Case 2:12-cv-02769-JPM-tmp Document 30 Filed 01/10/13 Page 1 of 20 PageID 90
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`
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`Civil Action No. 2:12cv2769 JPM-tmp
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`Hon. Jon Phipps McCalla
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`JURY DEMAND
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`
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`B.E. TECHNOLOGY, L.L.C.,
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`
`Plaintiff,
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`v.
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`FACEBOOK, INC.,
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`Defendant.
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`
`
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`MEMORANDUM OF FACTS AND LAW IN SUPPORT OF FACEBOOK’S MOTION
`TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)
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`Case 2:12-cv-02769-JPM-tmp Document 30 Filed 01/10/13 Page 2 of 20 PageID 91
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`Table of Contents
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`Page
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`I.
`II.
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`III.
`IV.
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`V.
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`
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`
`
`INTRODUCTION ............................................................................................................. 1
`FACTUAL BACKGROUND ............................................................................................ 3
`A.
`Facebook Has No Relevant Connection to this District ........................................ 3
`B.
`B.E. Technology Also Lacks Any Significant Connection to this District ........... 4
`C.
`All Presently Known Potential Non-Party Witnesses Reside Outside of
`Tennessee ............................................................................................................... 5
`LEGAL STANDARD ........................................................................................................ 6
`ARGUMENT ..................................................................................................................... 7
`A.
`This Case Could Have Been Brought in the Northern District of California ........ 7
`B.
`The Private Interest Factors Favor Transfer to the Northern District of
`California ............................................................................................................... 7
`1.
`The Convenience of Witnesses and Access to Sources of Proof
`Strongly Favor Transfer ............................................................................. 7
`The Availability of Compulsory Process Favors Transfer ...................... 10
`Costs of Attendance for Willing Witnesses Will be Lowest if this
`Case is Transferred to the Northern District of California ...................... 11
`No Delay or Prejudice is Caused by Transfer .......................................... 12
`B.E. Technology’s Choice of Forum is Not Entitled to Any
`Deference ................................................................................................. 13
`The Public Interest Factors Favor Transfer to the Northern District of
`California ............................................................................................................. 14
`1.
`The Northern District of California has a Greater Interest in this
`Case .......................................................................................................... 14
`Court Congestion in the Western District of Tennessee Favors
`Transfer to the Northern District of California ........................................ 15
`The Remaining Public Interest Factors are Neutral ................................. 15
`3.
`CONCLUSION ................................................................................................................ 15
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`2.
`3.
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`4.
`5.
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`C.
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`2.
`
`-i-
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`Case 2:12-cv-02769-JPM-tmp Document 30 Filed 01/10/13 Page 3 of 20 PageID 92
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`
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`CASES
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`TABLE OF AUTHORITIES
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`Page(s)
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`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)..........................................................................................6, 7, 8
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2011)..................................................................................2, 9, 13, 14
`
`Morris v. Safeco Ins. Co.,
`No. C 07-2890 PJH, 2008 WL 5273719 (N.D. Cal. Dec. 19, 2008) .......................................10
`
`Neil Bros. Ltd. v. World Wide Lines, Inc.,
`425 F. Supp. 2d 325 (E.D.N.Y. 2006) .......................................................................................7
`
`In re Nintendo Co.,
`589 F.3d 1194 (Fed. Cir. 2009)..................................................................................................6
`
`Quality Gold, Inc. v. West,
`No. 1:11-CV-891, 2012 WL 1883819 (S.D. Ohio, May 22, 2012) ...........................................7
`
`Returns Distribution Specialists, LLC v. Playtex Prods., Inc.,
`No. 02-1195-T, 2003 WL 21244142 (W.D. Tenn., May 28, 2003) ................................6, 8, 13
`
`In re TS Tech,
`551 F.3d .............................................................................................................................14, 15
`
`Van Dusen v. Barrack,
`376 U.S. 612 (1964) ...................................................................................................................6
`
`STATUTES
`
`28 U.S.C.
`§ 1391(c) ....................................................................................................................................7
`§ 1404(a) ................................................................................................................................1, 6
`
`California Code of Civil Procedure
`§ 1989.......................................................................................................................................10
`
`OTHER AUTHORITIES
`
`Federal Rule of Civil Procedure
`45(b)(2) ....................................................................................................................................10
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`

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`Case 2:12-cv-02769-JPM-tmp Document 30 Filed 01/10/13 Page 4 of 20 PageID 93
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`Pursuant to 28 U.S.C. § 1404(a), Facebook, Inc. respectfully moves to transfer this action
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`to the United States District Court for the Northern District of California.
