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ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

PACTOOL INTERNATIONAL LTD., 

Plaintiff,

v.

KETT TOOL COMPANY, INC., et al.,

Defendants.

CASE NO. C06-5367BHS

ORDER DENYING 

DEFENDANTS’ MOTION TO

DISMISS AND/OR TRANSFER 

This matter comes before the Court on the motion of Defendants Kett Tool

Company, Inc. (“Kett”) and Elizabeth Tu Hoffman, as executor for the estate of H. Rowe

Hoffman (“the Estate”) (collectively “Defendants”) to dismiss or transfer (Dkt. 132). The

Court has considered the pleadings filed in support of and in opposition to the motion and

the remainder of the file and hereby denies the motion for the reasons stated herein.

I. PROCEDURAL AND FACTUAL BACKGROUND

The instant action was filed on June 29, 2006. Dkt. 1. This is a patent case arising

under federal patent law. See generally Dkt. 63. This Court has original subject matter

jurisdiction over the action pursuant to 28 U.S.C. §§ 1331 (federal question jurisdiction)

and 1338(a) (an Act of Congress governing patent cases). Plaintiff Pactool International

Ltd.’s (“PacTool”) amended complaint alleges that Defendants have been and are

infringing – directly, contributorily and/or by inducement – technology contained in

patents owned by PacTool by manufacturing, using, selling and/or offering for sale

products that infringe such technology. Dkt. 63 at 3-6. The products at issue contain

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ORDER - 2

fiber-cement cutting technology that PacTool maintains is protected by its patents. Id. at

2. 

In December of 2007, Kett requested reexamination of the patents-in-suit in the

United States Patent and Trademark Office. See Dkt. 30. On February 1, 2008, the Court

granted Kett’s request for a stay of this litigation until the reexamination procedures were

completed. Dkt. 39. The reexamination proceedings were terminated in December of

2009 and the stay was terminated on December 18, 2009. See Dkt. 48. On April 1, 2010,

the Court granted PacTool’s motion to amend its complaint to add H. Rowe Hoffman

(“Mr. Hoffman”) as a defendant. Dkt. 61.

On April 26, 2010, Defendants filed their motion requesting that the Court dismiss

or transfer this action for improper venue, or in the alternative, transfer this action to the

Southern District of Ohio pursuant to 28 U.S.C. § 1404. Dkt. 75. Further, Mr. Hoffman

requested that the Court dismiss or transfer the causes of action against him for lack of

personal jurisdiction and/or for failure to state a claim upon which relief can be granted. 

Id. On July 7, 2010, the Court issued an order granting in part and denying in part Kett

and Mr. Hoffman’s motion and transferred the case to the Southern District of Ohio. Dkt.

93. On July 8, 2010, Kett filed a statement noting the death of Mr. Hoffman. Dkt. 94. 

On July 14, 2010, PacTool filed a motion for reconsideration of the Court’s order

regarding transfer. Dkt. 96. On August 25, 2010, the Court granted PacTool’s motion

and reopened the case. Dkt. 103. On December 6, 2010, the Court granted Defendants’

motion to substitute Mrs. Hoffman as executor for Mr. Hoffman’s estate, for Mr.

Hoffman. Dkt. 121.

On December 20, 2010, Defendants filed their motion to dismiss or transfer in

which the Estate requests that the Court dismiss or transfer the causes of action against it

for lack of personal jurisdiction. Dkt. 132. In addition, Defendants request that the Court

dismiss the causes of action against the Estate for improper venue or sever and transfer

the causes of action against the Estate, or, in the alternative, transfer the entire action to

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ORDER - 3

the Southern District of Ohio under 28 U.S.C. § 1406. Id. On January 10, 2011, PacTool

filed its response (Dkt. 137) and on January 14, 2011, Defendants replied (Dkt. 141). 

