1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TOWER LABORATORIES, LTD., Plaintiff, v. Civil Action No. 17-1913 (JEB) LUSH COSMETICS LIMITED, et al. , Defendants.

MEMORANDUM OPINION Ever wonder what makes your bath bubbly? Our effervescent per sonal-care products, responds Tower Laboratories, Lt d., in this patent-infringement suit against nine entities affiliated with Lush Cosmetics Limited. Three Lush companies now move to dismiss for improper venue, and the remaining six separately a sk that the case against them be transferred to the District of Connecticut. Agreeing, the Cour t will grant both Motions.
I. Background According to the Complaint, which must for now be presumed true , Tower “is a market leader engaged in the manufactur e and sale of effervescent prod ucts sold into the personal care, medical device, pharmaceutical, nutraceutical and cleaning indu stries.” Compl., ¶ 2. The nine Defendants – more on their partic ular places of residence later – are all affiliated companies; through their sales and importati on of cosmetic products, they are all purportedly infringing Tower’s United States Pate nt 6,121,215, known as the ‘215 Paten t. Id., ¶¶ 1, 3-11. One Lush entity – Lush Cosmetics NY, LLC – operates a store in D.C. The Complaint, filed on September 19, 2017, alleges one count of patent infringement. Id. at 8.2 Defendants have responded with t wo independent Motions. In the first, three Defendants – Lush Cosmetics LLC, Lush Internet Inc., and Lush Licensing In c. – move for outright dismissal on the ground of imp roper venue. In the second, the remaining six Defendants – Lush Cosmetics Limited, Lush Ltd., Lush Handmade Cosmetics Ltd., Lus h Manufacturing Ltd., Cosmetic Warriors Limited, and Lush Cosmetics NY, LLC – move fo r transfer of venue to Connecticut. After setting out t he legal standard, the Court a ddresses each Motion separately.
II. Legal Standard A. Rule 12(b)(3) and § 1406 Dismissal When a plaintiff brings suit in an improper venue, the district court “shall dismiss [the case], or if it be in the interest of justice, transfer such ca se to any district or division in which it could have been brought.” 28 U.S.C . § 1406(a); see also Fed. R . Civ. P. 12(b)(3) (may assert improper venue via motion). In cons idering a Rule 12(b)(3) mot ion, the Court “accepts the plaintiff’s well-pled factual al legations regarding venue as tr ue, draws all reasonable inferences from those allegations in the pl aintiff’s favor, and resolves a ny factual conflicts in the plaintiff’s favor.” Pendleton v. Mukasey, 552 F. Supp. 2d 14, 17 (D.D.C. 2 008) (citing Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274, 276-77 (D.D.C. 2002)). T he Court need not, however, accept the plaintiff’s legal conclusions as true, Darby, 231 F. Supp. 2d at 277, and may consider material outside of the plead ings. Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002) (citing Land v. Dollar, 3 30 U.S. 731, 735 n.4 (1947)). “Becaus e it is the plaintiff’s obligation to institute the action in a permi ssible forum, the plaintiff usua lly bears the burden of establishing that venue is proper.” Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003); 14D Charles Alan Wright & Arthur R. Miller, F ederal Practice and Procedure § 3826 (4th ed. 2008 & April3 2017 update) (“[W]hen an objection has been raised, the burden is on the plaintiff to establish that the district he or she has chosen is a proper venue.”). B. § 1404 Transfer of Venue Even where a plaintiff has br ought its case in a proper venue, a district court may, “for the convenience of parties and w itnesses, in the interests of j ustice . . . transf er [it] . . . to any other district . . . where [the case] might have been brought.” 28 U.S.C. § 1404(a). District courts have “discretion . . . to adj udicate motions for transfe r according to an ‘individualized, case-by-case consideration of c onvenience and fairness.’” Stew art Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
