Case 6:17-cv-01217-EFM-KGS Document 27 Filed 08/07/18 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`DISTRICT OF KANSAS
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`Case No. 6:17-cv-01217
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`LOGANTREE LP,
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` Plaintiff,
`vs.
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`GARMIN INTERNATIONAL, INC. and
`GARMIN USA, INC.,
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`Defendants.
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`DEFENDANTS’ MEMORANDUM IN SUPPORT OF THEIR
`MOTION FOR INTRA-DISTRICT TRANSFER FOR TRIAL
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`Wichita, Kansas has no connection to this case. None of the “key” witnesses previously
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`identified by Plaintiff LoganTree are located in Wichita. And, in fact, not a single document or
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`witness relevant to this case is in Wichita. Instead, the situs for all of Garmin’s witnesses and
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`documents is at its headquarters in Olathe, Kansas, which is only 20 miles from the Kansas City,
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`Kansas courthouse. Moreover, Plaintiff’s primary witness, Theodore Brann—the inventor and
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`primary owner of LoganTree—is gravely ill and will be unable to travel to trial regardless of
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`location.1 As for the remainder of LoganTree’s “key” witnesses (identified in prior litigation) all
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`live in Texas and would have easier direct air travel to Kansas City. And while LoganTree
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`requested that trial be held in Wichita, this selection should be given no weight because of the
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`absence of any connection with Wichita. As such, the forum for trial should be transferred to
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`Kansas City.
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`1 This is based on Plaintiff’s recent request to hold a preservation deposition based on Mr.
`Brann’s current medication condition. Ex. A, Email Correspondence.
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`Case 6:17-cv-01217-EFM-KGS Document 27 Filed 08/07/18 Page 2 of 9
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`LEGAL STANDARD
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`Local Rule 40.2 provides that “[t]he court is not bound by the requests for place of trial.
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`It may determine the place of trial upon motion or in its discretion.” D. Kan. Rule 40.2(e). Upon
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`such a motion, “the courts of this district generally look to the same factors relevant to motions
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`for change of venue under 28 U.S.C. 1404(a).” McDermed v. Marian Clinic, Inc., No. 14-2194-
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`EFM-KMH, 2014 WL 6819407 at *1 (D. Kan. Dec. 2, 2014) (quoting Twigg v. Hawker
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`Beechcraft Corp., 2009 WL 1044924, at *1 (D. Kan. Apr. 20, 2009)).
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`ARGUMENT
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`Under 28 U.S.C. 1404(a), “the court considers the following factors: (1) plaintiff’s choice
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`of forum, (2) the convenience of the witnesses, (3) the accessibility of witnesses and other
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`sources of proof, (4) the possibility of obtaining a fair trial, and (5) all other practical
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`considerations that make a trial easy, expeditious, and economic.” McDermed, at *1 (D. Kan.
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`Dec. 2, 2014). Applying the § 1404 factors here where the case involves a nonresident plaintiff
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`and no witnesses located in the current situs of trial—Wichita—warrants transfer to Kansas City.
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`This is consistent with many other decisions where the case was transferred for trial under the
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`same or very similar facts:
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`• Callahan v. Bledsoe, No. 16-cv-2310-JAR-GLR, 2017 WL 1303269 (D. Kan. Apr. 6,
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`2017) (Transferring the location for trial from Plaintiff’s choice of Kansas City to
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`Wichita where Plaintiff was a resident of Denver, CO and Defendant was a Delaware
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`LLC, and where the events in question and the relevant witnesses and documents were all
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`generally located in Wichita, and there was no connection between the case and Kansas
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`City).
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`2
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`Case 6:17-cv-01217-EFM-KGS Document 27 Filed 08/07/18 Page 3 of 9
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`• LeTourneau v. Venture Corp., No. 15-2629-JAR, 2018 WL 489096 (D. Kan. Jan. 19,
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`2018) (Transferring the location for trial from Plaintiff’s choice of Kansas City to
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`Wichita because the Plaintiffs were not residents of their preferred forum, Defendant’s
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`witnesses were all in or near Wichita, Plaintiffs’ witnesses would be required to travel to
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`either forum, there were no witnesses or evidence in Kansas City, and there was no
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`connection between the case and Kansas City).
