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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
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`B.E. TECHNOLOGY, LLC,
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`Plaintiff,
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`FACEBOOK, INC.,
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`Defendant.
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` No.: 2:12-cv-02769-JPM-tmp
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`ORDER DENYING MOTION TO TRANSFER VENUE
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`Before the Court is Defendant Facebook, Inc.’s (“Defendant”
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`or “Facebook”) Motion to Transfer Venue Pursuant to 28 U.S.C.
`§ 1404(a), filed January 10, 2013. (ECF No. 29.) For the
`reasons that follow, the Motion is DENIED.
`I. BACKGROUND
`
`This case concerns Defendant Facebook’s alleged
`infringement of United States Patent No. 6,628,314 (the “‘314
`patent”). (ECF No. 1.) Plaintiff B.E. Technology, LLC
`(“Plaintiff or “B.E.”), is the assignee of the ‘314 patent (ECF
`No. 38 at 2), currently owning “all right, title, and interest
`in the ‘314 patent, and has owned all right, title, and interest
`throughout the period” of the alleged infringement (ECF No. 1
`¶ 10).
`B.E. alleges that Facebook infringed the ‘314 patent “by
`using a method of providing demographically targeted advertising
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`that directly infringes at least Claim 11 of the ‘314 patent
`either literally or under the doctrine of equivalents.” (Id.
`¶ 11.)
`B.E. filed a Complaint in this Court on September 7, 2012.
`(ECF No. 1.) Facebook filed its Answer to the Complaint on
`December 31, 2012 (ECF No. 27), and its Motion to Transfer Venue
`on January 10, 2013 (ECF No. 29). B.E. filed its Memorandum in
`Opposition to Defendant’s Motion to Transfer Venue on January
`31, 2013. (ECF No. 38.) Facebook filed an Amended Answer on
`February 8, 2013. (ECF No. 44.) With leave of Court, Facebook
`filed a Reply Memorandum in Support of Its Motion to Transfer on
`February 19, 2013. (ECF No. 50.) On January 31, 2013, Facebook
`filed a Motion to Stay pending resolution of its Motion to
`Transfer Venue. (ECF No. 37.) The Court granted Facebook’s
`Motion to Stay on February 8, 2013. (ECF No. 43.)
`Facebook seeks to transfer this case to the Northern
`District of California, where its headquarters are located.
`(ECF No. 30 at 1.) To support its Motion, Facebook contends
`that its headquarters and the “vast majority of [its]
`potentially relevant documentations and witnesses” are located
`in the Northern District of California. (Id.) Further,
`Facebook asserts that it has “identified nine individuals who
`possess knowledge regarding potentially invalidating prior art
`who live in or near the Northern District of California.” (Id.)
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`B.E. opposes Facebook’s Motion to Transfer. B.E. is a
`limited-liability company incorporated in Delaware. (ECF No. 1
`¶ 2.) B.E. was originally registered in Michigan, but formally
`registered to conduct business in Tennessee in September 2012.
`(ECF No. 38 at 2.) B.E. contends that Memphis, Tennessee, is
`its principal place of business. (ECF No. 1 ¶ 2.) Martin David
`Hoyle (“Hoyle”), B.E.’s founder and CEO, is the named-inventor
`of the ‘314 patent. (ECF No. 38 at 1, 2.) Hoyle asserts he has
`been a resident of Tennessee since April, 2006. (Id. at 1, 2.)
`B.E. argues that transfer is inappropriate because it has
`substantial connections with this district. B.E. argues that
`Hoyle has been “present in this District since 2006, and B.E.
`since at least 2008,” and that this district is B.E.’s principal
`place of business. (Id. at 5.) B.E. also argues that none of
`its witnesses are located in the Northern District of
`California. (Id. at 8.) Further, B.E. argues that its
`corporate documents, including documents relating to the
`“conception and reduction to practice” of the patent-in-suit,
`are located in this District. (Id. at 6-7.)
`II. STANDARD
`Facebook moves the Court to transfer this case to the
`Northern District of California pursuant to 28 U.S.C. § 1404(a).
