, et al.
Plaintiffs, v. URBAN OUTFITTERS, INC., et al. No. CIY 2012-00195 LH-WDS
Defendants.
DECLARATION OF FRANK J. CONFORTI IN SUPPORT OF DEFENDANTS' MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.c. 1404(A)
Pursuant 1. 2. this Declaration circumstances 3. Pennsylvania 4.
to 28 U.S.c.
~ 1746, I, Frank J. Conforti, of Urban Outfitters, Inc.
declare as follows:
I am an employee
I am a legally competent based surrounding Urban upon
adult and I am not a party to this proceeding. knowledge at issue. defendant in the above captioned and upon my review
I make
my personal
of the factual
the controversy
Outfitters,
Inc., a named
matter,
is a
corporation Urban
with its headquarters Wholesale,
in the State of Pennsylvania. Inc., a named defendant in the above captioned
Outfitters
matter, is a Pennsylvania 5. Pennsylvania 6. Pennsylvania 7. Pennsylvania UO.com,
corporation LLC,
with its headquarters defendant in
in the State of Pennsylvania. the above captioned matter, is a
a named
limited liability company with its headquarters Anthropologie, corporation Inc., a named defendant
in the State of Pennsylvania. in the above captioned matter,

IS
with its headquarters
in the State of Pennsylvania. in the above captioned matter, is a
Anthropologie.com,
LLC, a named defendant
limited liability company with its headquarters
in the State of Pennsylvania.
8. Pennsylvania
Free People of PA, LLC, a named defendant in the above captioned matter, is a limited liability company with its headquarters in the State of Pennsylvania.
Freepeople.com, LLC, a named defendant in the above captioned matter, is a Delaware limited liability company with its headquarters in the State of Pennsylvania.
I declare under penalty of perjury of the law of the United States that the foregoing is true and correct. Ex'ecuted on this ~~ay of
CteiJl't' Lv ,2012.
s;~/Frank J. Conforti
Statistical Tables for the Federal Judiciary December 31, 2011
Ofce of Judges Programs Statistics Division Administrative Ofce of the United States Courts Thurgood Marshall Federal Judiciary Building Washington, DC 20544 Telephone: (202) 502-1441 E-Mail: SDInformation@ao.uscourts.gov
Acknowledgments: Statistical Tables for the Federal Judiciary: December 31, 2011, was prepared by staff in the Statistics Division under the direction of Catherine Whitaker, Acting Chief, and John Sporing, Jr., Assistant Chief for Data Management and Reports. Contributing staff members were Charlotte Wilson, Chief of the Data Management Branch; Catherine Messina, Chief of the Workload Information and Reports Section; Anita Richardson, Assistant Chief of the Data Management Branch; Sheila BarnesJones; Gwendolyn Coleman; Lester Davis; Maurice Galloway; Kristin Garri; Kevin Jackson; Malini Lavappa; Pragati Patrick; Kevin Scott; Parul Shah; Janice Simms; Marlene Tibbs; Johnny Wiseman; James Woods; and Elaine Young. Programming assistance was provided by Fay Cheung, Chief of Information Technology Support and Operations; Gail Davidson; Rani Rapaka; and Joy Tang.
Suggested citation: Administrative Ofce of the United States Courts. Statistical Tables for the Federal Judiciary: December 31, 2011. Washington, D.C.: 2012.

Bates Number: 102

Bates Number: 103

Bates Number: 104
Statistical Tables for the Federal Judiciary December 31, 2011
Ofce of Judges Programs Statistics Division Administrative Ofce of the United States Courts Thurgood Marshall Federal Judiciary Building Washington, DC 20544 Telephone: (202) 502-1441 E-Mail: SDInformation@ao.uscourts.gov
Acknowledgments: Statistical Tables for the Federal Judiciary: December 31, 2011, was prepared by staff in the Statistics Division under the direction of Catherine Whitaker, Acting Chief, and John Sporing, Jr., Assistant Chief for Data Management and Reports. Contributing staff members were Charlotte Wilson, Chief of the Data Management Branch; Catherine Messina, Chief of the Workload Information and Reports Section; Anita Richardson, Assistant Chief of the Data Management Branch; Sheila BarnesJones; Gwendolyn Coleman; Lester Davis; Maurice Galloway; Kristin Garri; Kevin Jackson; Malini Lavappa; Pragati Patrick; Kevin Scott; Parul Shah; Janice Simms; Marlene Tibbs; Johnny Wiseman; James Woods; and Elaine Young. Programming assistance was provided by Fay Cheung, Chief of Information Technology Support and Operations; Gail Davidson; Rani Rapaka; and Joy Tang.
Suggested citation: Administrative Ofce of the United States Courts. Statistical Tables for the Federal Judiciary: December 31, 2011. Washington, D.C.: 2012.

Bates Number: 105

Bates Number: 106
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THE NAVAJO NATION TRIBAL GOVERNMENT - Company Overview - Hoover's

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THE NAVAJO NATION TRIBAL GOVERNMENT

College Park, MD United States Also trades as: Company Description 8601 Adelphi Rd College Park, MD 20740-6002, United States Phone: +1-866-272-6272 http://www.cia-g.com Line of Business Executive and legislative offices combine Download This Company
Family Tree The Family Tree includes approximately 293 locations. The Navajo Nation Tribal GovernmentWindow Rock, AZ United States The Navajo Nation Tribal GovernmentChinle, AZ United States The Navajo Nation Tribal GovernmentChinle, AZ United States View Detailed Family Tree
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THE NAVAJO NATION TRIBAL GOVERNMENT - Company Overview - Hoover's Key Information D-U-N-S Number Location Type Subsidiary Status Ultimate Parent Ultimate Parent D-U-N-S Plant/Facility Size (sq. ft.) (modeled) 1-Year Employee Growth Primary Industry Primary SIC Code Primary NAICS Code Tradestyle Latitude/Longitude Minority Owned/Women Owned

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828720735 Branch No The Navajo Nation Tribal Government 009001702 9,238 0.0% US Municipal Governments 91310403: Executive and legislative offices combined, County government 921140: Executive and Legislative Offices, Combined National Archives and Rec ADM 38.998219/-76.961719 No
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Case 1:12-cv-00195-LH-WDS Document 38

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No. CIV 2012-00195 LH-WDS

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/s/ Alfred L. Green, Jr. Alfred L. Green, Jr.

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and upon my review of the factual

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OF CHAD KESSLER IN SUPPORT OF DEFENDANTS' TRANSFER VENUE PURSUANT TO 28 U.S.c. ~ 1404(A)

Kessler, declare as follows:

and upon my review of the factual

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In Paragraphs 75 and 105 of Plaintiff's First Amended Complaint, Plaintiff makes

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and correct. Executed on this)l

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S 1746, I, Ali Reich,

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i!1 day of Je..ereroQx?lL,2012.

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