                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
__________________________________________
                                           )
SOUNDEXCHANGE, INC.,                       )
                                           )
                  Plaintiff,               )
                                          )
      v.                                  )  Civil Action No. 19-999 (RBW)
                                          )
MUSIC CHOICE,                             )
                                          )
                  Defendant.              )
__________________________________________)

                                      MEMORANDUM OPINION

        The plaintiff, SoundExchange, Inc. (“SoundExchange”), brings this civil action pursuant

to the Copyright Act of 1976 (the “Copyright Act”), 17 U.S.C § 101 (2018), against the

defendant, Music Choice, to recover unpaid royalties. See Complaint (“Compl.”) ¶¶ 32–41.

Currently pending before the Court is Defendant Music Choice’s Motion to Transfer Venue

Under 28 U.S.C. § 1404(a) (“Def.’s Mot.” or the “motion to transfer”). Upon careful

consideration of the parties’ submissions, 1 the Court concludes for the following reasons that it

must deny the defendant’s motion to transfer.

                                            I.   BACKGROUND

        The following facts are derived from the plaintiff’s Complaint.

        Pursuant to the Copyright Act, “certain music service providers” may obtain “statutory

licenses that permit them to use,” as part of the services they provide, “sound recordings

protected by federal law without having to negotiate license agreements with rights owners.”

1
 In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) Defendant Music Choice’s Answer to Complaint (“Answer”); (2) the Memorandum of Points and
Authorities in Support of Defendant Music Choice’s Motion to Transfer Venue Under 28 U.S.C. § 1404(a) (“Def.’s
Mem.”); (3) SoundExchange’s Memorandum of Points and Authorities in Opposition to Defendant Music Choice’s
Motion to Transfer Venue Under 28 U.S.C. § 1404(a) (“Pl.’s Opp’n”); and (4) Defendant Music Choice’s Reply in
Further Support of its Motion to Transfer Venue Under 28 U.S.C. § 1404(a) (“Def.’s Reply”).
Compl. ¶ 2. Music service providers can obtain a statutory license “by filing a Notice of Use in

the Copyright Office[.]” Id. “Thereafter, a statutory licensee can use sound recordings . . . to its

commercial advantage so long as it complies with the requirements of the statutory license.” Id.

The Copyright Act requires that statutory licensees “pay specified royalties on a timely basis[,]”

id., and “report their usage of recordings[,]” id. ¶ 17. The royalty rates that statutory licensees

must pay are determined by the Copyright Royalty Board (the “Board”), which consists of three

Copyright Royalty Judges appointed pursuant to the Copyright Act. See id. ¶ 3. The resulting

royalty rates are then set forth in regulations promulgated by the Board. See id. (citing provision

of the Copyright Act).

       The plaintiff is a non-profit organization headquartered in the District of Columbia that

has been designated by the Board “as the sole entity in the United States to collect royalties from

statutory licensees and distribute these royalties to performing artists and copyright owners[.]”

Id. ¶ 11. The plaintiff has authority to initiate independent audits of music service providers to

verify the royalty statements and payments made to the plaintiff. See id. ¶ 7 (citing 37 C.F.R.

§ 384.6 (2020)).

       The defendant, a digital music service provider headquartered in Horsham, Pennsylvania,

uses statutory licenses to provide various digital music services. See Compl. ¶ 4. The defendant,

through its audio service known as the “Business Establishment Service,” “provides multiple

channels of commercial-free, radio-like music,” which are “broadcast to subscribing retail

establishments and other businesses, to play on-premise as background music for the enjoyment

of customers.” Def.’s Mem. at 1; see Compl. ¶ 4.

       In 2016, the plaintiff initiated an audit of the defendant, using the independent auditor

Prager Metis CPAs, LLC (“Prager Metis”). See Compl. ¶ 7. According to the plaintiff, the




                                                  2
defendant purportedly “failed to make the required payments to [the plaintiff] by the applicable

due dates[,]” and “systematically underpaid statutory royalties” for its Business Establishment

Service during the period from January 1, 2013, through December 31, 2016. Id.

        The plaintiff initiated this civil action in this Court on April 10, 2019, seeking recovery of

the unpaid royalties and late fees under 37 C.F.R. § 384.3, 384.4, as well as unpaid verification

fees under 37 C.F.R. § 384.6(g). See id. ¶¶ 32–41. On June 24, 2019, the defendant filed its

answer, and thereafter moved to transfer this case to the Southern District of New York on venue

grounds under 28 U.S.C. § 1404(a). See generally Def.’s Mot. The motion to transfer is the

subject of this Memorandum Opinion.

