Case 2:12-cv-02782-JPM-cgc Document 29 Filed 01/24/13 Page 1 of 5 PageID 332
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`) Civil Action No. 2:12-cv-02782
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`PANDORA MEDIA, INC.,
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`Defendant.
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` ____________________________________________)
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`DEFENDANT PANDORA MEDIA, INC.’S MOTION
`AND MEMORANDUM FOR LEAVE TO FILE REPLY
`SUPPORTING DEFENDANT’S MOTION TO TRANSFER
`(INCLUDING CERTIFICATE OF CONSULTATION)
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`Pursuant to this Court’s Local Rule 7.2(c), defendant Pandora Media, Inc. (“Pandora”)
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`respectfully moves for entry of the accompanying proposed Order, granting leave to file a reply
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`memorandum, not exceeding 10 pages in length, supporting defendant’s pending motion to
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`transfer venue of this action under 28 U.S.C. 1404 (Dkt.19). In support of the relief sought
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`herein, defendant respectfully submits the following:
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`1. This action was commenced on September 10, 2012 (Dkt. 1). Pandora timely
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`responded to the complaint on December 31, 2012 (Dkt. 20). On December 26, 2012, Pandora
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`filed a motion and supporting documents seeking transfer of this action to the Northern District
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`of California under 28 U.S.C. 1404 (Dkt. 19). Plaintiff B.E. Technology, L.L.C. (“B.E.”) filed a
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`response opposing such transfer on January 14, 2013 (Dkt. 26).
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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. 2:12-cv-02782
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`PANDORA MEDIA, INC.,
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`Defendant.
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` ____________________________________________)
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`DEFENDANT PANDORA MEDIA, INC.’S MOTION
`AND MEMORANDUM FOR LEAVE TO FILE REPLY
`SUPPORTING DEFENDANT’S MOTION TO TRANSFER
`(INCLUDING CERTIFICATE OF CONSULTATION)
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`Pursuant to this Court’s Local Rule 7.2(c), defendant Pandora Media, Inc. (“Pandora”)
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`respectfully moves for entry of the accompanying proposed Order, granting leave to file a reply
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`memorandum, not exceeding 10 pages in length, supporting defendant’s pending motion to
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`transfer venue of this action under 28 U.S.C. 1404 (Dkt.19). In support of the relief sought
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`herein, defendant respectfully submits the following:
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`1. This action was commenced on September 10, 2012 (Dkt. 1). Pandora timely
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`responded to the complaint on December 31, 2012 (Dkt. 20). On December 26, 2012, Pandora
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`filed a motion and supporting documents seeking transfer of this action to the Northern District
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`of California under 28 U.S.C. 1404 (Dkt. 19). Plaintiff B.E. Technology, L.L.C. (“B.E.”) filed a
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`response opposing such transfer on January 14, 2013 (Dkt. 26).
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`Case 2:12-cv-02782-JPM-cgc Document 29 Filed 01/24/13 Page 2 of 5 PageID 333
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`2. Determining the most convenient venue is among the most important matters the
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`Court will decide in this action. It will determine which Court’s resources will be employed in
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`managing and deciding the case, whether and how cost-effectively the parties may procure
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`relevant evidence, and the extent of the burden that will be placed upon a large number of people
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`who may be required to make long-distance travel and lodging arrangements. Indeed, given the
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`existence of 18 other cases filed by the same plaintiff involving common U.S. Patents (as
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`detailed in the transfer motion) and the filing of numerous transfer motions, the Court’s decision
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`will likely affect an extremely large number of people. The issue merits thorough consideration
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`of all relevant facts, arguments, and authorities.
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`3. As the party moving for transfer, Pandora bears the burden on the underlying motion.
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`Allowing Pandora an opportunity for rebuttal, through a reply memorandum, comports with fair
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`application of that burden.
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`4. B.E.’s opposition includes arguments that were not predictable and therefore could not
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`have been addressed by pre-emptive or hypothetical argument in Pandora’s opening motion
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`papers, including mutually contradictory arguments that merit analysis. For example, B.E. has
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`suggested on the one hand that this action should be consolidated with 18 others (Dkt. 26), yet its
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`argument against transfer frames the issue as a matter between the circumstances and
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`convenience of only two parties.