II. DISCUSSION

A. Motion to Dismiss for Lack of Personal Jurisdiction 

1. Personal Jurisdiction Framework

Under Rule 12(b)(2) of the Federal Rules of Civil Procedure, a defendant may

bring a motion to dismiss for lack of personal jurisdiction. The plaintiff then bears the

burden of proving such jurisdiction. Butcher’s Union Local No. 498 v. SDC Inv., Inc., 788

F.2d 535, 538 (9th Cir. 1986). When the district court rules on the motion based on

affidavits and discovery materials without an evidentiary hearing, the plaintiff need only

make a prima facie showing of personal jurisdiction. See Ochoa v. J.B. Martin & Sons

Farms, Inc., 287 F.3d 1182, 1187 (9th Cir. 2002). “In determining whether [a plaintiff]

[has] met this prima facie burden, uncontroverted allegations in [his] complaint must be

taken as true, and ‘conflicts between the facts contained in the parties’ affidavits must be

resolved in [his] favor . . . .’” Id. (quoting Am. Tel. & Tel. Co. v. Compagnie Bruxelles

Lambert, 94 F.3d 586, 588 (9th Cir. 1996) (brackets in original)). “Additionally, any

evidentiary materials submitted on the motion ‘are construed in the light most favorable

to the plaintiff and all doubts are resolved in [his] favor.’” Id. (quoting Metro. Life Ins.

Co. v. Neaves, 912 F.2d 1062, 1064 n. 1 (9th Cir. 1990) (citation and internal quotation

marks omitted; brackets in original)).

“Determining whether specific personal jurisdiction over a nonresident defendant

is proper entails two inquiries: whether a forum state’s long-arm statute permits service of

process, and whether the assertion of jurisdiction would be inconsistent with due

process.” Electronics For Imaging, Inc. v. Coyle, 340 F.3d 1344, 1349 (Fed. Cir. 2003). 

Washington’s long-arm statute extends the court’s personal jurisdiction to the broadest

reach that the United States Constitution permits. Byron Nelson Co. v. Orchard

Management Corp., 95 Wn. App. 462, 465 (1999). Because Washington’s long-arm

jurisdictional statute is coextensive with federal due process requirements, the

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ORDER - 4

jurisdictional analyses under state law and federal due process are the same.

Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800-01 (9th Cir. 2004);

Electronics For Imaging, Inc., 340 F.3d at 1350. “For a court to exercise personal

jurisdiction over a nonresident defendant, that defendant must have at least ‘minimum

contacts’ with the relevant forum such that the exercise of jurisdiction ‘does not offend

traditional notions of fair play and substantial justice.’” Schwarzenegger, 374 F.3d at 801

(quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (internal quotation

marks and citation omitted)). There are two types of personal jurisdiction: general and

specific. See Brand v. Menlove Dodge, 796 F.2d 1070, 1073 (9th Cir. 1986). Here,

PacTool asserts that this Court has specific jurisdiction over the Estate. See Dkt. 137 at

16-17. 

In determining whether specific jurisdiction over an out-of-state defendant

comports with due process in a patent case, the Court looks to whether: “(1) the defendant

purposefully directed its activities at residents of the forum state, (2) the claim arises out

of or relates to the defendant's activities with the forum state, and (3) assertion of personal

jurisdiction is reasonable and fair.” Electronics For Imaging, 340 F.3d at 1350. 

2. Purposeful Direction of Activities 

PacTool contends that this Court has personal jurisdiction over the Estate because

Mr. Hoffman purposefully directed his activities at residents of Washington. Dkt. 137 at

16-24. PacTool supports this contention in alleging that Mr. Hoffman was the ultimate

decision-maker for Kett, that he induced infringement by authorizing the manufacture of

the accused devices and by authorizing the sale of those devices into Washington. Dkt.

137 at 22. PacTool maintains that this inducement of infringement was purposeful in that

Mr. Hoffman knew of PacTool’s patents-in-suit, knew that the accused devices

incorporated the same blades as PacTool’s patented products, and allowed Kett to

manufacture the accused devices and sell them in Washington. Id. PacTool then

concludes: 

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ORDER - 5

By knowingly authorizing these infringing sales to Washington dealers, Mr.

Hoffman purposefully directed his activities and the activities of Kett into

this jurisdiction, thus making the possibility that Mr. Hoffman would be

summoned for judgment into this forum sufficiently foreseeable for this

Court to exercise specific jurisdiction. 

