UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

AMWAY GLOBAL,

Case No. 09-12946

Petitioner,

Hon. Gerald E. Rosen

v.

ORRIN WOODWARD, et al.,

Respondents.

____________________________/

OPINION AND ORDER DENYING RESPONDENTS’

MOTION FOR CHANGE OF VENUE OR FOR STAY

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on November 20, 2009 

PRESENT: Honorable Gerald E. Rosen

Chief Judge, United States District Court

In a petition filed on July 24, 2009, Petitioner Amway Global seeks an order

confirming an arbitration award entered that same day in favor of Petitioner and against

Respondents Orrin Woodward, Laurie Woodward, Chris Brady, Terri Brady, Tim Marks,

and Amy Marks. Through the present motion filed on August 17, 2009, Respondents

request that this action be transferred to the United States District Court for the District of

Utah, where purportedly related litigation has been pending for over a year. 

Alternatively, Respondents ask that this action be stayed until the Utah district court rules

on certain pending motions. For the reasons stated below, the Court readily concludes

that neither a transfer nor a stay is warranted.

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 1 of 13 Pg ID 5838
2

I. PROCEDURAL BACKGROUND

Although a full account of the parties’ litigation history would rival War and

Peace in length, if not in literary merit, a brief summary suffices for present purposes. In

October of 2008, Petitioner’s predecessor-in-interest, Quixtar Inc., brought suit in this

Court to compel a number of parties, including the six Respondents here, to return to

arbitration proceedings that Quixtar had commenced in August of 2007 (the “JAMS

Arbitration”). In a December 17, 2008 ruling, this Court determined that the parties

should resume the JAMS Arbitration, see Quixtar Inc. v. Brady, Nos. 08-14346, 08-

14347, 2008 WL 5386774 (E.D. Mich. Dec. 17, 2008), and the Sixth Circuit affirmed this

decision on appeal, see Quixtar, Inc. v. Brady, No. 08-2629, 328 F. App’x 317 (6th Cir.

Apr. 30, 2009).

While the JAMS Arbitration remained ongoing, Petitioner became embroiled in

litigation with MonaVie, Petitioner’s competitor in the sale and distribution of health and

beauty products. Specifically, Petitioner and MonaVie brought suit against each other in

March of 2008 in the United States District Court for the District of Utah, with Petitioner

evidently alleging that MonaVie had tortiously interfered with Petitioner’s relationships

with certain of its former independent business owners (“IBOs”), and MonaVie

apparently countering that certain provisions in Petitioner’s agreements with its former

IBOs were unenforceable. A year later, in March of 2009, a group of former IBOs who

had become MonaVie distributors filed a putative class action complaint against

Petitioner in the Utah district court, advancing similar challenges to the enforceability of

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 2 of 13 Pg ID 5839
3

Petitioner’s agreements with its IBOs. As former IBOs who now distribute MonaVie

products, the six Respondents before this Court evidently fall within the class defined in

the Utah class action complaint. The Utah court consolidated these three cases — the

suits brought by Petitioner and MonaVie and the putative class action brought by the

former IBOs — and this consolidated Utah litigation remains pending.

Following this Court’s December 2008 order directing the parties to return to the

JAMS Arbitration, the parties participated in a 16-day arbitration in Detroit, and the

arbitrator issued a July 24, 2009 award in favor of Petitioner and against Respondents. 

That same day (a Friday), Petitioner commenced the present action in this Court,

requesting an order confirming the arbitrator’s award under section 9 of the Federal

Arbitration Act (“FAA”), 9 U.S.C. § 9.

The following Monday, July 27, 2009, Respondents commenced an action in the

Utah district court, seeking an order vacating the arbitrator’s award. They also have

moved to consolidate this latest Utah suit with the existing Utah litigation, and this

request remains pending. Through the present motion filed on August 17, 2009,

Respondents request that the suit before this Court be transferred to the Utah district

court, where it then could be consolidated with the pending Utah litigation. Alternatively,

they ask the Court to stay this case until the Utah court decides certain issues which, in

their view, will directly impact the parties’ claims and defenses in this action.

