Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
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`CASE NO. 14-22134-CIV-MIDDLEBROOKS
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`JURY TRIAL DEMANDED
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`ROTHSCHILD DIGITAL MEDIA
`INNOVATIONS, LLC,
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`Plaintiff,
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`v.
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`SONY COMPUTER ENTERTAINMENT
`AMERICA LLC,
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`Defendant.
`_____________________________________
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`DEFENDANT'S MOTION TO TRANSFER VENUE UNDER 28 U.S.C. §§§§ 1404
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 2 of 17
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`Pursuant to 28 U.S.C. § 1404(a), Defendant Sony Computer Entertainment America LLC
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`("SCEA") hereby moves to transfer this action to the United States District Court for the
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`Northern District of California.
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`I.
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`INTRODUCTION
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`The Court should transfer this action to the United States District Court for the Northern
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`District of California under 28 U.S.C. § 1404(a), which is an overwhelmingly more convenient
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`forum for this case. SCEA is headquartered in the Northern District of California, where SCEA's
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`activities related to the accused products took place. Indeed, virtually every aspect of SCEA's
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`business is based in the Northern District of California. All of the SCEA witnesses that would
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`likely testify in this suit reside and work in the Northern District of California. Further, there are
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`a huge number of potentially relevant third parties – including third party game development
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`studios and the third party entity that operates the PlayStation Network – that are also located in
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`the Northern District of California. As a result, the "center of gravity" for this suit is the
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`Northern District of California and that jurisdiction offers a more convenient forum for the
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`witnesses, provides better access to sources of proof, and better serves the interests of justice.
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`In contrast, this case has no substantial connection to the Southern District of Florida.
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`SCEA has no offices in Florida and none of its operations are based there. Plaintiff's connections
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`are only recent and tenuous; Plaintiff was formed as a Florida corporation shortly before this
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`litigation was filed, apparently as an attempt to manufacture venue. The only witness that
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`appears to have any connection to Florida whatsoever is the inventor and sole member of
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`Plaintiff. Yet, this same inventor, under the auspices of his various patent holding companies,
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`recently filed suit against thirteen different defendants for patent infringement in California and
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`Delaware courts, and therefore cannot credibly claim to be inconvenienced if asked to litigate
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`this case in California as well. In any event, as this District has recognized, an inventor’s
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 3 of 17
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`location is entitled to little consideration in determining whether to transfer a case under 28
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`U.S.C. § 1404(a) because the relevance of inventor testimony is limited. Under these facts, a
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`transfer of this case to the Northern District of California is clearly appropriate.
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`II.
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`FACTUAL BACKGROUND
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`A.
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`SCEA And Its Relevant Evidence Are Located In Northern California
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`Plaintiff filed its Complaint against SCEA on June 9, 2014. See Plf.'s Compl. [Dkt. 1]
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`(June 9, 2014). Plaintiff alleges that SCEA has infringed the '534 Patent by making, using,
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`importing, selling, and offering for sale a "system," specifically defined as including "SCEA's
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`PlayStation products and services - comprised of PlayStation Network servers, PlayStation
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`consoles and PlayStation game discs." Id. at ¶ 9. Plaintiff has specifically identified the
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`"PlayStation 3, PlayStation 4, PlayStation Vita, and PSP" as the accused PlayStation consoles.
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`Id. at ¶ 10. No specific game discs are named in the Complaint, though Plaintiff's original pre-
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`suit letter to SCEA identified the game "Uncharted 3 – Drake's Deception." Id. Accordingly, the
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`PlayStation Network together with the PS3, PS4, PS Vita, PSP and unidentified game discs are
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`the accused products in this case and will be the center of any infringement analysis.