Id. (citing Beverly Hills Fan v. Royal Sovereign Corp., 21 F.3d 1558, 1566 (1994)). In

support of its position, PacTool also cites to the case of Ideal Instruments, Inc. v. Rivard

Instruments, 434 F. Supp. 2d 598, 613-15 (N.D. Iowa 2006), in which the district court

found that Mr. Rivard, a corporate officer accused of inducement of infringement, had

individually, purposefully directed activities towards the forum state such that the first

factor was satisfied in its personal jurisdiction inquiry. Dkt. 137 at 20. PacTool argues

that Mr. Hoffman, like Mr. Rivard, induced the sale and shipment of infringing products

into the forum state. Id. at 20, 22-23. In addition, PacTool alleges that Mr. Hoffman,

being aware of PacTool’s patents, continued selling infringing products in Washington,

PacTool’s home forum, and thus should reasonably have anticipated being brought into

court in Washington. Id. at 23. PacTool concludes that it has shown that Mr. Hoffman

purposefully directed his activities to Washington such that the first element of personal

jurisdiction is satisfied. Id. at 20, 22-23. 

Defendants argue that Mr. Hoffman did not purposefully direct any activities

specifically to Washington. Defendants state that the court in Ideal Instruments, when

deciding the personal jurisdiction issue, considered the allegations that Mr. Rivard “(1)

made trips to Iowa related to the relevant industry, (2) personally maintained contacts

with customers and his company’s distributor in Iowa, and (3) purposefully availed

himself of opportunities in Iowa’s livestock market.” Dkt. 141 at 8. Defendants maintain

that, unlike Mr. Rivard, Mr. Hoffman did not “(1) travel to Washington, (2) personally

maintain contacts with Kett’s customers or distributor in Washington, or (3) purposefully

avail himself of opportunities in Washington’s tool industry.” Id.

The Court concludes that, taking PacTool’s allegations as true, PacTool has

satisfied its burden of showing that Mr. Hoffman purposefully directed his activities to

Washington. According to the deposition testimony of Kett’s former and current

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1

 Although the parties do not specifically state what percentage of Kett’s sales were made

through Amazon.com, the deposition testimony of Kathy Conlon, Kett’s current president,

indicates that such sales were a greater percentage of the total sales when all products sold

through Amazon.com were shipped to Washington. See Dkts.137-4 at 7 and 137-7 at 2-3. 

ORDER - 6

presidents and Mr. Hoffman himself, Mr. Hoffman was in charge of developing the

accused devices, of making final decisions regarding the marketing and sales of the

accused devices, as well as making decisions regarding business plans for the future. See

Dkts. 137-6 at 3; 137-3 at 7, 137-4 at 10-11, 137-5 at 6-8, 137-6 at 3. Mr. Hoffman also

specifically testified that he knew of PacTool’s patents on at least one of the accused

devices which Kett continued selling. See Dkt. 137-5 at 6. Although PacTool has not

introduced evidence that Mr. Hoffman visited Washington or necessarily solicited

individual dealers, as Mr. Rivard did in Ideal Instruments, PacTool has alleged sufficient

involvement and authority on Mr. Hoffman’s part in making decisions as to what

products and what dealers Kett would sell to. Therefore, the ultimate decision for Kett to

sell its products to and through Amazon.com1

, as well as other Washington-based dealers,

was either made by, or at least approved by, Mr. Hoffman. In addition to Mr. Hoffman’s

ultimate decision-making authority with respect to all aspects of Kett’s business, the

Court also takes into account Kett’s knowledge that PacTool had patents on the devices

he was allowing to be sold into PacTool’s home forum. Kett had a business relationship

with PacTool in which Kett had manufactured products for PacTool. See Dkt. 137-5 at 3-

5. Accordingly, the Court concludes that it was sufficiently foreseeable to Mr. Hoffman

that he may be brought into court in Washington based on his decision to continue selling

Kett’s products that incorporate PacTool’s patents in PacTool’s home forum. Therefore,

the Court concludes that PacTool has satisfied its burden of showing that Mr. Hoffman

purposefully directed his activities to Washington.

3. Claims Arise out of or Relate to Contacts with the Forum

PacTool maintains that its claim against the Estate, for inducement of infringement

under § 271(b), arises out of Mr. Hoffman’s contacts with Washington. Dkt. 137 at 23. 

