Case 3:10-cv-00954-MO Document 102 Filed 04/08/11 Page 1 of 8 Page ID#: 1327
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF OREGON
` Portland Division
`MENTOR GRAPHICS CORP., an Oregon )
`corporation, )
`
` ) Civil No. 10-CV-954-HU
` Plaintiff, )
`vs.
` ) FINDINGS AND RECOMMENDATION
` )
`EVE-USA, INC, a Delaware )
`corporation, and EMULATION AND )
`VERIFICATION ENGINEERING, SA, )
`formed under the laws of France )
` )
` Defendants. )
`James E. Geringer
`Patrick M. Bible
`Klarquist Sparkman, LLP
`One World Trade Center
`121 S.W. Salmon St., Suite 1600
`Portland, OR 97204
`(503) 595-5300
`George Riley
`Kristin Hall
`Luann Simmons
`Mark Miller
`Michael Sapoznikow
`O’Melveny& Myers LLP
`Two Embarcadero Center, 28 Floor
`th
`San Francisco, CA 94111
`(415) 984-8700
`Attorneys for Plaintiff
`
`PAGE 1 - FINDINGS AND RECOMMENDATION
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`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF OREGON
` Portland Division
`MENTOR GRAPHICS CORP., an Oregon )
`corporation, )
`
` ) Civil No. 10-CV-954-HU
` Plaintiff, )
`vs.
` ) FINDINGS AND RECOMMENDATION
` )
`EVE-USA, INC, a Delaware )
`corporation, and EMULATION AND )
`VERIFICATION ENGINEERING, SA, )
`formed under the laws of France )
` )
` Defendants. )
`James E. Geringer
`Patrick M. Bible
`Klarquist Sparkman, LLP
`One World Trade Center
`121 S.W. Salmon St., Suite 1600
`Portland, OR 97204
`(503) 595-5300
`George Riley
`Kristin Hall
`Luann Simmons
`Mark Miller
`Michael Sapoznikow
`O’Melveny& Myers LLP
`Two Embarcadero Center, 28 Floor
`th
`San Francisco, CA 94111
`(415) 984-8700
`Attorneys for Plaintiff
`
`PAGE 1 - FINDINGS AND RECOMMENDATION
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`
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`Case 3:10-cv-00954-MO Document 102 Filed 04/08/11 Page 2 of 8 Page ID#: 1328
`
`Dennis P. Rawlinson
`Justin C. Sawyer
`Miller Nash LLP
`111 S.W. 5 Ave., Suite 3400
`th
`Portland, OR 97204
`(503) 205-2406
`Christen M.R. DuBois
`Ricardo Rodriguez
`Cooley LLP
`Five Palo Alto Square
`3000 El Camino Road
`Palo Alto, CA 94306
`Attorneys for Defendant
`
`HUBEL, Magistrate Judge:
`The matter before the court is Defendants’ EVE-USA, Inc. and
`Emulation and Verification Engineering, SA.’s (collectively “EVE”)
`Motion to Transfer Venue (doc. 75) of this action to the Northern
`District of California under 28 U.S.C. § 1404(a). For the
`following reasons, the court recommends that the motion be DENIED.
` BACKGROUND
`Mentor Graphics alleges EVE’s “ZeBu Server” infringes Mentor
`Graphics’ Patent No. 6,876,962 (‘962 Patent). EVE denies the
`allegation and alleges Mentor Graphic’s ’962 patent is invalid.
`The issue is whether this case should be litigated in the
`District of Oregon where Mentor Graphics is incorporated and has
`its principal place of business, or in the Northern District of
`California where EVE is located.
`
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`PAGE 2 - FINDINGS AND RECOMMENDATION
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`Case 3:10-cv-00954-MO Document 102 Filed 04/08/11 Page 3 of 8 Page ID#: 1329
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`STANDARDS
`Under 28 U.S.C. § 1404, courts have discretion to transfer an
`action if another venue serves the convenience of the parties and
`witnesses and the interests of justice. Jones v. GNC Franchising,
`Inc., 211 F.3d 495, 498 (9th Cir. 2000). The proposed transferee
`district must be a district where the action might have been
`brought. 28 U.S.C. 1404(a). Stewart Org., Inc. v. Ricoh Corp.,
`487 U.S. 22, 28 (1988).