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`SCEA is the exclusive party in the United States responsible for the importation,
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`distribution, and marketing of the PS3, PS4, PS Vita, and PSP. See Exh. B, Decl. of John Koller
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`at ¶ 9 (July 8, 2014) ("Koller Decl."). SCEA is headquartered in San Mateo, California, which is
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`within the Northern District of California. Exh. C, Decl. of Sally Buchanan at ¶ 2 (July 14,
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`2014) ("Buchanan Decl."). The relevant witnesses and the relevant United States documents are
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`all in California. Id. at ¶¶ 6-7. By way of example, witnesses from SCEA's financial and
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`marketing departments will play a substantive role in this patent trial. See e.g., Exh. C,
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`Buchanan Decl. at ¶ 5; Exh. B, Koller Decl. at ¶¶ 6, 8. In particular, SCEA expects Mr. John
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`Koller will be SCEA's primary trial witness for issues involving marketing of the accused
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 4 of 17
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`products and Mr. Aaron Wong will be SCEA's primary trial witness for issues involving
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`financial information. Both Mr. Koller and Mr. Wong, as well as all potential witnesses in the
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`marketing and finance departments, work in SCEA's San Mateo headquarters. Exh. B, Koller
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`Decl. at ¶¶ 1, 8; Exh. C, Buchanan Decl. at ¶¶ 4-7. In fact, any witness that SCEA would call to
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`testify on any aspect of the company's business would likely reside and work in the Northern
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`District of California, since all of the company's central operations are based there. Exh. C,
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`Buchanan Decl. at ¶¶ 4-7.
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`Further, although the Complaint does not identify which PlayStation games are included
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`in the accused system, to the extent the games are developed by SCEA, they would have been
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`developed in California or Oregon. Exh. B, Koller Decl. at ¶ 10. None of SCEA's game studios
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`are in Florida. To the extent the games are developed by third party studios, a large number of
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`those studios are also in California. Id. at ¶ 11. For example, Plaintiff's original letter identified
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`"Uncharted 3 – Drake's Deception" as an allegedly infringing game. That game was developed
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`by Naughty Dog, Inc. in Santa Monica, California. Id.
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`Other key third party witnesses are also located in California. In particular, Plaintiff has
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`named the PlayStation Network as part of the accused system. That network is operated by third
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`party Sony Network Entertainment International LLC (“SNEI”), which is also headquartered in
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`California and has offices in San Mateo, Los Angeles, and San Francisco, California. Exh. B,
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`Koller Decl. at ¶ 13. The Northern District of California, unlike this Court, would have absolute
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`subpoena power over SNEI.
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`In contrast to the foregoing, SCEA has no relevant connections whatsoever to the
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`Southern District of Florida. Other than the fact that the accused products are distributed
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`nationwide, the Complaint identifies no substantive connection to this District. Indeed, in light
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 5 of 17
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`of SCEA's lack of ties to the Southern District of Florida, another Court in this District has
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`recently transferred a patent infringement case filed against SCEA here to the Northern District
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`of California. See Game Controller Tech. LLC v. Sony Computer Entertainment America LLC et
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`al., __ F.Supp.2d ___, 2014 WL 321862, at *7 (S.D. Fla. Jan. 10, 2014) (holding that "the
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`balance of convenience strongly favors transfer" to the Northern District of California). For the
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`reasons stated herein, this Court should do so again.
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`B.
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`Plaintiff's Connection To Florida is Recent And Limited
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`In contrast to SCEA's significant ties to the Northern District of California, Plaintiff's
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`connection to Florida is recent and limited. Plaintiff appears to have been formed specifically for
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`the purpose of bringing this lawsuit. In particular, Plaintiff is less than one year old, having been
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`organized as a Florida limited liability company on July 29, 2013. Exh. A, Gray Decl. at ¶¶ 2-3,
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`Appendix 1. Ten days later, the '534 Patent was assigned to it. Id. at ¶¶ 4-5; Appendix 2. A few
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`months later, SCEA received its first letter from Plaintiff's counsel, accusing SCEA of infringing
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`the '534 Patent and demanding that SCEA take a license to the '534 Patent. Plf.'s Compl., Exh. A
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`at 2-4. Plaintiff does not appear to make or sell anything, or otherwise engage in any operation
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`which would make the Southern District of Florida a more convenient venue for it than any other
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`place where this suit might be brought.
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`Although Plaintiff's sole member and the inventor of the '534 Patent, Mr. Leigh
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`Rothschild (See Plf.'s Compl., Exh. A at 5; see also Exh. A, Gray Decl. at ¶ 3, Appendix 1),
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`appears to reside in Florida, Mr. Rothschild is simultaneously litigating a variety of other patents
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`in other jurisdictions. Under the auspices of his various patent holding companies, Mr.