III. Analysis
A. § 1406 Dismissal In considering the Motion to Dismi ss of the three Defendants, t he Court must analyze the applicability of the patent-v enue statute, 28 U.S.C. § 1400(b). That section states, in relevant part, “Any civil action for pate nt infringement may be brought in the judicial dist rict where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.” There is no dispute that t he three Defendants do not “reside” in the District of Columbia; ind eed, Plaintiff itself alleges t hat they are a Delaware limitedliability company and two Nevada corporations. See Compl., ¶¶ 6-8. In addition, Tower does not contend that any operates a pl ace of business in this city. See In re Cray Inc., 871 F.3d 1355, 1360 (Fed. Cir. 2017) (finding “three general requirements rele vant to the [last] inquiry: (1) there must be a physical place in the d istrict; (2) it must be a regu lar and established place of business; and (3) it must be the place of the defendant”).4 This does not mean, however, that Plaintiff has thrown in the t owel; on the contrary, Tower believes that § 1400(b) shoul d yield to the general venue statute, 28 U.S.C. § 1391. As Plaintiff explains further, si nce “[t]here is no one district w here Plaintiff’s Complaint could be filed and all members of Defendant s’ self-styled ‘corporate fam ily’ that work together to infringe the claims of the ‘215 Patent may be found,” the general venue statute permits suit in a single federal district. See MTD Opp. at 3. As Lush Cosmetics NY, LL C operates a store in Georgetown, Plaintiff believes th at this city is a suitable sit e for its suit. Unfortunately for Tower, the Supreme Court’s pr onouncements on the issue indicate otherwise. In Fourco Glass Co. v. Transmi rra Products Corp., 353 U.S. 222 (1957), the Court teed up this issue: “The question pres ented is whether 28 U.S.C. 140 0(b) . . . is the sole and exclusive provision governing venue in patent infringement actions, or wh ether that section is supplemented by 28 U.S.C. § 1391(c).” Id. at 222. The Court p rovided an unambiguous answer in holding § 1400 to be exclusive and not supplemented by the g eneral venue statute. Id. at 229. Sixty years later, nothing has changed. In TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017), the Court re considered the question in light of interim amendments to § 1391. It nonetheless held that su ch amendments “did not modify the meaning of § 1400(b) as interpreted by Fourco. We theref ore hold that a domestic corpo ration ‘resides’ on ly in its State of incorporation for purposes of t he patent venue statute.” Id . at 1517. The plaintiff there, consequently, could not bring its i nfringement lawsuit “in any district in which t he corporation is subject to personal jurisdiction.” Id. The Supreme Court, admittedly, did not address the circumstance s here − in which companies that reside in various states are affiliated corporat e entities − but its broad, unqualified language regarding the force of § 1400(b) precludes the outcome Plaintiff seeks, as other courts5 have recently held. See Blue S pike, LLC v. Nook Digital, LLC, 2017 WL 3263871, at *3 (E.D. Tex. July 28, 2017) (noting that so long as there is formal sep aration of corporate defendants in patent case, courts must trea t them separately and apply § 1400 (b)); Symbology Innovations, LLC v. Lego Systems, Inc., 2017 WL 4324841, at *11 (E.D. Va. Se pt. 28, 2017) (finding no venue in patent-infringement su it against entity that had no es tablished place of business in district and refusing to attribute related entit y’s local store s to defendant where “corporate separateness is maintained”). As Tower may not proceed against t he three Defendants in this c ity, the Court will grant their Motion to Dismiss.
