In stark contrast to her perfunctory response to my motion to dismiss
the Complaint, Ms. Greenberg submitted a five-page response to my motion for change of venue,
preceded by not only a Table of Contents but a Table of Authorities as well. This suggests to me
Taubman really, really, really doesn't want a change of venue.
Ms. Greenberg believes that my motion for change of venue has a better chance of succeeding
than my motion to dismiss the complaint, so it warrants more refutation.
Here's what Ms. Greenberg thinks about the idea of moving the case to
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
THE TAUBMAN COMPANY LIMITED
v. WEBFEATS and HENRY MISHKOFF,
Civil Action No. 01-72987
Honorable Lawrence P. Zatkoff
Magistrate Judge Komives
PLAINTIFF'S BRIEF IN OPPOSITION
TO MOTION FOR CHANGE OF VENUE
I. Procedural Background.
As a preliminary, matter, Plaintiff objects to the general failure of Defendants to proceed in
accordance with the court rules. These procedural breaches are significant in that they affect the
substantive rights of the parties in this case. The following is a summary of just a few of the
violations of court rules made by Defendants to date:
Defendants failed to answer the complaint within the prescribed time period. The
answer was due on October 5, 2001 based on Defendants' agreement to accept
service on September 5, 2001. However an answer was not served until nearly six
weeks later, on October 22, 2001. Notwithstanding Defendants' failure to file an
answer, and failure to obtain an extension, the court refused to enter default on
October 16, 2001.
Defendants filed the instant motion to change venue long after the answer was due,
when it was technically in default, without seeking an extension, without seeking
concurrence in the relief sought, without specifying whether concurrence was
sought, and with no supporting memorandum, all in violation of the rules.
Defendants responded substantively to Plaintiffs motion for preliminary
injunction, filing an excessively long brief, without objecting to venue.
Defendants filed a motion to dismiss the complaint based on improper service,
without seeking concurrence, without specifying whether concurrence was sought,
and without a supporting memorandum, in violation of the rules, and
notwithstanding that they had previously agreed to accept service, as confirmed in a
letter dated September 5, 2001.
Defendants have filed multiple briefs in response to the Court's Order to Show
Cause, exceeding the Court ordered limit often pages.
[I don't get it: I thought that the information you include in documents you submit to the Court
are supposed to be relevant to the issue at hand. But I guess my legal naivete must be showing,
because Ms. Greenberg has used the opening section of her response to my motion for a change of venue
to list every problem she has with everything I've ever done, whether or not it's even remotely
related to the issue of venue.]
Defendants election to represent themselves without the assistance of counsel has resulted
in an unfair application of the rules in this case. Plaintiff, having secured counsel, and making
every effort to comply with the letter and spirit of the rules, should not be penalized as a result of
Defendants' ignorance of the required procedure.
[Are you getting this: Ms. Greenberg is saying that I have an unfair advantage over her because I
don't know the rules and she does!]
II. The Motion to Change Venue Should Be Denied.
As stated above. the motion to change venue should be stricken for its numerous
procedural defects, i.e., no concurrence was sought, no reference to concurrence was set forth in
the motion, and no brief was filed. In addition, however, the motion should be denied on
substantive grounds, for the reason that it is not well based in law.
The law is well established that the defense of improper venue is easily waived. As
stated in Moore's "[a] defendant loses the right to obtain a transfer or dismissal of the action for
improper venue under Section 1406(a) unless he or she preserves this defense by making a timely
and sufficient objection to improper venue and by avoiding conduct that might be considered an
implicit waiver." 17 Moore's Federal Practice §111.36. As the venue statute provides at 28
U.S.C. §1406(b): "Nothing in this chapter shall impair the jurisdiction of a district court of any
matter involving a party who does not interpose timely and sufficient objection to venue."
Defendants' motion in this case is defective in that it is that is both untimely, and insufficient, in
view of Defendants' extensive conduct prior to fling, thereby constituting a waiver.
A. Defendants' Motion is Untimely.
Defendants essentially concede the untimeliness of this motion in their statement that they:
fear that this request may be denied by the Court strictly because of
its timing,, rather than its merit. Defendants respectfully ask the
Court to be understanding of the fact that Defendants do not have
legal representation, and were not aware until yesterday that a
change of venue was even possible.
Defendants' motion at page 2.
Plaintiff respectfully submits that such "understanding" is directly inconsistent with the
law of venue, which requires that the motion be timely brought, and that the defense of improper
waiver be easily waived. Indeed, even if the instant motion had been timely brought,
Defendants' conduct prior to filing this motion constitutes a full waiver of the defense, given
Defendants' extensive participation in arguing against the preliminary injunction. This is the very
type of participation which constitutes a waiver of the defense. See, for example, Manchester
Knitted Fashions v. Amalgamated, 967 F.2d 688, 691 (1st Cir. 1992); Marquest Medical Products
Inc. v. ENDE Corp., 496 F. Supp. 1242, 1244-6 (D. Colo. 1980). The law even holds that such
conduct can waive the defense after the timely filing of an objection to venue. Based on
Defendants' substantive activity in this case, its objection to venue should be considered untimely,
B. Defendants Have Waived the Venue Defense By Defaulting.
The law of venue also provides that "if a defendant defaults in an action by not responding
to the complaint within the applicable time limits, the objection to improper venue is waived."