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`Rothschild has recently filed thirteen other patent litigation cases. None of these cases were filed
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`in Florida. Exh. A, Gray Dec. at ¶¶ 6-24, Appendix 3-19. This is particularly notable as several
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`of the defendants are clearly subject to personal jurisdiction in Florida. See Exh. A, Gray Dec. at
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 6 of 17
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`Appendix 9 at ¶ 2 (alleging that Actsoft Inc. is a Florida corporation and has a principal place of
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`business in Tampa, Florida); Appendix 16, at ¶ 2 (alleging that Mix Telematics North America,
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`Inc., has a principal place of business in Boca Raton, Florida). Indeed, one of these lawsuits,
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`Rothschild GPS Sharing Innovations, LLC v. Nissan North America, Inc., No. 3:2014-CV-00819,
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`was filed in California against Nissan North America, Inc., even though Nissan North America
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`presumably sells product throughout the entire United States and would be subject to jurisdiction
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`in Florida. Id. at Appendix 3. Given the foregoing, it is clear Mr. Rothschild is not
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`inconvenienced by litigating in California.
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`C.
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`The New File History of the ‘534 Patent
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`The ‘534 Patent was previously the subject of litigation in this District as well as a
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`declaratory judgment action in the Northern District of California. See generally Compl.,
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`Rothschild Trust Holdings, LLC v. Citrix Systems, Inc., No. 1:06-CV-21359 (S.D. Fla. May 26,
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`2006); Compl. Rothschild Trust Holdings, LLC v. Orb Networks, Inc., No. 1:06-CV-22921 (S.D.
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`Fla. Dec. 01, 2006); Compl., Orb Networks, Inc. v. Rothschild Trust Holdings, LLC, No. 3:2007-
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`CV-00400 (N.D. Cal. Jan. 22, 2007). While there was some claim construction activities that
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`occurred in this District regarding the ‘534 Patent, the ‘534 Patent was subsequently the subject
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`of extensive re-examination proceedings in the Patent and Trademark Office. During those re-
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`exam proceedings, Plaintiff made a series of limiting statements concerning the scope of the
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`claims, and the Patent Trial and Appeal Board issued an extensive opinion interpreting the scope
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`of the patent and applying it to prior art. See generally Ex Parte Rothschild, No. 90/008.591.
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`Given this vast amount of new file history, the entire claim construction process will have to be
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`redone. The Northern District of California is well-equipped to engage in this new analysis.1
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`1 In fact, if the case is transferred to the Northern District of California, SCEA intends to bring a motion
`for an early Markman hearing, as SCEA believes there is a single claim construction issue that is
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 7 of 17
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`III.
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`STATEMENT OF LAW
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`Change of venue in a civil case is governed by 28 U.S.C. § 1404(a). Pursuant to this
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`section, "[f]or the convenience of parties and witnesses, in the interest of justice, a district court
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`may transfer any civil action to any other district or division where it might have been brought or
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`to any district or division to which all parties have consented." Id. Thus, the purpose of §
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`1404(a) is to prevent the waste "of time, energy and money" and "to protect litigants, witnesses,
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`and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376
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`U.S. 612, 616 (1964) (citing Continental Grain Co v. Barge FBL-585, 364 U.S. 19, 26, 27
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`(1960)). To this end, § 1404(a) "empowers a district court to transfer 'any civil action' to another
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`district court if the transfer is warranted by the convenience of the parties and witnesses and
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`promotes the interest of justice." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal
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`footnote omitted).
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`The inquiry on a motion to transfer under 28 U.S.C. 1404(a) is not whether one venue or
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`another would be the best venue, but whether there is a venue that is more convenient. 28 U.S.C.
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`§ 1404(a). In making this determination, District Courts use a two-step analysis. The threshold
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`question requires a Court to determine whether the case could have been brought in the forum to
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`which the transfer is sought. See 28 U.S.C. § 1404(a). If the transferee district is a proper venue,
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`then the Court must conduct a balancing test and weigh various private and public interest
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`factors to compare the relative conveniences of the current district against the transferee district.
