Full opinion text
ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE DATED JULY 14, 2006 SCHILTZ, District Judge. This matter is before the Court on plaintiff Jerald Hammann’s objections to the July 14, 2006 Report and Recommendation (“R & R”) of Magistrate Judge Susan Richard Nelson. Hammann has sued several defendants under the Communications Act of 1934, 47 U.S.C. § 151 et seq., including 1-800 Ideas.com, Inc., 1-800 San Diego, Inc., 800-Ideas, Inc., Steven Parker, Richard Jones, and David Sprouse. Hammann accuses the defendants of warehousing, hoarding, and brokering toll-free vanity telephone numbers — including two (1-800-CHOICETIME and 1-888-CHOICETIME) that Hammann attempted to acquire for his start-up business (ChoiceTime) — in violation of regulations promulgated under the Communications Act. Judge Nelson’s R & R addresses four motions: First, 1-800 Ideas.com, Inc., 1-800 San Diego, Inc., Parker, Jones, and Sprouse have moved to dismiss this lawsuit on the merits. Second, 800-Ideas, Inc. has moved to dismiss Hammann’s claims against it for lack of personal jurisdiction. Third, Hammann has moved for summary judgment against 1-800 Ideas, com, Inc., 1-800 San Diego, Inc., Parker, Jones, and Sprouse. Finally, Hammann has moved for summary judgment against 800-Ideas, Inc. The R & R recommends dismissing all claims against the three individual defendants (Parker, Jones, and Sprouse) on the merits, dismissing all claims against 800-Ideas, Inc. for lack of personal jurisdiction, and denying both of Hammann’s summary judgment motions. The Court has reviewed the record de novo, as is required by 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). Based on that review, the Court overrules Hammann’s objections and adopts Judge Nelson’s R & R. All of Hammann’s arguments are adequately addressed by Judge Nelson. The Court was given pause by only two issues. First, Judge Nelson found that the individual defendants (Parker, Jones, and Sprouse) were entitled to summary judgment because “any conduct concerning the warehousing, hoarding, brokering, violation of lag time restrictions, or first come first served regulations by the individual defendants would have been as employees or agents of the companies and in furtherance of those companies’ ends and not as individuals engaged as common carriers for hire.” R & R at 18. By “companies,” Judge Nelson was referring to 800-Ideas, Inc. and 1-800 Ideas.com. Hammann objects, arguing that, during some of the relevant periods of time, 800-Ideas, Inc. and 1-800 Ideas.com, Inc. were not in existence as corporations, and thus the individual defendants could not have been acting on behalf of anyone but themselves. Specifically, Hammann argues that: during significant periods relevant to the Plaintiffs Counts, the assets and actions or failures of action that the Magistrate Judge attributes to the corporate defendants actually took place when either 800 Ideas, Inc., or 1-800 Ideas.com, Inc., were not even a legally recognized business entity within the very state which granted their legal status. Pl.’s Obj. 9, July 31, 2006 [Docket No. 200]. In support of his argument, Hammann cites two exhibits that he submitted on October 31, 2005, in support of his objections to a different order of Judge Nelson’s, and then again on November 15, 2005, in support of his motion for summary judgment. Hammann Aff. Ex. 4, Oct. 31, 2005 [Docket No. 127]; Hammann Aff. Ex. 12 & 13, Nov. 15, 2005 [Docket No. 146]. These exhibits are print-outs from the website maintained by. the Nevada Secretary of State. The print-outs report that the corporate status of 800-Ideas, Inc. was revoked in 1996 and reinstated in 1997 and that the corporate status of 1-800 Ideas, com, Inc. was revoked in 1996, reinstated in 1998, revoked again in 2000, and reinstated a second time in 2002. Id. The Court was puzzled that Hammann’s argument was not addressed by Judge Nelson in an R & R that is otherwise painstakingly thorough. On investigation, though, the reason for that omission became clear: Judge Nelson did not address Hammann’s argument because Hammann did not make his argument before her. Indeed, in the three years since this case was filed, Hammann has never presented this argument to Judge Nelson. Hammann did argue that individuals can be held liable under the Communications Act if they personally engage in conduct that is prohibited by the Act, even if that conduct is done on behalf of a corporate employer. See PL’s Supplemental Mem. 10-20, Feb. 10, 2006 [Docket No. 195]. Judge Nelson addressed this argument at length. See R & R at 16-19. Hammann did not, however, argue that Parker, Jones, and Sprouse could be held personally liable because, during certain periods of time, the corporate status of their employer had been revoked. References that Hammann made to the print-outs from the Nevada Secretary of State were merely to establish incorporation dates or identify corporate officers. See, e.cj., PL’s Obj. 5, Nov. 1, 2005 [Docket No. 121]. A party cannot, in his objections to an R & R, raise arguments that were not clearly presented to the magistrate judge. See Madol v. Dan Nelson Auto. Group, 372 F.3d 997, 1000 (8th Cir.2004); Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir.2000). In other words, “a claimant must present all his claims squarely to the magistrate judge, that is, the first adversarial forum, to preserve them for review.” Roberts, 222 F.3d at 470. As the Eighth Circuit has repeatedly held, the “ ‘purpose of referring cases to a magistrate for recommended disposition would be contravened if parties were allowed to present only selected issues to the magistrate, reserving their full panoply of contentions for the trial court.’ ” Id. (quoting Reciprocal Exch. v. Noland, 542 F.2d 462, 464 (8th Cir.1976)). For that reason, Hammann cannot now object to Judge Nelson’s R & R on the grounds that the dismissal of Parker, Jones, and Sprouse is improper because 800-Ideas, Inc. and 1-800 Ideas, com, Inc. did not exist during some of the relevant periods of time. The Court was also given pause by Judge Nelson’s recommendation that Hammann’s motion for summary judgment against 1-800 Ideas.com, Inc. and 1-800 San Diego, Inc. be denied. On first glance — even on second glance- — -the conduct engaged in by these companies with respect to toll-free numbers appears to be precisely the kind of conduct that the Communications Act and the regulations promulgated under the Act were intended to prohibit. As the Court understands the facts, these companies secured hundreds of toll-free numbers that they did not use for any real purpose. Rather, the companies sat on the numbers, waiting for a prospective customer to call a number and inquire about the number’s availability. Sandberg Aff. Ex. B at ¶ 13 [Docket No. 168]. The companies then offered to sell that prospective customer a marketing plan that just happened to include the ability to use the toll-free number. Id. at ¶ 16. This appears to the Court to be “warehousing,” “hoarding,” and “brokering” — in substance if not in name. That said, the Court has decided to accept Judge Nelson’s recommendation that Hammann’s motion be denied. The Court is aware that it must review