                                   II. STANDARD OF REVIEW

        28 U.S.C. § 1404(a) provides that, “[f]or 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 or to any district or division to which all parties have

consented.” 28 U.S.C. § 1404(a) (2018). The decision to transfer a case is discretionary, and a

district court must conduct “an individualized, ‘factually analytical, case-by-case determination

of convenience and fairness.’” New Hope Power Co. v. U.S. Army Corps of Eng’rs, 724

F. Supp. 2d 90, 94 (D.D.C. 2010) (quoting Sec. & Exchange Comm’n v. Savoy Indus. Inc., 587

F.2d 1149, 1154 (D.C. Cir. 1978)). The moving party “bears the burden of establishing that the

transfer of th[e] action is proper.” Greater Yellowstone Coal. v. Bosworth, 180 F. Supp. 2d 124,

127 (D.D.C. 2001).

                                            III. ANALYSIS

        The defendant argues that transferring this case to the Southern District of New York is

appropriate because “the witnesses and evidence likely to be relevant to this dispute” are located




                                                   3
in New York and Horsham, Pennsylvania, rather than the District of Columbia, and that the

Southern District of New York “has a stronger interest in and connection to this dispute than this

District.” Def.’s Mem. at 2. The plaintiff responds that the defendant has not satisfied its burden

to justify transferring this case and “override [the plaintiff’s] choice of its home forum to

litigate,” where “[a]ll of the relevant facts . . . in connection with this dispute took place in the

District of Columbia or in the Eastern District of Pennsylvania,” rather than in the Southern

District of New York. Pl.’s Opp’n at 1, 8.

        When determining whether to transfer a case on venue grounds, the Court must initially

determine that the proposed transferee court is located “in a district where the action might have

been brought.” Fed. Hous. Fin. Agency v. First Tenn. Bank Nat’l Ass’n, 856 F. Supp. 2d 186,

190 (D.D.C. 2012) (Walton, J.) (quoting Montgomery v. STG Int’l., Inc., 532 F. Supp. 2d 29, 32

(D.D.C. 2008)). If the action could have been brought in the proposed transferee court, the Court

then

        considers both the private interests of the parties and the public interests of the
        courts[.] The private interest considerations include: (1) the plaintiff[’s] choice of
        forum, unless the balance of convenience is strongly in favor of the defendant[];
        (2) the defendant[’s] choice of forum; (3) whether the claim arose elsewhere; (4)
        the convenience of the parties; (5) the convenience of the witnesses . . . , but only
        to the extent that the witnesses may actually be unavailable for trial in one of the
        fora; and (6) the ease of access to sources of proof. The public interest
        considerations include: (1) the transferee[] [court’s] familiarity with the governing
        laws; (2) the relative congestion of the calendars of the potential transferee and
        transferor courts; and (3) the local interest in deciding local controversies
        at home.

Shapiro, Lifschitz & Schram, P.C. v. Hazard, 24 F. Supp. 2d 66, 71 (D.D.C. 1998).




                                                   4
         The Court first addresses whether this action could have been brought in the Southern

District of New York, the proposed transferee court. 2 Pursuant to 28 U.S.C. § 1400(a), the

applicable federal venue law for claims arising under the Copyright Act, “[c]ivil actions . . .

arising under any Act of Congress relating to copyrights . . . may be instituted in the district in

which the defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a); see Bigelow v.

Garrett, 299 F. Supp. 3d 34, 48–49 (D.D.C. 2018); see also W. Coast Prods., Inc. v. Does,

1-1911, Civ. Action No. 11-1687 (ABJ), 2011 WL 11049265, at *1 n.1 (D.D.C. Oct. 25, 2011)

(noting in context of request for jurisdictional discovery that 28 U.S.C. § 1400(a) is “the

exclusive venue provision for actions brought under the Copyright Act”). Here, the defendant

maintains an office in New York City, which the defendant represents is its largest office and

principal place of business. See Def.’s Mem. at 12. Therefore, the defendant resides in the

Southern District of New York, because it is subject to the court’s personal jurisdiction. See 28

U.S.C. § 1391(c)(2) (stating that a corporate defendant or other entity with capacity to be sued

“shall be deemed to reside . . . in any judicial district in which such defendant is subject to the

court’s personal jurisdiction with respect to the civil action in question”); Zhu v. Fed. Hous. Fin.

Bd., No. 03-5297, 2004 WL 1249788, at *2 (D.C. Cir. June 7, 2004) (“The district court has

personal jurisdiction over individuals domiciled in, organized under the laws of, or maintaining a

principal place of business in the District of Columbia.”) (citing D.C. Code § 13-422)).