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`See Steifel Lab., Inc. v. Galderma Lab., Inc., 588 F.Supp.2d 1336, 1338 (S.D. Fla 2008) (citing
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`Mason v. Smithkline Beecham Clinical Lab., 146 F.Supp.2d 1355, 1359 (S.D. Fla. 2001)). The
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`potentially case dispositive. As SCEA has repeatedly explained to Plaintiff, there is no good faith basis to
`bring this suit in view of the clear disclaimers on the scope of the alleged invention made during the ex
`parte reexamination of the patent-in-suit, as confirmed by the Patent Trial and Appeal Board. Ex Parte
`Rothschild, No. 90/008.591, Decision on Appeal at 9 (Sept. 17, 2010). For all the reasons stated herein,
`however, this issue would be far more conveniently resolved in the Northern District of California.
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 8 of 17
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`private interest factors include: "the relative ease of access to sources of proof; availability of
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`compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing,
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`witnesses; possibility of view of premises, if view would be appropriate to the action; and all
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`other practical problems that make trial of a case easy, expeditious and inexpensive." Trace-
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`Wilco, Inc. v. Symantec Corp., 08-80877-CIV, 2009 WL 455432, *2 (S.D. Fla. Feb. 23, 2009)
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`(citing American Dredging Co. v. Miller, 510 U.S. 443, 448 (1994)). The public interest factors
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`include: "the administrative difficulties flowing from court congestion; the local interest in
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`having localized controversies decided at home; the interest in having the trial of a diversity case
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`in a forum that is at home with the law that must govern the action; the avoidance of unnecessary
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`problems in conflict of laws, or in the application of foreign law; and the unfairness in burdening
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`citizens in an unrelated forum with jury duty." Id. (citing Piper Aircraft Co. v. Reyno, 454 U.S.
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`235, 241 n. 6, (1981)). "In patent cases, Courts are instructed to analyze the convenience factors
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`of § 1404(a), 'instead of relying solely on considerations such as tenuousness of jurisdiction,
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`broadness of case, and degree of vestment, or automatically going with the first filed action.'"
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`Mayfonk, Inc. v. Nike, Inc., Case No. 13-60755-CIV-MIDDLEBROOKS, *3 (June 18, 2013 S.D.
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`Fla.) ("Mayfonk") (quoting Micron Technology, Inc. v. Mosaid Technologies, Inc., 518 F.3d 897,
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`904 (Fed. Cir. 2008)).
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`Applying the foregoing standard, SCEA's Motion should be granted and this case should
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`be transferred to the Northern District of California.
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`IV.
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`TRANSFER UNDER 1404(A) IS APPROPRIATE
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`Transfer should be granted. Plaintiff's limited presence in this District is very recent and
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`its sole member, Mr. Rothschild, has shown a remarkable willingness to litigate in other venues,
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`as evidenced by the thirteen separate patent infringement lawsuits he initiated earlier this year in
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`California and Delaware. In contrast, SCEA has extremely strong ties to the Northern District of
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 9 of 17
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`California and would be substantially burdened by having to litigate in this District. There is no
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`question that this action could and should have been brought in the Northern District of
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`California and that, on balance, the relevant factors strongly weigh in favor of transfer to that
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`District.
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`A.
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`This Case Could Have Been Brought in the Northern District of California
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`The threshold question under section 1404(a) requires the court to determine whether the
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`case could have been brought in the forum to which the transfer is sought. 28 U.S.C. § 1404(a).
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`Here, there is no credible dispute that this case could have been brought in the Northern District
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`of California. First, the Northern District of California has personal jurisdiction over SCEA. 2
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`SCEA has its principal place of business in San Mateo, California, which is within the Northern
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`District of California, and conducts almost all of its business from this location. Pl.'s Compl. at ¶
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`2 (June 9, 2014) [Dkt. 1]; Exh. C, Buchanan Decl. at ¶ 2. Second, as this is an action for patent
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`infringement under 35 U.S.C. § 271, et seq. (Id. at ¶ 3), the Northern District of California has
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`subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1338(a). Finally, venue under 28 U.S.C.
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`§ 1391(b) is proper in a judicial district where, inter alia, any defendant resides. See 28 U.S.C.
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`§ 1391(b). Since SCEA is a resident of the Northern District of California, venue is proper in the
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`Northern District of California. Accordingly, the threshold requirement for transfer under
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`Section 1404(a) is satisfied.
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`B.
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`The Private Interest Factors Weigh In Favor Of Transfer
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`The private interest factors strongly support transferring this case. Northern California is
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`the "center of gravity" for this case and where most of the witnesses and evidence are located.