the record de novo, and it has done so. But this is a complicated case. Although Judge Nelson has worked on this case extensively over the past three years, the undersigned is new to the case, and takes the case on a cold record. The undersigned finds that, given that material facts appear to be disputed or at least unclear, it is prudent to accept Judge Nelson’s recommendation that summary judgment be denied. The Court emphasizes, though, that denial of Hammann’s summary judgment motion in no way precludes Hammann from moving for judgment as a matter of law at trial-even relatively early in the trial. One final observation: The Court obviously believes that Hammann has a strong case on liability. But the Court cautions Hammann to be realistic about his prospects of recovering relief beyond a court order that he be allowed to use one or both of the toll-free numbers he seeks. It is not at all clear to the Court that Hammann will be entitled to recover any monetary relief, much less the huge sums that he seems to be contemplating. Damages for lost profits, especially for a relatively new business venture, must be supported by specific, concrete evidence, not by mere “speculation and conjecture.” Mostly Media, Inc. v. U.S. West Communications, 186 F.3d 864, 866 (8th Cir.1999). In Mostly Media, a television programming company, Mostly Media, brought suit against U.S. West and various other distributors for excluding the company from an experimental service that provided interactive television programming. Id. at 865. At trial, Mostly Media called an economist to provide evidence of the company’s damages; the economist relied heavily on the amount of revenue generated by another business that did participate in the experimental service. Id. at 866. The trial court found that the economist’s testimony was so speculative that the damages claim would not even be submitted to the jury. Id. at 866-67. Specifically, the trial court concluded that there was insufficient evidence of damages and almost no proof “ ‘that profits lost by the plaintiffs were the direct result of the conduct on the part of U.S. West or the [other] defendants.’ ” Id. at 866 (quoting Trial Tr. 1001). The Eighth Circuit affirmed, noting “[t]he burden of proof required of a plaintiff in a lost-profits case is admittedly heavy” and “the business plans developed by Mostly Media ... were nothing more than optimistic projections for an enterprise that never got off the ground.” Id. at 867. Hammann’s damages claim seems to be based on a belief that, had his business been able to use one toll-free number instead of another, the business would have been much more successful — millions of dollars more successful. This is inherently speculative, and the evidence submitted by Hammann only emphasizes the speculative nature of his damages claim. For example, Hammann’s expert estimates that the alleged violations of the Communication Act cost Hammann anywhere from $3.6 to $24 million in lost profits, lost opportunities, and unreturned investment costs. Hammann Aff. Ex. 29 at ¶¶ 4, 34, Nov. 15, 2005. The fact that the range of estimated damages is so huge — a factor of almost seven — is, in and of itself, evidence of how much speculation was involved in arriving at the estimate. More importantly, the estimate of Hammann’s expert is based to a substantial extent on a comparison of Hammann’s business (ChoiceTime) with OpenTable, which is apparently the most successful online restaurant reservation service in America. Id. at ¶ 21. (ChoiceTime also aspires to be an online restaurant reservation service.) The report admits, though, that OpenTable does not “advertise[] a vanity toll-free number to make reservations.” Id. at ¶ 14. Thus the report provides no reason at all for believing that being able to use a different toll-free number would have turned ChoiceTime into OpenTable. Moreover, the report does not explain why OpenTable is the appropriate benchmark, as opposed to the thousands of start-up businesses that failed despite having access to a memorable vanity number. The Court will maintain an open mind and consider all of the evidence that Hammann wishes to present on this point. But the Court warns Hammann that he has a “heavy burden” in trying to prove that, had he only acquired the toll-free numbers 1-800-CHOICETIME and 1-888-CHOICETIME, his business would have become as successful as OpenTable.com— much less as successful as Priceline, Travelocity, and Expedia, three other companies cited by Hammann’s expert. Those three giants of the Internet are renown in large part because they beat long odds and enjoyed success that eluded thousands upon thousands of similar companies. It is one thing to say that the business of a start-up computer company could have been enhanced if the business had been able to use the toll-free number 1-800-COMPUTER. It is a different thing entirely to say that access to that number would have turned the start-up computer company into Microsoft. The Court warns Hammann that, at this point, his case on damages appears to be as weak as his case on liability is strong. Just as nothing precludes Hammann from moving at trial for judgment as a matter of law on the issue of liability, nothing precludes the defendants from moving at trial for judgment as a matter of law on the issue of damages. ORDER Based on the foregoing, and on all of the files, records, and proceedings herein, the Court overrules Hammann’s objections [Docket No. 200] and adopts Judge Nelson’s R & R [Docket No. 198]. Accordingly, IT IS HEREBY ORDERED: 1.The motion to dismiss 1-800 Ideas, com, Inc., 1-800 San Diego, Inc., Parker, Jones, and Sprouse [Docket No. 122] is GRANTED insofar as it seeks dismissal of all claims against Parker, Jones, and Sprouse, and DENIED in all other respects. All claims against Parker, Jones, and Sprouse are DISMISSED WITH PREJUDICE AND ON THE MERITS. 2. 800-Ideas, Inc.’s motion to dismiss [Docket No. 153] is GRANTED. All claims against 800-Ideas, Inc. are DISMISSED FOR LACK OF PERSONAL JURISDICTION. 3. Hammann’s motion for summary judgment on his claims against 800-Ideas, Inc. [Docket No. 172] is DENIED as moot. 4. Hammann’s motion for summary judgment on his claims against 1-800 Ideas.com, Inc., 1-800 San Diego, Inc., Parker, Jones, and Sprouse [Docket No. 143] is DENIED. REPORT AND RECOMMENDATION NELSON, United States Magistrate Judge. Pending before the Court is Defendants 1-800 Ideas.com, Inc., 1-800 San Diego Inc., Steven Parker, Richard Jones, and David Sprouse’s (the Original Defendants’) Motion to Dismiss (Doc. No. 122), Defendant 800-Ideas, Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. No. 153), Plaintiffs Motion for Summary Judgment on his claims against 800 Ideas, Inc. (Doc. No. 172) (which has not been noticed for a hearing date), and Plaintiffs Motion for Summary Judgment on his claims against Original Defendants (Doc. No. 143). These motions have been referred to the undersigned pursuant to 28 U.S.C. § 636 and Local Rule 72.1. I. BACKGROUND This litigation concerns a dispute over the availability of two toll-free numbers: 1-800-246-4238 and 1-888-246-4238 (Disputed Numbers) which have mnemonic significance to Plaintiff (the last seven