UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FEDERAL TRADE COMMISSION, 

 

Plaintiff, 

 v. 

GRACO INC., et al., 

Defendants. 

 

Civil Action No. 11-cv-02239 (RLW) 

MEMORANDUM OPINION1

 The Federal Trade Commission (“FTC”) filed a complaint seeking a temporary 

restraining order and preliminary injunction against Defendants Graco Inc., Illinois Tool Works 

Inc. (“ITW”), and ITW Finishing LLC (“ITWF”) pursuant to Section 13(b) of the Federal Trade 

Commission Act (“FTC Act”), 15 U.S.C. § 53(b), and Section 16 of the Clayton Act, 15 U.S.C. § 

26. The FTC seeks a preliminary injunction to prevent Graco from acquiring its “largest and 

most significant competitor,” ITWF, during the pendency of the FTC’s ongoing administrative 

proceeding to determine the possible anticompetitive effects of such an acquisition.2 The 

Defendants have moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(2) and 

12(b)(3) for lack of personal jurisdiction and improper venue. Alternatively, Defendants have 

moved to transfer the case to the United States District Court for the District of Minnesota 

pursuant to either 28 U.S.C. §§ 1404(a) or 1406(a). The Court will deny Defendants’ motion to 

dismiss and grant the motion to transfer. 

 

1

 This is a summary opinion intended for the parties and those persons familiar with the 

facts and arguments set forth in the pleadings; not intended for publication in the official 

reporters. 

2 Based on the parties agreement that Defendant Graco would give the FTC two weeks’ 

notice before consummating the acquisition, the Plaintiff’s Motion for Temporary Restraining 

Order was denied without prejudice on December 19, 2011. 

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2 

 When personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff bears the 

burden of establishing a factual basis for the Court’s exercise of personal jurisdiction over each 

defendant. Crane v. N.Y. Zoological Soc’y, 894 F.2d 454, 456 (D.C. Cir. 1990). To establish 

that personal jurisdiction exists, the plaintiff must allege specific facts that connect the defendant 

with the forum. Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 

(D.C. Cir. 2001). In determining whether a plaintiff has demonstrated that personal jurisdiction 

exists, the Court is not bound to treat all of the plaintiff’s allegations as true, but instead “may 

receive and weigh affidavits and other relevant matter to assist in determining the jurisdictional 

facts.” United States v. Philip Morris Inc., 116 F. Supp. 2d 116, 120 n. 4 (D.D.C. 2000). 

Under Rule 12(b)(3), a court will dismiss or transfer a case if venue is improper or 

inconvenient in the plaintiff’s chosen forum. Fed. R. Civ. P. 12(b)(3). If the court determines 

that venue is improper or inconvenient, the district court may either dismiss, “or if it be in the 

interest of justice, transfer such case to any district or division in which it could have been 

brought.” 28 U.S.C. § 1406(a). The decision as to whether dismissal or transfer is “in the 

interest of justice” is committed to the sound discretion of the district court. Naartex Consulting 

Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983). In considering a Rule 12(b)(3) motion, the 

court accepts the plaintiff’s well-pled factual allegations regarding venue as true, the court draws 

all reasonable inferences from those allegations in the plaintiff’s favor, and the court resolves 

any factual conflicts in the plaintiff’s favor. 2215 Fifth St. Assocs. v. U-Haul Int’l, Inc., 148 F. 

Supp. 2d 50, 54 (D.D.C. 2001). 

 The FTC asserts that personal jurisdiction exists, and therefore venue, because Section 

13(b) of the FTC Act, 15 U.S.C. § 53(b), confers jurisdiction over a corporate defendant 

irrespective of its contacts with the forum. The relevant language of the FTC Act is as follows: 

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Any suit may be brought where such person, partnership, or 

corporation resides or transacts business, or wherever venue is 

proper under section 1391 of title 28. In addition, the court may, if 

the court determines that the interests of justice require that any 

other person, partnership, or corporation should be a party in such 

suit, cause such other person, partnership, or corporation to be 

added as a party without regard to whether venue is otherwise 

proper in the district in which the suit is brought. In any suit under 

this section, process may be served on any person, partnership, or 

corporation wherever it may be found. 

15 U.S.C. § 53(b). The first sentence of this section sets forth three alternative options where 

venue is proper: where a defendant resides, where a defendant transacts business, or wherever 

venue is proper under 28 U.S.C. 1391. The FTC contends that it is the specific reference to 

section 1391 that allows a plaintiff to venue an action under the FTC Act in any judicial district 

in the country, regardless of the defendant’s lack of contact with the district. The FTC reaches 

this conclusion based on their reading of three federal provisions, Section 13(b) of the FTC Act, 

Fed. R. Civ. P. 4, and the general venue statute, 28 U.S.C. § 1391(c). 