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`I.
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`INTRODUCTION
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`The Northern District of California is a clearly more convenient venue than this District
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`for litigating B.E. Technology’s claims. Facebook has extensive and lasting contacts with the
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`Northern District of California. Its headquarters are in the Northern District in Menlo Park,
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`California, and the vast majority of Facebook’s potentially relevant documentation and witnesses
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`are located there. Additionally, Facebook has identified nine individuals who possess knowledge
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`regarding potentially invalidating prior art who live in or near the Northern District of California.
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`In contrast, neither Facebook nor B.E. has any significant contacts with this District.
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`Facebook has no history of operations in this District—and other than the act of filing suit,
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`neither does B.E. Technology. B.E.’s principal office is in Michigan, and the company’s
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`operations have been centered in Louisiana for the past decade. In a 2000 business plan, B.E.
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`characterized itself this way: “B.E. Technology is a limited liability company formed under the
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`laws of the State of Delaware in 1997. Its principal office of record is in Bay City, Michigan,
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`and its operations are headquartered in New Orleans, Louisiana.” (Armon Decl. Ex. 1, at 30.)1
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`Since 2000, B.E. followed its business plan. It regularly filed annual disclosures with the
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`Michigan Secretary of State. (Ex. 2.) And in December 2011, Martin David Hoyle (the inventor
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`of the patent-in-suit) filed a disclosure with the United States Patent Office stating that he was a
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`resident of New Orleans, and that B.E.’s principal address was in Saginaw, Michigan.2 (Ex. 3.)
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`As B.E.’s records demonstrate, B.E.’s business has always focused outside of Tennessee.
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`1 All exhibits cited herein are attached to the Declaration of Orion Armon.
`2 Saginaw is approximately 14 miles from Bay City, Michigan, so it is possible that B.E. moved its principle office
`from Bay City to Saginaw between 2000 and the present.
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`1
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`B.E.’s Complaint alleges that its principal place of business is now Memphis. If so, B.E.
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`is a newcomer to this District. B.E. did not register to do business in Tennessee until September
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`6, 2012—one business day prior to filing this lawsuit. (Ex. 4.) It is unclear whether B.E. has
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`conducted any business in this District, but B.E.’s attorney, Robert Freitas, admitted in an
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`interview that B.E. is a non-practicing entity—so it seems unlikely that B.E. ever will conduct
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`any business in this District. (Ex. 5.)
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`Other than claiming that its principal place of business is now Memphis, B.E. has only a
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`single, attenuated link to this jurisdiction: Mr. Hoyle (the inventor of the patent-in-suit)
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`purchased a home in Cordova, Tennessee, on April 11, 2012. (Ex. 6, at 3.) But Hoyle’s personal
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`property is not attributable to B.E., and his relocation to Tennessee does not alter the fact that
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`B.E.’s activities have always centered around Saginaw, Michigan and New Orleans, Louisiana.
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`(Ex. 3, at 2.) Consequently, most (or all) of B.E.’s documents and witnesses likely will be found
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`in Michigan and Louisiana—not Tennessee.
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`B.E. may oppose this motion by arguing that transfer is inappropriate in light of its recent
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`contacts with this District, but Federal Circuit precedent unequivocally holds that a plaintiff’s
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`contacts with a district are entitled to no weight if the contacts were established in order to
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`manipulate venue. In re Microsoft Corp., 630 F.3d 1361, 1364-65 (Fed. Cir. 2011) (holding that
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`transferring documents to Texas and incorporating in Texas sixteen days prior to filing suit were
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`venue manipulation and entitled to no weight). As in Microsoft, B.E.’s activities in this District
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`are insubstantial and recent, so the Court should disregard the contacts in its transfer analysis.
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`Parties and non-parties alike will benefit from significantly lower costs and burdens
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`associated with accessing sources of proof and attending trial if this litigation is transferred to the
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`Northern District of California. The Northern District is clearly more convenient than the
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`2
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`Western District of Tennessee for litigating this patent infringement suit, so Facebook
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`respectfully requests the Court to transfer this case to the Northern District of California.
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`II.