`(ECF No. 29.) The statute provides that “[f]or the convenience
`of the parties and witnesses, in the interest of justice, a
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`district court may transfer any civil action to any other
`district or division where it might have been brought.” 28
`U.S.C. § 1404(a). “As the permissive language of the transfer
`statute suggests, district courts have ‘broad discretion’ to
`determine when party ‘convenience’ or ‘the interest of justice’
`make a transfer appropriate.” Reese v. CNH Am. LLC, 574 F.3d
`315, 320 (6th Cir. 2009).
`In determining whether to transfer a case under § 1404(a),
`the court must first determine whether the claim could have been
`brought in the transferee district. 28 U.S.C. § 1404(a)
`(allowing transfer to any other district in which the claim
`“might have been brought”). Once the court has made this
`threshold determination, the court must then determine whether
`party and witness “convenience” and “the interest of justice”
`favor transfer to the proposed transferee district. Reese, 574
`F.3d at 320; Esperson v. Trugreen Ltd., No. 2:10-cv-02130-STA-
`cgc, 2010 WL 4362794, at *5 (W.D. Tenn. Oct. 5, 2010), adopted
`2010 WL 4337823 (W.D. Tenn. Oct. 27, 2010). In weighing these
`statutory factors, the court may still consider the private- and
`public-interest factors set forth in the pre-Section 1404(a)
`case, Gulf Oil v. Gilbert, 330 U.S. 501, 508-09 (1947), but
`courts are not burdened with “preconceived limitations derived
`from the forum non conveniens doctrine.” Norwood v.
`Kirkpatrick, 349 U.S. 29, 31 (1955) (quoting All States Freight
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`v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952)) (internal
`quotation marks omitted); Esperson, 2010 WL 4362794, at *5. The
`United States Court of Appeals for the Sixth Circuit has stated
`that when deciding “a motion to transfer under § 1404(a), a
`district court should consider the private interests of the
`parties, including their convenience and the convenience of
`potential witnesses, as well as other public-interest concerns,
`such as systemic integrity and fairness, which come under the
`rubric of ‘interests of justice.’” Moore v. Rohm & Haas Co.,
`446 F.3d 643, 647 n.1 (6th Cir. 2006).
`Additionally, the “interest of justice” factor has been
`interpreted broadly by courts, influenced by the individualized
`circumstances of each case. The United States Court of Appeals
`for the Federal Circuit has set forth a non-exhaustive list of
`pertinent public-interest factors:
`The public interest factors include (1) the
`administrative
`difficulties
`flowing
`from
`court
`congestion; (2) the local interest in having localized
`interests decided at home; (3) the familiarity of the
`forum with the law that will govern the case; and (4)
`the avoidance of unnecessary problems of conflicts of
`laws or in the application of foreign law.
`
`In re Acer Am. Corp., 626 F.3d 1252, 1254 (Fed. Cir. 2010); see
`also In re Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir.
`2009) (finding the local-interest factor weighed heavily in
`favor of transfer); Cincinnati Ins. Co. v. O’Leary Paint Co.,
`676 F. Supp. 2d 623, 633 (W.D. Mich. 2009) (considering
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`additional factors such as the relative docket congestion of the
`transferor and transferee districts).
`Initially, B.E. argues that there is a strong presumption
`in favor of its choice of forum, and that its choice of forum
`should not be disturbed unless the defendant carries its burden
`to demonstrate that the balance of convenience strongly favors
`transfer. (ECF No. 38 at 4-6.) B.E.’s argument is erroneously
`derived from the more stringent forum-non-conveniens standard.
`Compare Hunter Fan Co. v. Minka Lighting, Inc., No. 06–2108
`M1/P, 2006 WL 1627746 (W.D. Tenn. June 12, 2006) (applying the
`appropriate private- and public-interest factors but relying on
`the forum-non-conveniens doctrine to accord strong deference to
`the plaintiff’s choice of forum), with OneStockDuq Holdings, LLC
`v. Becton, Dickinson, & Co., No. 2:12–cv–03037–JPM–tmp, 2013 WL
`1136726, at *3 (W.D. Tenn. Mar. 18, 2013), and Roberts Metals,
`Inc. v. Florida Props. Mktg. Grp., Inc., 138 F.R.D. 89, 92-93
`(N.D. Ohio 1991) (recognizing defendants need to make a lesser
`showing to overcome plaintiff’s choice of forum under
`§ 1404(a)), aff’d per curiam, 22 F.3d 1104 (6th Cir. 1994).