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`• Mann v. Sirajuddin, No. 17-2434-JAR-GLR, 2018 WL 922354 (D. Kan. Feb. 15, 2018)
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`(Transferring the location for trial from Plaintiff’s choice of Kansas City to Wichita
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`where Plaintiff was a resident of Wisconsin, Defendant resided in Wichita, the material
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`events occurred in Wichita, the majority of witnesses and evidence were in Wichita, and
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`there was no apparent connection between the case and Kansas City).
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`• McDermed v. Marian Clinic, Inc., No. 14-2194-EFM-KMH, 2014 WL 6819407 (D. Kan.
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`Dec. 2, 2014) (Transferring the location of trial from Plaintiff’s choice of Kansas City to
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`Topeka where Plaintiff resided in Topeka, one of the two defendants was in Topeka, the
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`events material to the case occurred in Topeka, and where the witnesses and evidence
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`were in Topeka).
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`1. The Plaintiff’s Choice of Forum
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`Plaintiff’s Complaint notes that Wichita should be the location for trial. Complaint, ECF
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`Doc. 1, at 16. But neither Plaintiff, its managing members, or any witness it previously has
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`identified reside in Wichita. In fact, none of LoganTree’s witnesses even reside in the State of
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`Kansas: LoganTree is a partnership organized under the laws of Nevada, while its managing
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`members, Theodore and Ann Brann, reside in Boerne, Texas. Ex. B, Corporate Articles; Ex. C,
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`3
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`Case 6:17-cv-01217-EFM-KGS Document 27 Filed 08/07/18 Page 4 of 9
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`Declaration of Theodore Brann2, at ¶ 4. Because LoganTree has no connection to Wichita,
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`Plaintiff’s choice of forum should be given little, if any, deference. McDermed, at *2.
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`Additionally, because Wichita has no “material relation or significant connection” to the facts of
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`this case, Plaintiff’s choice should be given even less deference. Id. (quoting Cook v. Atchison,
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`Topeka & Santa Fe Ry. Co., 816 F. Supp. 667, 669 (D. Kan. 1993)). LoganTree does not reside
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`in Wichita. Garmin also does not reside in Wichita, but in Olathe, which is within the Kansas
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`City metropolitan area. Cf. In re BigCommerce, Inc., 890 F.3d 978, 985-86 (Fed. Cir. 2018) (in
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`state with multiple districts, holding that corporation resides in district where it maintains its
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`principal place of business and where its registered office is located). Moreover, no significant
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`events related to the alleged infringement of the asserted patent took place in Wichita.
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`Accordingly, Plaintiff’s choice of forum should be given no weight.
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`2. The Convenience of the Witnesses and Other Sources of Proof
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`The convenience of the witnesses is the most important factor under 1404(a). McDermed,
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`at *2. And the most convenient venue for both LoganTree’s and Garmin’s witnesses is Kansas
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`City. More importantly, the selected forum is “substantially inconvenient” to both parties and the
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`witnesses, and thus merits a change in Plaintiff’s chosen place of trial. Bright v. BHCMC, LLC,
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`No. 17-2529-JWL-GEB, 2018 WL 398450, at *3 (D. Kan. Jan. 12, 2018) (citing McIntosh v.
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`City of Wichita, KS, No. 14-2402-DDC-TJJ, 2015 WL 1646402, at *2 (D. Kan. Apr. 14, 2015)).
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`A forum is “substantially inconvenient” at least when most witnesses must travel from a different
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`forum, creating a substantial burden for those witnesses. Id.
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`2 LoganTree provided this declaration to thwart transfer in an action against FitBit involving the
`same patent. See LoganTree, LP v. Fitbit, Inc., No. 2:15-cv-1575, ECF. Doc. 42-1 (E.D. Tex.
`Apr. 21, 2016).
