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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS Ergun M. Caner, Plaintiff v. Jonathan Autry, Jason Smathers, Defendants : No.: 4:13-cv-494 : : Civil Action - Law : Jury Trial Demanded : (Electronically Filed) :

Brief in Support of Motion to Transfer Venue

Joshua M. Autry, Esquire Pa. Supreme Ct. I.D. 208459 Clymer Musser & Conrad, P.C. 408 W. Chestnut St. Lancaster, PA 17603 Phone: (717) 299-7101 Fax: (717) 299-5115 josh.autry@clymerlaw.com Dated: November 26, 2013 Counsel for Jonathan Autry

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I.

Statement of the Case: A. Procedural History:

On June 18, 2013, Dr. Ergun Caner filed a Complaint in the Northern District of Texas. On October 14, 2013, Dr. Ergun Caner filed an Amended Complaint. In Counts 1 and 2, Dr. Caner alleges that Jonathan Autry infringed his copyright by posting two videos on YouTube. In Counts 3 and 4, Dr. Caner alleges that Jason Smathers infringed his copyright by posting two videos. The video in Count 1 and 3 are the same video. Jonathan Autry and Jason Smathers have sought dismissal for improper venue and lack of personal jurisdiction. In the alternative, Jonathan Autry seeks transfer to the Western District of Virginia. Jason Smathers does not oppose the underlying idea that the Northern District of Texas is the inappropriate venue, but does oppose the case being transferred to the Western District of Virginia, which, in his opinion, is equally inappropriate for counts against him. Jason Smathers maintains that the venue question raised by this motion is further reason to sever the case into two parts, and if the case is so severed, then transfer of the case against Jonathan Autry to Virginia would not affect Jason Smathers in any way. B. Statement of the Facts:

Jason Smathers, a resident of Arizona, posted the videos subject to Count 3 and 4 in 2010 while Dr. Caner lived in Virginia. Jonathan Autry Dec. 7 (Ex. A). Jonathan Autry, a Virginia resident, posted the video subject to Count 2 in Spring of 2011 while Dr. Caner lived in Virginia. Jonathan Autry Dec. 18 (Ex. A). Jonathan Autry posted the Count 1 video in February 2012. Jonathan Autry Dec. 8 (Ex. A). This was after Dr. Caner moved from Virginia to Texas, but

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Count 1 was the same video that Mr. Smathers posted in 2010 that is subject to Count 3. Accordingly, all 3 videos were originally posted while Dr. Caner lived in Virginia. II. Argument: If this Court does not dismiss this matter, this Court could exercise its discretion to transfer this case to the Western District of Virginia. 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 or to any district or division to which all parties have consented. 28 U.S.C. 1404(a). This Court should consider: (1) the convenience of the parties, (2) the convenience of material witnesses, (3) the availability of process to compel the presence of unwilling witnesses, (4) the cost of obtaining the presence of witnesses, (5) the relative ease of access to sources of proof, (6) calendar congestion, (7) where the events in issue took place, and (8) the interests of justice in general. Minka Lighting, Inc. v. Trans Globe Imports, Inc., CIV.A. 3:02-CV-2538-, 2003 WL 21251684, *2 (N.D. Tex. May 23, 2003) (applying factors to transfer case). The parties here are stretched out across the country, and at least in part because of this, Jason Smathers and Jonathan Autry have filed a motion to sever. But the Western District of Virginia would be a much more convenient forum for Jonathan Autry. Jonathan Autry believes that at least some witnesses reside within the Western District of Virginia but does not believe any witnesses reside in the Northern District of Texas. Jonathan Autry Dec. 13 (Ex. A). Factors 5 & 7 favor the Western District of Virginia because at least some of the witnesses reside there and Jonathan Autry posted the videos from within the Western District of Virginia. Jonathan Autry Dec. 3 (Ex. A). At least part of the Count 2 video, a vlog post, was recorded within the Western District of Virginia. Jonathan Autry Dec. 13(Ex. A). Finally, the interests of justice heavily 2

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favor a transfer. Jonathan Autry is unemployed and cannot afford to travel to the Northern District of Texas to litigate this case. Jonathan Autry Dec. 31 (Ex. A). Accordingly, this case may result in a default judgment due to Jonathan Autrys inability to travel to Texas for a deposition or trial if not resolved on the motion to dismiss. III. Conclusion Therefore, Jonathan Autry requests this Honorable Court dismiss this action with prejudice, or in the alternative, transfer this case to the Western District of Virginia.

Respectfully Submitted, CLYMER, MUSSER & CONRAD, P.C.

By:

Date: November 26, 2013

_/s/ Joshua M. Autry_________________ Joshua M. Autry, Esquire Attorney I.D. #208459 408 West Chestnut Street Lancaster, PA 17603 Telephone: 717.299.7101 Facsimile: 717.299.5511

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CERTIFICATE OF SERVICE I hereby certify that on the date listed below I electronically filed the foregoing with the Court using the CM/ECF system, which sent notification of such filing to the following person(s) at the following email address(es): David C. Gibbs dgibbs@gibbsfirm.com Kelly Brian McClanahan kel@nationalsecuritylaw.org

/s/ Joshua M. Autry__________ Joshua M. Autry, Esquire

Dated: November 26, 2013