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`FACTUAL BACKGROUND
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`B.E. filed suit against Facebook on September 7, 2012, alleging infringement of United
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`States Patent No. 6,628,314 (“’314 patent”). (Dkt. No. 1.) B.E. alleges that Facebook infringes
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`at least Claim 11 of the ‘314 patent by “using a method of providing demographically targeted
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`advertising.” (Id. at ¶ 11.) This case is in its early stages. Facebook’s Answer was filed on
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`December 31, 2012. The Court has not held a case management conference, issued a scheduling
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`order, or set a trial date.
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`B.E. separately filed lawsuits against a number of other defendants around the same time
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`as this lawsuit that also involve the ‘314 and related patents.3
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`A.
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`Facebook Has No Relevant Connection to this District
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`Facebook is a Delaware corporation headquartered in Menlo Park, California, in the
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`Northern District of California. (Decl. of Jeremy Jordan ¶ 2 (hereinafter, “Facebook Decl.”).)
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`Insofar as the Complaint identifies accused Facebook systems or services, the vast majority of
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`Facebook employees with knowledge of the development, implementation, and operation of such
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`systems or services are located at Facebook’s Menlo Park headquarters. (Id. ¶ 4.) Facebook
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`maintains several data centers throughout the United States, but none of them are located in the
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`Western District of Tennessee. (Id. ¶¶ 3, 6.) The vast majority of likely sources of proof
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`(including documentation for all of Facebook’s service offerings) are located at, or accessed and
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`managed from, Facebook’s headquarters. (Id.) While Facebook has one employee in Tennessee,
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`the employee is located in Maryville, which is in the Eastern District. Based on the allegations
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`3 Case Nos. 12-cv-02830, 12-cv-02866, 12-cv-02767, 12-cv-02772, 12-cv-02781, 12-cv-02782, 12-cv-02783, 2:12-
`cv-02823, 12-cv-02824, 12-cv-02825, 2:12-cv-02826, 12-cv-02827, 12-cv-02828, 12-cv-02829, 12-cv-02831, 12-
`cv-02832, 12-cv-02833, and 12-cv-02834.
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`3
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`in B.E’s Complaint, Facebook does not believe that he has any information relevant to this
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`litigation. (Id. ¶ 5.) The employee in question is a Data Center Energy Manager who manages
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`the energy supply arrangements for Facebook’s data centers, and he has no involvement with, or
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`responsibility for, the advertising functionality that is offered on the Facebook website. (Id.)
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`Furthermore, none of Facebook’s evidence or witnesses reside in this District. Facebook
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`has no offices in this District and knows of no employees who work in this District. (Id. ¶ 6.)
`
`B.
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`B.E. Technology Also Lacks Any Significant Connection to this District
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`B.E. Technology is a Delaware company with a principal office in Saginaw, Michigan.
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`(Ex. 7; Ex. 3, at 2.) B.E. only registered to do business in Tennessee one day prior to filing suit
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`against Facebook, and its counsel for this litigation characterizes it as a non-practicing entity that
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`does not make anything. (Ex. 4; Ex. 5.) According to a B.E. business plan that was created in
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`2000, B.E.’s operational headquarters was historically New Orleans, Louisiana, and its principal
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`office was in Saginaw, Michigan. (Ex. 1, at 30.) B.E.’s periodic business filings in Michigan
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`demonstrate that its principal office remains in Michigan. (Ex. 2; Ex. 3.)
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`B.E.’s registration with the Tennessee Secretary of State indicates that it has seventy-four
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`members (Ex. 4.), but the company’s other documents suggest that three individuals play leading
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`roles in management. Of the three, only one is located in Tennessee:
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` Martin David Hoyle is a principal of B.E. and the inventor of the patent-in-suit.
`(Ex. 1, at 30.) Prior to April, 2012, Mr. Hoyle was a resident of New Orleans.
`(Ex. 3, at 1.) On April 11, 2012, Mr. Hoyle purchased a home in Cordova,
`Tennessee. (Ex. 6, at 3.) B.E.’s filing with the Tennessee Secretary of State
`identifies Mr. Hoyle’s home address as B.E.’s address in this state. (Ex. 6, at 3;
`Ex. 4.)
`
` Randall R. Rupp is a Certified Public Accountant in Saginaw, Michigan. Mr.
`Rupp is a managing member of B.E. (Ex. 8; Ex. 9.) Numerous B.E. documents
`indicate that Mr. Rupp is B.E.’s bookkeeper and is responsible for maintaining
`B.E.’s principal office in Michigan. (Ex. 3, at 2; Ex. 10.)