The venue argument of the FTC proceeds in four steps. First, as set forth above, Section 

13(b) of the FTC Act authorizes a plaintiff to serve a defendant in any judicial district in the 

country “wherever [the defendant] may be found . . . .” (Here, it is undiputed that both Graco 

and ITW “can be found” in at least one judicial district in the United States.) Second, because 

Fed. R. Civ. P. 4(k)(1)(c) provides that service pursuant to a federal statute is sufficient to 

establish personal jurisdiction over a defendant, the FTC contends that, taken together, Section 

13(b) and Rule 4(k)(1)(c) indicate that a plaintiff in an FTC enforcement action may file a 

lawsuit in this judicial district, serve the defendants in any judicial district in the country, and 

thereby subject those defendants to personal jurisdiction in this district – the United States 

District Court for the District of Columbia. Third, the FTC argues that because the general 

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venue statute, 28 U.S.C. § 1391(c), deems a corporation “to reside in any judicial district in 

which it is subject to personal jurisdiction,” and because the defendants are subject to personal 

jurisdiction in this district, the defendants therefore reside in this district. Fourth, the FTC 

contends that because venue is proper under Section 1391(b)in any district in which one or more 

defendants “reside,” 3 venue is proper within this district. 

 The Defendants contend that this venue analysis proffered by the FTC is flawed. 

Defendants argue that plaintiff’s broad reading of Section 13(b) of the FTC Act is improper 

because Section 13(b) does not confer nationwide personal jurisdiction and venue as plaintiff 

alleges. Defendants argue that the FTC must first satisfy the venue provision of the Section 

13(b) before invoking the nationwide service of process provision of Federal Rule 4, attacking 

the second step of the FTC’s venue argument outlined above. Relying on the D.C. Circuit’s 

holding in GTE New Media Servs., Defendants argue that Section 13(b)’s first clause regarding 

venue must be read as a precondition to the exercise of jurisdiction under Section 13(b)’s 

national service of process provision. See GTE New Media Servs. Inc. v. BellSouth Corp., 199 

F.3d 1343, 1351 (D.C. Cir. 2000) (holding that a party seeking to take advantage of the Clayton 

Act’s liberalized service provisions must first establish proper venue as required by the Act’s 

first clause.). Thus, the Defendants urge the Court to read Section 13(b) as an integrated whole 

and find that the service of process provision is effective only when, pursuant to the first clause 

of the Section 13(b), the action is brought in a district where the defendant resides or transacts 

business, or wherever venue is proper under section 1391 of title 28. The Defendants argue that 

 

3

 Section 1391(b)(1) provides that non-diversity civil actions may be brought, among other 

places, in “a judicial district where any defendant resides, if all defendants reside in the same 

State . . . or [in] a judicial district in which any defendant may be found, if there is no district in 

which the action may otherwise be brought.” 28 U.S.C. § 1391(b). 

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the FTC has failed to meet the precondition set forth in Section 13(b)’s first clause because the 

FTC has not established proper venue in this judicial district as to any defendant. 

Ultimately, the Court finds that it is unnecessary to resolve whether Section 13(b) of the 

FTC Act requires a proper showing of venue before the FTC can rely upon the nationwide 

service of process provision in Rule 4. In this case, even under the Defendants’ narrower 

interpretation of section 13(b), the Court finds that venue is proper in this district. 

Although the Defendants have argued otherwise, ITW and ITWF are proper parties to 

this action. The FTC brought this action pursuant to Section 7 of the Clayton Act, 15 U.S.C. § 

18, as well as pursuant to Section 5 of the FTC Act, 15 U.S.C. § 45.4

 Section 7 of the Clayton 

Act prohibits any corporation engaged in commerce from acquiring the stock or assets of another 

corporation engaged in commerce “where in any line of commerce in any section of the country, 

the effect of such acquisition may be substantially to lessen competition, or tend to create a 

monopoly.” 15 U.S.C. § 18. Thus, by its terms, Section 7 is directed only to the acquiring party. 

Section 5 of the FTC Act, however, has no such limitation and applies to sellers as well as to 

buyers. See Yamaha Motor Co. v. FTC, 657 F.2d 971, 982-83 (8th Cir. 1981). 

ITW and ITWF are identified as sellers in the Asset Purchase Agreement. The first 

paragraph of the Asset Purchase Agreement states that Graco Inc., Graco Holdings Inc., Illinois 

Tool Works Inc., and ITW Finishing LLC are parties to the agreement. (Docket No. 42-1 at 7). 