digits of each spell “Choice T”). Defendant 1-800 Ideas.com, Inc., which the parties also refer to as 800 Ideas.com, Inc., functions as a Responsible Organization (also called a Resp Org) authorized by the Federal Communications Commission (FCC) to dispense toll-free numbers to subscribers and is a toll-free number subscriber itself. The background of this case has been previously articulated by the Court in its June 17, 2005 Report and Recommendation on Original Defendants’ prior motion for summary judgment. (See Doc. No. 96 at 1-5.) That background is not materially different from the facts now before the Court and the Court reprints below the background section from its June 17, 2005 Report and Recommendation. Where appropriate, the Court references separately herein discovery relevant to the present motions which was obtained after the Court’s last ruling on Defendants’ motion for summary judgment. The background of the case as set forth by the Court previously is as follows: [Original] Defendants contend that as early as February 5, 1993 and before the incorporation of 1-800 Ideas.com, Inc., its predecessors in interest [800-Ideas, Inc.] exerted legitimate use and control over the toll-free number 1-800-246-4238. (Aff. of S. Parker, ¶ 33, filed as an exhibit to Defs.’ Mem. Supp. Mot. Summ. J.) [Original] Defendants contend that in 1997, Defendant [1-800 Ideas.com, Inc.] entered into a marketing plan with Choice Mortgage USA, wherein [1-800 Ideas.com, Inc.] assigned the 1-800-246-4238 number to Choice Mortgage USA. [Original] Defendants aver that from November 1997 until approximately March 2001, Choice Mortgage USA marketed and paid for the use of the toll-free number 1-800-246-4238. (Parker Aff. at ¶¶ 45-54.) As to the other disputed “888” number, [Original] Defendants state that when 888 numbers were made available by the FCC, subscribers holding 800 numbers were offered the companion 888 numbers. (Parker Aff. at ¶ 47.) On or about April 2, 1999, Defendant [1-800 Ideas.com, Inc.] subscribed to the disputed 888 number, but Choice Mortgage USA did not assume use of it. (Id.) At that time, [Original] Defendants indicate that Communication Management Services (“CMS”) continued to be the RespOrg for the two disputed numbers. (Parker Aff. at ¶ 45.) [Original] Defendants further state that in July 2000, after numerous RespOrgs had managed the two disputed numbers, Defendant [1-800 Ideas.com, Inc.] became a RespOrg and assumed administration of the two numbers. (Parker Aff. at ¶¶ 22, 45.) In August 2000, Plaintiff attempted to obtain the use of the two numbers noted above from Qwest Communications, to provide toll-free phone service to consumers and service providers for his business, ChoiceTime. Qwest Communications informed Plaintiff that those two numbers were not available as they had been reserved from the toll-free number database. (Fourth Am. Complaint at ¶¶ 69-71.) At the time, Qwest could not tell Plaintiff who was the subscriber for the disputed 800 number, but the subscriber for the disputed 888 number was [1-800 Ideas.com, Inc.] (Fourth Am. Complaint at ¶¶ 71-72.) Plaintiff then searched for the subscriber of the 800 number, contacting Pacific Bell, AT & T and Sprint. Representatives from these three entities indicated that the number was reserved from the toll-free number database and was unavailable for use. (Fourth Am. Complaint at ¶¶ 74-75.) Next, Plaintiff contacted Sykes Enterprises, Inc., the administrator of the 800 Service Management System (“SMS/800”) Database. The SMS Database revealed that the Resp Org for the disputed 800 number was Communications Management Services, a California corporation. (Fourth Am. Complaint at ¶ 77.) Plaintiff contacted Communication Management Services on August 9, 2000, which then maintained office space in the same building as [1-800 Ideas, com, Inc.] Plaintiffs call was forwarded to the extension of Richard Jones, an officer of both [1-800 Ideas.com, Inc.] and 1-800 San Diego. Responding to Plaintiffs message, Mr. Jones requested that Plaintiff send a fax expressing an interest in the disputed 800 number. (Ex. 4 to Plaintiffs Mem. in Opp. to Defs.’ Mot. Summ. J.) After Plaintiff sent the fax, Mr. Jones called Plaintiff to discuss the disputed 800 number. (Id.; Fourth Am. Complaint at ¶ 78.) During the call, Plaintiff alleges that Mr. Jones offered to sell an unidentified Internet domain name to Plaintiff for $100,000 with the disputed 800 number included as part of the package. Mr. Jones also offered to sell an unidentified Internet domain name to Plaintiff for $80,000 with the disputed 888 number included as part of the package. (Fourth Am. Complaint at ¶ 79.) In an affidavit submitted by [1-800 Ideas.com, Inc.] in connection with a state court lawsuit brought by Plaintiff, Mr. Jones attests that he never “offered” to sell a number. (Ex. 8 to Pl.’s Mem. in Opp. to Defs.’ Mot. Summ. J., 5/31/02 Aff. of R. Jones.) Plaintiff filed an informal complaint against Communications Management Services with the FCC on August 10, 2000 (Ex. 5 to PL’s Mem. in Opp. to Defs.’ Mot. Summ. J.), and also filed a lawsuit against Communication Management Services in Hennepin County District Court. (Fourth Am. Complaint at ¶¶ 81, 83.) During the initial exchange of information in the litigation, Plaintiff learned that [1-800 Ideas.com, Inc.] was the Resp Org for the two toll-free numbers. (Id. at ¶ 85.) In March 2002, [1-800 Ideas.com, Inc.] routed the disputed numbers to Defendant 1-800 San Diego, Inc., which Plaintiff alleges is an affiliate of [1-800 Ideas.com, Inc.] (Id. at ¶ 88.) Original Defendants’ version of events differs slightly, in that they contend that on or about March 15, 2001 and until March 2002, [1-800 Ideas.com, Inc.] subscribed to and paid for the use of the two disputed numbers as part of their general business. (Parker Aff. at ¶ 48.) In April 2002, [Original] Defendants contend that 1-800 San Diego began utilizing the two disputed numbers. (Parker Aff. at ¶¶ 50-57.) Plaintiff alleges that he believed that [1-800 Ideas.com, Inc.] would reroute the disputed numbers back to itself, and he later discovered when dialing the numbers, that [1-800 Ideas.com, Inc.] had rerouted the numbers back to its standard solicitation message. (Id. at ¶ 94.) In his Complaint, Plaintiff alleges that his intent in seeking the disputed numbers was to use them for his business, Choice Time. (Id. at ¶ 101.) Through his corporation, GoalAssist Corporation, Plaintiff contends that he obtained the domain names ChoiceTime.com and ChoiceTime.net, for which he pursued trademark protection. (Id. at ¶ 102-03.) Plaintiff also alleges that he hired software development and creative resources to develop a marketing website, a production website and a spokescharacter. (Id. at ¶ 105.) Plaintiff further alleges that he has attended numerous investment capital conferences to share ChoiceTime’s business intentions with potential future investors, though he has never solicited investors for venture capital financing. (Id. at ¶ 106.) Plaintiff contends that because he has been deprived of the use of the disputed numbers, the value of his efforts and expenses with ChoiceTime have been impaired. (Id. at ¶ 108.) Plaintiff alleges that [Original] Defendants have committed various violations with respect to the toll-free numbers such as warehousing, hoarding, brokering, as well as regulatory violations, all to Plaintiffs detriment. [Original] Defendants deny Plaintiffs allegations, arguing that the two disputed numbers have always been in legitimate use; they have always attempted to provide timely and accurate entries to the 800/SMS database; and that because the applicable Resp Org tariff requires that an individual toll-free number be assigned to only one subscriber, given the shared usage of numbers by 800 Ideas’ subscribers, 800 Ideas itself remains the customer of record for such numbers. (Defs.’ Mem. Supp. Mot. Summ. J. at 8-9, citing Parker Aff. at ¶¶ 39-41, 42; Aff. of C. Sandberg at Exs. 4-9, 21.) (Id. (citations omitted)). On October 24, 2005, this Court granted Plaintiff leave to file a Fifth Amended Complaint which added 800-Ideas, Inc. as a party. (Doc. No. 118.) On November 1, 2005, Plaintiff filed his Fifth Amended Complaint. (Doc. No. 120.) On November 15, 2005, Original Defendants filed an Answer to the Fifth Amended Complaint. (Doe. No. 134.) The matter now comes before the Court on Original Defendants’ Motion to Dismiss (Doc. No. 122), Defendant 800-Ideas, Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. No. 153), Plaintiffs Motion for Summary Judgment on his claims against 800 Ideas, Inc. (which has not been noticed for a hearing date), and Plaintiffs Motion for Summary Judgment on his claims against Original Defendants (Doc. No. 143). II. DISCUSSION A. Original Defendants’ Motion to Dismiss (Doc. No. 122) In their Motion to Dismiss (Doc. No. 122), Original Defendants argue that: (1) all of the claims must be dismissed because (a) the real Plaintiff in interest in this case is not Jerald Hammann but Goal Assist Corporation, the corporation over which Hammann presides as sole shareholder, (b) Hammann has committed fraud on the Court by representing that he is a pro se litigant when he is not; (2) the claims against the individual’ defendants must be dismissed because (a) they have not been personally served with any of the complaints, (b) the law of the case and 47 U.S.C. §§ 217 and 411 preclude them from liability; and (3) if the case is not dismissed, it should be transferred to California for the convenience of Defendants and the witnesses and in the interests of justice. (See Docs. 124 at 6-17, 174 at 2-19.) On January 12, 2006, the Court granted Original Defendants’ oral motion, made at the January 6, 2006 motion hearing, to convert the portion of their Motion to Dismiss (Doc. No. 122) based on Federal Rule of Civil Procedure 12(b)(6) to a motion for summary judgment. (See Doc. No. 194.) 1. Dismissal of Suit Based on Real Party in Interest and Fraud on the Court Original Defendants have again challenged Plaintiffs right to bring this suit individually and to proceed pro se. On April 7, 2005, in their Memorandum in Opposition to Plaintiffs Motion and Memorandum in Support of Discovery Sanctions, Original Defendants argued: It should be noted that the law does not allow a corporation to proceed with a law suit pro se. Plaintiffs only asserted damages are purported damages to the corporation “GoalAssist.” If the corporation “GoalAssist” is the true party in interest, then either Plaintiff cannot represent “GoalAssist,” as a pro se litigant, or the case should be dismissed since the true party in interest is not in the present case. (Doc. No. 92 at 6 n. 13) (citations omitted). This Court recommended to the trial court, the Honorable District Court Judge Donovan Frank presiding, that Plaintiffs Motion for Sanctions be granted in part and that Original Defendants’ motion for summary judgment be denied. (Doc. No. 96.) On July 5, 2005, in their Objections to and Appeal From Magistrate’s Report and Recommendation filed with Judge Frank, Original Defendants’ contended: In the Eight[h] Circuit, a corporation cannot proceed with a law suit pro se. Plaintiff seeks alleged damages solely on behalf of the corporation “GoalAssist.” According to the Minnesota Secretary of State’s Office, GoalAssist is a domestic corporation in good standing as of 2005. Such a corporation cannot be represented in a legal proceeding by a pro se litigant. Even though this point was raised in Defendants’ memorandum op- ■ posing Plaintiffs request for discovery sanctions, and again during the oral argument on April 13, 2005, the Magistrate’s Report completely failed to address this issue. The present suit should be dismissed because: (1) the Plaintiff in this case is Mr. Jerald Hammann, a private individual, not the corporation GoalAssist; (2) GoalAssist is not a party to the present litigation, but all the alleged damages Mr. Hammann seeks were incurred by GoalAssist; and (3) even if GoalAssist were a party to the action, Mr. Hammann could not represent it pro se. (Doc. No. 98 at 4-5 (citations omitted)). After considering Original Defendants’ objections, Judge Frank adopted this Court’s recommendations and granted sanctions against Original Defendants and denied their motion for summary judgment. (Doc. No. 103.) a. Real Party in Interest Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed.R.Civ.P. 56(e). In response to a motion for summary judgment, “the non-moving party” must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c) & (e)). “If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.” Fed.R.Civ.P. 56(e). The evidence and all reasonable inferences are viewed in the light most favorable to the non-moving party. Dorsey v. Pinnacle Automation Co., 278 F.3d 830, 834-35 (8th Cir.2002). A dispute about material facts is genuine only “if the evidence is sufficient to allow a reasonable jury to return a verdict for the non-moving party.” Landon v. Northwest Airlines, Inc. 72 F.3d 620, 624 (8th Cir.1995). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial,” then Rule 56(c) requires the entry of summary judgment against such party. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548. Original Defendants now argue that the following facts are undisputed: • GoalAssist Corporation is a Minnesota Corporation in good standing. • Plaintiff is the president and sole shareholder of GoalAssist. • GoalAssist Corporation obtained the domain names ChoieeTime. com and Choice.Time.net. • GoalAssist Corporation sought trademark protection for the name Choice-Time in the U.S. and Canada. • “Choice Time” is a registered trademark name functioning under the umbrella of GoalAssist. • GoalAssist Corporation hired and funded software development to create a marketing website, presumably for “ChoieeTime.” • GoalAssist Corporation filed for three patent applications. • Interests concerning the fledgling business venture, “ChoiceTime.com” were formulated under the umbrella of the corporation GoalAssist. • Expenditures made on behalf of the fledgling business venture “Choice Time” were made by GoalAssist Corporation. • Mr. Hammann solicits clients and completes consulting projects on behalf of GoalAssist Corporation. • Revenues earned by Mr. Hammann’s consulting efforts are funneled through GoalAssist. • Mr. Hammann’s expenses incurred in the