Accordingly, the Court concludes that this action could have properly been brought in the

Southern District of New York. 3


2
 Neither party disputes that this action could have been brought in the Southern District of New York. See Def.’s
Mem. at 18; Pl.’s Opp’n at 3 n.1.
3
 In its answer, the defendant contests the propriety of venue in the District of Columbia. See Answer at ¶ 9 (“[The
defendant] denies that 28 U.S.C. §1391 is applicable to this case.”). However, the Court notes that venue is indeed
proper in this District as well. The defendant “admits that its contacts with the District of Columbia in connection
                                                                                                        (continued . . .)


                                                           5
           The Court next addresses the private and public interest factors identified in § 1404(a)

in turn.

A.         The Private Interest Factors

     1. The Parties’ Choices of Forum and Where the Claims Arose

           The defendant argues that the plaintiff’s choice of forum is entitled to little deference,

because although the plaintiff’s headquarters is located the District of Columbia, this forum “has

little to no factual nexus to the case,” Def.’s Mem. at 21, and “the acts giving rise to [the

plaintiff’s] claims all occurred outside of the District of Columbia[,]” id. at 24. The plaintiff

responds that its choice of forum in this matter is entitled to deference because of the plaintiff’s

“meaningful relationship with the District of Columbia,” Pl.’s Opp’n at 4, and because “all of

[the plaintiff’s] conduct related to this dispute was based in the District of Columbia,” id. at 5.

           Generally, the plaintiff’s choice of forum is given substantial deference, and therefore,

the movant requesting a transfer of venue “bears a heavy burden of establishing that [the]

plaintiffs’ choice of forum is inappropriate.” Thayer/Patricof Educ. Funding, L.L.C. v. Pryor

Res., Inc., 196 F. Supp. 2d 21, 31 (D.D.C. 2002) (citations omitted). District courts defer to a

plaintiff’s choice of forum unless that forum has “no meaningful relationship to the plaintiff’s

claims or to the parties,” United States ex rel. Westrick v. Second Chance Body Armor, Inc., 771

F. Supp. 2d 42, 47 (D.D.C. 2011), or if “most of the relevant events occurred elsewhere,” Aftab

v. Gonzalez, 597 F. Supp. 2d 76, 80 (D.D.C. 2009) (quoting Hunter v. Johanns, 517 F. Supp. 2d

340, 344 (D.D.C. 2007)).

(. . . continued)
with providing its Business Establishment Service to subscribers in this District and the payments it makes to [the
plaintiff] are sufficient to subject [the defendant] to personal jurisdiction in this Court for the limited purpose of this
action.” Id. Accordingly, pursuant to 28 U.S.C. § 1391(c)(2), which provides that a corporate defendant or other
entity with capacity to be sued “shall be deemed to reside . . . in any judicial district in which such defendant is
subject to the court’s personal jurisdiction with respect to the civil action in question[,]” the defendant is deemed to
reside in the District of Columbia, and venue is therefore proper in this District pursuant to 28 U.S.C. § 1400(a).



                                                             6
         Here, the Court finds that the plaintiff’s choice of forum is entitled to deference. As an

initial matter, it is not disputed that the District of Columbia is the plaintiff’s home forum, which

weighs in favor of deference being given to its decision to bring this case in this district. See

Fed. Hous. Fin. Agency v. First Tenn. Bank Nat’l Ass’n, 856 F. Supp. 2d 186, 192 (D.D.C.

2012) (“[T]he plaintiffs’ choice of forum is frequently accorded deference, particularly where the

plaintiffs have chosen their home forum and many of the relevant events occurred there.”). 4

Moreover, there is a substantial nexus between this district and the factual circumstances

underlying the plaintiff’s allegations of underpayment of statutory royalties. The allegations that

are at the heart of the plaintiff’s claims concern the sufficiency of the defendant’s royalty

payments to the plaintiff’s License Management Department, in its District of Columbia office.

See Pl.’s Opp’n at 5–6. Additionally, the plaintiff’s decision-making, correspondence, and

conduct relevant to this action all occurred in the District of Columbia, including its initiation

and involvement in the verification audit which led to the discovery of the alleged

underpayments. See id. The Court finds that these events constitute a substantial portion of the

relevant events giving rise to the plaintiff’s claims, such that this case is not analogous to cases

where the forum has “no meaningful relationship to the plaintiff’s claims or to the parties[.]”