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`2 The inquiry under § 1404 involves only whether the proposed transferee court would have had
`personal jurisdiction over the defendant(s). In re Genentech, 566 F.3d at 1346 ("There is no
`requirement under § 1404(a) that a transferee court have jurisdiction over the plaintiff or that
`there be sufficient minimum contacts with the plaintiff; there is only a requirement that the
`transferee court have jurisdiction over the defendants in the transferred complaint.").
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 10 of 17
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`Furthermore, there are no meaningful ties in this case to the Southern District of Florida.
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`Accordingly, transfer is appropriate. In re Nintendo Co., 589 F.3d 1194, 1198 (Fed. Cir. 2009)
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`("This court has held and holds again in this instance that in a case featuring most witnesses and
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`evidence closer to the transferee venue with few or no convenience factors favoring the venue
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`chosen by the plaintiff, the trial court should grant a motion to transfer."); see e.g., Mayfonk, at
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`*4-7.
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`1.
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`Plaintiff's Choice Of Forum
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`As this Court has held, a plaintiff's choice of forum is given less deference where the
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`operative facts underlying the cause of action did not occur within said forum. Mayfonk, at *4
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`(citing Motorola Mobility, Inc. v. Microsoft Corp., 804 F.Supp.2d 1271, 1276 (S.D. Fla. 2011)).
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`Further, the "center of gravity" in a patent infringement case is where the relevant activities
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`pertaining to the accused product occurred. Id. Indeed, "[i]n patent infringement cases, the bulk
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`of the relevant evidence usually comes from the accused infringer. Consequently, the place
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`where the defendant's documents are kept weighs in favor of transfer to that location." In re
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`Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009) (quoting Neil Bros. Ltd. v. World Wide
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`Lines, Inc., 425 F.Supp.2d 325, 329-330 (E.D.N.Y. 2006)). In this case, SCEA's relevant
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`witnesses and documents are located in the Northern District of California. Exh. C, Buchanan
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`Decl. at¶¶ 2-7. Other than the nationwide distribution of SCEA's products, there is nothing that
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`ties SCEA to the Southern District of Florida. Id. at ¶ 3.
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`Conversely, Plaintiff seems to have been created only for the purpose of filing this
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`lawsuit and has no activities or other ties within the Southern District of Florida that would
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`warrant giving deference to Plaintiff's choice of forum. As stated, although Plaintiff's sole
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`member and the inventor of the '534 Patent, Mr. Rothschild, does appear to reside in this District,
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`he recently filed thirteen separate patent infringement cases in other jurisdictions, including
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 11 of 17
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`California, and only this case in Florida. Exh. A, Gray Dec. at ¶¶ 6-24, Appendix 3-19.
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`Accordingly, Plaintiff cannot credibly complain that it or Mr. Rothschild has a strong preference
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`for litigating matters in this District or that much, if any, deference should be given to Plaintiff's
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`choice of forum. As a result, this factor heavily weighs in favor of transfer. Mayfonk, at *4.
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`2.
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`Convenience Of The Parties And Witnesses
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`Likewise, the convenience of the parties and witnesses heavily weighs in favor of
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`transfer. See Mayfonk, at *4-5. As noted, SCEA is headquartered in the Northern District of
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`California, and employees responsible for the accused products reside and work there. See Exh.
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`C, Buchanan Decl. at ¶¶ 2, 4-6; Exh. B, Koller Decl. at ¶¶ 1, 5, 8-10. Additionally, SCEA's
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`engineering, marketing, sales, and finance departments are located in its San Mateo headquarters,
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`and employees in those departments reside and work in the Northern District of California. Exh.
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`C, Buchanan Decl. at ¶¶ 4-6. For example, two of SCEA's critical trial witnesses are located in
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`the Northern District of California. Id. John Koller will explain SCEA's marketing efforts, and
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`Aaron Wong is expected to provide testimony relating to damages. Id.; Exh. B, Koller Decl. at ¶
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`6. As a result, the Northern District of California is a far more convenient district for the
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`relevant witnesses.