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ORDER - 7

The Estate does not specifically address this element except for the statement made in the

motion that any inducement of infringement by Mr. Hoffman occurred in Ohio. Dkt. 132

at 5. However, the injury resulting from patent infringement takes place where the sales

of the infringing products occur. See Commissariat a L’Energie Atomique v. Chi Mei

Optoelectronics Corp., 395 F.3d 1315, 1318 (Fed. Cir. 2005); Beverly Hills Fan Co., 21

F.3d at 1571. Thus, any additional tortious injury underlying the patent infringement also

occurs in the forum where the sales of the infringing products took place. See Ideal

Instruments, 434 F. Supp. 2d at 615. Here, the sales of infringing products that PacTool

complains of occurred in Washington and thus, Mr. Hoffman’s alleged inducement of

such infringing sales also took place in Washington. Therefore, the Court concludes that

PacTool’s claim against the Estate arises out of Mr. Hoffman’s contacts with Washington

and that PacTool has met its burden in establishing the second element for purposes of

personal jurisdiction. 

4. Assertion of Personal Jurisdiction is Reasonable and Fair 

Because PacTool has satisfied the first two elements in establishing that personal

jurisdiction over the Estate is proper, the burden shifts to the Estate to present a

compelling case why the exercise of personal jurisdiction over it is not reasonable and

fair. See Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1360, (Fed. Cir. 2001); Burger King

Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985). In addressing this issue, 

the Supreme Court has stated that the inquiry would depend on an

evaluation of several factors: (1) the burden on the defendant, (2) the

interests of the forum State, (3) the plaintiff’s interest in obtaining relief, (4)

the interstate judicial system’s interest in obtaining the most efficient

resolution of controversies, and (5) the shared interest of the several States

in furthering fundamental substantive social policies.

Inamed Corp., 249 F.3d at 1363 (citing Asahi Metal Indus. Co. v. Super. Ct. of Cal., 480

U.S. 102, 113 (1987).

As stated above, the burden falls on the Estate to make a compelling case to the

Court why its exercise of jurisdiction over it is not reasonable and fair. In attempting to

meet this burden, the Estate’s entire argument is as follows:

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ORDER - 8

Here, it is undisputed that PacTool could obtain effective relief by way of

adjudication by the United States District Court for the Southern District of

Ohio. Additionally, a reasonableness analysis looks to the burden on the

defendant. Here, not only had Mr. Hoffman never owned any property in

the State of Washington, had never had an office or a place of business in

the State of Washington, and, since 1999, Mr. Hoffman had never traveled

to the State of Washington, but the Court would now be forcing his grieving

widow to travel across the country to [defend] her husband’s estate in this

action in a state where no defendants reside making it all the more

burdensome to litigate. Also, because none of the allegedly infringing

activity occurred in the State of Washington, there is little interest in a court

in this state adjudicating this dispute. 

Dkt. 132 at 7. 

In considering the factors laid out by the Federal Circuit in Inamed Corp., the

Court finds that a majority of them weigh in favor of exercising jurisdiction. Although

the Estate contends that none of the allegedly infringing activity occurred in Washington,

as the Court discussed above, the injury resulting from patent infringement, as well as

inducement of such infringement, occurs where the infringing sales take place which, in

this case, was in Washington. Accordingly, Washington has an interest in adjudicating

this controversy in this state. In addition, PacTool has an interest in obtaining relief here

because it chose this forum to file this action and resides here. Further, the judicial

system’s interest in obtaining efficient relief weighs in favor of this Court exercising

jurisdiction because PacTool’s claims against Kett will be decided here and it will be

most efficient to decide the claims against the Estate in the same action. Although the

Court recognizes the burden adjudicating this action will place on the Estate, the Court

also concludes that the Estate has failed to meet its burden in establishing that the Court’s

exercise of jurisdiction over it is not fair and reasonable. 

Therefore, for the reasons discussed above, the Court concludes that the Estate’s

motion to dismiss for lack of personal jurisdiction is denied. 

B. Motion to Dismiss for Improper Venue

For purposes of deciding whether venue is proper, a court accepts as true the facts

alleged in a well-pleaded complaint. See Hoover Group, Inc. v. Custom Metalcraft, Inc.,

84 F.3d 1408, 1410 (Fed. Cir. 1996). When an action is brought in federal court

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ORDER - 9

involving patent law, the “action for patent infringement may be brought in the judicial

district where the defendant resides, or where the defendant has committed acts of

infringement and has a regular and established place of business.” 28 U.S.C. § 1400(b). 

However, the residence of corporate defendants for purposes of venue in patent actions is

governed by 28 U.S.C. § 1391(c), which states that a “corporation shall be deemed to

reside in any judicial district in which it is subject to personal jurisdiction at the time the

action is commenced.” Id. “However, venue as to corporate employees charged with

personal liability for acts taken as individuals, not as the alter ego of the corporation, does

not flow automatically to forums in which venue is proper as to the corporation.” 

