Case 2:12-cv-02781-JPM-cgc Document 31 Filed 02/11/13 Page 1 of 4 PageID 227
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`B.E. TECHNOLOGY, L.L.C.,
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`v.
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`Plaintiff,
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`No. 12-cv-02781-JPM-cgc
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`Hon. Jon Phipps McCalla
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`GROUPON, INC.,
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`Defendant.
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`DEFENDANT GROUPON, INC.’S UNOPPOSED MOTION FOR LEAVE TO FILE
`REPLY IN SUPPORT OF MOTION TO TRANSFER AND
`MEMORANDUM IN SUPPORT THEREOF
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`Defendant, Groupon, Inc. (“Groupon”), respectfully submits this Memorandum in
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`support of its Unopposed Motion for Leave to File Reply in Support of Motion to Transfer
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`pursuant to Local Rule 7.2(c). Groupon requests leave to file a Reply brief not to exceed 10
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`pages in length. In support thereof, Groupon respectfully submits the following:
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`1.
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`On September 10, 2012 B.E. Technology, L.L.C. (“B.E. Tech.”) filed a
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`Complaint for Patent Infringement against Groupon. (Dkt. 1.) On December 31, 2012 Groupon
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`filed an Answer to the Complaint. (Dkt. 19.) On January 10, 2013 Groupon filed its Motion to
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`Transfer Venue Pursuant to 28 U.S.C. § 1404(a) (“Motion”). (DkT. 21.) On January 31, 2013
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`B.E. Technology, L.L.C. (“B.E. Tech”) filed its Opposition to Groupon’s Motion (“Opposition”).
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`(Dkt. 27.)
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`2.
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`Plaintiffs have indicated that they will not oppose this Motion for leave to file a
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`Reply on condition that Groupon agree not to raise new arguments or evidence that reasonably
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`could have been anticipated before the original motion was filed. Groupon does not intend to
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`
`B.E. TECHNOLOGY, L.L.C.,
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`
`
`
`
`
`
`
`
`v.
`
`Plaintiff,
`
`
`
`No. 12-cv-02781-JPM-cgc
`
`Hon. Jon Phipps McCalla
`
`GROUPON, INC.,
`
`
`
`
`
`Defendant.
`
`
`DEFENDANT GROUPON, INC.’S UNOPPOSED MOTION FOR LEAVE TO FILE
`REPLY IN SUPPORT OF MOTION TO TRANSFER AND
`MEMORANDUM IN SUPPORT THEREOF
`
`
`Defendant, Groupon, Inc. (“Groupon”), respectfully submits this Memorandum in
`
`support of its Unopposed Motion for Leave to File Reply in Support of Motion to Transfer
`
`pursuant to Local Rule 7.2(c). Groupon requests leave to file a Reply brief not to exceed 10
`
`pages in length. In support thereof, Groupon respectfully submits the following:
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`1.
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`On September 10, 2012 B.E. Technology, L.L.C. (“B.E. Tech.”) filed a
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`Complaint for Patent Infringement against Groupon. (Dkt. 1.) On December 31, 2012 Groupon
`
`filed an Answer to the Complaint. (Dkt. 19.) On January 10, 2013 Groupon filed its Motion to
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`Transfer Venue Pursuant to 28 U.S.C. § 1404(a) (“Motion”). (DkT. 21.) On January 31, 2013
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`B.E. Technology, L.L.C. (“B.E. Tech”) filed its Opposition to Groupon’s Motion (“Opposition”).
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`(Dkt. 27.)
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`2.
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`Plaintiffs have indicated that they will not oppose this Motion for leave to file a
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`Reply on condition that Groupon agree not to raise new arguments or evidence that reasonably
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`could have been anticipated before the original motion was filed. Groupon does not intend to
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`-1-
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`Case 2:12-cv-02781-JPM-cgc Document 31 Filed 02/11/13 Page 2 of 4 PageID 228
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`raise new arguments or evidence that reasonably could have been anticipated and raised in its
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`original motion.
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`3.
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`The determination as to which venue is clearly more convenient under 28 U.S.C.