` When deciding whether to transfer a case, the court must
`balance the preference accorded the plaintiff's choice of forum
`with the burden of litigating in an inconvenient forum. Gherebi v.
`Bush, 352 F.3d 1278, 1302 (9th Cir. 2003). “A defendant must make
`a strong showing of inconvenience to warrant upsetting the
`plaintiff’s choice of forum,” Decker Coal Co. v. Commonwealth
`Edison Co., 805 F.2d 834, 843 (9 Cir. 1986). After Congress
`th
`enacted § 1404(a), however, “Plaintiffs' choice of forum, while
`still an important factor in the determination of a motion to
`transfer, is no longer given the overriding consideration it may
`have once enjoyed under the doctrine of forum non conveniens.”
`Saleh v. Titan Corp., 361 F. Supp.2d 1152, 1156 (S.D. Cal. 2005).
`“Other factors are now given equal consideration when plaintiff
`brings suit outside his own home forum.” Id.
`The court must also consider both private and public interest
`factors affecting the convenience of the forum. Creative Tech.
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`PAGE 3 - FINDINGS AND RECOMMENDATION
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`Case 3:10-cv-00954-MO Document 102 Filed 04/08/11 Page 4 of 8 Page ID#: 1330
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`Ltd. v. Aztech System Pte., Ltd., 61 F.3d 696. 703 (9 Cir. 1995).
`th
` Private interest factors include the relative ease of access
`to sources of proof, availability of compulsory process for
`attendance of unwilling witnesses, the cost of obtaining attendance
`of willing witnesses, the possibility of a premises view, and all
`other practical problems that make the trial of a case easy,
`expeditious and inexpensive. Gulf Oil v. Gilbert, 330 U.S. 501,
`508 (1947).
`Public interest factors include administrative difficulties
`arising from court congestion, the interest in having localized
`controversies decided locally, the court's familiarity with the
`applicable law, avoidance of unnecessary conflict of law problems,
`and the unfairness of burdening citizens in an unrelated forum with
`jury duty. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6
`(1981).
`
` FINDINGS
`Mentor Graphic’s Choice of Forum.
` EVE asserts Mentor Graphic’s choice of forum should not be
`accorded deference because the case should be tried “as close as
`possible to the milieu of the infringing device and the hub of
`activity centered around its production.” Amazon.com v. Cendant
`Corp., 404 F. Supp.2d 1256, 1260 (W.D. Wa. 2005).
`Mentor Graphics is an Oregon corporation and its choice to
`bring this action in this court is still entitled to substantial
`
`PAGE 4 - FINDINGS AND RECOMMENDATION
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`Case 3:10-cv-00954-MO Document 102 Filed 04/08/11 Page 5 of 8 Page ID#: 1331
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`deference. Moreover, the parties agree the District of Oregon is
`a proper forum to litigate the parties’ claims and counterclaims.
` Accordingly, the court finds this factor weighs in favor of
`maintaining venue of this action in the District of Oregon.
`Private Interest Factors.
`The Center of Gravity of the Alleged Infringement.
`The parties generally agree the place at the “center of
`gravity” or “center of accused activity” relating to the alleged
`patent infringement is the most appropriate location to litigate a
`patent infringement case. “The district court ought to be as close
`as possible to the milieu of the infringing device and the hub of
`activity centered around its production,” i.e., where the product
`was “developed, tested, researched and produced, and where the
`marketing and sales decisions occurred.”). Google, Inc. v. Traffic
`Information, LLC., 09-CV-642-HU, 2010 WL 743878 *6 (D. Or. Feb. 2,
`2010); see also Sorensen v. Daimler Chrysler AG,02-C-4752 MMC, 2003
`WL 1888 *3 (N.D. Cal. 2003). The parties, however, disagree where
`that center is in this case.
`EVE contends the “center of accused activity” is the Northern
`District of California where its accused ZeBu Server was developed,
`tested, researched, manufactured, marketed, and sold. In addition,
`EVE asserts the majority of its witnesses are located either in San
`Jose or France. EVE also asserts the inventor of Mentor Graphics’
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`PAGE 5 - FINDINGS AND RECOMMENDATION
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`Case 3:10-cv-00954-MO Document 102 Filed 04/08/11 Page 6 of 8 Page ID#: 1332
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`’962 Patent now lives in the Northern District of California.