`Although there is a strong presumption in favor of the
`plaintiff’s choice of forum under the doctrine of forum non
`conveniens, under § 1404(a), a plaintiff’s choice of forum may
`be considered, but is entitled to less deference. Discussing
`the difference between the common-law doctrine of forum non
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`conveniens and the federal transfer-of-venue statute in Norwood,
`the Supreme Court stated,
`When Congress adopted § 1404(a), it intended to
`do more than just codify the existing law on forum non
`conveniens. . . . [W]e believe that Congress, by the
`term “for the convenience of parties and witnesses, in
`the interest of justice,” intended to permit courts to
`grant
`transfers
`upon
`a
`lesser
`showing
`of
`inconvenience. This is not to say that the relevant
`factors have changed or that the plaintiff’s choice of
`forum is not to be considered, but only that the
`discretion to be exercised is broader.
`
`Norwood, 349 U.S. at 32; see also Lemon v. Druffel, 253 F.2d
`680, 685 (6th Cir. 1958) (“The choice of the forum by the
`petitioner is no longer as dominant a factor as it was prior to
`the ruling in Norwood v. Kirkpatrick[.]”); Esperson, 2010 WL
`4362794, at *5-6.
`Defendant’s burden under § 1404(a) is to demonstrate that a
`change of venue to the transferee district is warranted. See
`Eaton v. Meathe, No. 1:11-cv-178, 2011 WL 1898238, at *2 (W.D.
`Mich. May 18, 2011); Amphion, Inc. v. Buckeye Elec. Co., 285 F.
`Supp. 2d 943, 946 (E.D. Mich. 2003); Roberts Metals, Inc., 138
`F.R.D. at 93. “Merely shifting the inconvenience from one party
`to another does not meet Defendant’s burden.” McFadgon v. Fresh
`Mkt., Inc., No. 05-2151-D/V, 2005 WL 3879037, at *2 (W.D. Tenn.
`Oct. 21, 2005). “[T]he movant must show that the forum to which
`he desires to transfer the litigation is the more convenient one
`vis a vis the Plaintiff’s initial choice.” Roberts Metals,
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`Inc., 138 F.R.D. at 93 (quoting Mead Corp. v. Oscar J. Boldt
`Constr. Co., 508 F. Supp. 193, 198 (S.D. Ohio 1981)) (internal
`quotation marks omitted). If the court determines that the
`“balance between the plaintiff’s choice of forum and defendant’s
`desired forum is even, the plaintiff’s choice of [forum] should
`prevail.” Stewart v. Am. Eagle Airlines, Inc., No. 3:10-00494,
`2010 WL 4537039, at *2 (M.D. Tenn. Nov. 3, 2010).
`III. ANALYSIS
`Facebook asserts that B.E. could have brought this action
`in the Northern District of California. (See ECF No. 30 at 7.)
`B.E. does not dispute this assertion, nor does it dispute that
`this action could have been brought in the Northern District of
`California. (See ECF No. 38 at 4.) The Court agrees that B.E.
`could have brought suit in the Northern District of California.
`Therefore, the only issue remaining is whether the balance of
`the statutory factors — the convenience to the witnesses, the
`convenience to the parties, and the interest of justice — favors
`transfer to the Northern District of California. The Court will
`address each statutory factor separately and balance these
`factors to determine whether transfer to the Northern District
`of California is proper pursuant to § 1404(a).
`A. Convenience of the Witnesses
`When asserting that a transferee district is more
`convenient for witnesses, a party “must produce evidence
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`regarding the precise details of the inconvenience” of the forum
`chosen by the plaintiff. Esperson, 2010 WL 4362794, at *8. To
`satisfy its burden, the movant must do “more than simply
`assert[] that another forum would be more appropriate for the
`witnesses; he must show that the witnesses will not attend or
`will be severely inconvenienced if the case proceeds in the
`forum district.” Id. (quoting Roberts Metals, Inc., 138 F.R.D.
`at 93). Further, “[t]o sustain a finding on [this factor] . . .
`the party asserting witness inconvenience has the burden to
`proffer, by affidavit or otherwise, sufficient details
`respecting the witnesses and their potential testimony to enable
`a court to assess the materiality of evidence and the degree of
`inconvenience.” Eaton v. Meathe, No. 1:11-cv-178, 2011 WL
`1898238, at *3 (W.D. Mich. May 18, 2011) (quoting Rinks v.