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`5. This action is in an early stage. No Scheduling Order has been entered yet. The
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`proposed Order on this motion would require defendant to file its reply memorandum within just
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`7 days from the grant of leave.
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`6. Like any Section 1404 motion in a case of this type, briefing must address a number of
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`issues and circumstances. While Pandora is committed to making its reply as concise as possible,
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`Case 2:12-cv-02782-JPM-cgc Document 29 Filed 01/24/13 Page 3 of 5 PageID 334
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`coverage of the issues meriting a reply appears likely to require more than the 5 pages normally
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`permitted by Local Rule 7.2(e). This motion respectfully requests authorization to use up to 10
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`pages for such purpose.
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`7. Anticipating plaintiff's response to this motion, Pandora respectfully asks the Court to
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`grant the requested leave without pre-imposing requirements for what the reply may
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`contain. The underlying motion to transfer was filed early in the case consistent with efficient
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`administration goals, is not subject to a deadline, and is not based on a closed fact record in the
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`way that a summary judgment motion would be. If the reply is allowed, judgment is involved in
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`determining what content of the response merits attention in a reply of limited length, and how
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`to give the Court the best information possible for its decision-making process. If the reply is
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`allowed and plaintiff believes a sur-reply would also be helpful to the Court, counsel have
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`already advised plaintiff that no attempt to block a sur-reply would be made. Respectfully,
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`plaintiff should not be allowed to pre-block content from the reply sought here, if allowed.
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`Respectfully submitted,
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`/s/ Glen G. Reid, Jr.
`Glen G. Reid, Jr. (#8184)
`WYATT, TARRANT & COMBS, LLP
`1715 Aaron Brenner Drive, Suite 800
`Memphis, TN 38120-4367
`Phone: 901.537.1000
`Facsimile: 901.537.1010
`greid@wyattfirm.com
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`/s/ Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr. (#06389)
`WYATT, TARRANT & COMBS, LLP
`1715 Aaron Brenner Drive, Suite 800
`Memphis, TN 38120-4367
`Phone: 901.537.1000
`Facsimile: 901.537.1010
`mvorder-bruegge@wyattfirm.com
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`Case 2:12-cv-02782-JPM-cgc Document 29 Filed 01/24/13 Page 4 of 5 PageID 335
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`BANNER & WITCOFF, LTD.
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`J. Pieter van Es (pro hac vice)
`Matthew P. Becker (pro hac vice)
`Azuka C. Dike (pro hac vice)
`Dargaye H. Churnet (pro hac vice)
`Ten S. Wacker Dr. Ste. 3000
`Chicago, IL 60606
`(312) 463-5000
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`pvanes@bannerwitcoff.com
`mbecker@bannerwitcoff.com
`adike@bannerwitcoff.com
`dchurnet@bannerwitcoff.com
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`Attorneys for Defendant
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`CERTIFICATE OF CONSULTATION
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`The undersigned attorney hereby certifies that prior to the filing of this motion, multiple
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`consultations over several days including January 16, 2013, were held with Richard Carter,
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`attorney for plaintiff, to determine whether plaintiff would agree to the relief sought. Such
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`consultations were not successful to the extent that would allow defendant to present this motion
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`as unopposed, due to disagreement regarding advance control over what the requested reply
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`memorandum could contain.
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`s/ Mark Vorder-Bruegge, Jr.
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`Case 2:12-cv-02782-JPM-cgc Document 29 Filed 01/24/13 Page 5 of 5 PageID 336
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`CERTIFICATE OF SERVICE
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`The foregoing document was filed under the Court’s CM/ECF system, automatically
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`effecting service on counsel of record for all other parties who have appeared in this action on
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`the date of such service.
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`60315437.1
`1/24/2013 4:02 pm
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`/s/ Mark Vorder-Bruegge, Jr.
` Mark Vorder-Bruegge, Jr.
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`5
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