II. ANALYSIS

A. The Standards Governing Respondents’ Request to Transfer Venue

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 3 of 13 Pg ID 5840
4

Respondents’ motion for a change of venue is brought under 28 U.S.C. § 1404(a),

which authorizes a federal district court to transfer a suit “to any other district or division

where it might have been brought” as warranted “[f]or the convenience of parties and

witnesses, in the interest of justice.” This statutory provision grants the federal district

courts considerable discretion to transfer a case in order to “protect litigants, witnesses

and the public against unnecessary inconvenience and expense.” Van Dusen v. Barrack,

376 U.S. 612, 616, 84 S. Ct. 805, 809 (1964) (internal quotation marks and citation

omitted). In deciding whether to exercise this discretion, however, a court must give

“substantial deference” to the plaintiff’s choice of forum, and the party seeking a transfer

“bears the burden of demonstrating that fairness and practicality strongly favor the forum

to which transfer is sought.” Audi AG & Volkswagon of America, Inc. v. D’Amato, 341 F.

Supp.2d 734, 749-50 (E.D. Mich. 2004) (internal quotation marks and citations omitted).

 Under the plain language of § 1404(a), a change of venue is permitted only if

three criteria are satisfied: (1) that the action could have been brought in the transferee

district; (2) that a transfer serves the interest of justice; and (3) that transfer is for the

convenience of the witnesses and parties. Kepler v. ITT Sheraton Corp., 860 F. Supp.

393, 398 (E.D. Mich. 1994). Petitioner evidently does not dispute that this suit could

have been brought in the Utah district court. See Cortez Byrd Chips, Inc. v. Bill Harbert

Construction Co., 529 U.S. 193, 195, 120 S. Ct. 1331, 1334 (2000) (holding that a motion

under the FAA to confirm, vacate, or modify an arbitration award may be brought “either

where the award was made or in any district proper under the general venue statute,” 28

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 4 of 13 Pg ID 5841
5

U.S.C. § 1391). Thus, only the remaining two statutory criteria are at issue. In

addressing these statutory requirements, the courts have considered a number of factors,

including “(1) the convenience of the parties; (2) the convenience of the witnesses; (3) the

relative ease of access to sources of proof; (4) the availability of process to compel

attendance of unwilling witnesses; (5) the cost of obtaining willing witnesses; (6) the

practical problems associated with trying the case most expeditiously and inexpensively;

and (7) the interest of justice.” Audi AG, 341 F. Supp.2d at 749 (internal quotation marks

and citations omitted). This list is not exhaustive, however, and “the Court may consider

any factor that may make any eventual trial easy, expeditious, and inexpensive.” Audi

AG, 341 F. Supp.2d at 749 (internal quotation marks and citations omitted).

B. None of the Relevant Considerations Favors a Change of Venue under 28

U.S.C. § 1404.

Respondents’ request for a change of venue rests almost exclusively on the

premise that the parties before the federal district court in Utah have already presented

evidence and argument on “identical issues” to those implicated in the present suit, with

the Utah court purportedly “poised to decide” these issues. (Respondents’ Motion, Br. in

Support at 12-13.) Under these circumstances, Respondents contend that it would be a

waste of judicial resources for this Court to insist upon a “duplicative” round of briefing

in the present action, and they further warn that “retaining the case [in this Court] could

lead to inconsistent and irreconcilable results.” (Id. at 13.) As explained below, the

Court finds that Respondents’ argument is flawed in its initial premise, and that, more

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 5 of 13 Pg ID 5842
6

generally, they have failed to identify a basis for disturbing Petitioner’s choice of forum.

Turning first to the various factors that attempt to gauge the convenience of the

parties and witnesses, Petitioner correctly observes that these factors are entitled to little

or no weight under the particular circumstances presented here. This is not a case in

which the parties will proceed through the usual course of discovery, motion practice, and

trial. Rather, the only question before this Court is whether to confirm or vacate the

arbitrator’s award, and this matter will be resolved on cross-motions, without the need for

discovery, witnesses, or an evidentiary hearing. Indeed, the parties have already filed

these cross-motions, without any suggestion of a need to take discovery or any request for

an evidentiary hearing. Consequently, if convenience is an issue at all, it could only be

the convenience of counsel — and, as Petitioner notes, Respondents’ counsel is located in

Detroit, with offices across the street from the courthouse.

Even if the Court were to consider the convenience of the parties, this factor would

not favor the District of Utah over the Eastern District of Michigan. The parties

participated in extensive arbitration proceedings held in this District. At the time these

proceedings began, Respondents were all residents of Michigan, and they subsequently

moved to Florida, not Utah. Moreover, Petitioner points out that it was Respondents who

selected Detroit as the forum for arbitration, as opposed to Petitioner’s preferred locations

of Grand Rapids, Michigan (near Petitioner’s headquarters) or Washington, D.C. Finally,

while Respondents commenced a suit in the District of Utah shortly after the present

action was filed, their connection to Utah prior to that time consisted solely of their status

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 6 of 13 Pg ID 5843
7

as members of a putative class that has yet to be certified. This record surely provides no

basis for overriding Petitioner’s selection of the Eastern District of Michigan.