United States ex rel. Westrick, 771 F. Supp. 2d at 47; see Thayer/Patricof Educ. Funding, L.L.C.,

196 F. Supp. 2d at 34–35 (denying transfer of the plaintiff’s action against the defendant


4
  The defendant contends that a plaintiff’s choice of forum is “given less weight when the plaintiff is suing in a
representative capacity[.]” Def.’s Mem. at 22 (citing Gipson v. Wells Fargo & Co., 563 F. Supp. 2d 149, 157
(D.D.C. 2008)). However, the defendant’s argument is inapplicable here, as the plaintiff is not suing in a
representative capacity. While the plaintiff collects and distributes royalties for others in its day-to-day operations,
it is an “independent nonprofit organization,” Compl. ¶ 11, that “is named in the [Copyright Royalty Board’s]
regulations as the sole entity designated . . . to receive royalty payments and reports of sound recording usage from
statutory licensees.” Pl.’s Opp’n at 6 (emphasis in original). Accordingly, the plaintiff is “suing in its own name . . .
[and] none of the recipients of [the royalty] distributions will need to participate in this proceeding.” Pl.’s Opp’n
at 6.




                                                           7
corporation, and concluding that the events at issue had “a significant connection” with the

District of Columbia where, although alleged accounting fraud occurred in Kansas, the defendant

allegedly made misrepresentations in financial statements attached to an agreement that was

executed in the District of Columbia, and the plaintiff allegedly relied on these

misrepresentations in the District of Columbia). While the defendant may be correct that some

of its actions relevant to the parties’ dispute occurred in New York, this being the location where

the defendant’s playback servers are located, and where “the ephemeral copies at issue are

created, stored, and used to transmit [the defendant’s] broadcasts[,]” Def.’s Reply at 8, the fact

that some events occurred in New York does not detract from the substantial nexus that still

exists between this action and the District of Columbia, see Jalloh v. Underwood, 300 F. Supp.

3d 151, 156 (D.D.C. 2018) (finding that despite the fact that “a substantial part” of the alleged

actions took place in a different district, there were still considerable, meaningful ties between

the plaintiff’s dispute and the District of Columbia, which entitled the plaintiff’s choice of forum

to be accorded deference). 5




5
  Both parties also acknowledge that a substantial portion of the relevant facts in this action also occurred in
Horsham, Pennsylvania. Pennsylvania was the location where the defendant’s “initial decision-making regarding
how royalties for [its] Business Establishment Service [are] properly [ ] calculated took place,” Def.’s Mot. at 14, as
well as where the defendant “prepar[ed] and submit[ted] monthly statements and payments to [the plaintiff],” id. at
14–15. However, despite the plaintiff’s argument that the Eastern District of Pennsylvania is therefore the judicial
district located at “the site of [the defendant’s] own activities related to this case,” rather than the Southern District
of New York, Pl’s Opp’n at 7, “[a] claim may arise in more than one forum, just as proper venue may exist in more
than one judicial district[,]” Detroit Int’l Bridge Co. v. Gov’t of Canada, 787 F. Supp. 2d 47, 52 (D.D.C. 2011), and
where claims arise from actions in several fora, “this factor does not weigh in favor or against transfer[,]” Bederson
v. U.S., 756 F. Supp. 2d 38, 48 (D.D.C. 2010). Therefore, because some of the underlying developments giving
rise to the parties’ dispute occurred not only in this District, but also in Pennsylvania and New York, the Court
concludes that the factor of where the claims arose remains neutral. Accordingly, the defendant’s arguments
regarding this factor are insufficient to overcome the deference accorded to the plaintiff’s choice of forum. See
Greater Yellowstone Coal. v. Bosworth, 180 F. Supp. 2d 124, 129 (D.D.C. 2001) (denying transfer where “the
operative facts and impact of this case [were] linked to” the District of Columbia as well as the District of Montana,
and concluding that because “the plaintiffs’ choice of forum deserves deference,” ultimately “the plaintiffs’ interests
prevail[ed]”).



                                                            8
       Accordingly, the defendant has not “carried [its] burden of demonstrating that the

plaintiff[’s] choice of forum is unsuitable,” Smith v. Yeager, 234 F. Supp. 3d 50, 58

(D.D.C. 2017) (Walton, J.), and the Court therefore concludes that this case presents a

sufficiently substantial nexus to this district to warrant giving deference to the plaintiff’s choice

of forum.

   2. The Convenience of the Parties and Witnesses

       The defendant argues that transferring this case to the Southern District of New York

would promote convenience because (1) “the Southern District of New York is clearly more

convenient for [the defendant’s] witnesses,” as the courthouse in that district is closer in mileage

to the defendant’s New York and Pennsylvania offices, see Def.’s Mem. at 25; and (2) “key

non-party witnesses may be unavailable in this District,” because the Southern District of New

York has “subpoena power over third-party witnesses” in New York, whereas the District of

Columbia does not, id. at 26, 28. The plaintiff responds that the defendant has failed to

demonstrate that the net convenience to the parties would increase if this case is transferred, as

the defendant “entirely discounts the additional, reciprocal burden that transfer would place upon

[the plaintiff],” Pl.’s Opp’n at 9–10, and that the defendant has failed to establish that any

witnesses would refuse to travel to the District of Columbia or that the witness’ testimony could

not be obtained by other means, see id. at 11–12.