course of completing consulting work are funneled through GoalAssist. • Expenses associated with Choice Time are funneled through GoalAssist. • The claims presently before this Court relate to Plaintiffs business concept Choice Time, a yet unfunded and unproven business concept. • Choice Time controls no assets. Any assets related to Choice Time “are owned by and/or assigned to GoalAssist Corporation.” • Any damages that might potentially be . determined in these proceedings would belong to the GoalAssist Corporation and not Mr. Hammann individually. • GoalAssist Corporation is presently not a party to these proceedings. • Plaintiff, appearing pro se is currently the sole plaintiff listed herein. (Doc. No. 124 at 3-5.) Plaintiff concedes that he owns both GoalAssist and ChoieeTime and has stated that, during the relevant time period, ChoieeTime was not a corporation but an unregistered trade name used by Plaintiff. (Sandberg Aff. Ex. A. at 14, 21-22.) Plaintiff submitted his affidavit in response in which he states, “My intent on August 6, 2000 in seeking to initiate toll-free service with Qwest on my personal phone bill using the disputed numbers was to employ the numbers in business operations for a business I was developing under the intended corporate and brand name of Choice Time.” (Hammann Aff. Ex. 5 ¶ 5.) He continues, “All expenses incurred on behalf of ChoiceTime are paid by me from my personal assets and personal bank account” and are reported “on the tax returns of GoalAssist Corporation, a corporation I established in 1996 for my business consulting practice.” (Id. f 7.) While Plaintiff concedes that Goal Assist is currently in good standing, in his affidavit he states, “As of August 6, 2000 and continuing up to May 16, 2005, GoalAssist was not in Good Standing with the State of Minnesota.” (Id. ¶ 12.) Original Defendants contend that Plaintiffs March 22, 2004 deposition testimony conflicts with Plaintiffs claims about the good standing of GoalAssist. (Doc. No. 174 at 12.) At his deposition, Plaintiff testified, “It’s probably accurate to say that [GoalAssist is] in good standing as of 2001, but there is a small dispute about that.” (Sandberg Aff. Ex. A at 8.) Plaintiff argues that most of the “undisputed facts” Original Defendants present were available to Original Defendants when they moved for summary judgment in December 2004, and thus are barred by res judicata and collateral estoppel. (Doc. No. 149 at 11.) To the extent that GoalAssist is determined to be the real party in interest, Plaintiff contends that dismissal is not permitted because Federal Rule of Civil Procedure 17(a) provides: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” (Id.) The Court finds that the bulk of the material Original Defendants cite in support of their motion has been available to them for some time and prior to their filing of their motion for summary judgment in December 2004. But the Court disagrees with Plaintiff that res judicata or collateral estoppel apply to bar Original Defendants from raising the real party in interest issue now. Instead, Original Defendants arguments are barred by the law of the case doctrine. “ ‘The law of the case doctrine prevents the relitigation of a settled issue in a case and requires courts to adhere to decisions made in earlier proceedings’ ” and “ ‘applies to issues decided implicitly as well as those decided explicitly.’ ” Mosley v. City of Northwoods, 415 F.3d 908, 911 (8th Cir.2005) (quoting Kan. Pub. Employees Ret. Sys. v. Blackwell, Sanders, Matheny, Weary & Lombardi, L.C., 114 F.3d 679, 687 (8th Cir.1997), cert. denied, 522 U.S. 1068, 118 S.Ct. 738, 139 L.Ed.2d 675 (1998)). In this case, Original Defendant expressly challenged Plaintiffs status as the real party in interest in their Objections to and Appeal From Magistrate’s Report and Recommendation filed with Judge Frank on July 5, 2005. (See Doc. No. 98 at 3-4.) Defendants did not raise the issue in passing but argued that “[t]he present suit should be dismissed because: (1) the Plaintiff in this case is Mr. Jerald Hammann, a private individual, not the corporation GoalAssist; (2) GoalAssist is not a party to the present litigation, but all the alleged damages Mr. Hammann seeks were incurred by GoalAssist; and (3) even if GoalAssist were a party to the action, Mr. Hammann could not represent it pro se.” (Id.) Judge Frank did not dismiss the suit but instead denied Original Defendants’ motion for summary judgment. (Doc. No. 103.) By presenting the issue to the trial court as a basis for dismissal, Original Defendants ran the risk that the determination of the trial court would bind them and prevent them from later raising the same issue. Therefore, the Court finds that the law of the case doctrine bars Original Defendants from raising the issue now. Even if the law of the case doctrine did not bar their real-party-in-interest attack on Plaintiffs claims, however, the Court finds that there are genuine issues of material fact that preclude issuing summary judgment for Original Defendants. While there are some inconsistencies in Plaintiffs deposition testimony and his affidavit and exhibits, the Court finds that there is a factual dispute as to whether Plaintiff, or Plaintiff doing business as Choice Time, was the real party in interest during the relevant time period. While Plaintiffs November 3, 2005 deposition testimony, to which Original Defendants cite in support of their argument, supports the view that ChoiceTime and GoalAssist are closely related, it does little to resolve the factual dispute surrounding whether Plaintiff, Jerald Alan Hammann, is the real party in interest. Therefore, Original Defendants are not entitled to summary judgment on the real party in interest issue. b. Fraud on the Court Original Defendants also charge that Plaintiffs claims should be dismissed because he has engaged in fraud on the Court by representing that he is proceeding pro se when, in fact, Plaintiff has testified under oath that he has worked with a patent attorney and another attorney in connection with this litigation. (Doc. No. 174 at 2-8.) In support of this bold contention, Original Defendants cite the following evidence: (1) Plaintiffs testimony that he had contacted his patent attorney and another attorney in connection with this litigation; (2) Plaintiffs testimony that he incurred legal fees in this litigation for himself and in connection with his expert witness “in the neighborhood of 2 to 5,000” dollars from March 2004 through November 2005 concerning “six or seven questions” about “the case in general, whether it was discovery .... to understand exactly how much information relating to damages would be required of me at that first deposition”; and (3) Plaintiffs telephone message left for counsel for Original Defendants in which he stated, “I finally got a chance to talk with my counsel. ” (Id. and sources cited therein.) A claim for fraud on the court “is justified only by the most egregious misconduct directed to the court itself, such as bribery of a judge or jury or fabrication of evidence by counsel.” Pfizer, Inc. v. Int’l Rectifier Corp., 538 F.2d 180, 195 (8th Cir.1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 