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`Conversely, SCEA maintains no offices in this District. Nor is there any reason to
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`believe that Plaintiff finds this District more convenient than any other. Plaintiff is a patent
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`holding company and therefore will have little evidence in its possession, let alone substantial
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`evidence that might be located in the Southern District of Florida. And while the inventor of the
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`'534 Patent does live in Florida, that, in and of itself, is entitled to little consideration. Mayfonk
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`at *5 (finding that the inventor's location should be given little consideration in determining
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`whether to transfer a case under 28 U.S.C. § 1404(a) as "it is unclear whether [inventor]
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`testimony would be necessary at trial, as Courts have been instructed to give little deference to
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 12 of 17
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`the inventor's testimony about the meaning of a patent's claims") (citing Hoechst Celanese Corp.
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`v. BP Chems. Ltd., 78 F.3d 1575, 1580 (Fed. Cir. 1996)).
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`Furthermore, many of the potential non-party witnesses in this case are also located in
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`California. Plaintiff has accused the PlayStation Network as being a part of the accused system,
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`but that network is operated by third party Sony Network Entertainment International LLC,
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`which is headquartered in California and has offices in San Mateo, California, Los Angeles,
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`California, and San Francisco, California. Exh. B, Koller Decl. at ¶ 13. Plaintiff has also
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`accused PlayStation games as being part of the accused system, but a huge number of those
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`games are made by third party developers located in California, including some of the largest
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`third party game publishers in the world. Id. at ¶¶ 10-12.
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`In short, it would be substantially more inconvenient for SCEA to litigate in this District
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`rather than the Northern District of California, and there are numerous third party witnesses that
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`are not within the subpoena power of the Southern District of Florida. However, the converse is
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`not true; Plaintiff's sole member, Mr. Rothschild, has recently filed litigation in California and
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`there is no reason why the Northern District of California would be inconvenient for Mr.
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`Rothschild or anyone else. Accordingly, this factor weighs in favor of transfer.
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`3.
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`The Relative Ease Of Access To Sources Of Proof Favors Transfer
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`"In patent infringement cases, the bulk of the relevant evidence usually comes from the
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`accused infringer. Consequently, the place where the defendant's documents are kept weighs in
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`favor of transfer to that location." In re Genentech, Inc., 566 F.3d at 1345 (quoting Neil Bros.
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`Ltd., 425 F.Supp.2d at 329-330). Here, there can be no dispute that SCEA's documents relating
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`to the accused products are located in the Northern District of California. Thus, transferring the
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`case would relieve the burden on the parties regarding the ease of access to sources of proof.
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 13 of 17
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`Since the vast bulk of the documentary evidence is located in the Northern District of California,
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`this factor clearly weighs in favor of transfer.
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`4.
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`All Other Practical Problems That Make Trial Of A Case Easy,
`Expeditious And Inexpensive
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`Additional factors also favor transfer to the Northern District of California. In particular,
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`this Court has held that it is in the interest of justice to transfer a case to the district which is the
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`"center of the accused activity." Mayfonk, at *6 (citing 15 Wright, Miller & Cooper, Federal
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`Practice and Procedure: Jurisdiction and Related Matters at § 3854 at 246-47 (3d ed. 2007)).
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`Here, the "center of the accused activity" is the Northern District of California, where SCEA is
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`headquartered and hundreds of employees responsible for the accused products reside and work.
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`See Exh. C, Buchanan Decl. at ¶¶ 2, 4-6. Moreover, as in Mayfonk, SCEA's only alleged tie to
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`the Southern District of Florida is that its accused products are sold there, as they are sold
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`throughout the entire nation. Id. at *6-7. As such, SCEA's conduct in Florida "does not provide
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`this forum with a substantial interest in the instant action." Id. at *6-7 (citing In re TS Tech USA
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`Corp., 551 F.3d 1315, 1321 (Fed. Cir. 2008) (products "sold throughout the United States"
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`confer "no more or less meaningful connection to one venue or another").
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`There are no private interest factors that would weigh against transfer. The only
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`conceivable argument Plaintiff could make is that the ‘534 Patent was once construed by a
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`different Judge here, but this would be entitled to no weight. First, the prior claim construction
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`ruling is not binding against SCEA. See e.g., Third Wave Tech., Inc. v. Stratagen Corp., 381 F.