       In considering the convenience of the parties and the witnesses, courts acknowledge that

“[u]nless all parties reside in the selected jurisdiction, any litigation will be more expensive for

some than for others.” Kotan v. Pizza Outlet, Inc., 400 F. Supp. 2d 44, 50 (D.D.C. 2005)

(quoting Moses v. Bus. Card Express, Inc., 929 F.2d 1131, 1139 (6th Cir. 1991)). Therefore,

“for this factor to weigh in favor of transfer, litigating in the [proposed] transferee district must




                                                   9
not merely shift inconvenience to the plaintiffs, but rather should lead to an overall increase in

convenience for the parties.” Westrick, 771 F. Supp. 2d at 48. The Court must also consider

“the convenience of the witnesses of the plaintiff and defendant, but only to the extent that the

witnesses may actually be unavailable for trial in one of the fora.” Trout Unlimited v. U.S. Dep’t

of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996) (footnote omitted). Therefore, for this factor to

weigh in the defendant’s favor, the defendant must demonstrate “that these witnesses will refuse

to appear if the trial is held in the District of Columbia” and “show[] that the third-parties’

testimony could not be obtained by other means, such as written or videotaped depositions.”

Shapiro, Lifschitz & Schram, P.C., 24 F. Supp. 2d at 72–73; see Thayer/Patricof Educ. Funding,

196 F. Supp. 2d at 33 (“To support its request for transfer under section 1404(a), a moving party

must demonstrate (through affidavits or otherwise) what a non-resident witness will testify to,

the importance of the testimony to the issues in the case, and whether that witness is willing to

travel to a foreign jurisdiction.”).

        The Court first addresses the convenience of the parties and concludes that this factor

does not favor either side, as both parties would face some inconvenience if the case were tried

in the competing fora. The defendant’s argument that New York is the more convenient forum

due to its proximity to the defendant’s New York City and Horsham offices merely shifts the

burden of traveling from the defendant to the plaintiff, which does not result in a net increase in

convenience. Although litigating this case in New York would be more convenient for the

defendant, making it unnecessary for any of its employees to travel from New York or

Pennsylvania to the District of Columbia, “transferring venue would deprive [the plaintiff] of the

very same benefit,” Pl.’s Opp’n at 10, as the plaintiff would face similar transportation and other

expenses to bring its employees to New York. Therefore, the Court concludes that the defendant




                                                 10
has failed to demonstrate that transfer would generate an overall increase in convenience for both

parties.

           The convenience of the witnesses presents a closer question. In support of its argument

in favor of transferring this case due to the convenience of the witnesses, the defendant has

identified three third-party witnesses from Prager Metis, the accounting firm that conducted the

verification, who worked out of Prager Metis’s office in New York City. See Def.’s Mem. at

27–28. One of these witnesses, Lewis Stark, is a partner who supervised the verification of the

defendant’s payments, and currently still works in Prager Metis’s New York City office. See

Def.’s Mot., Declaration of Paul Fakler (June 24, 2019) (“Fakler Decl.”) ¶ 15. The other two

witnesses, Aleka Mazarakis and Michael Gibson, “appear[] to no longer be employed by Prager

Metis[,]” although they “continue to work in, and therefore likely reside near, the New York City

area.” Def.’s Mot., Fakler Decl. ¶¶ 14, 15. On the record currently before the Court, the Court

finds that the defendants have not established the unavailability of Mr. Stark if the case remains

in this district, as “the record does not reflect that [he] would be [unable or] unwilling to appear

in the District of Columbia.” Thayer/Patricof Educ. Funding, 196 F. Supp. 2d at 32–33

(declining to infer that Kansas-based Ernst & Young engagement partner, as well as eight

subordinate accountants, would be unwilling to testify in the District of Columbia). However,

the Court finds that “[t]here may be good reason” why it is conceivable that the two witnesses

who are no longer employed by Prager Metis “would not be willing to testify in the District of

Columbia.” Id. at 33; see Def.’s Reply at 15 (noting that the two former Prager Metis employees

“no longer have any responsibilities to Prager Metis and would be forced to take time off from

their new employment” to testify). However, even if the Court finds that a witness is unlikely to

testify, the “analysis does not end there,” as “[e]ven witnesses unwilling to appear at trial can be




                                                  11
subjected to videotape depositions that adequately capture their demeanor and credibility for

purposes of a trial.” Thayer/Patricof Educ. Funding, 196 F. Supp. 2d at 34; see, e.g.,