751 (1977). Courts require “clear, unequivocal and convincing” evidence to prove up a fraud on the court claim. Id. The fraud must stem from conduct that “improperly influence[d] or impaired] the court’s function.” Id. Original Defendants contend that by seeking advice of counsel for $5,000 or less worth of services over the course of this litigation — soon to be entering its third year on the Court’s docket — Plaintiff has engaged in “fabrication of evidence.” (Doc. No. 174 at 5.) This is a preposterous assertion. The Court finds that Plaintiff, in at least one telephone conference before this Court and at the motion hearing on this motion, has been completely forthright about the limited role that attorneys have played in Plaintiffs case. The Court finds no reason to believe that outside counsel have written any of the numerous pleadings, motions, or briefs submitted to this Court by Plaintiff, and Original Defendants do not suggest otherwise. While the Court understands that it is important that Original Defendants’ counsel know whether Plaintiff is represented by counsel in order to comply with their professional obligation to not communicate with parties represented by counsel, the Court finds that this concern hardly warrants a charge of fraud on the Court. Furthermore, the Court finds that Original Defendants’ contentions are wholly unsupported and, in fact, belied when viewed in light of the extensive record of Plaintiffs pro se filings, oral arguments, and the record as a whole. Original Defendants cite no law prohibiting a pro se plaintiff from engaging the services of attorneys for very limited and discrete purposes. The Court finds no error, much less fraud, in Plaintiffs conduct and cautions Original Defendants that, in the future, such unsupported assertions will not be treated lightly by this Court. 2. Dismissal of Individual Defendants Original Defendants also argue that the individual defendants Steven Parker, Richard Jones, and David Sprouse should be dismissed for lack of jurisdiction because (1) the individual defendants have never been personally served with a summons or complaint; and (2) the law of the case bars Plaintiffs claims because the Court has already determined that 47 U.S.C. §§ 217 and 411 do not provide for individual liability. (Doc. Nos. 124 at 12-13, 174 at 16-19.) Plaintiff concedes that the individual defendants have not been served but asserts the Court should either consider the need for such service waived because they answered the Amended Complaint and Fifth Amended Complaint or allow Plaintiff to now serve the Fifth Amended Complaint on the individual defendants. (Doc. No. 149 at 14.) Plaintiff does not respond to Original Defendants’ law of the case attack, but renews his argument that the text of 47 U.S.C. §§ 217 and 411 provide for individual liability. (Id. at 14-18.) While Original Defendants do not state a specific procedural basis for their challenges, the Court construes their argument that the claims should be dismissed for failure to serve the individual defendants as a motion to dismiss for insufficiency of service of process pursuant to Federal Rule of Civil Procedure 12(b)(5) and their argument that the claims should be dismissed under the law of the case as a motion to dismiss for failure to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). a. Failure to Serve Summons and Complaint on Individual Defendants Original Defendants argue that the claims against the individual defendants should be dismissed because Plaintiff never served them with a summons or any of the complaints filed in this action. (Doc. No. 124 at 12.) Plaintiff does not dispute this defect but instead argues that Original Defendants waived this argument by answering the Amended Complaint on January 20, 2004 and by answering the Fifth Amended Complaint on October 31, 2005. (Doc. No. 149 at 14.) On November 17, 2003, Plaintiff filed an Amended Complaint in which he named, for the first time, the individual defendants Steven Parker, Richard Jones, and David Sprouse. (Doc. No. 23.) The individual defendants did not interpose a motion to dismiss but instead, on January 20, 2004, filed their Answer to the Amended Complaint. (Doc. No. 26.) Nowhere in their Answer did individual defendants object to not having been served with the Amended Complaint or raise any other personal jurisdiction objections. (See id.) In fact, the individual defendants did not formally raise their objections for lack of proper service until November 1, 2005 when they filed their Motion to Dismiss, based, in part, on Plaintiffs failure to serve them with a summons and complaint for any of the complaints filed in this case. (See Doc. Nos. 122,124.) To be effective, a motion to dismiss all or part of a pleading based upon insufficiency of service of process must be raised in the moving party’s first response to that pleading. Fed.R.Civ.P. 12(h)(1) (“A defense of ... insufficiency of service of process is waived ... if it is neither made by motion under this rule nor included in a responsive pleading....”). Here, the individual defendants’ first response was their January 20, 2004 Answer to the Amended Complaint. By not objecting to the insufficiency of service of process at that time, they waived their right to do so in the future. See Yeldell v. Tutt, 913 F.2d 533, 539 (8th Cir.1990); Alger v. Hayes, 452 F.2d 841, 844 (8th Cir.1972). Furthermore, even if the individual defendants had asserted such a defense in their January 20, 2004 Answer, their failure to raise the issue by formal motion for over twenty-one months would serve as a waiver of such a defense. Neirbo Co. v. Bethlehem, Shipbuilding Corp., 308 U.S. 165, 168, 60 S.Ct. 153, 84 L.Ed. 167 (1939) (noting that the right to challenge defective service, “[b]eing a privilege ... may be lost. It may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct.”); Datskow v. Teledyne, Inc., 899 F.2d 1298, 1303 (2d Cir.1990) (noting that waiver of defense of defective service occurred where defense was stated in answer but not raised in a motion to dismiss until four months after the answer was filed), cert. denied, 498 U.S. 854, 111 S.Ct. 149, 112 L.Ed.2d 116 (1990); Network Prof'ls, Inc. v. Network Int’l, Ltd., 146 F.R.D. 179, 181-82 (D.Minn.1993) (citing Neirbo for the same proposition). The Court finds that the individual defendants cannot now revive what they have long since waived. b. Failure to State a Claim Against Individual Defendants Plaintiff contends that the respondeat superior provision of the statutory scheme, codified at 47 U.S.C. § 217, “explicitly provides for [individual] liability” and that the provision authorizing joinder of certain parties, codified at 47 U.S.C. § 411, supports this contention. (Doc. No. 149 at 16-18.) Section 217 provides: Agents’ acts and omissions; liability of carrier In construing and enforcing the provisions of this chapter, the act, omission, or failure of any officer, agent, or other person acting for or employed by any common carrier or user, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure of such carrier or user as well as that of the person. 