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`4
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`Case 6:17-cv-01217-EFM-KGS Document 27 Filed 08/07/18 Page 5 of 9
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`Here, LoganTree provided a detailed list of its possible witnesses in a prior action
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`regarding the asserted patent. Ex. C. Significantly none of those witnesses are in Wichita. Id. at
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`¶¶ 6–14; 28–34. Instead, nearly all LoganTree’s witness reside near San Antonio, Texas. Id.
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`Witness Information
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`Witness Location
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`Boerne, TX (near San
`Antonio)
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`Boerne, TX (near San
`Antonio)
`Boerne, TX (near San
`Antonio)
`Boerne, TX (near San
`Antonio)
`Humble, TX (near
`Houston)
`Boerne, TX (near San
`Antonio)
`San Antonio, TX
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`San Antonio, TX
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`San Antonio, TX
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`Witnesses Identified by
`LoganTree
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`Theodore Brann
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`Anne Brann
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`Gulfstream Ventures, LLC
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`Co-owner of entity that owns
`LoganTree and inventor of
`Asserted Patent
`Co-owner of entity that owns
`LoganTree
`Entity that manages LoganTree
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`LoganTree LP
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`Plaintiff, owner of Asserted Patent
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`Jeremy Brann
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`Bio Kinetics Corporation
`(inactive)
`H.E.B. Supermarket
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`Kevin Holguin
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`Paradigm Manufacturing
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`Son of Theodore Brann, assisted
`in invention of Asserted Patent
`Developed product that practiced
`the Asserted Patent
`Entered into contract with Bio
`Kinetics for the product that
`practiced the Asserted Patent
`Corporate Safety Officer and
`principal point of contact with
`Theodore Brann at H.E.B.
`Contracted to develop slightly
`over 2,000 of the Bio Kinetics
`product that practiced the
`Asserted Patent
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`It is also significant that Mr. Brann, who is the asserted patent’s sole inventor and co-
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`owner of LoganTree, will likely be unable to travel to Kansas City or Wichita for trial. Ex. C, at
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`¶ 15; Ex. D, Declaration of Dr. Victor Vela3, at ¶ 10–11. So the situs of trial, whether Wichita or
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`Kansas City is irrelevant to Mr. Brann. Additionally, the remaining witnesses will be
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`inconvenienced by travel regardless of whether trial is held in Wichita or Kansas City, though
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`3 LoganTree also provided this declaration to thwart transfer in an action against FitBit involving
`the same patent. See LoganTree, LP v. Fitbit, Inc., No. 2:15-cv-1575, ECF. Doc. 42-2 (E.D. Tex.
`Apr. 21, 2016).
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`5
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`Case 6:17-cv-01217-EFM-KGS Document 27 Filed 08/07/18 Page 6 of 9
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`Kansas City would be the more convenient venue for them as well. The closest airport to
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`LoganTree’s witnesses is the San Antonio International Airport. Flights into Kansas City
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`International Airport from San Antonio International Airport are shorter in time than flights into
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`Wichita National Airport. Compare Ex. E with Ex. F, Flight Schedules. Moreover, there are
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`direct flights from San Antonio to Kansas City, but only indirect flights to Wichita. Id.
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`Similarly, all Garmin personnel who have knowledge of the relevant facts and documents
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`work at Garmin’s headquarters in Olathe, Kansas. Ex. G, Declaration of Sam Korte at ¶¶ 5, 7.
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`Specifically, the products accused by LoganTree all fall within Fitness and Outdoor business
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`segments of Garmin, both of which are located in Olathe, Kansas. Id. at ¶ 4. For example,
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`Garmin’s Nathan Henderson can explain the technical aspects of Garmin Connect, while Justin
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`Lyons can testify regarding the development, operation and use of Garmin fitness devices,
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`including the Forerunner. Id. at ¶¶ 5a; 5b. Brad Trenkle can explain the technical aspects of
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`Garmin’s fenix and golf products. Id. at ¶ 5c. And Anthony Hancox can explain the financial
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`aspects of Garmin’s sales of its fitness and golf products. Id. at ¶ 5d. If trial were held in Wichita,
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`every one of these witnesses would be forced to travel over two and a half hours, each way, and
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`incur hotel costs, while witnesses could travel from Olathe to Kansas City in only thirty minutes.
