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DB ORBAN, INC. v. ORBEX INTL.

March 16, 1983

DB ORBAN, INC., Plaintiff,
v.
ORBEX INTERNATIONAL, INC., Defendant



The opinion of the court was delivered by: BIUNNO

 The complaint in this case is in two counts. The first is grounded on alleged tortious interference with business relations and unfair competition, and the second on alleged violation of the Lanham Act, 15 USC § 1125(a), through the use of a corporate name, Orbex International, Inc., said to be calculated to mislead customers and suppliers of plaintiff by reason of the similarity to its corporate name, DB Orban, Inc.

 The case came before the court on the return of an order to show cause issued February 17, 1983 (the same day the complaint was filed) and returnable February 28, 1983; and also on a motion by defendant filed February 28, 1983 to resist the requested preliminary injunction and to dismiss the complaint under "Rule 12" [sic], which motion was made returnable March 7, 1983.

 For reasons set out hereafter, the order to show cause is vacated as improvidently granted, and the motion to dismiss under Rule 12 is denied without prejudice. Instead, because of the facts appearing of record by pleadings and affidavits, and developed by questions put to the parties at the hearing of March 14, 1983, the court concludes that venue does not lie in this District and exercises its discretion, in the interests of justice, to transfer the case to the U.S. District Court for the District of Connecticut, where it might have been brought, 28 USC § 1406(a), after hearing the parties on the question which was raised by the court at the hearing.

 A. The order to show cause.

 General Rule 12-A of this district provides in part that:

 
"No order to show cause to bring on a matter for hearing will be granted except on a clear and specific showing by affidavit of good and sufficient reasons why procedure other than by notice of motion is necessary".

 There is no such affidavit. The only supporting affidavit is one by Jurgen Schlate, an executive vice president for operations of plaintiff DB Orban, sworn to January 28, 1983 in Passaic County, N.J., twenty days before it was filed with the complaint. It addresses the merits of the claim for preliminary injunction but, as the attorney agreed at argument, does not say why an order to show cause, rather than a notice of motion, is necessary. There is no Rule 12-A affidavit, and the papers should never have been sent to the other judge to whom the case was initially assigned, and, for lack of the affidavit, the order to show cause was improvidently granted.

 Under other circumstances, the court would ordinarily treat the order to show cause as though it were a notice of motion (which the General Rules here require to be served and filed at least 24 days before the noticed regular motion day) and would set a schedule for affidavits and briefs to fit the regular motion pattern. However, since the case is filed in the wrong district, and since the interests of justice call for a transfer to a district where the case might have been brought, no reason appears why the application should not be renewed before, and decided by, the transferee court.

 The court also takes judicial notice of its own records and observes that on November 17, 1982, K. Peter Orbanowski (the principal and sole shareholder of Orbex) filed suit here against DB Orban, Inc. in connection with the termination of his employment on August 31, 1982 with Orban Export, Inc., a subsidiary of DB Orban, Civ. 82-3870. *

 Thereafter, on December 13, 1982, the defendant there and plaintiff here, DB Orban, filed its answer, counterclaim and a third-party complaint to bring in Orbex, not theretofore a party. Mr. Orbanowski then moved to dismiss the third-party complaint on the ground that it did not bring in a "person not a party to the action who is or may be liable to" DB Orban "for all or part of" Mr. Orbanowski's claim against DB Orban, see F.R.Civ.P. 14(a). Before that motion could be heard, or even prepared, the parties submitted a consent order to dismiss the third-party complaint. Motion filed January 3, 1983, noticed for February 7th, and corrected to February 14, 1983.

 As established at the hearing of March 14, 1983, there was no application, whether by way of notice of motion or order to show cause, to seek any form of preliminary relief against Orbex at that time although the underlying fact allegations of the third-party complaint were the same ones now set out in a separate complaint.

 B. Basis of jurisdiction

 The complaint as filed rests on diversity of citizenship with an amount in controversy exceeding $10,000, ...


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