This paragraph further defines Illinois Tool Works Inc. as the “Seller Parent” and ITW Finishing 

LLC as the “US Seller.” Id. In the “Definitions” section of the Agreement, “seller” is defined 

 

4

 Section 13(b) of the FTC Act and Section 16 of the Clayton Act provide for injunctive 

relief for violations of the antitrust laws. In this case, the FTC is asking the Court for an 

injunction pursuant to Section 13(b) and Section 16 during the pendency of the FTC’s 

administrative investigation pursuant to Section 5 of the FTC Act, 15 U.S.C. § 45, and Section 7 

of the Clayton Act, 15 U.S.C. § 18. Complaint ¶¶ 18, 19, 51. 

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as: “Seller Parent, U.S. Seller, and any other Subsidiaries of Seller Parent that become Sellers 

pursuant to Section 6.1(j), and each of them individually is referred to herein as a ‘Seller.’ ” Id. 

at 15. (emphasis in original). Thus, the terms of the Agreement establish that both ITW and 

ITWF are sellers and are proper parties to this action. 

Moreover, both ITW and ITWF are estopped from arguing that the Court lacks personal 

jurisdiction because ITW authored a stipulation which bound ITW and ITWF to “agree[] to 

accept service of process, and to subject itself to personal jurisdiction, in all federal districts 

within the United States.” (Pl.’s Supp. Opp.’n Ex. 2 at 4). This stipulation was written in 

response to the FTC’s Request for Additional Information (“Second Request”), in which the FTC 

defined “ITW Finishing” and the “Company” as ITWF and its domestic and foreign parents. 

(Pl.’s Opp.’n Ex. 3 at 3). While ITWF argues that they never conceded jurisdiction because the 

response to the FTC was only on behalf of ITW, ITWF’s argument is belied by several facts. 

First, the face of the FTC request indicates that it was directed to ITWF, as it specifically 

identifies ITW Finishing LLC. Second, the “Definitions and Instructions” section further 

corroborates this by providing a definition for ITW Finishing. Third, ITW’s responses to the 

FTC’s requests for production contained references to documents that belonged to both ITW and 

ITWF. Perhaps most telling is the fact that ITW and ITWF received the benefits of the 

stipulation; both parties were able to forego a full response to the FTC’s request and avoided 

jurisdictional discovery in the FTC investigational hearings. Because both parties received a 

benefit from the jurisdictional concession, it would be improper to allow ITWF to renege on the 

agreement to avoid jurisdiction here. 

Because this judicial district has personal jurisdiction over ITW and ITWF, both 

companies “reside” in this district within the meaning of the general venue statute. See 28 

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U.S.C. § 1391(c). As described supra, residence of either ITW or ITWF in this district makes 

venue proper here. See 28 U.S.C. § 1391(b). Because venue is proper as to ITW and ITWF, 

Graco, as the purchasing party to the Asset Purchase Agreement, may be properly added as a 

party under the second clause of Section 13(b). Accordingly, the Court finds that personal 

jurisdiction and venue has been satisfied as to all defendants. 

 Even where venue is proper, a district court has “broad discretion” to order transfer” of 

venue pursuant to 28 U.S.C. § 1404(a). See In re Scott, 709 F.2d 717, 720 (D.C. Cir. 1983). 

Section 1404(a) provides: “For the convenience of the parties and witnesses, in the interest of 

justice, a district court may transfer any civil action to any other district or division where it may 

have been brought.” In adjudicating motions to transfer, “the proper technique to be employed is 

a factually analytical, case-by-case determination of convenience and fairness.” SEC v. Savoy 

Indus., 587 F.2d 1149, 1154 (D.C. Cir. 1978) (citing Van Dusen v. Barrack, 376 U.S. 612, 622 

(1964)). See also Moore's Federal Practice - Civil § 111.13[1][a] (3rd ed.) (motion to transfer 

under Section 1404(a) “lies within the broad discretion of the district court” and “requires the 

court to make a ‘flexible and individualized analysis,’ and to ‘weigh in the balance a number of 

case-specific factors’ to determine whether the proposed transferee district would be a more 

convenient forum for the litigation”) (citations omitted). 

 In order to succeed on a motion to transfer, the movant must first establish that the action 

could have been brought in the proposed transferee district—in this case, the District of 

Minnesota. DeLoach v. Phillip Morris Co., 132 F. Supp. 2d 22, 24 (D.D.C. 2000). Second, the 

movant must demonstrate that the “balance of convenience of the parties and witnesses and the 

interest of justice” favor transfer. Thayer/Patricof Educ. Funding LLC v. Pryor Res., 196 F. 