Dealtime.com, Ltd. v. McNulty, 123 F. Supp. 2d 750, 757 (S.D.N.Y. 2000) (witness

unavailability would “not tip the balance in favor of a transfer in light of the option of

videotaping testimony of witnesses unwilling to travel to another forum to testifty”). While the

defendant asserts that live testimony is preferred to depositions or written testimony, see Def.’s

Reply at 17, the defendant has not shown that the potential unavailability of witnesses alone is

sufficient to weigh more heavily than the other factors opposing transfer. 6 Accordingly, the

Court concludes that while “the likely absence of live testimony from [a third-party witness] may

favor transfer somewhat, by itself it is not enough to trump the deference to which [the]

plaintiff’s choice of forum is entitled.” Thayer/Patricof Educ. Funding, 196 F. Supp. 2d at 34.

    3. The Ease of Access to Proof

         The defendant argues that litigating this case in the Southern District of New York would

lead to easier access to proof, because “[m]ost [] documents relating to its Business

Establishment Service are located in its New York Office,” and “[the defendant’s] playback

servers [are] located in New York City and cannot be easily transported or accessed elsewhere.”

Def.’s Mem. at 29. In response, the plaintiff argues that “[the defendant] appears to keep

6
  Although the defendant correctly notes that this Court has approved transfers in other cases where witnesses would
be unavailable or highly inconvenienced by denial of transfer, see Def.’s Mem. at 28; Def.’s Reply at 14, these cases
also featured other strong interests supporting transfer that are absent here, see, e.g., McClamrock v. Eli Lilly and
Co., 267 F. Supp. 2d 33, 37–40 (D.D.C. 2003) (Walton, J.) (approving transfer after finding that there was no factual
nexus between the plaintiff’s claims and the District of Columbia, that witnesses would be greatly inconvenienced
by the case being litigated in the District of Columbia rather than in North Carolina, and that the public interest
factors also weighed in favor of transfer); Pyrocap Int’l Corp. v. Ford Motor Co., 259 F. Supp. 2d 92, 95–99
(D.D.C. 2003) (approving transfer after finding that there was no factual nexus between the District of Columbia
and the dispute, that key witnesses would be inconvenienced or unavailable to testify in the District of Columbia,
and that there was doubt generally as to whether venue could be established in the District of Columbia under the
statute relied upon by the plaintiffs); Chung v. Chrysler Corp., 903 F. Supp. 160, 164 (D.D.C. 1995) (approving
transfer where the plaintiff had no connection to the District of Columbia, had identified no witnesses with strong
connections to the District of Columbia, and where the two key witnesses identified by the defendant lived or
worked in the transferee forum).



                                                         12
documents and records related to its payment of royalties in Pennsylvania,” Pl.’s Opp’n at 12,

which means that transfer to New York would not significantly address ease of access to proof.

Moreover, the plaintiff notes that even if the defendant has some relevant documents in New

York, or the fact that some discovery will have to be conducted there, considerable, if not most,

of the “discovery in this matter will surely be electronic, making the physical location of

documents and data immaterial.” Id.

        “Modern technology allows most documentary evidence to be easily transferred,” and

“the location of documents is much less important to determining the convenience of the parties

than it once was.” Taylor v. Shinseki, 13 F. Supp. 3d 81, 90 (D.D.C. 2014). In light of these

technological developments, and the fact that it appears that not all relevant sources of proof are

in fact located in the Southern District of New York, such as documentation of legal and

accounting decisions that are located in Horsham, Pennsylvania, the Court concludes that this

factor weighs neither for nor against transfer. See Ross v. Davis, 74 F. Supp. 3d 231, 238

(D.D.C. 2014) (concluding that where “relevant events occurred in [multiple] locales,” the “ease

of access to sources of proof” factor “splits down the middle”).

B.      The Public Interest Factors

     1. The Relative Familiarity of the Courts with Governing Law

        The defendant argues that “the Southern District of New York may have more familiarity

with the copyright issues involved in the present dispute,” because “the Southern District of New

York is one of the top jurisdictions nationally in terms of the number of copyright cases heard

per year.” Def.’s Mem. at 30. The plaintiff responds that the defendant’s argument is not

applicable here. Pl.’s Opp’n at 14.




                                                13
       “[A]ll federal courts are presumed to be equally familiar with the law governing federal

statutory claims[.]” Forest Cty. Potawatomi Cmty. v. United States, 169 F. Supp. 3d 114, 119

(D.D.C. 2016) (quoting Miller v. Insulation Contractors, Inc., 608 F. Supp. 2d 97, 103 (D.D.C.