47 U.S.C. § 217. Section 411 provides: Joinder of parties (a) In any proceeding for the enforcement of the provisions of this chapter, whether such proceeding be instituted before the Commission or be begun originally in any district court of the United States, it shall be lawful to include as parties, in addition to the carrier, all persons interested in or affected by the charge, regulation, or practice under consideration, and inquiries, investigations, orders, and decrees may be made with reference to and against such additional parties in the same manner, to the same extent, and subject to the same provisions as are or shall be authorized by law with respect to carriers. As used in the above statutes, the term “common carrier” or “carrier” means “any person engaged as a common carrier for hire, in interstate ... communication by wire or radio.” 47 U.S.C. § 153(10). The term “person” includes “an individual, partnership, association, joint-stock company, trust, or corporation.” Id. § 153(32). Plaintiff argues that it is significant that § 217 provides that “as well as that of the person,” an act of an employee or other person acting for a carrier and within the scope of his employment shall be deemed to be an act of the carrier. (Doc. No. 149 at 16.) This argument fails for three reasons. First, the Court finds that § 217 is, in essence, a provision codifying the common law respondeat superior doctrine. The term “carrier,” of course, does include any individual engaged as a common carrier for hire, thus, an individual acting in such a capacity could be subject to the provisions of § 217. Other than generic references to the conduct of “Defendants,” Plaintiff sets forth few factual allegations that the individual defendants engaged in any conduct at all, much less conduct consistent with a person engaged as a common carrier for hire. In fact, Plaintiff alleges that the Disputed Numbers were in the “possession” of either Defendant 800 Ideas.com or Defendant 1-800 San Diego, Inc. or some other corporate entity at all relevant times. (See, e.g., Fifth Amend. Compl. ¶¶ 151-157.) Therefore, any conduct concerning the warehousing, hoarding, brokering, violation of lag time regulations, or first come first served regulations by the individual defendants would have been as employees or agents of the companies and in furtherance of those companies’ ends and not as individuals engaged as common carriers for hire. Second, while some courts have determined that statutory provisions which also include “an individual” in the definition of a “person” authorize “individual liability,” they have done so where Congress has expressly provided for the liability of “persons,” such as in the Cable Communications Act, the relevant provision of which is codified at 47 U.S.C. § 553. For example, 47 U.S.C. § 553(a) provides in relevant part: (1) No person shall intercept or receive or assist in intercepting or receiving any communications service offered over a cable system, unless specifically authorized to do so by a cable operator or as may otherwise be specifically authorized by law. (emphasis added). Noting that the applicable definition of “person” includes “an individual,” several courts have determined that § 553 provides for individual liability. See, e.g., Comcast v. TEA Elecs., Inc., Civ. No. 02-429, 2005 WL 2170092, at *6 (D.Neb. Sept.2, 2005) (“[T]he act provides for individual liability.”); Comcast v. Platinum Elecs., Inc., 336 F.Supp.2d 957, 965 (D.Neb.2004) (“[T]he act provides for individual liability.”); Kingvision Pay Per View, Ltd v. Muths, Inc., Civ. No. 99-7718, 2001 WL 218909, *2 (N.D.Ill. Mar.5, 2001) (noting that personal liability exists under § 553). These cases demonstrate that when Congress has authorized the kind of individual liability Plaintiff seeks here, Congress expresses its intent by explicitly prohibiting a “person” from engaging in certain conduct. Third, Congress has provided that the definition of a “person” set forth in § 153 and cited by Plaintiff applies “unless- the context otherwise requires.” 47 U.S.C. § 153. The Court finds that the context of the common carrier regulations provided for in 47 U.S.C. §§ 201-217, does not support Plaintiffs interpretation of a “person” which would extend liability beyond an individual “engaged as a common carrier for hire” and impose liability on the employees and/or officers of such common carriers who have only engaged in such conduct through and for a corporation. Plaintiffs definition fails because the context requires a narrower reading of the definition of “person” set forth in § 153 than he proposes. Given the above findings, the individual defendants are entitled to summary judgment in their favor. Therefore, the Court recommends dismissing this action against the individual defendants. The Court need not and does not reach the issue of whether the law of the case would be an adequate basis to dismiss Plaintiffs claims. 3. Transfer Original Defendants request, in the alternative to dismissal, that the case be transferred to California pursuant to 28 U.S.C. § 1404(a). (Doc. No. 124 at 14-17.) Section 1404(a) of Title 28 of the United States Code provides: 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. “[S]ection 1404(a) accords [a] district court much discretion in deciding such motions.” Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 697 (8th Cir.1997), cert. denied, 522 U.S. 1029, 118 S.Ct. 629, 139 L.Ed.2d 609 (1997). “The party seeking transfer bears the heavy burden of showing that the balance of factors strongly favors the movant,” United Mortgage Corp. v. Plaza Mortgage Corp., 853 F.Supp. 311, 315 (D.Minn.1994), and “federal courts give considerable deference to a plaintiffs choice of forum.” Terra Int’l, 119 F.3d at 695. Therefore, an order to transfer venue “should not be freely granted.” In re Nine Mile Ltd., 692 F.2d 56, 61 (8th Cir. 1982) (per curiam), abrogation on other grounds recognized by, Mo. Housing Dev. Comm’n v. Brice, 919 F.2d 1306, 1311 (8th Cir.1990). In ruling on a motion to transfer, courts consider three general factors: (1) convenience of the parties; (2) convenience of the witnesses; and (3) the interests of justice. 28 U.S.C. section 1404(a). Beyond these factors, a court must make “a case-by-case evaluation of the particular circumstances at hand and a consideration of all relevant factors” to arrive at an equitable decision. E.g., Terra Int’l, 119 F.3d at 691 (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988)). Under the “convenience of the parties” factor, the “normal presumption [is] in favor of a plaintiffs choice of forum” especially “where the plaintiff resides in the district in which the lawsuit was filed.” Graff v. Qwest Comm. Corp., 33 F.Supp.2d 1117, 1121 (D.Minn.1999) (citations omitted); see also K-Tel Int’l, Inc. v. Tristar Prod., Inc., 169 F.Supp.2d 1033, 1045 (D.Minn.2001). Moreover, transferring venue to a court that merely shifts the inconvenience from one party to another is wholly inappropriate. E.g., Terra Int’l, 119 F.3d at 696-97; Alternative Pioneering Sys. v. Direct Innovative Prods., Inc., Civ. No. 4-92-278, 1992 WL 510190, at *5 (D.Minn. Aug.20, 1992). Rather, transfer should be made only to a more convenient forum for the parties, “not to a forum likely to prove equally convenient or inconvenient.” Van Dusen v. Barrack, 376 U.S. 612, 646, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). When considering the “convenience of the witnesses” factor, relevant considerations include the number of non-party witnesses, the location of all witnesses, the preference of courts for live testimony as opposed to depositions, e.g., K-Tel Int’l, 169 F.Supp.2d at 1045, and other issues concerning the “relative ease of access to sources of proof.