B. Transfer Under § 1404 The remaining six Defendants are five foreign entities and one Delaware limited-liability company, Lush Cosmetics NY, LLC . They now contend that even if venue in the District of Columbia is proper as to them, t he Court should exercise its di scretion to transfe r this case under 28 U.S.C. § 1404(a) to the District of Connecticut. This Court has previously explained the standard: To warrant transfer under § 1404(a), a movant must first show t hat the plaintiff could originally have brought the case in the tra nsferee district. Treppel v. Reason, 793 F. Supp. 2d 429, 435 (D.D.C. 2011). The movant must also show that “considerations of convenience and the interest of justice weigh in favor of trans fer . . . .” Sierra Club v. Flowers, 276 F. Supp. 2d 62, 65 (D.D.C. 20 03). This second inquiry “calls on the district court to weigh in th e balance a number of case-specific factors,” related to both the public and private interests at stake. [Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988).] The burden is on the moving pa rty to establish that transfer is proper. Trout Unlimited v. U.S. Dep’t of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996). Douglas v. Chariots for Hire, 918 F. Supp. 2d 24, 31 (D.D.C. 20 13).6 The parties here agree that t he threshold requirement of § 1404 (a) is met, as the case could have originally been brought in Connecticut. More specif ically, the five foreign entities can be sued in any judicial di strict, see 28 U.S.C. § 1391(c)(3 ), and Lush Cosmetics NY satisfies § 1400(b) because it has four reta il stores in Connecticut that sell allegedly infringing products. See Transfer Mot., Exh. 2 (Declar ation of Robert Murray), ¶ 5. Plaintiff’s Opposition, in fact, never even addresses this pr ong, thereby conceding the point. Having cleared this preliminar y hurdle, the Court next moves to the private- and publicinterest factors tha t underlie the case-sp ecific, discretionary transfer inquiry under § 1404(a). “Those private-interest factors include: (1) the plaintiff’s ch oice of forum; (2) the defendant’s choice of forum; (3) whether the claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) the ease of access to sources of proof.” Douglas, 918 F. Supp. 2d at 31 (citation omitted). “The public-interest fac tors include: (1) the transferee’s familiarity with the governing laws; (2) the relative congestio n of the calendars of the transferor and transferee courts; and (3) t he local interest in having loc al controversies decided at home.” Id. (citation omitted).
1. Private-Interest Factors

a. Plaintiff’s Choice of Forum While courts generally defer to a plaintiff’s choice of forum, “that deference is not always warranted where the plai ntiff’s choice of forum has no m eaningful ties to the controversy, and where transfer is sought to a forum with which plaintiffs have substantial ties and where the subject matter of t he lawsuit is connected.” Jim enez v. R&D Masonry, Inc., 2015 WL 7428533, at *3 (D.D.C. Nov. 20, 2015) (citation and internal quotation marks omitted). “Indeed, when the forum preferre d by the plaintiff is not his h ome forum, and the defendant7 prefers the plaintiff’s home fo rum, then there is little reason to defer to the plaintiff’s preference.” Id. (citation and i nternal quotation marks omitte d). Here, Tower is a Connecticut cor poration with its principal pla ce of business in Centerbrook, Connecticut. Plainti ff thus has substantial ties to that state, which is indeed its home forum. The only link it can m uster to the District of Col umbia is the fact that its attorneys are located here. Yet, “[t]he lo cation of counsel carries litt le, if any, weight in an analysis under § 1404(a).” Brown v. SunTrust Banks, Inc., 66 F. Supp. 3d 81, 85 (D.D.C. 2014) (citation and internal quotation marks omitted). Plaintiff’s choice of forum, t hen, weighs only slightly againsttransfer. b. Defendant’s Choice of Forum While a defendant’s choice of for um is a consideration when dec iding a § 1404(a) motion, it is not ordinarily ent itled to deference. See Mahone y v. Eli Lilly & Co., 545 F. Supp. 2d 123, 127 (D.D.C. 2008). And here, whe re Defendants move to transfer over Plaintiff’s opposition, they must establish that the added convenience and justice of litigating in their chosen forum overcomes the sli ght deference given to Plaintiff’ s choice. See In re Vitamins Antitrust Litig., 263 F. Supp. 2d 67, 69 (D.D.C. 2003). To the extent this factor carries any heft, it weighs in favor of transfer.