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`Supp.2d 891, 914 (W.D. Wis. 2005) ("a second alleged infringer is not bound by prior claim
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`construction unless it had a full and fair opportunity to litigate the construction in the first
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`infringement action"). Second, since the prior litigation, the patent has been subject to an ex
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`parte reexamination during which Plaintiff made a series of limiting statements concerning the
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 14 of 17
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`scope of the claims, and the PTAB issued an extensive opinion interpreting the scope of the
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`patent and applying it to prior art. See generally Ex Parte Rothschild, No. 90/008.591. Given
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`this vast amount of new file history, the entire claim construction process will have to be redone.
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`The Northern District of California is well-equipped to engage in this new analysis which is
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`wholly distinct from any claim construction that occurred prior to the ex parte reexamination.
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`Given the foregoing, it is clear the private interest factors strongly favor transfer.
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`C.
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`The Public Interest Factors Weigh In Favor Of Transfer
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`
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`The public interest also strongly favors transfer. First, as SCEA resides in the Northern
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`District of California, there is a strong local interest in having this controversy decided there as
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`the "home" forum. There is also no unfairness in burdening California citizens with jury duty in
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`a case against a company headquartered in California whereas, conversely, Florida citizens have
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`no stake in this controversy. Other public interest factors such as familiarity with the governing
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`law and avoidance of unnecessary conflict of law issues are not applicable here. As a case
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`involving issues of federal law, the Northern District of California is equally competent to
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`address the issues in this lawsuit.
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`Accordingly, both the public and private factors weigh heavily in favor of transferring
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`this case to the Northern District of California. SCEA's Motion should be granted. In re
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`Nintendo Co., 589 F.3d at 1198 ("This court has held and holds again in this instance that in a
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`case featuring most witnesses and evidence closer to the transferee venue with few or no
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`convenience factors favoring the venue chosen by the plaintiff, the trial court should grant a
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`motion to transfer."); see e.g., Mayfonk, at *4-7.
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`V.
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`CONCLUSION
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`For the reasons stated above, SCEA asks the Court to transfer this case to the Northern
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`District of California.
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 15 of 17
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`Dated: July 16, 2014
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`Respectfully submitted,
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`By: /s/ Jeremy T. Elman
`Jeremy T. Elman (Florida Bar No. 37448)
`Jeremy.Elman@dlapiper.com
`DLA Piper LLP
`200 South Biscayne Boulevard
`Suite 2500
`Miami, Florida 33131
`Phone: (305) 423-8514
`
`Gregory P. Sitrick (pro hac vice)
`Gregory.sitrick@quarles.com
`Quarles & Brady LLP
`One Renaissance Square
`Two North Central Avenue
`Phoenix, Arizona 85004
`Phone: (602) 229-5317
`
`David R. Cross (pro hac vice)
`David.Cross@quarles.com
`Quarles & Brady LLP
`411 East Wisconsin Avenue
`Milwaukee, Wisconsin 53202
`Phone: (414) 277-5669
`
`Christopher J. Fahy (pro hac vice)
`Christopher.Fahy@quarles.com
`Quarles & Brady LLP
`300 North LaSalle Street
`Suite 4000
`Chicago, Illinois 60654
`Phone: (312) 715-5000
`
`Nikia L. Gray (pro hac vice)
`nikia.gray@quarles.com
`Quarles & Brady LLP
`One South Church Avenue, Suite 1700
`Tucson, Arizona 85701-1621
`Phone: (520) 770-8700
`
` Attorneys for Defendant
`Sony Computer Entertainment America LLC
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 16 of 17
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`LOCAL RULE 7.1(A)(3) CERTIFICATION
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`Pursuant to Local Rule 7.1(a)(3), SCEA hereby certifies that counsel for the movant has
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`conferred with counsel for Plaintiff in a good faith effort to resolve this issue and has been
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`unable to do so.
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`Case 1:14-cv-22134-DMM Document 15 Entered on FLSD Docket 07/16/2014 Page 17 of 17
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 16, 2014, I electronically filed the foregoing document with
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`the Clerk of the Court using the CM/ECF filing system. I also certify that the foregoing
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`document is being served this date on all counsel of record or pro se parties on the Service List
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`below in the manner specified, either via transmission of Notices of Electronic Filing generated
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`by the CM/ECF system or in some other authorized manner for those counsel or parties who are
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`not authorized to receive Notices of Electronic Filing.
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`
`
`/s/ Jeremy T. Elman
`Jeremy T. Elman (