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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

YAGEO AMERICA CORP.,

Plaintiff,

v.

FAN-CHU TSENG, et al.,

Defendants.

Case No. C06-0227RSL

ORDER DENYING DEFENDANTS’

MOTION TO DISMISS OR TO

TRANSFER

This matter comes before the Court on a motion to dismiss for improper venue

filed by defendants Fan-Chu Tseng (“Mr. Tseng”), Fong-Lan Tseng and their marital

community (“the Tsengs”). Dkt. # 7. Plaintiff Yageo America Corp. (“Yageo”) alleges

that Mr. Tseng, its former employee, downloaded Yageo trade secret information and

used that information to compete with Yageo.

I. BACKGROUND FACTS

Yageo filed a complaint against the Tsengs in King County Superior Court on

January 26, 2006, alleging misappropriation of trade secrets. Defendants removed the

action to this Court on February 16, 2006. Dkt. # 1.

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Yageo’s headquarters are located in Washington. Mr. Tseng, who resides in

Texas, worked for Yageo until September 30, 2005. At times he traveled to Washington

for reasons related to his employment.

II. DISCUSSION

A. Proper Venue

Defendants’ motion argues that dismissal is warranted pursuant to 28 U.S.C. §

1406 because venue is improper under 28 U.S.C. § 1391. Their reply brief, however,

requests transfer under 28 U.S.C. § 1406 or § 1404. 

As plaintiff points out in the response (Response at p. 2) and defendants

acknowledge in the reply (Reply at p. 1), “on the question of venue, § 1391 has no

application to this case because this is a removed action.” Polizzi v. Cowles Magazines,

Inc., 345 U.S. 663, 665 (1953). In a removed action, venue is proper in the district

“embracing the place where such action is pending.” 28 U.S.C. § 1441. The Western

District of Washington “embraces” King County. A district court acquires venue through

defendants’ voluntary removal to federal court, regardless of whether venue would have

been proper had the case originally been filed in that court. Seaboard Rice Milling Co. v.

Chicago, R.I. & P. Ry. Co., 270 U.S. 363, 367 (1926). Thus venue is proper in this

Court, and § 1406, which governs in “a case laying venue in the wrong division or

district[,]” does not apply. 

B. Transfer of Venue

Defendants’ removal did not waive the right to request a discretionary transfer to a

more convenient venue under 28 U.S.C. § 1404(a). PT United Can Co. Ltd. v. Crown

Cork & Seal Co., Inc., 138 F.3d 65 (2d Cir. 1998). However, the request for transfer was

not mentioned in the original motion. Ordinarily, the Court will not consider issues

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1

 Because defendants’ reply brief raised new issues not addressed in the original

motion, the plaintiff’s motion to file an overlength surreply to address the new arguments

is hereby GRANTED. Dkt. #12. 

ORDER DENYING MOTION TO DISMISS 

OR TO TRANSFER - 3

raised for the first time in a reply brief. District courts in this Circuit have ruled that “it is

improper for a party to raise a new argument in a reply brief[,]” largely because the

opposing party may be deprived of an opportunity to respond. United States v. Boyce,

148 F.Supp.2d 1069, 1085 (2001). However, a “district court ha[s] discretion to consider

[an] issue even if it was raised in a reply brief.” Glenn K. Jackson Inc. v. Roe, 273 F.3d

1192, 1202 (9th Cir. 2001). In particular, a surreply filed by the non-moving party may

afford an adequate opportunity to respond. Cedars-Sinai Medical Center v. Shalala, 177

F.3d 1126, 1129 (9th Cir. 1999). Because both sides have addressed the request for

transfer under § 1404, the Court will consider it.1

Defendants request that this case be transferred to the Northern District of Texas

pursuant to 28 U.S.C. § 1404(a), which provides: “For 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.” Defendants have the burden

of showing that the overall convenience of parties and witnesses weighs in favor of

transferring the above-captioned case to the United States District Court for the Northern

District of Texas. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843

(9th Cir. 1986). 

The central focus of a § 1404 inquiry is convenience. The Court must make an

individualized, case-by-case determination of convenience and fairness when considering

a change in venue. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). Factors

that may be considered include “(1) the location where the relevant agreements were

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negotiated and executed, (2) the state that is most familiar with the governing law, (3) the

plaintiff’s choice of forum, (4) the respective parties’ contacts with the forum, (5) the

contacts relating to the plaintiff’s cause of action in the chosen forum, (6) the differences

in the costs of litigation in the two forums, (7) the availability of compulsory process to

compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources

of proof.” Jones v. GNC Franchising Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). 

On the basis of the record presented, more factors favor Washington than favor

Texas. The first and seventh factors are neutral, as neither party identifies any relevant

agreements or unwilling witnesses. The second factor weighs in favor of Washington, as

the complaint alleges violation of Washington’s Trade Secrets Act. The third factor

strongly favors Washington. The fourth factor slightly favors Washington. While Mr.

Tseng had substantial contacts with Texas, both parties had substantial contacts with

Washington. Yageo is headquartered here, and Mr. Tseng traveled to Washington

regularly when employed by Yageo. Motion at p. 2; Surreply at p. 2. 

The fifth factor, examining the relationship between the forum and the cause of

action, is more mixed. The parties dispute where the alleged misappropriation took place. 

Defendants claim it could only have occurred in Texas. Motion at p. 3; Reply at p. 6. 

Plaintiff implies that it could have taken place in any of the states to which Mr. Tseng

traveled. Surreply at p. 6. Plaintiff’s contention weighs against Texas but not in favor of

Washington. Overall, the fifth factor tilts slightly toward Texas. 

The sixth and eighth factors may be considered together, as both reflect the ease of

investigation and discovery. Plaintiff points to specific witnesses located in Washington,

while Mr. Tseng is apparently the only witness located in Texas. Id. at p. 2. Plaintiff

also identifies witnesses located in Taiwan, who could travel more easily to Washington

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than to Texas. Id. Defendants state that all customers Mr. Tseng has called on since

leaving Yageo are outside Washington. Motion at p. 2. If those customers are potential

witnesses, their location might weigh against Washington but not in favor of Texas. 

Defendants also state that the four computer and storage devices Mr. Tseng used while

employed by Yageo were returned to Yageo’s Texas office. Id. at p. 3. If these potential

sources of proof remain in Texas, access to them might be easier in Texas. Overall,

because evidence is generally easier to transport than people, factors six and eight weigh

slightly in favor of Washington.

Five factors weigh in favor of Washington as the more convenient forum, two are

neutral, and one favors Texas. “[U]nless the balance of factors is strongly in favor of the

defendants, the plaintiff's choice of forum should rarely be disturbed.” Securities Investor

Protection Corp. v. Vigman, 764 F.2d 1309 (9th Cir. 1985). The Court finds that

defendants have not shown that the overall convenience of parties and witnesses, in the

interest of justice, weighs in favor of transferring the above-captioned case to the

Northern District of Texas.

III. CONCLUSION

For the reasons discussed above, the Court finds that the Western District of

Washington is a proper venue for the above-captioned case. Accordingly, defendants’

motion to dismiss or transfer for improper venue under 28 U.S.C. § 1406(a) is DENIED. 

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Dkt. # 7. Furthermore, defendants’ request for transfer under 28 U.S.C. § 1404(a) is

DENIED. 

DATED this 21st day of April, 2006.

A

Robert S. Lasnik

United States District Judge 

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