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). This factor, however, “should not be determined solely upon a contest between the parties as to which of them can present a longer list of possible witnesses located in the respective districts; the party seeking the transfer must clearly specify the essential witnesses to be called and must make a general statement of what their testimony will cover.” Nelson v. Master Lease Corp., 759 F.Supp. 1397, 1402 (D.Minn.1991); see also Scheidt v. Klein, 956 F.2d 963, 966 (10th Cir.1992); NEO Corp. v. Fortistare Methane, LLC, Civ. No. 01-168 JRT/FLN, 2001 WL 1640061, at *4 (D.Minn. Sept.6, 2001). Under the “interests of justice” factor, a court may consider, among other things, the plaintiffs choice of forum, judicial economy, the parties’ ability to bear the costs of litigating in each forum, obstacles to a fair trial, conflict of law issues, and advantages of having a local court determine local law. E.g., Terra Int’l, 119 F.3d at 696. a. Convenience of the Parties Here, Plaintiff is a citizen of Minnesota and, therefore, Plaintiffs choice of this forum is entitled to particular deference. E.g., Graff, 33 F.Supp.2d at 1121. Original Defendants contend that all of the defendants are citizens of California and have little or no contact with Minnesota. (Doc. No. 124 at 14.) Because transferring venue to a court that merely shifts the inconvenience from one party to another is wholly inappropriate, e.g., Terra Int’l, 119 F.3d at 696-97; Alternative Pioneering Sys. v. Direct Innovative Prods., Inc., 1992 WL 510190, *5 (D.Minn. Aug., 20, 1992), the Court finds that this factor does not support transfer of the action. b. Convenience of the Witnesses Federal courts “much prefer the presentation of live testimony to depositions.” Coast-to-Coast Stores, Inc. v. Womack-Bowers, Inc., 594 F.Supp. 731, 734 (D.Minn.1984); accord Terra Int’l, 119 F.3d at 696-97; Graff, 33 F.Supp.2d at 1122. Here, Original Defendants contend that “witnesses would conceivably include” the individual defendants, staff persons for non-party corporation Communication Management Services (CMS), and technicians with whom 1-800 Ideas.com. Inc. has contracted. (Doc. No. 124 at 16.) Plaintiff responds that he “has no present intention to call any CMS employees” and argues that Original Defendants fail to indicate where their technical experts reside. (Doc. No. 149 at 20.) He also states that Original Defendants have previously indicated that only the individual defendant Richard Jones has first-hand knowledge of the relevant business operations. (Id.) Plaintiff represents that his “expert witness, Dr. Meitzen, would be required to seek and procure new counsel admitted to the California bar should the case be moved to California.” (Id. at 21.) After review of these arguments, the Court finds that, while arguably more witnesses are located in California than Minnesota, the convenience of the witnesses factor does not strongly favor transfer of the action to California. c. Interests of Justice “The interest of justice factor is weighed very heavily,” Graff, 33 F.Supp.2d at 1122, and a court may consider a variety of factors including the plaintiffs choice of forum, judicial economy, the parties’ ability to bear the costs of litigating in each forum, obstacles to a fair trial, conflict of law issues, and advantages of having a local court determine local law. E.g., Terra Int'l, 119 F.3d at 696. Original Defendants contend that the burden of defending this action in Minnesota “is far greater” than Plaintiffs burden of proceeding pro se in Minnesota and argue that the claims do not present issues that a Minnesota court is uniquely qualified to adjudicate. Minnesota is Plaintiffs forum of choice. While the Court agrees with Original Defendants that a court in California could competently interpret and apply the relevant law, other considerations weigh in favor of this forum. The events which precipitated this lawsuit date back to at least August 2000. Plaintiff commenced this action on June 5, 2003. (Doc. No. 1.) Both this Court and the trial court have invested significant time and resources in adjudicating the pretrial issues the parties have raised. The Court finds that transfer of this case would result in further delay of the ultimate resolution of the parties’ dispute and would require another court to spend considerable time and effort familiarizing itself with issues that have already been decided and with which this District is well versed. The Court finds that the interests of judicial economy are best served by retaining the present venue. Given the above findings, the Court determines that Original Defendants have not met their burden to show that the balance of factors strongly weighs in favor of transfer. Therefore, the Court recommends granting Original Defendants’ Motion to Dismiss (Doc. No. 122) all of Plaintiffs claims against Steven Parker, Richard Jones, and David Sprouse. The Court recommends denying the motion with respect to all other relief requested. B. Defendant 800-Ideas, Inc.’s Motion to Dismiss for Lack of Personal Jurisdiction (Doc. No. 153) Defendant 800-Ideas, Inc. moves to dismiss for lack of personal jurisdiction all of the claims alleged against it as set forth in the Fifth Amended Complaint. (Doc. No. 152.) 1. Standard of Review While the plaintiff always carries the burden of proof, a plaintiff need only produce prima facie evidence of personal jurisdiction over a defendant to survive a motion to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2). Digi-Tel Holdings, Inc. v. Proteq Telecomm., Ltd., 89 F.3d 519, 522 (8th Cir.1996); Gould v. P.T. Krakatau Steel, 957 F.2d 573, 575 (8th Cir.1992), cert. denied, 506 U.S. 908, 113 S.Ct. 304, 121 L.Ed.2d 227 (1992). In assessing a plaintiffs evidence, the court views the evidence in the light most favorable to the plaintiff and resolves all factual conflicts in the plaintiffs favor. Digi-Tel Holdings, Inc., 89 F.3d at 522. Any “doubt[s] should be resolved in favor of retention of jurisdiction.” V.H. v. Estate of Bimbaum, 543 N.W.2d 649, 653 (Minn.1996). When considering whether personal jurisdiction exists, the court may consider matters outside the pleadings. Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir.1998) (citing Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947) (noting that “when a question of the District Court’s jurisdiction is raised ... the court may inquire by affidavits or otherwise, into the facts as they exist” and “the mode of its determination is left to the trial court”)). 2. Due Process and Personal Jurisdiction This Court has personal jurisdiction over a foreign defendant if a state court in Minnesota would also have jurisdi