2009). However, if “one circuit [or district] is more familiar with the same parties and issues or

related issues than other courts[,]” then that factor weighs in favor of giving that court

jurisdiction over the dispute. Alabama v. U.S. Army Corps of Eng’rs, 304 F. Supp. 3d 56, 67

(D.D.C. 2018).

       Here, because this case involves a federal statutory claim, the presumption of this factor’s

neutrality will only be overcome by a showing that a district court or circuit has more familiarity

with the parties or issues present in the case. While the Southern District of New York may have

a higher volume of general copyright cases, the plaintiff is correct that “this is not a typical

copyright infringement case,” but rather “a case concerning the [Copyright Royalty Board’s]

intricate administrative regulations concerning payment of [business establishment services]

royalties.” Pl.’s Opp’n at 14. The defendant has not shown that the Southern District of New

York has any specific familiarity with the parties or with the Copyright Royalty Board’s

regulations regarding statutory license royalties, in order to defeat the presumption that both

courts have equivalent expertise. In fact, the defendant concedes that the plaintiff has initiated

“two lawsuits based on alleged underpayment of statutory royalties[,]” in this district, Def.’s

Reply at 19, but fails to identify any cases in the Southern District of New York that demonstrate

that court’s greater familiarity with the governing law and the parties sufficient to justify the

transfer of this case. Therefore, the Court concludes that this factor weighs neither for nor

against transfer.




                                                  14
    2. The Relative Congestion of the Transferee and Transferor Courts

         The defendant contends that the Southern District of New York is less congested than this

district, and therefore, that this factor weighs in favor of transfer. See Def’s Mot. at 30. The

plaintiff responds that “there is effectively no difference between the congestion” in the dockets

of the transferor and proposed transferee courts. Pl’s Opp’n at 13, 15.

         “In this district, potential speed of resolution is examined by comparing the median filing

times to disposition in the courts at issue.” Fed. Hous. Fin. Agency, 856 F. Supp. 2d at 194

(quoting Spaeth v. Mich. State Univ. Coll. of Law, 845 F. Supp. 2d 48, 60 (D.D.C. 2012)).

However, “[a]bsent a showing that either court’s docket is substantially more congested than the

other, this factor weighs neither for nor against transfer.” Id. (quoting Pres. Soc’y of Charleston

v. U.S. Army Corps of Eng’rs, 893 F. Supp. 2d 49, 57 (D.D.C. 2012). According to the latest

statistics concerning federal judicial caseloads, the median time from filing to disposition in this

district was 5.1 months, compared to 6.6 months in the Southern District of New York. See

United States District Courts – National Judicial Caseload Profile, United States Courts, 2, 11

(Sept. 30, 2019),

https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0930.2019.pdf. 7

Because the difference between these two figures is not significant, the Court finds that neither

court’s docket is substantially more congested than the other. Accordingly, the Court concludes

that this factor weighs neither for nor against transfer. 8


7
  The Court may take judicial notice of information on official public websites of government agencies. See Pharm.
Research & Mfrs. of Am. v. U.S. Dep’t of Health & Human Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014) (“[C]ourts
in this jurisdiction have frequently taken judicial notice of information posted on official public websites of
government agencies.”); see also Fed. R. Evid. 201(d) (providing that “a court may take judicial notice at any stage
of the proceeding”).
8
 The defendant argues that the time from filing to trial is a better metric in this case than the time from filing to
disposition, because the filing to disposition time period “averages are diluted by the large volume of cases that are
                                                                                                          (continued . . .)


                                                           15
    3. The Local Interest in Deciding Local Controversies at Home

         The defendant argues that there are local interests that favor transferring this case to New

York. Specifically, the defendant argues that the Southern District of New York “has a greater

interest in the outcome of this litigation since it is the principal place of business of [the

defendant] and where many of the actions giving rise to the allegations of [the plaintiff’s]

Complaint occurred[,]” Def.’s Mem. at 31–32, and that New York “has a greater interest at stake

given the far greater presence of record companies and recording artists there whose interests

[the plaintiff] represent[s][,]” id. at 32. The plaintiff responds that the defendant’s

“underpayment of royalties affects more than ‘only the local residents’ of New York[,]” Pl.’s

Opp’n at 15 (citation omitted), as the plaintiff “distributes royalties to copyright owners and

recording artists nationwide, including in the District of Columbia,” id. at 16.