Supp. 2d 21, 31 (D.D.C. 2002). 

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It is undisputed that this action could have been brought in the District of Minnesota as 

all the defendants are found in and transact business in the District of Minnesota. Therefore, it is 

only the second inquiry that requires examination. 

 When considering a motion to transfer under section 1404(a), a court must weigh a 

number of private and public interest factors. The private interest factors include: (1) the 

plaintiff’s choice of forum; (2) the defendants’ choice of forum; (3) where the claim arose; (4) 

convenience of the parties; (5) convenience of the witnesses, but only to the extent that witnesses 

may be unavailable for trial in one of the fora; and (6) ease of access to sources of proof. The 

public interest considerations include: (1) the transferee’s familiarity with the governing law; (2) 

the relative congestion of the courts of the transferor and potential transferee; and (3) the local 

interest in deciding local controversies at home. See FTC v. Cephalon, 551 F. Supp. 2d 21, 25 

(D.D.C. 2008) (citations omitted). Applying these factors here, the Court finds that, in totality, 

they weigh in favor of transfer to the District of Minnesota. 

The FTC is correct that the plaintiff’s choice of forum is “a paramount consideration” and 

ordinarily entitled to “great deference” in the transfer inquiry. See Thayer/Patricof Educ. 

Funding, 196 F. Supp. 2d at 31. The FTC is also correct that some courts have given 

“heightened respect” to the government’s choice of forum in antitrust cases. United States v. 

Brown Univ., 772 F. Supp. 241, 242 (E.D. Pa. 1991) (citing cases from the Second and Ninth 

Circuits). However, that deference is mitigated where “the plaintiff[‘s] choice of forum has no 

meaningful ties to the controversy and no particular interest in the parties or subject matter.” 

Greater Yellowstone Coalition v. Bosworth, 180 F. Supp. 2d 124, 128 (D.D.C. 2001). 

Additionally, “the defendants’ burden in a motion to transfer decreases when the plaintiff[‘s] 

choice of forum has no meaningful nexus to the controversy and the parties.” Id. The District of 

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Columbia’s ties to this case are minimal, while the majority of the conduct that gave rise to the 

FTC’s claims took place in the District of Minnesota. Graco is headquartered in the District of 

Minnesota. The Asset Purchase Agreement that is the subject of this litigation was negotiated in 

Minnesota. ITW is headquartered in Illinois. ITW finishing business in the United States is 

primarily located in the Midwest. Key competitors that would presumably be affected by the 

proposed acquisition are also located throughout the Midwest. The FTC argues that the 

“acquisition is national in scope—it affects this district as well as districts all across the country.” 

(Pl.’s Opp’n. at 10). However, this broad assertion further establishes that the District of 

Columbia has no meaningful connection to this action. Accordingly, plaintiff’s choice of forum 

is not entitled to great deference. Of course, the Defendants’ choice of forum is the District of 

Minnesota, but that choice is not entitled to great deference either. In light of these facts, the 

first and second private interest factors—the parties’ respective choices of forum—are largely 

neutral, perhaps tipping slightly in favor of the FTC. 

 The third private interest factor – where the claim arose – weighs in defendants’ favor 

because “no underlying operative facts” arose in the District of Columbia. S.E.C. v. Ernst & 

Young, 775 F. Supp. 411, 414 (D.D.C. 1991). The FTC argues that because this case is 

preliminary injunction proceeding in aid of an administrative proceeding currently pending in the 

District of Columbia, this case, in a procedural sense, arises out of that administrative action. 

There is, however, no legal support provided for the plaintiff’s proposition. Courts in this district 

have held that claims “arise” for purposes of Section 1404(a) in the location where the corporate 

decisions underlying those claims were made, see, e.g., Berenson v. National Financial Services, 

LLC, 319 F. Supp. 2d 1, 4 (D.D.C. 2004) (agreeing with “the defendants’ position that the claims 

arose at the location where the corporate decisions were made”), or where most of the significant 

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events giving rise to the claims occurred. See, e.g., Davis v. Am. Soc’y of Civil Eng’rs, 290 F. 

Supp. 2d 116, 123 (D.D.C. 2003) (concluding that the case did not “arise” in this district where 

“only one of the many potential events giving rise to this action . . . occurred in the District of 

Columbia”). The Asset Purchase Agreement was negotiated, drafted, and executed in 

Minneapolis. The proposed purchaser, Graco, has its principal place of business in Minnesota. 