`
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`4
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` Mark J. McKinley is a principal of McKinley Technology, Inc. in Bay City,
`Michigan. He is also a major shareholder and managing member of B.E. (Ex. 11,
`at 3; Ex. 12; Ex. 13.)
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`At the present time, Facebook is unaware of the identities or locations of the other seventy-one
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`members of B.E. Technology.
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`C.
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`All Presently Known Potential Non-Party Witnesses Reside Outside of
`Tennessee
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`All of the presently known potential non-party witnesses affiliated with B.E. Technology
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`reside outside of Tennessee. Notably, B.E.’s patent prosecution attorney resides in Michigan.
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`(Ex. 14.) And according to B.E.’s Business Plan, its customers and business contacts—if any—
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`were primarily located in Louisiana. (Ex. 1, at 30.) Incidentally, B.E.’s trial counsel, Robert
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`Freitas, lives and works in the Northern District of California.
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`Similarly, Facebook is aware of at least nine individuals who possess knowledge
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`regarding potentially invalidating prior art, and all of them live in or near California.
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`Furthermore, five of the nine live and work in the Northern District:
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` Nick Grouf, Co-Founder of Firefly Network, Inc.
`8687 Melrose Ave., Suite G400, West Hollywood, CA 90069. (Ex. 15.)
`
` David Waxman, Co-Founder of Firefly Network, Inc.
`8687 Melrose Ave., Suite G400, West Hollywood, CA 90069. (Id.)
`
` Paul D. Angles, Co-Inventor of U.S. Patent No. 5,933,811.
`1711 Purdue Avenue #11, Los Angeles, CA 90025. (Ex. 24; Ex. 25.)
`
` Douglas O. Blattner, Co-Inventor of U.S. Patent No. 5,933,811.
`10100 Plumosa Place, Las Vegas, NV 89134. (Ex. 25; Ex. 26.)
`
` C. Douglass Thomas, Inventor of U.S. Patent No. 6,128,663.
`2055 Junction Avenue, Suite #205, San Jose, CA 95131. (Ex. 16; Ex. 17.)
`
` David W. Roth, Co-Inventor of U.S. Patent No. 6,285,987.
`88 Perry Street, Apt. 740, San Francisco, CA 94107. (Ex. 18.)
`
` Dylan Salisbury, Co-Inventor of U.S. Patent No. 6,285,987.
`345 Spear Street, San Francisco, CA 94105. (Ex. 19; Ex. 20.)
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`5
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` A. Nathaniel Goldhaber, Co-Inventor of U.S. Patent No. 5,794,210.
`300 Frank H. Ogawa Plaza, Suite 350, Oakland, CA 94612. (Ex. 21; Ex. 22.)
`
` Gary Fitts, Co-Inventor of U.S. Patent No. 6,285,987.
`1 Cyclotron Road Mail Stop 90R, Berkeley, CA 94720-2000. (Ex. 23.)
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`To develop its invalidity defenses, Facebook plans to subpoena these individuals for documents
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`and testimony.
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`III. LEGAL STANDARD
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`Pursuant to Section 1404(a), “[f]or the convenience of parties and witnesses, in the
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`interest of justice, a district court may transfer any civil action to any other district or division
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`where it might have been brought.” 28 U.S.C. § 1404(a). The goals of Section 1404(a) are to
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`prevent waste of time, energy, and money, and also to protect litigants, witnesses, and the public
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`against unnecessary inconvenience and expense. Van Dusen v. Barrack, 376 U.S. 612, 616
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`(1964).
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`“A motion to transfer should be granted upon a showing that the transferee venue is
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`‘clearly more convenient’ than the venue chosen by the plaintiff.” In re Nintendo Co., 589 F.3d
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`1194, 1197 (Fed. Cir. 2009) (citing In re Genentech, Inc., 566 F.3d 1338, 1342 (Fed. Cir. 2009)).
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`The district court has discretion to transfer according to an “individualized, case-by-case
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`consideration of convenience and fairness.” Van Dusen, 376 U.S. at 622.
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`A threshold question for the Court is whether the case could have been filed in the district
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`in which transfer is sought. Returns Distribution Specialists, LLC v. Playtex Prods., Inc., No.