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`Id. at ¶ 6. Each of these witnesses would likely be required to miss at least two full days of work
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`in order to attend trial in Wichita. Id. at ¶ 7. On the other hand, Garmin’s witnesses would likely
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`only need to miss a portion of a work day to attend trial in Kansas City. Id. at ¶ 8. Thus, holding
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`trial in Wichita is “substantially inconvenient” to all anticipated witnesses, and a transfer to
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`Kansas City is merited.
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`Additionally, all documents and other sources of proof relating to the Accused Products
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`are located at Garmin’s Olathe office. Id. at ¶ 9. Transportation of this information to Wichita is
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`Case 6:17-cv-01217-EFM-KGS Document 27 Filed 08/07/18 Page 7 of 9
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`unnecessary, inconvenient, and costly for Defendants. Conversely, there is no indication that any
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`sources of proof are in Wichita. This factor weighs considerably in favor of transferring the case
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`to Kansas City for trial.
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`3. The Possibility of Obtaining a Fair Trial
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`There are no obvious advantages to a trial in Wichita and no obstacles to obtaining a fair
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`trial in Kansas City. Any concerns regarding selection of fair jury trial can be adequately
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`addressed during voir dire. Aramburu v. Boeing Co. et al., 896 F. Supp. 1063, 1065 (D. Kan.
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`1995). Accordingly, this factor is neutral.
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`4. All Other Practical Considerations
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`In addition to the above factors, the Court may also consider any aspects which could
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`make the trial “easy, expeditious and economical.” Bright at *4. Such considerations include the
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`“costs in the form of mileage, meals, and hotel expenses” incurred by holding the trial in Wichita
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`as opposed to Kansas City. Hughes v. Blue Cross & Blue Shield of Kansas, Inc., No. 12-2339
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`JTM, 2012 WL 3644845, at *4 (D. Kan. Aug. 24, 2012).
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`As discussed, LoganTree’s potential witnesses are located in Texas and will be required
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`to incur travel expenses regardless of whether the trial is held in Wichita or Kansas City. But the
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`travel costs incurred by Plaintiff would likely be lessened if the trial was held in Kansas City.
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`And all of Garmin’s witnesses are located in Olathe, Kansas and travel to Wichita would be
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`inconvenient and costly. Therefore, transfer is warranted.
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`CONCLUSION
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`Defendants Garmin respectfully requests that this Court enter an order that the jury trial,
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`if any, of this case will be held in Kansas City, Kansas.
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`Case 6:17-cv-01217-EFM-KGS Document 27 Filed 08/07/18 Page 8 of 9
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`Dated: August 7, 2018
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`Respectfully submitted,
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`ERISE IP, P.A.
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`/s/ Megan J. Redmond
`Megan J. Redmond, KS Bar #21999
`Adam P. Seitz, KS Bar #21059
`Carrie A Bader, KS Bar #24436
`ERISE IP, P.A.
`6201 College Blvd., Suite 300
`Overland Park, Kansas 66211
`Telephone: (913) 777-5600
`Facsimile: (913) 777-5601
`adam.seitz@eriseip.com
`megan.redmond@eriseip.com
`carrie.bader@eriseip.com
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`Garmin
`Defendants
`for
`Attorneys
`International, Inc. and Garmin USA, Inc.
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`Case 6:17-cv-01217-EFM-KGS Document 27 Filed 08/07/18 Page 9 of 9
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`CERTIFICATE OF SERVICE
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`I hereby certify that, on August 7, 2018, the foregoing document filed with the Clerk of
`the Court using CM/ECF and that all counsel of record who are deemed to have consented to
`electronic service are being served with a copy of this document via the Court’s CM/ECF system
`accordingly.
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`By: /s/ Megan J. Redmond
`Megan J. Redmond
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`9
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