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`§ 1404(a) is of paramount importance to this case, and will have a substantial and significant
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`impact on this Court, the parties, and witnesses. The determination will affect the Court’s
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`expenditure of resources with regards to this case as well as the other related cases in which
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`similar motions to transfer are pending. The determination will also determine whether certain
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`witnesses will be within the jurisdiction of the Court in which this case proceeds. As such, this
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`issue merits a thorough and thoughtful consideration of all relevant facts, argument and
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`authority.
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`4.
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`While Groupon bears the burden on its motion, providing an opportunity for
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`rebuttal would comport with a fair and just application of that burden.
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`5.
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`B.E. Tech’s Opposition includes arguments and facts that were not reasonably
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`anticipated or known to Groupon at the time Groupon filed its Motion. This is not surprising
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`considering the early stage of this case and Groupon’s limited knowledge with regards to B.E.
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`Tech. Furthermore, B.E. Tech’s Opposition contains contradictory arguments that merit analysis
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`with input from Groupon. As one example, B.E. Tech asserts as grounds against transfer that the
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`currently pending 18 other lawsuits filed by B.E. Tech against defendants, who are located all
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`throughout the United States, should be consolidated with this action. However, B.E. Tech also
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`discusses how the inquiry at hand is one that is specific to Groupon and B.E. Tech’s
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`circumstances and convenience. The Court should have the benefit of full argument on this
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`critical issue, which would include a Reply brief by Groupon.
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`Case 2:12-cv-02781-JPM-cgc Document 31 Filed 02/11/13 Page 3 of 4 PageID 229
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`6.
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`This case is in its infancy. No Scheduling Order has yet been entered, and the
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`proposed order on this motion would provide that Groupon file its reply within just 7 days from
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`the grant of leave to do so.
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`7.
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`The inquiry under 28 U.S.C. § 1404(a) is a fact intensive one, and requires
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`weighing a number of factors which should be properly addressed in the briefing. While
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`Groupon endeavors to be as concise as possible in addressing the issues in its Reply brief, a
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`proper Reply will likely require more than the 5 pages provided by Local Rule 7.2(e). Therefore,
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`Groupon further requests leave to file a Reply brief of up to 10 pages.
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`WHEREFORE, Groupon respectfully request permission to file a reply brief, not to
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`exceed 10 pages, in support of its Motion to Transfer.
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`Respectfully submitted,
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`/s/ John S. Golwen
`John S. Golwen (TN BPR #014324)
`Annie T. Christoff (TN BPR #026241)
`BASS, BERRY & SIMS, PLC
`100 Peabody Place, Suite 900
`Memphis, Tennessee 38103
`Telephone:
`(901) 543-5900
`Facsimile:
`(901) 543-5999
`Email: jgolwen@bassberry.com
`achristoff@bassberry.com
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`Of counsel:
`Jeanne M. Gills
`Jason J. Keener
`FOLEY & LARDNER LLP
`321 North Clark Street, Suite 2800
`Chicago, Illinois 60654
`Telephone:
`(312) 832-4500
`Facsimile:
`(312) 832-4700
`Email: jmgills@foley.com
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`jkeener@foley.com
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`Attorneys for Defendant, Groupon, Inc.
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`Case 2:12-cv-02781-JPM-cgc Document 31 Filed 02/11/13 Page 4 of 4 PageID 230
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`CERTIFICATE OF CONSULTATION
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`The undersigned attorney hereby certifies that prior to filing of this motion, a consultation
`with opposing counsel was held via e-mail with Dan Weinberg, attorney for plaintiff, to
`determine whether plaintiff would agree to the relief sought; Mr. Weinberg informed counsel for
`Groupon that Plaintiffs would not oppose this Motion, on condition that Groupon agree not to
`raise new arguments or evidence that reasonably could have been anticipated before the original
`motion was filed.
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`/s/ Jason J. Keener
` Jason J. Keener
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`CERTIFICATE OF SERVICE
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`The foregoing document was filed under the Court’s CM/ECF system, automatically
`effecting service on counsel of record for all other parties who have appeared in this action on
`the date of such service.
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`/s/ John S. Golwen
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