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`02-1195-T, 2003 WL 21244142, at *6 (W.D. Tenn., May 28, 2003). When that threshold is met,
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`courts typically analyze a series of private interest and public interest factors to weigh the
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`convenience of the parties and witnesses and interests of justice. Id. at *7.
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`The private interest factors are “1) the relative ease of access to sources to proof; 2) the
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`availability of compulsory process to secure the attendance of witnesses; 3) the cost of
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`attendance for willing witnesses; and 4) all other practical problems that make a trial easy,
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`expeditious and inexpensive.” Quality Gold, Inc. v. West, No. 1:11-CV-891, 2012 WL 1883819,
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`at *2 (S.D. Ohio, May 22, 2012) (citing In re Genentech, 566 F.3d at 1342).
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`The public interest factors are “1) the administrative difficulties flowing from court
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`congestion; 2) the localized interest in having localized interests decided at home; 3) the
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`familiarity of the forum with the law that will govern the case; and 4) the avoidance of
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`unnecessary problems of conflicts of laws or in the application of foreign law.” Id.
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`IV. ARGUMENT
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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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`This action could have been brought in the Northern District of California. Facebook is
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`headquartered in the Northern District and was subject to personal jurisdiction there when this
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`action was filed. (Facebook Decl. ¶ 2.) Accordingly, the threshold requirement for transfer is
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`met. 28 U.S.C. § 1391(c).
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`B.
`
`The Private Interest Factors Favor Transfer to the Northern District of
`California
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`Each of the four private interest factors weighs in favor of transfer. Witnesses and
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`documents that are relevant to this litigation are either located in the Northern District of
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`California or are located outside of this District (and outside of Tennessee) in other locations that
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`are equally accessible from the Northern District or this District. Consequently, litigation will be
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`less costly and burdensome in the Northern District of California than it would be in this District.
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`1.
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`The Convenience of Witnesses and Access to Sources of Proof
`Strongly Favor Transfer
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`The convenience of witnesses is often cited as the single most important factor in the
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`transfer analysis. In re Genentech, 566 F.3d at 1343 (citing Neil Bros. Ltd. v. World Wide Lines,
`
`Inc., 425 F. Supp. 2d 325, 329 (E.D.N.Y. 2006)). From a witness convenience standpoint, the
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`Northern District of California is clearly more convenient than this District. In analyzing the
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`convenience of the parties and witnesses, courts in this District typically consider ease of access
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`to sources of proof and the cost of obtaining the attendance of witnesses—and place greatest
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`emphasis on the convenience of witnesses. Returns Dist. Spec., 2003 WL 21244142, at *7
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`(citations omitted). Both of these factors indicate that the Northern District of California is
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`clearly the most convenient jurisdiction for this litigation.
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`Facebook is headquartered in the Northern District of California, and its facilities,
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`employees, and records are primarily located in Northern California. (See Facebook Decl. ¶¶ 3-
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`4). The highly proprietary information and source code relating to the www.facebook.com
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`website are stored in Facebook's various data centers, which are managed from Menlo Park. (Id.
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`¶ 3.) Nearly all of the information relating to Facebook’s general operations, marketing,
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`financials, and customer service is also located in the Northern District of California. (Id.)
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`As is true in most patent infringement cases, the majority of the relevant evidence will
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`come from the defendant. See In re Genentech, 566 F.3d at 1345. This fact weighs heavily in
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`favor of transfer because Facebook’s documentary evidence and witnesses are already located in
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`the Northern District of California. (Facebook Decl. ¶ 3.)
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`In contrast, the focal point for B.E. Technology’s documents and witnesses is Michigan.
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`Since at least the year 2000, B.E.’s principal office (and presumably its primary repository of
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`business documents) has been located in or around Saginaw, Michigan. (Ex. 1, at 30; Ex. 3, at
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`2.) Mr. Rupp and Mr. McKinley, who are identified as managing members of B.E. Technology,
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`reside in the Saginaw area, and B.E.’s patent prosecution counsel, James D. Stevens, also lives in
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`Michigan. (Id.) The only other potential focal point for B.E. documents and witnesses is New
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`Orleans, Louisiana, where B.E.’s business operations were historically focused. (Ex. 1, at 30.)