Hoover, 84 F.3d at 1410.

Here, Defendants argue that venue for PacTool’s claims against the Estate is

improper in this Court because PacTool has failed to show that Mr. Hoffman was the alter

ego of Kett and that, therefore, venue for the Estate cannot be based on venue for Kett. 

Dkt. 132 at 10-11 & 141 at 11-13. In its amended complaint, PacTool alleges claims

against Kett for patent infringement in violation of 35 U.S.C. § 271(a), and against the

Estate for Mr. Hoffman’s inducement of patent infringement in violation of § 271(b). 

Dkt. 63. Section 271 states:

(a) Except as otherwise provided in this title, whoever without

authority makes, uses, offers to sell, or sells any patented invention, within

the United States or imports into the United States any patented invention

during the term of the patent therefor, infringes the patent.

(b) Whoever actively induces infringement of a patent shall be liable

as an infringer. 

PacTool argues that because it alleges claims against the Estate under § 271(b), if venue

for the direct infringer, Kett, is met, then venue for the inducer, Mr. Hoffman, is also met

where, as here, it is alleged that Mr. Hoffman directed the infringement and has personal

culpability. Dkt. 137 at 12. Both parties cite to the Federal Circuit’s opinion in Hoover

to support their respective positions.

The Federal Circuit’s explanation of venue issues in cases involving corporate and

individual defendants in Hoover is instructive:

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ORDER - 10

Venue requirements exist for the benefit of defendants. VE Holding

Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1576 (Fed. Cir. 1990). 

When the cause of action is personal to the individual defendant, the venue

requirement must be met as to that defendant. 1A(2) J. Moore et al.,

Moore’s Federal Practice ¶ 0.340 (2d ed.1995). In comparison, venue for

personal liability of a corporate officer/owner for acts of infringement by

the corporation, whether or not the facts support piercing the corporate veil,

may reasonably be based on the venue provisions for the corporation, 28

U.S.C. §§ 1400(b) and 1391(c). See Minnesota Mining & Mfg. Co. v. Eco

Chem, Inc., 757 F.2d 1256, 1265 (Fed.Cir.1985) (“The precedents establish

that a court which has jurisdiction over a corporation has jurisdiction over

its alter egos.”).

* * *

In Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 552

(Fed. Cir. 1990), the court stated that “to be personally liable for

Paramount’s infringement under section 271(a), there must be evidence to

justify piercing the corporate veil.”

* * *

[In this case, the] district court also relied on 35 U.S.C. § 271(b),

which provides that “whoever actively induces infringement of a patent

shall be liable as an infringer,” and on this court’s ruling that for a corporate

officer to be personally liable for inducing infringement, it is not necessary

that the corporate veil be pierced. Orthokinetics, Inc. v. Safety Travel

Chairs, Inc., 806 F.2d 1565, 1578-79 (Fed.Cir.1986). However, the officer

must act culpably in that the officer must actively and knowingly assist with

the corporation’s infringement. Water Technologies Corp. v. Calco, Ltd., 850 F.2d 660, 668 (Fed.Cir.1988) (the officer must have possessed specific

intent to “aid and abet” infringement). It is an insufficient basis for

personal liability that the officer had knowledge of the acts alleged to

constitute infringement. Manville Sales, 917 F.2d at 553; Hewlett-Packard

Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1468-69 (Fed.Cir.1990).

In sum, unless the corporate structure is a sham, as is not here 

asserted, personal liability for inducement to infringe is not automatic but

must be supported by personal culpability.

84 F.3d at 1411-12.

In its amended complaint, PacTool alleges that Mr. Hoffman was chairman, at

least part owner, and an employee of Kett. Dkt. 63 at 2. In addition, PacTool asserts that

Mr. Hoffman had “ultimate decision making authority for, and control over, Kett’s

marketing, design, manufacture, sales, and offers for sale” of Kett products “including the

products accused of infringement in this case.” Id. Finally, PacTool alleges that, based

on these and other facts, Mr. Hoffman is liable for inducement of infringement. Id. at 5-6. 

PacTool maintains that, like Mr. Holden, the individual defendant in Hoover, Mr.

Hoffman’s ownership, control and active management of Kett provide a sufficient basis

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ORDER - 11

for finding that venue is proper in this Court under §§ 1400(b) and 1391(c). Dkt. 137 at

13.