`Thus, according to EVE, “the central facts of this case occurred in
`the Northern District of California.
`Mentor Graphics, however, points out the “center of gravity”
`regarding the creation of EVE’s ZeBu Server is not in the Northern
`District of California but in France, where EVE is located.
`Moreover, EVE’s design, development and implementation of the ZeBU
`Server occurred primarily in France, and the documentation related
`to the hardware is located there.
`The inventor of the ‘962 Patent for Mentor Graphics lives in
`France according to his March 7, 2011 declaration. He has expressed
`a willingness to travel to Oregon to testify in this matter.
`EVE suggests this witness might change his mind about
`testifying in Oregon. EVE also suggests Mr. Reblewski owns
`property in the Northern District of California and EVE may be able
`to subpoena him there when and if he visits. I note, however, that
`if Mr. Reblewski decides not to come to Oregon to avoid testifying,
`he is equally likely to avoid the Northern District of California.
` Under these circumstances, the court finds it is more likely
`the critical witnesses regarding the factual issues raised in this
`case are located either in France, where the ZEBU Server was
`invented, or in Oregon, where the allegedly infringed product was
`invented. In a perfect world, this factor might favor France as
`the appropriate venue to try this case instead of either Oregon or
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`PAGE 6 - FINDINGS AND RECOMMENDATION
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`Case 3:10-cv-00954-MO Document 102 Filed 04/08/11 Page 7 of 8 Page ID#: 1333
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`the Northern District of California. Venue of this action in
`France, however, is not an option.
`The Cost of the Litigation.
`EVE asserts lead counsel for both parties are located in the
`Northern District of California. Accordingly, litigation expenses
`(travel, hotel costs, etc.) would be reduced by transfer of this
`case to that district.
`Mentor Graphics asserts the costs of litigating in Oregon is
`not unduly burdensome and, in any event, EVE is merely trying to
`shift the additional costs to Mentor Graphics by requiring its
`witnesses and some counsel to travel to California.
`The court finds this factor does not tip the balance in favor
`of venue in either the District of Oregon or the Northern District
`of California.
`Public Interest Factors.
`Mentor Graphics asserts the matter would likely proceed to
`trial more quickly in Oregon based on the average time from filing
`of the complaint to trial in each district (2.07 years in Oregon,
`2.92 years in the Northern District of California). In addition
`Oregon citizens have an interest in seeing the harm done to Mentor
`Graphics by EVE ended.
`EVE does not identify any public interest factors that might
`favor venue of the trial of this case in the Northern District of
`California.
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`PAGE 7 - FINDINGS AND RECOMMENDATION
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`Case 3:10-cv-00954-MO Document 102 Filed 04/08/11 Page 8 of 8 Page ID#: 1334
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`On this record, the court finds the public interest would be
`adequately be served by venue in either the District of Oregon or
`the Northern District of California.
`CONCLUSION
`Based on the foregoing, the court concludes venue of this
`action is proper and appropriate in the District of Oregon pursuant
`to 28 U.S.C. § 1404 and this case should remain in this District.
` RECOMMENDATION
`Accordingly, the court recommends the Motion of Defendants
`EVE-USA, Inc. and Emulation and Verification Engineering, SA. to
`Dismiss or to Transfer Venue (doc. 75) of this action to the
`Northern District of California be DENIED.
`SCHEDULING ORDER
`The above Findings and Recommendation will be referred to
`a United States District Judge for review. Objections, if any, are
`due on April 28, 2011. If no objections are filed, review of the
`Findings and Recommendation will go under advisement on that date.
`If objections are filed, a response to the objections is due
`on May 16, 2011, and the review of the Findings and Recommendation
`will go under advisement on that date.
`Dated this __8th__ day of April 2011.
`
`/s/ Dennis Hubel
` ______________________________
` Dennis James Hubel
` United States Magistrate Judge
`PAGE 8 - FINDINGS AND RECOMMENDATION
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