`Hocking, 1:10-CV-1102, 2011 WL 691242, at *3 (W.D. Mich. Feb.
`16, 2011)) (internal quotation marks omitted). It is the
`“materiality and importance of the testimony of prospective
`witnesses, and not merely the number of witnesses,” that is
`crucial to this inquiry. Rinks, 2011 WL 691242, at *3.
`
`Facebook contends that witness convenience favors transfer
`to the Northern District of California. (ECF No. 30 at 7-10;
`ECF No. 50 at 6-7.) To support this contention, Facebook
`asserts that a majority of the witnesses on which it intends to
`rely are located in the transferee district or throughout
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`California. These witnesses include Facebook employees
`“knowledgeable about the design, development, and operation of
`the www.facebook.com website” (Jordan Decl., ECF No. 30-31, ¶ 4)
`and at least nine non-party witnesses related to prior-art
`patents. (ECF No. 30 at 5-6.)
`In response, B.E. argues that “transfer to the Northern
`District of California would be equally inconvenient to B.E.’s
`witnesses because none of them reside there.” (ECF No. 38 at
`8.) B.E. identifies Hoyle, the named-inventor of the patent-in-
`suit and founder and CEO of B.E., as its key witness who is
`located in the Western District of Tennessee. (Id. at 8.) B.E.
`notes that Facebook’s assertion that there may be additional
`B.E. witnesses located in Louisiana or Michigan is false. B.E.
`claims it has no witnesses in Louisiana or Michigan and that it
`is “unaware of any third-party witnesses with knowledge of
`B.E.’s business operations located in New Orleans.” (Id. at 8
`n.2 (quoting ECF No. 30 at 12 (internal quotation marks
`omitted)).)
`Because the convenience of party and non-party witnesses is
`given different weight, the Court will analyze the witnesses
`separately. See Azarm v. $1.00 Stores Servs., Inc., No. 3:08-
`1220, 2009 WL 1588668, at *4 (M.D. Tenn. June 5, 2009) (“[T]he
`convenience of potential non-party witnesses, who are not
`subject to the control of the parties, is a particularly weighty
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`consideration, because it is generally presumed that party
`witnesses will appear voluntarily in either jurisdiction, but
`non-party witnesses, with no vested stake in the litigation, may
`not.”).
`1. Party Witnesses
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`
`
`Facebook asserts that “[t]he vast majority of Facebook
`employees knowledgeable about the design, development, and
`operation of the www.facebook.com website are located at
`Facebook’s Menlo Park headquarters,” located in the transferee
`district. (Jordan Decl., ECF No. 30-31, ¶ 4.) Facebook
`recognizes that it does have one employee located in the Eastern
`District of Tennessee, but asserts that this employee does not
`have information pertinent to the instant case. (ECF No. 30 at
`4; see also Jordan Decl., ECF No. 30-31, ¶ 5.) In its Reply,
`Facebook defends its general identification of potential
`employee-witnesses by stating, “courts may infer that witnesses
`are located near the center of the allegedly infringing
`activities, and that witnesses involved in design and
`development of accused products are material to the transfer
`analysis.” (ECF No. 50 at 7 (citing Koh v. Microtek, Int’l,
`Inc., 250 F. Supp. 2d 627, 636-37 (E.D. Va. 2003)).) Facebook
`also contends that B.E.’s infringement allegations “implicate
`its entire business,” and as a result, “[i]t would be misleading
`for Facebook to pretend that it could identify a subset of
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`employees as most-relevant or its trial witnesses at this early
`stage of the litigation.” (Id. at 8.)
`Other than a general statement that transfer would “be
`significantly less burdensome and costly for the parties,”
`Facebook does not provide any evidence showing that any of its
`employees will be unwilling to testify in this district if asked
`to do so or how such employees will be “severely inconvenienced”
`if the case proceeds in this district. See Esperson, 2010 WL
`4362794, at *8. Moreover, courts have noted that “normally a
`corporation is able to make its employees available to testify
`when needed.” Clark v. Dollar Gen. Corp., No. 3-00-0729, 2001
`U.S. Dist. LEXIS 25975, at *9 (M.D. Tenn. Mar. 6, 2001); see
`also Zimmer Enters. V. Atlandia Imps., Inc., 478 F. Supp. 2d
`983, 991 (S.D. Ohio Mar. 14, 2007) (finding that the convenience
`of witnesses who are employees “will not ordinarily be
`considered, or at least, that the convenience of such employees
`will not generally be given the same consideration as is given
`to other witnesses”). Accordingly, it appears that Facebook’s
`employees will be able to attend absent any evidence to the
`contrary.