c. Whether Claim Arose Elsewhere The Court next examines whethe r there is a nexus between the un derlying transactions giving rise to the claim and the forum selected. See, e.g., Gi pson v. Wells Fargo & Co., 563 F. Supp. 2d 149, 158 (D.D.C. 2008). When the material events that form the factual predicate of a plaintiff’s claim did not occur i n his chosen forum, transfer i s favored. Intrepid Potash-N.M., LLC v. U.S. Dep’t of Interior, 669 F. Supp. 2d 88, 95 (D.D.C. 2 009). Where claims arise from8 actions in several fora, “this factor does not weigh in favor o r against transf er.” Bederson v. U.S., 756 F. Supp. 2d 38, 48 (D.D.C. 2010). “In a patent case, the locus of operative facts usually lies wh ere either the patent-in-suit or the allegedly inf ringing product was de signed, developed, an d produced.” JetBlue Airways Corp. v. Helferich Patent Licensing, LLC, 960 F. Supp. 2d 383, 400 (E.D.N.Y. 2013) (internal quotation marks and citation omitted). There is no contention here, of course, that any such activity occurred in this city, but Tower maintains that the pa tent was “conceived and reduced to practice in Ohio” and is not “bei ng developed in Connecticut.” Transfer Opp. at 7 (citations omitted). This factor thus is neutral. d. Convenience of Parties, Convenience of Witnesses & Ease of Acce ss to Sources of Proof The three final factors all re late to convenience, and here the y favor transfer. As Defendants correctly point out, w here Plaintiff has its princip al place of business in Connecticut, it “cannot reasonably claim t o be inconvenienced by litigating in its home forum.” Transfer Mot. at 11-12 (citations omitted). Indeed, setting depositions and attending trial will be considerably easier for a number of Plaintiff’s witn esses there. Although T ower asserts that actions related to the ‘215 patent did not occur in t hat state, see Transfer Opp. at 4, it views the case through too narrow a lens. Corporate records and executives are all in Con necticut, and Defendant will no doubt seek, at a minimum, to depose Rule 30(b)(6) designees and company officials. As for Defendants, the fora are equally inconvenient, as most of its w itnesses reside abroad. The private-interest factors, accordingly, tip in favor of Defe ndants’ position.
2. Public-Interest Factors The public-interest factors lean the same way.9 a. Transferee’s Familiarity with the Governing Laws Both parties agree that the leg al issues presented here could b e handled competently by a federal court in either district and that this factor is neutra l. See Transfer Mot. at 14-15; Transfer Opp. at 7; see also, e.g., Nat’l Wildlife Fed’n v. Harvey, 437 F. Supp. 2d 42, 49 (D.D.C. 2006) (where “both courts are competent to interpret the federal stat utes involved[,] . . . there is no reason to transfer or not trans fer based on this factor”). b. Relative Congesti on of the Courts Although Defendants contend that “[ t]he relevant statistics sug gest the parties are likely to proceed to trial more quickly in the District of Connecticut ,” Transfer Mot. at 15, the Court believes that this factor is i n equipoise. While the numbers c ited by Defendants may well be accurate, this Court individually does not have a congested cal endar and could proceed with reasonable alacrity. See U.S . v. H & R Block, Inc., 789 F. Sup p. 2d 74, 84-85 (D.D.C. 2011) (treating relative congestion of dockets as neutral factor in t ransfer analysis, noting that “statistics provide, at best, only a rough measure of the relat ive congestion of t he dockets in the two districts. They do not, for exa mple, reflect the differenc es in the caseloads carried by different individual judges i n each district. Any disparities between the lengths of time from filing to trial may also reflect differences other than congest ion, such as differences in the types of cases that are likely to be tried in each district and the l evel of discovery a nd pre-trial motion practice required in those cases.”). c. Local Interest in Controversies Plaintiff disclaims any Connectic ut interest in the case, maint aining that the patent “was conceived and reduced to practice in Ohio” and that the inventi on “is not practiced by Plaintiff in Connecticut.” Transfer Opp. at 7. This, however, is an odd ap proach and omits the salient facts10 that Tower is incorporated i n Connecticut and has its principal place of business there. States certainly have an interest in pr otecting companies headquartere d within their borders from alleged patent infringement by ot hers. Any financial recovery, additionally, would inure to Connecticut. The District, mean while, has minimal interest in the result of this dispute, given that its only tangent ial connection is the one Lush store locat ed here. Four others, however, sit in Connecticut, thus dwarfing any int erest D.C. possesses along th ese lines.
* * * While all of the factors consid ered together may not overwhelmi ngly favor transfer, they do tip the scales sufficiently suc h that the Court believes the case belongs elsewhere.
IV. Conclusion For the foregoing reasons, the Court will issue a contemporaneo us Order granting both of Defendants’ Motions.

/s/ James E. Boasber g JAMES E. BOASBERG United States District Judge

Date: January 24, 2018