Kett argues that PacTool misapplies the Federal Circuit’s opinion in Hoover and

maintains that, under Hoover, PacTool must show that Mr. Hoffman was the alter ego of

Kett in order to impute Kett’s residence to Mr. Hoffman for purposes of venue under 

§ 1391(c). Dkt. 141 at 11-13. In its reply, Kett states that “[notably PacTool does not –

likely because it cannot – draw the Court’s attention to a single post-Hoover district court

opinion applying Hoover in accordance with PacTool’s understanding.” Id. at 13. 

However, in reviewing the district court cases cited by Kett in support of its position that

Kett’s residence can only be imputed to Mr. Hoffman if he is shown to be the alter ego of

Kett, the Court finds that the only decision cited from this district may support PacTool’s

understanding of Hoover. See Timeline, Inc. v. Proclarity, Corp., 2006 WL 2038255

(W.D. Wash., July 20, 2006) (Robart, J.).

In Timeline, the court explained the Federal Circuit’s discussion of venue in

Hoover, stating that:

Hoover’s venue analysis was based on allegations of ownership, control,

and active management that were significantly more compelling than those

alleged by Timeline in this case. In Hoover, a single individual allegedly

made “all major decisions” regarding the business involved in the lawsuit

and served as the company’s president, chief executive officer, and

principal shareholder. In light of those allegations, the court essentially

held that the residence of the corporation could be imputed to the officer for

venue purposes.

2006 WL at *6. The court then went on to analyze the venue issues in the case before it:

By contrast, Timeline is bringing claims against eleven individuals

who currently or formerly served on ProClarity’s board of directors, not

against a single individual who allegedly dominated and made all major

decisions for the company. Furthermore, [the first amended complaint] 

provides no allegations regarding the individual Directors’ ownership or

control of the corporation, nor does it make allegations suggesting that the

corporation may be regarded as the alter ego of any of the individual

Directors. As a result, the court finds that the FAC does not contain

sufficient allegations regarding each Directors’ ownership, control, and

management of the company to warrant a finding that venue is proper in

this district as to each Director. 

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ORDER - 12

Id. Although the court mentions that the plaintiff does not allege that the corporation was

the alter ego of the individual defendants, it also relies on the fact that the complaint did

not contain sufficient allegations regarding the individuals’ control, ownership, or

management of the corporation. See id. The Court concludes that the language in

Hoover indicates that the residence of a corporation for purposes of venue may be

imputed to an individual defendant accused of inducing infringement under § 271(b), if it

can be shown that the individual defendant exercised significant ownership, control and

active management over the corporation concerning the infringement involved in the

lawsuit.

Here, PacTool has pled that, at the time the inducement of infringement occurred,

Mr. Hoffman was the ultimate decision-maker for Kett, including decisions regarding the

infringing activities, and actively managed and controlled the corporation. Taking

PacTool’s allegations as true (see Hoover, 84 F.3d at 1410), the Court concludes that

PacTool has shown that Mr. Hoffman exercised significant ownership, control, and active

management over Kett at the time the inducement of infringement allegedly occurred. 

Therefore, the Court concludes that venue is proper as to Mr. Hoffman under §§ 1400(b)

and 1391(c). 

C. 28 U.S.C. § 1406

Defendants’ motion, in the alternative to dismissal, seeks relief in the form of

transferring the entire action to the Southern District of Ohio pursuant to 28 U.S.C. 

§ 1406. Section 1406 states that a district court may transfer a case to any district in

which it could have been brought in the interest of justice. Because the Court has

concluded that it has personal jurisdiction over the Estate and that venue is proper in this

Court, it declines to exercise its discretion to transfer the action to the Southern District of

Ohio under § 1406. PacTool’s claims against Kett have been pending in this Court since

2006 and this Court has already decided multiple dispositive motions in this action. 

Accordingly, the Court concludes that transferring this action would not be in the interest

of justice. 

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ORDER - 13

III. ORDER

Therefore, it is hereby ORDERED that Defendants’ motion to dismiss and/or

transfer (Dkt. 132) is DENIED. 

DATED this 3rd day of March, 2011.

A 

BENJAMIN H. SETTLE

United States District Judge

Case 3:06-cv-05367-BHS Document 165 Filed 03/03/11 Page 13 of 13