`Therefore, regarding Facebook employees, Facebook does not
`satisfy its burden. Facebook argues that the burden of
`proceeding in the transferee district is reduced when comparing
`its own employee witnesses and Hoyle, and the burden is the same
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`when comparing travel to either district for B.E.’s potential
`witnesses from Michigan or Louisiana. (ECF No. 30 at 9.) B.E.
`asserts, however, that it has no witnesses in Michigan or
`Louisiana, and that its key witness is Hoyle, located in the
`transferor district. Accordingly, it is equally inconvenient
`for B.E.’s identified witness – Hoyle - to travel to the
`Northern District of California. Therefore, because § 1404(a)
`provides for transfer “to a more convenient forum, not to a
`forum likely to prove equally convenient or inconvenient,”
`distance of travel for employee witnesses does not weigh in
`favor of transfer. Hunter Fan, 2006 WL 1627746, at *2 (citing
`Van Dusen v. Barrack, 376 U.S. 612, 645-46 (1964)).
`Facebook further argues that this factor strongly favors
`transfer because its employees are “primarily” located in the
`transferee district, whereas B.E. only identified one witness,
`Hoyle, who is also an interested party. (ECF No. 30 at 8.)
`Facebook asserts that Hoyle’s “purported inconvenience . . . is
`minor when balanced against the cost and inconvenience to
`Facebook’s potentially numerous party witnesses with knowledge
`of its accused products.” (ECF No. 50 at 7.) Although Facebook
`does not specifically list its witnesses, and though its
`assertion is imprecise as to the materiality of the witnesses’
`testimony, it is not asserted that their testimony will not be
`relevant and material in this case. Facebook’s general
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`statement, however, that it believes material witnesses are
`located in California does not aid the court in assessing (1)
`what the testimony of such additional material witnesses will
`be; (2) whether such witnesses will be unable to attend; or (3)
`whether and to what extent such witnesses will be inconvenienced
`by testifying in this district.
`Facebook relies on a United States District Court for the
`Eastern District of Virginia case, Koh v. Microtek
`International, Inc., 250 F. Supp. 2d 627 (E.D. Va. 2003), for
`the proposition that although a motion to transfer must normally
`contain specifics as to the “names, titles and locations of
`witnesses and the content of their testimony,” that district
`courts can infer witnesses are located near the infringing
`activities and “that witnesses involved in design and
`manufacture of the accused products are material to the transfer
`analysis.” (ECF No. 50 at 7 (citing Koh, 250 F. Supp. 2d at
`636-37) (internal quotation marks omitted).) Recognizing that
`Koh is persuasive authority, the Court also notes that Facebook
`misapplies it to the facts of the instant case. In Koh, the
`court stated, “although the Movants have not set out
`specifically any potential testimony, they have identified one
`individual who is located in California and two entities located
`in California, which participated in conception and reduction to
`practice of the accused product.” Koh, 250 F. Supp. 2d at 637.
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`In the instant case, Facebook has not identified specific
`witnesses that “participated in [the] conception and reduction
`to practice of the accused products.” To the contrary, Facebook
`has only generally asserted that the “vast majority of [its]
`employees knowledgeable about the design, development, and
`operation” if its website are located in the transferee
`district, leaving open the possibility that material witnesses
`may be located elsewhere. (Jordan Decl., ECF No. 30-31, ¶ 4.)
`Facebook cannot rely on such “bare allegations” to satisfy its
`burden. Esperson, 2010 WL 4362794, at *8.
`While B.E. did not specifically identify any witnesses
`beyond Hoyle, B.E. does not have the burden to do so. Despite
`B.E. not identifying any individuals beyond Hoyle, Facebook’s
`general identification of material witnesses who are Facebook
`employees does not satisfy its burden on this factor. A simple
`numerical advantage is insufficient on the issues raised by a
`motion to transfer.