Accordingly, the third private interest factor weighs in favor of transfer. 

 The next two considerations, convenience of the parties and convenience of the 

witnesses, do not weigh in favor of either party. Minnesota is more convenient for the 

defendants and the District of Columbia is more convenient for the FTC. With respect to the 

convenience of the witnesses, the FTC correctly points out that the relevant inquiry with respect 

to the convenience of the parties is “not whether witnesses are located outside the forum of the 

plaintiff’s choice, but whether they would be unwilling to testify in that forum.” (Pl.’s Opp.’n at 

14) (quoting Cephalon, 551 F. Supp. 2d at 28). There is no evidence that any witnesses would be 

unwilling or unavailable to testify in either forum. 

Turning to the final private-interest consideration—ease of access to the sources of 

proof—the Court finds that this factor weighs slightly in favor of transfer. The FTC contends 

that the documentary evidence in this case is in electronic form and available to anyone with 

authority to access it and an internet connection. (Pl’s. Opp’n. at 15). The Court acknowledges 

the fact that that the location of documents is “increasingly irrelevant in the age of electronic 

discovery. Fanning v. Capco Contractors, Inc., 711 F. Supp. 2d 65, 70. However, these 

technological advances do not obviate the access to evidence inquiry entirely. See In re Apple, 

Inc., 602 F.3d 909, 914 (8th Cir. 2010) (finding that, notwithstanding the convenience provided 

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by electronic filing, “if the need arises to refer to original documents or evidence in the litigation, 

[the district where the movant is headquartered] would prove more convenient.”). 

 Of the three public interest factors, the first – local interest – cuts in favor of transfer. 

The District of Minnesota has an interest in having plaintiff’s claims “resolved in the locale 

where they arise.” Trout Unlimited v. Dep’t of Agric., 944 F.Supp. 13, 19 (D.D.C. 1996); see 

also Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 509 (1947) (stating that, “[t]here is a local 

interest in having localized controversies decided at home.”). As previously discussed, the 

majority of the operative facts underlying the FTC’s claims occurred in the District of 

Minnesota. The Asset Purchase Agreement at issue was negotiated, drafted, and executed in that 

district. Graco is headquartered in that district. Based on these facts, the Court finds that 

transfer is supported by a local interest in having this matter resolved in a Minnesota court. 

The relative congestion of the transferee and transferor courts are largely neutral. While 

“congestion alone is not sufficient reason to transfer, relative docket congestion and potential 

speed of resolution is an appropriate factor to be considered” by district courts in the motion to 

transfer analysis. See Starnes v. McGuire, 512 F.2d 918, 932 (D.C. Cir. 1974). The median time 

to trial is a little over a year longer in the District of Columbia than in Minnesota. However, as 

this is an action for a preliminary injunction, the median time from filing to disposition is the 

more relevant metric. The median time from filing to disposition in the District of Columbia was 

7.2 months for the 12-month period ending on September 30, 2011, while the median time 

interval for the District of Minnesota was 8.5 months for the same time period. See Federal 

Court Management Statistics, District Courts – September 2011, available at 

http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics/DistrictCourtsSep2011.as

px. Because there is no appreciable difference in docket congestion between the two districts, 

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this factor is neutral. Similarly, the final factor—familiarity with the governing laws—does not 

cut in favor of, or against, transfer. This action involves claims grounded in federal law. The 

district court in Minnesota does not have any more or less familiarity with the federal antitrust 

laws or the administrative laws that are relevant to this preliminary injunction proceeding than 

this district. 

 Taken together, the Defendants have carried their burden to show that “the balance of 

convenience of the parties and witnesses and the interest of justice” favor transfer. The FTC’s 

choice of forum is entitled to some deference, but not “great deference,” because the District of 

Columbia has no meaningful connection to the parties or the subject matter of the controversy. 

No other factor favors retaining venue in the District of Columbia. The District of Minnesota is 

the more appropriate forum because the operative events arose there, the evidence and sources of 

proof are located there, the Defendants are located there (or closer to there), and the district has a 

local interest to adjudicate this dispute. 

 For the foregoing reasons, the Court will deny defendants’ motion to dismiss for lack of 

personal jurisdiction under Rule 12(b)(2) and improper venue under Rule 12(b)(3), but grant 

defendants’ motion to transfer this action to the United States District Court for the District of 

Minnesota pursuant to 28 U.S.C. § 1404(a). A separate Order accompanies this Memorandum 

Opinion. 

SO ORDERED. 

Date: January 26, 2012 

 

 ROBERT L. WILKINS 

 United States District Judge 

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