Accordingly, if Respondents’ request for a change of venue were to be granted, it

could only be based upon the interests of justice. As noted, Respondents’ argument on

this point rests almost exclusively upon notions of judicial economy. In particular,

Respondents contend that the pending litigation before the Utah district court involves

“identical issues,” (Respondents’ Motion, Br. in Support at 12), and they suggest that the

Utah court is well along the path to addressing and resolving these issues. Here, in

contrast, the parties are still in the initial stage of briefing on their cross-motions to

confirm or vacate the arbitrator’s award. It follows, in Respondents’ view, that “the

submission of extensive evidence and briefing duplicative of that already pending before

the Utah court and awaiting decision will unquestionably waste judicial and party

resources.” (Id. at 13.)

The short answer to this contention is that the issues presented in this case and in

the Utah litigation are not the same. Rather, the questions before the two courts differ in

one important respect: the dispute between Petitioner and Respondents has already been

arbitrated, while the Utah court is being asked to decide the threshold question whether

the members of the putative class of former IBOs can be compelled to arbitrate their

disputes with Petitioner. Indeed, it was precisely because the arbitration between

Petitioner and Respondents was already underway that this Court determined, in the

earlier suit brought by Petitioner, that it should not reach the issue of arbitrability, and

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 7 of 13 Pg ID 5844
8

that the parties should instead return to the JAMS Arbitration and seek judicial review

only after that proceeding reached its conclusion.

This important distinction has the potential, at least, to make all the difference in

the decisions reached in this and the Utah litigation. As this Court explained in the earlier

suit brought by Petitioner, once an arbitrator has been called upon to decide the issue of

arbitrability (which occurred here), this decision is potentially subject to only deferential

judicial review, at least so long as the parties can be “deemed to have submitted the issue

of arbitrability to the arbitrator ‘without reservation.’” Quixtar, 2008 WL 5386774, at

*10 (quoting Cleveland Electric Illuminating Co. v. Utility Workers Union, Local 270,

440 F.3d 809, 813 (6th Cir. 2006)). In the Utah litigation, by contrast, the underlying

disputes between Petitioner and its former IBOs have yet to be arbitrated, with the latter

seeking a judicial declaration that the arbitration provisions in their contracts with

Petitioner are unenforceable as a matter of law. It follows that the Utah court has not

been called upon to review an arbitrator’s decision, whether on arbitrability or any other

issue, much less to decide what level of deference, if any, to give such a decision.

Because of this important distinction in the procedural postures — and, hence, the

questions presented — in this case and the Utah litigation, it can properly be said that this

Court has had a greater opportunity to consider the issues upon which the outcome of this

case is likely to turn. In the earlier round of litigation between the parties, this Court

addressed, albeit without deciding, at least two issues that feature prominently in the

parties’ cross-motions in the present suit — namely, whether Respondents have waived

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 8 of 13 Pg ID 5845
9

their opportunity for independent judicial review of the question of arbitrability, and what

standard this Court should apply in reviewing the arbitrator’s decisions. The Sixth Circuit

also considered the issue of waiver — again, however, without deciding it — in its

decision affirming this Court’s ruling. Certainly, then, the Utah district court is no further

along in resolving these questions, which were not even presented in the Utah litigation

until Respondents commenced their recent suit to vacate the arbitrator’s award — just

days after Petitioner brought the very same issues before this Court in the present suit to

confirm the arbitrator’s award.

Apart from these considerations of convenience and judicial economy — none of

which, as explained, supports the transfer of this case to the Utah district court —

Respondents’ request for a change of venue also runs afoul of the “first-to-file” rule, a

“well-established doctrine that encourages comity among federal courts of equal rank.” 

Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 551

(6th Cir. 2007) (internal quotation marks and citations omitted). This rule “provides that

when actions involving nearly identical parties and issues have been filed in two different

district courts, the court in which the first suit was filed should generally proceed to

judgment.” Zide Sport Shop of Ohio, Inc. v. Ed Tobergte Associates, Inc., No. 00-3183,

16 F. App’x 433, 437 (6th Cir. July 31, 2001) (internal quotation marks and citation

omitted). This rule plainly is applicable here, where Petitioner’s action in this District

and Respondents’ suit in the Utah district court are simply two sides of the same coin,

featuring the very same parties and issues, and where the action before this Court was

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 9 of 13 Pg ID 5846
10

filed first — albeit only by three days, separated by a weekend.