`Moreover, B.E. argues that “[i]t is likely that Facebook’s
`California-based employees will be deposed in California where
`B.E.’s lead counsel is based.” (ECF No. 38 at 10.) This
`further indicates that the witness-convenience factor does not
`weigh in favor of transfer. See Hunter Fan, 2006 WL 1627746, at
`*2 (finding relevant that the plaintiff planned to take
`depositions of the defendant’s witnesses in California in
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`determining that the witness convenience factor did not favor
`transfer).
`2. Non-Party Witnesses
`While convenience to party witnesses is an important
`consideration, “it is the convenience of non-party witnesses,
`rather than employee witnesses . . . that is the more important
`factor and is accorded greater weight.” Steelcase Inc. v. Smart
`Techs., 336 F. Supp. 2d 714, 721 (W.D. Mich. Mar. 5, 2004)
`(citation omitted) (internal quotation marks omitted).
`Facebook argues that it intends to rely on at least nine
`non-party witnesses who have knowledge of prior art related to
`the patent-in-suit. (ECF No. 30 at 5-6, 10-11; ECF No. 20 at 8-
`9.) Facebook states that it intends to subpoena “these
`individuals for documents and testimony” to “develop its
`invalidity defenses.” (ECF No. 30 at 6.) Facebook also asserts
`that one additional prior-art witness lives outside the subpoena
`power of California, but because he lives in Las Vegas, Nevada -
`near the transferee district - it is “more likely that he would
`voluntarily appear to testify at trial if this litigation is
`adjudicated in the Northern District [of California].” (Id. at
`11.) To support its contention, Facebook submits these nine
`prior-art witnesses and their last-known addresses based on
`webpages and documents filed with the United States Patent and
`Trademark Office (Id. at 10-11 (citing ECF Nos. 30-16 through
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`30-27).) Facebook claims that it will not be able to compel
`these witnesses to testify at trial if the case remains in
`Tennessee, but will be able to compel eight of the nine
`witnesses to testify at trial in the Northern District of
`California. (Id. at 10-11.)
`B.E. argues that the convenience of third-party witnesses
`is not entitled to great weight in the instant case because
`Facebook has not established that the “third party testimony
`will be material or important.” (ECF No. 38 at 10.) B.E.
`argues that Facebook has not stated the “relevance, materiality,
`and importance” of the third-party witnesses’ testimony. (Id.
`at 12.) B.E. further argues that prior-art testimony is “almost
`certain to be severely limited at the time of trial” and,
`therefore, such testimony does not weigh in favor of transfer.
`(Id. at 10-11.)
`B.E. acknowledges that Facebook has identified specific
`third-party witnesses regarding prior art and that those living
`outside the transferor district would not be subject to its
`subpoena power, but states that “Facebook does not address the
`relevance, materiality, and importance of the testimony any
`witness who allegedly could not be subpoenaed might give.” (Id.
`at 11-12.) Further, B.E. argues that Facebook “fails to
`establish that any of these individuals have themselves
`expressed that they would be inconvenienced by the case
`
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`remaining in the Tennessee or that they would not attend trial
`if [it] takes place here.” (Id. at 11.)
`The availability of compulsory process for unwilling
`witnesses is a consideration closely related to the convenience-
`of-witnesses factor and the costs of procuring the witness, and
`therefore is an important consideration for the Court. See,
`e.g., In re Acer, 626 F.3d at 1255; Rinks, 2011 WL 691242, at
`*4. Whether this factor should be given considerable weight
`depends on the materiality of the testimony to the resolution of
`the case. Rinks, 2011 WL 691242, at *4. A federal court in the
`Northern District of California would be able to compel the
`majority of the identified prior-art witnesses to testify at
`trial. See Fed. R. Civ. P. 45(b)(2). In contrast, the prior-
`art witnesses would be subject to the subpoena power in this
`district, see Fed. R. Civ. P 45(c)(3)(A)(ii), but would be
`available for deposition in the Northern District of California
`if unwilling to testify in this district. Therefore, the
`testimony of such witnesses potentially would “not be live and
`therefore could be less persuasive.” Rinks, 2011 WL 691242, at
`*4.