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`Saginaw, Michigan and New Orleans, Louisiana are geographically closer to this Court
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`than to the Northern District of California, so it would be slightly more convenient to access
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`documents and witnesses in Michigan and Louisiana from this District.4 Nonetheless, airplane
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`travel likely would be required for witnesses from Michigan and Louisiana to attend trial
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`regardless whether this litigation proceeds in this District or in the Northern District of
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`California. It would be only a minor additional burden for witnesses from Michigan or
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`Louisiana to travel to the Northern District instead of this District. The burden is especially
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`minor when considered in the context of the overall travel time associated with ground
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`transportation, passing through security, and the other aspects of travel that comprise a domestic
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`airplane trip.
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`In the aggregate, this litigation will be significantly less burdensome and costly for the
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`parties if it is transferred to the Northern District of California. The overall ease and cost
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`associated with accessing witnesses and relevant documents will be much lower in the Northern
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`District because Facebook’s employees and documents are concentrated there. Only Mr.
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`Hoyle—who resides in this District—would directly offset those efficiencies. But Mr. Hoyle’s
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`contacts with this jurisdiction are too recent to be given any weight, and besides, he is only a
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`single individual. In re Microsoft Corp., 630 F.3d 1361, 1364-65 (Fed. Cir. 2011) (holding that
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`the plaintiff’s choice of forum is entitled to no deference when contacts with the forum were
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`manufactured for the purpose of manipulating venue). The majority of B.E. Technology’s
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`witnesses and documents appear to be in Michigan and Louisiana, and the burden associated
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`with accessing them will be approximately the same regardless where this litigation occurs. On
`
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`4 According to Google Maps distances between cities are as follows: Saginaw, MI to Memphis, TN (789 m);
`Saginaw, MI to San Jose, CA (2,438 m); New Orleans, LA to Memphis, TN (395 m); San Jose, CA to Memphis, TN
`(2,230 m).
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`9
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`balance, therefore, the Northern District of California offers major efficiencies in terms of
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`accessing witnesses and documents that cannot be realized in this District.
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`2.
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`The Availability of Compulsory Process Favors Transfer
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`There are a significant number of non-party witnesses located in California who are not
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`subject to this Court’s subpoena power, but who would be subject to trial subpoenas issued out
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`of the Northern District of California. The Northern District of California has subpoena power
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`over these non-party witnesses, as the Court’s subpoena power extends throughout California
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`under Federal Rule of Civil Procedure 45(b)(2) and California Code of Civil Procedure § 1989.
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`Morris v. Safeco Ins. Co., No. C 07-2890 PJH, 2008 WL 5273719, at *5 (N.D. Cal. Dec. 19,
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`2008). Each of the following individuals possesses information regarding the validity of the
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`patent-in-suit, and each is subject to the absolute subpoena power of the courts in the Northern
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`District of California:
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` C. Douglass Thomas, Inventor of U.S. Patent No. 6,128,663.
`2055 Junction Avenue, Suite 205, San Jose, CA 95131. (Ex. 16; Ex. 17.)
`
` David W. Roth, Co-Inventor of U.S. Patent No. 6,285,987.
`88 Perry Street, Apt. 740, San Francisco, CA 94107. (Ex. 18.)
`
` Dylan Salisbury, Co-Inventor of U.S. Patent No. 6,285,987.
`345 Spear Street, San Francisco, CA 94105. (Ex. 19; Ex. 20.)
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` A. Nathaniel Goldhaber, Co-Inventor of U.S. Patent No. 5,794,210.
`300 Frank H. Ogawa Plaza, Suite 350, Oakland, CA 94612. (Ex. 21; Ex. 22.)
`
` Gary Fitts, Co-Inventor of U.S. Patent No. 6,285,987.
`1 Cyclotron Road Mail Stop 90R, Berkeley, CA 94720-2000. (Ex. 23.)
`
` Nick Grouf, Co-Founder of Firely Network, Inc.
`8687 Melrose Ave., Suite G400, West Hollywood, CA 90069. (Ex. 15.)
`
` David Waxman, Co-Founder of Firely Network, Inc.
`8687 Melrose Ave., Suite G400, West Hollywood, CA 90069. (Id.)
`
` Paul D. Angles, Co-Inventor of U.S. Patent No. 5,933,811.
`1711 Purdue Avenue #11, Los Angeles, CA 90025. (Ex. 24; Ex. 25.)
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`Case 2:12-cv-02769-JPM-tmp Document 30 Filed 01/10/13 Page 14 of 20 PageID 103
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`Similarly, the following individual also possesses information regarding the validity of
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`the patent-in-suit. He does not reside in California, but because he lives so close, in Las Vegas,
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`it makes it more likely that he would voluntarily appear to testify at trial if this litigation is
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`adjudicated in the Northern District:
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` Douglas O. Blattner, Co-Inventor of U.S. Patent No. 5,933,811.