         “Courts have recognized that justice is promoted by having a localized controversy

resolved in the region it impacts, and have consistently transferred cases when the challenged

action predominately affects local interests.” Alabama, 304 F. Supp. 3d at 67 (citations and

internal quotation marks omitted). Where a case “has national implications,” however, the case

cannot be considered the type of purely ‘localized controversy’ that would warrant transfer to the



(. . . continued)
resolved shortly after filing through settlement, which [the defendant] does not expect to happen here.” Def.’s
Reply at 20. Even considering this metric, however, the Court still concludes that there has been no showing that
this district is substantially more congested than the Southern District of New York. According to the latest data, the
median time from filing to trial in this district was 46.7 months, compared to 31 months in the Southern District of
New York. See U.S. District Courts – National Judicial Caseload Profile at 2, 11 (June 30, 2019),
https://www.uscourts.gov/sites/default/files/data_tables/fcms_na_distprofile0630.2019.pdf. While these statistics
suggest that cases proceed to trial roughly fifteen months sooner in the Southern District of New York than in this
district, the Court takes note that these “statistics provide, at best, only a rough measure of the relative congestion of
the dockets in the two districts.” United States v. H & R Block, Inc., 789 F. Supp. 2d 74, 84–85 (D.D.C. 2011)
(treating the relative congestion of dockets as a neutral factor in the transfer analysis, noting that these statistics “do
not, for example, reflect the differences in the caseloads carried by different individual judges in each district,” and
that “[a]ny disparities between the lengths of time from filing to trial may also reflect differences other than
congestion, such as differences in the types of cases that are likely to be tried in each district and the level of
discovery and pre-trial motion practice required in those cases.”).



                                                           16
local district court.” Forest Cty Potawatomi Cmty, 169 F. Supp. 3d at 118; see, e.g., Wilderness

Soc’y v. Babbitt, 104 F. Supp. 2d 10, 17 (D.D.C. 2000) (denying venue transfer where agency

action was “a decision of national significance”).

       Here, the Court agrees with the plaintiff that this case is not a purely “localized

controversy.” Alabama, 304 F. Supp. 3d at 67. While the defendant contends that the Southern

District of New York has a greater interest in this litigation because many of the defendant’s

actions relevant to the dispute occurred in the Southern District of New York, many relevant

actions also occurred in Pennsylvania, where the defendant’s headquarters are located, and the

District of Columbia, where the plaintiff’s headquarters are located. See Oceana v. Bureau of

Ocean Energy Mgmt., 962 F. Supp. 2d 70, 75–76 (D.D.C. 2013) (declining to transfer case

involving questions of “national significance” where there were strong connections linking the

District of Columbia to the controversy, including the fact that “[t]wo of the four plaintiff

organizations have their headquarters in the District [of Columbia], and the others have offices

here”). Moreover, the issues in this case have the potential to affect the interests of individuals

and corporations far beyond the Southern District of New York. Although the defendant may be

correct in its assertion that there are more record companies and recording artists in the Southern

District of New York than this district, this is not a situation where only individuals and

corporations in the Southern District of New York are affected, or even where they will be the

predominately affected population. The federal statutory royalty scheme at issue here has

national implications, as the plaintiff “distributes statutory royalties to numerous recording artists

and copyright owners nationwide.” Pl.’s Opp’n at 6. Accordingly, this litigation could affect the

distribution of vast amounts of royalties among copyright owners and corporations across the

country—not just those concentrated in the Southern District of New York. See Greater




                                                 17
Yellowstone Coal. v. Kempthorne, Civ. Action Nos. 07-2111 (EGS), 07-2112 (EGS), 2008 WL

1862298, at *7 (D.D.C. Apr. 24, 2008) (denying transfer of a challenge to the regulation of

recreational snowmobile use in Yellowstone National Park in light of “the national scope of the

environmental issues at stake,” and the fact that “[t]he management of the National Parks and the

interpretation of federal environmental statutes are nationwide concerns,” not localized

controversies). Therefore, the Court concludes that this factor weighs neither for nor against

transfer.

           In sum, the balance of the private and public interest factors outlined in § 1404(a) weighs

in favor of the plaintiff’s position. With the exception of the convenience to the defendant’s

witnesses, which weighs marginally in favor of transfer but fails to outweigh the deference to

which the plaintiff’s choice of forum is entitled, none of the other private and public interest

factors weigh in favor of transferring this case to the Southern District of New York. The Court

therefore concludes that transferring this case to the Southern District of New York would not be

in the interest of justice. Accordingly, the Court will deny the defendant’s motion to transfer.

                                              IV. CONCLUSION

           For the foregoing reasons, the Court concludes the Southern District of New York is not

an appropriate forum for the adjudication of this case. Accordingly, the Court denies the

defendant’s motion to transfer this case to the Southern District of New York.

           SO ORDERED this 14th day of February, 2020. 9


                                                                     REGGIE B. WALTON
                                                                     United States District Judge



9
    The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.




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