`The Court finds that Facebook has met its burden to show
`the nature of the third-party witnesses testimony, and that the
`testimony is likely material to Facebook’s invalidity and non-
`infringement contentions. To the extent the non-party
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`witnesses’ testimony may be presented by deposition, witness
`inconvenience would not be an issue. While Facebook sets forth
`the fact that the prior-art witnesses would not be subject to
`subpoena in the Western District of Tennessee, this general
`statement is not sufficient to allow the Court to determine
`whether live testimony of Facebook’s non-party witnesses is
`necessary. As a result, this factor weighs only slightly in
`favor of transfer.
`B. Convenience of the Parties
`Facebook argues that the Northern District of California is
`“clearly more convenient.” (ECF No. 30 at 8.) While Facebook
`organizes its arguments somewhat differently than the Court, the
`Court finds the considerations relevant to the convenience-of-
`the-parties factor are the location of the sources of proof and
`the parties’ financial hardships due to litigation in the chosen
`forum.
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`1. Location of Sources of Proof
`Facebook argues that “the vast majority of likely sources
`of proof (including documentation for all of Facebook’s service
`offerings) are located at, or accessed and managed from,
`Facebook’s headquarters” in the transferee district. (ECF No.
`30 at 3.) More specifically, Facebook contends that the “source
`code relating to the www.facebook.com website” and “[n]early all
`of the information relating to [its] general operations,
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`marketing, financials, and customer service” are located in the
`Northern District of California. (Id.)
`Additionally, Facebook presumes that B.E.’s documents are
`located in Michigan, not the Western District of Tennessee, as
`B.E.’s office address was listed on a 2011 patent application as
`Saginaw, Michigan. (ECF No. 30 at 8 (citing ECF No. 30-4 at
`PageID 158).) To further support this presumption, Facebook
`argues that the Court should infer that B.E.’s “financial
`records, tax records, and patent prosecution files all reside in
`Michigan” because Hoyle stated that B.E.’s accountant and patent
`attorney live in Michigan, B.E. maintained a registered office
`there, and B.E. “conceded” its documents located in Michigan are
`not numerous. (ECF No. 50 at 5 (quoting ECF No. 38 at 6
`(“[F]ew, if any documents relevant to issues in this action are
`located in Michigan.”)).) While recognizing that B.E. may have
`its own documents relevant to the litigation, Facebook argues
`that B.E.’s “assertion” regarding any inconvenience related to
`these sources of proof “overstates the volume of documents that
`are likely located in Tennessee.” (Id. at 6.)
`B.E. argues that, because its CEO resides in the Western
`District of Tennessee, its corporate documents and records,
`“including documents demonstrating the conception and reduction
`to practice of [the patents-in-suit],” are located in the
`Western District of Tennessee. (ECF No. 38 at 5, 7.) B.E.
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`notes that Facebook’s sources of proof are “maintained in data
`centers that,” based on the declaration of a Facebook litigation
`paralegal “are not necessarily located within the Northern
`District of California.” (Id. at 13 (citing Jordan Decl., ECF
`No. 30-31, ¶ 3).) Contrary to Facebook’s assertions, B.E.
`argues that its own sources of proof are located in Tennessee,
`not Michigan or Louisiana, and have been maintained in Tennessee
`for years. (Id. at 12.) B.E. also contends that “the location
`of relevant documentary evidence is increasingly less important
`in deciding motions to transfer,” and that because documents can
`be exchanged electronically, the weight given this factor should
`be minimal. (Id. at 13.) B.E. finally argues that this factor
`does not weigh in favor of transfer because “it can be expected
`that Facebook will eventually produce its documents to B.E.’s
`lead counsel in California, not to B.E. in Tennessee.” (Id.)
`As an initial matter, the Court disagrees with B.E.’s
`contention that advances in electronic document transfer reduce
`the importance of the location-of-sources-of-proof factor. This
`notion has been expressly rejected by the Federal Circuit. See,
`e.g., In re Link_A_Media Devices Corp., 662 F.3d 1221, 1224
`(Fed. Cir. 2011) (reversing a district court that did not
`consider the factor, stating, “While advances in technology may
`alter the weight given to these factors, it is improper to
`ignore them entirely”); In re Genentech, 566 F.3d at 1345-46
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`(finding clear error where a district court “minimized the
`inconvenience of requiring the petitioners to transport their
`documents by noting that ‘[t]he notion that the physical
`location of some relevant documents should play a substantial
`role in the venue analysis is somewhat antiquated in the era of
`electronic storage and transmission’” (quoting Sanofi-Aentis
`Deutschland