`10100 Plumosa Place, Las Vegas, NV 89134-1999. (Ex. 25; Ex. 26.)
`
`3.
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`Costs of Attendance for Willing Witnesses Will be Lowest if this Case
`is Transferred to the Northern District of California
`
`In the aggregate, costs of attendance for party witnesses will be lowest if this litigation is
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`transferred to the Northern District of California. The vast majority of employees who possess
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`technical knowledge of Facebook’s “social networking and advertising product and service” that
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`B.E. accuses of infringement reside in Northern California.
`
` (Facebook Decl. ¶ 4.)
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`Consequently, the Northern District of California is far more convenient for all of Facebook’s
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`witnesses.
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`Costs of attendance for Mr. Hoyle will increase if this litigation is transferred, but costs
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`of attendance are neutral for the rest of B.E.’s party witnesses because they would be
`
`approximately the same regardless where this litigation is adjudicated. For example, airfare
`
`between Bay City, Michigan and Memphis, Tennessee is approximately $329 roundtrip, whereas
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`airfare between Bay City and San Francisco is approximately $361 roundtrip. (Ex. 27.) As these
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`travel costs indicate, B.E.’s documents and witnesses outside of Tennessee are accessible at
`
`approximately the same cost regardless of where this litigation is located. Therefore, the cost of
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`attendance for the majority of B.E.’s witnesses is neutral to the transfer analysis.
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`In the aggregate, the Northern District also offers lower overall costs of attendance for
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`third-party witnesses. Eight non-party witnesses with knowledge of prior art reside in California,
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`Case 2:12-cv-02769-JPM-tmp Document 30 Filed 01/10/13 Page 15 of 20 PageID 104
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`and costs of attendance for these witnesses would be low. Separately, B.E.’s business documents
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`suggest that there are third-party witnesses with knowledge of B.E.’s business operations located
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`in New Orleans. (See, e.g., Ex. 1, at 30; Ex. 3, at 2.) The cost of attendance for these witnesses
`
`is neutral to the transfer analysis because airfare between New Orleans and the Northern District
`
`of California is approximately the same as airfare between New Orleans and this District. For
`
`example, airfare between New Orleans and Memphis is approximately $377 roundtrip, and
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`airfare between New Orleans and San Francisco is approximately $276 roundtrip. (Ex. 28.)
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`In the aggregate, costs of attendance will be far lower for parties and non-parties alike if
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`this litigation is transferred to the Northern District of California. The vast majority of
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`Facebook’s likely employee witnesses are located in the Northern District, and they would not
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`incur any appreciable travel costs associated with appearing for trial. (Facebook Decl. ¶ 4.)
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`Similarly, at least five of nine non-party witnesses who possess information that is relevant to the
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`validity of the patent-in-suit reside in the Northern District and they would not incur any
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`appreciable travel costs associated with appearing at trial, either. The cost savings associated
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`with current and former Facebook employees and California-based prior-art witnesses more than
`
`offsets Mr. Hoyle’s increased travel costs. Travel costs associated with B.E.’s other witnesses
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`will be approximately the same regardless of venue, and therefore are neutral.
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`4.
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`No Delay or Prejudice is Caused by Transfer
`
`The case is in its early stages. Discovery has not begun, no trial date has been set, and no
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`other risks of delay or prejudice are likely. The early stage of this litigation weighs in favor of
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`transfer, because B.E. will not be prejudiced by any interruption of the proceedings if a transfer
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`is ordered. Additionally, this Court has not yet familiarized itself with the technology covered
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`by the patent-in-suit or analyzed matters relating to claim construction, so judicial resources
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`would not be wasted as a result of transfer.
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`Case 2:12-cv-02769-JPM-tmp Document 30 Filed 01/10/13 Page 16 of 20 PageID 105
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`5.
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`B.E. Technology’s Choice of Forum is Not Entitled to Any Deference
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`While B.E. Technology’s choice of forum is a factor for consideration in the transfer
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`analysis, the Court should afford no deference to B.E.’s decision to file suit here. Returns Dist.
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`Spec., 2003 WL 21244142, at *9. Where, as here, a patent owner’s contacts with a forum are
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`recent and superficial, the