Respondents recognize that the first-to-file rule is potentially applicable here, but

they suggest various reasons why the Court should decline to apply it. First, they

correctly observe that it is “not a strict rule,” and that “[d]istrict courts have the discretion

to dispense with the first-to-file rule where equity so demands.” Certified Restoration

Dry Cleaning Network, 511 F.3d at 551 (internal quotation marks and citations omitted). 

Respondents then assert that it would be inequitable to apply the first-to-file rule here,

where (i) there was a negligible three-day difference between Petitioner’s commencement

of this action and their filing of suit in Utah, and (ii) Petitioner’s negligible three-day

advantage was attributable, in Respondents’ view, to an unseemly combination of a race

to the courthouse and forum-shopping.

The Court need not decide whether the first-to-file rule alone would warrant the

denial of Respondents’ request for a change of venue, because this rule merely confirms

the Court’s conclusion that transfer would not be appropriate. Respondents’ charge of a

“race to the courthouse” holds little sway with the Court, where there can hardly be any

doubt — based on a procedural history replete with examples on both sides of

litigiousness, forum-shopping, and a tendency to multiply the proceedings — that

Respondents would have raced to the Utah courthouse in precisely the same fashion,

regardless of whether Petitioner had commenced the present suit when it did or a few

days later. See X-Rite, Inc. v. Volk, No. 08-264, 2008 WL 1913926, at *2 (W.D. Mich.

Apr. 28, 2008) (observing that while the first-to-file rule “has the natural tendency to

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 10 of 13 Pg ID 5847
11

encourage a race to the courthouse, . . . merely participating in such a race is not a

sufficient reason to depart from the rule”). Similarly, Petitioner’s selection of the Eastern

District of Michigan hardly raises suspicions of nefarious “forum-shopping” — to the

contrary, it was quite reasonable to choose the District in which the JAMS Arbitration

was conducted, see 9 U.S.C. § 9 (providing that, in the absence of an agreement between

the parties specifying a different court, an application for confirmation of an arbitration

award “may be made to the United States court in and for the district within which such

award was made”), as well as the Court in which the parties had previously litigated

issues arising from the arbitration proceeding. In short, the Court fails to perceive any

inequity in applying the first-to-file rule here. 

Indeed, Petitioner correctly observes that the litigation before this Court could

properly be viewed as “first” in a larger sense, even if Petitioner had not won the parties’

most recent race to the courthouse. While the earlier suit before this Court was

terminated pending the conclusion of the JAMS Arbitration, the present action

nonetheless may reasonably be considered a continuation of the prior litigation, in the

sense that both suits involve issues arising in the course of the arbitration proceeding. 

Moreover, and as explained earlier, this Court’s decision in the earlier suit at least

touched upon, without deciding, certain of the issues that are now squarely presented in

the current action. To the extent that both this and the prior suit can be viewed as part of

an overarching effort to secure some degree of judicial oversight or scrutiny of the JAMS

Arbitration — an effort in which both sides participated, as Respondents sought in the

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 11 of 13 Pg ID 5848
1

Of course, to the extent that the Utah court issues a ruling that a party views as relevant

to the matters pending before this Court, any such ruling may be brought to the Court’s attention

through an appropriate filing.

12

prior suit to disengage from the arbitration process, while Petitioner sought a return to this

process — this Court’s involvement with the arbitration proceeding surely predates, by

nearly a year, the Utah district court’s relatively recent involvement with issues arising

from the JAMS Arbitration. This consideration further buttresses the Court’s conclusion

that a change of venue would not be appropriate.

Finally, as an alternative to transfer, Respondents propose that this action be stayed

until the Utah district court has ruled on the issues on which it has heard argument to date. 

Yet, as explained earlier, these issues simply are not the same as the questions presented

in the case before this Court. Accordingly, nothing would be gained by awaiting a ruling

from the Utah court.1

III. CONCLUSION

For the reasons set forth above,

NOW, THEREFORE, IT IS HEREBY ORDERED that Respondents’ August 17,

2009 motion for change of venue or for stay (docket #23) is DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: November 20, 2009

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 12 of 13 Pg ID 5849
13

I hereby certify that a copy of the foregoing document was served upon counsel of record

on November 20, 2009, by electronic and/or ordinary mail.

s/Ruth Brissaud 

Case Manager

2:09-cv-12946-GER-PJK Doc # 52 Filed 11/20/09 Pg 13 of 13 Pg ID 5850