17 Moore's Federal Practice §111.36. Indeed, even if the default is later set aside, the defense
of venue is not revived. See Katz v. Lear Siegler, Inc., 1993 U.S. App. LEXIS 32075 (Fed. Cir.
1993), cert. denied __ U.S. __, 114 S.Ct. 1069 (1994). In this case. Defendants did not answer the
complaint as required by the Court rules, and failed to bring any objection to venue within the
prescribed time period. This constitutes an unequivocal waiver of the defense. Bringing it at this
late date, when no answer had properly been filed, especially after substantively participating in
the preliminary injunction proceedings, is no different than the attempt in Katz to revive the
defense after having the default set aside. As in Katz, the motion must be denied as waived.
C. Venue is Properly Laid in This District.
Even if Defendants had timely brought an objection to venue (although it is undisputed,
even by Defendants in their brief that they did not), any such objection should be denied as
meritless. The applicable law establishing venue, which is correctly cited by Defendants, is
28 U.S.C. §1391, which provides for venue in:
a judicial district in which a substantial part of the event or
omissions giving rise to the claims occurred, or a substantial part of
the property that is the subject of the action is situated.
Although Defendants have cited the correct statute, they are incorrect in their construction
of the statute. Specifically, Defendants state that the property that is the subject of this action is
"Plaintiff's shopping mall." To the contrary, this is an action for trademark infringement and
cybersquatting, based on Defendants' improper appropriation of Plaintiff's trademarks, not of
Plaintiff's shopping mall. It is this property, the intellectual property rights of Plaintiff, which is
the subject of the litigation. These trademark rights, the subject of Plaintiffs's federal registration,
are situated here in Michigan with Plaintiff (as well as throughout the country). It is in Michigan
that Plaintiff's property rights are created, cultivated, policed, and, perhaps most significantly in
this case, where harm will result if (and when) these rights are violated. Venue is proper in
Michigan under the clear language of the statute, the site where "a substantial part of the property
which is the subject of the action is situated."
[You know, at least when I quote from the U.S. Code I don't snip out the sections that I don't
like. For example, in my motion to change venue, I quoted both parts 1 and 2 the relevant language;
Ms. Greenberg remembered to quote from part 2 but somehow forgot about part 1, which immediately
preceded it. Just as reminder, it says: "A civil action ... may, except as otherwise provided by
law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside
in the same State..."
And later, the U.S. Code adds: "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." For obvious reasons, Ms. Greenberg neglected to respond to that section, as
D. Deference Must Be Given to Plaintiff's Choice of Forum.
The law gives great deference to the Plaintiff's choice of forum - here, Michigan. "As a
general rule, the plaintiff's choice of forum is given significant weight and will not be disturbed
unless other factors weigh substantially in favor of transfer." See 17 Moore's Federal
Practice §111.13[c] (emphasis added); citing, inter alia, Schexnider v. McDermott Int'l, Inc.,
817 F.2d 1159, 1162 (5th Cir. 1987) (plaintiff's choice of forum should rarely be disturbed).
Defendants have submitted no reason, let alone any significant reason, to disturb this choice. As
stated in their brief, Defendant is "an individual with limited resources." Plaintiff, too, has limited
resources, and has found itself forced into funneling its resources into litigation to bring an end to
the intentional torts of willful trademark infringement and cybersquatting.
[Isn't that good to know: The Taubman company has limited resources, just like me! I guess that
this case must be putting quite a strain on them! Let's see, according to Yahoo Finance: "For the six
months ended 6/01, revenues increased 13% to $162.4 million." CEO Robert Taubman was paid a salary of
$1,200,000 last year. But it's not all rosy for the Taubmans: Chairman Alfred Taubman is the former
chairman of Sotheby's, the auction house and he's currently on trial for conspiring with rival
Christie's to fix commissions. He's already agreed to pay nearly $200,000,000 to defray Sotheby's
penalties! Well, maybe I should feel bad about making the Taubmans spend money on suing me, it
sounds like they might need every penny they can get their hands on...]
It should also be noted that, under the Anti-Cybersquatting law, a successful plaintiff is
entitled to recover its costs, including attorney's fees. If Plaintiff prevails in this case, Defendants'
expenses would potentially be compounded if Defendants are required to pay Plaintiffs costs in
litigating this in a forum across the country.
[Doesn't that warm your heart? Taubman is worried about me! If they have to fly all the way to
Texas to harass me, their expenses will just get added to my tab. If they win, that is...
which they seem to think is a foregone conclusion...]
For all the reasons set forth above, Plaintiff states that this motion should be denied as both
untimely and waived by virtue of Defendants' actions. Venue in Michigan is properly laid, and
Michigan is Plaintiff's choice of forum. The case should be retained in Michigan.
Julie A. Greenberg (P38299)
GIFFORD, KRASS, GROH, SPRINKLE,
ANDERSON & CITKOWSKI, P.C.
280 N. Old Woodward Ave., Suite 400
Birmingham, Michigan 48009
Attorneys for Plaintiff
Dated: November 6, 2001
View the Original Brief (in a