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Case 2:12-cv-02782-JPM-cgc Document 43 Filed 07/12/13 Page 1 of 26 PageID 408
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
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` No.: 2:12-cv-02782-JPM-cgc
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`B.E. TECHNOLOGY, LLC,
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`Plaintiff,
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`
`v.
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`PANDORA MEDIA, INC.,
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`Defendant.
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`
`
`ORDER DENYING DEFENDANT’S MOTION TO TRANSFER VENUE
`
`
`
`Before the Court is Defendant Pandora Media, Inc.’s
`(“Defendant” or “Pandora”) Motion to Transfer Venue Pursuant to
`28 U.S.C. § 1404(a), filed December 26, 2012. (ECF No. 19.)
`For the reasons that follow, the Motion is DENIED.
`I. BACKGROUND
`
`This case concerns Defendant Pandora’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. 27 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 Pandora infringed the ‘314 patent “by
`using a method of providing demographically targeted advertising
`that directly infringes at least Claim 11 of the ‘314 patent
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`either literally or under the doctrine of equivalents.” (Id.
`¶ 11.)
`B.E. filed a Complaint in this Court on September 10, 2012.
`(ECF No. 1.) Pandora filed its Motion to Transfer Venue on
`December 26, 2012 (ECF No. 19), and filed its Answer to the
`Complaint on December 31, 2012 (ECF No. 20). B.E. filed its
`Response in Opposition to Defendant’s Motion to Transfer Venue
`on January 14, 2013. (ECF No. 27.) With leave of Court,
`Pandora filed a Reply Memorandum in Support of Its Motion to
`Transfer on February 1, 2013. (ECF No. 33.) On February 8,
`2013, Pandora filed a Motion to Stay pending resolution of its
`Motion to Transfer Venue. (ECF No. 35.) The Court granted
`Pandora’s Motion to Stay on February 8, 2013. (ECF No. 36.)
`Pandora seeks to transfer this case to the Northern
`District of California, where its headquarters are located.
`(ECF No. 19-1 at 1.) To support its Motion, Pandora contends
`that all products and services of which it is alleged to have
`infringed were developed and have been operated from the
`Northern District of California. (Id.) Pandora states that its
`“management, along with it primary research, development, and
`engineering facilities, are located in the Northern District of
`California,” and that “the vast majority of Pandora’s
`potentially relevant defense witnesses and evidence related to
`the research, design, and development of the accused
`
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`Case 2:12-cv-02782-JPM-cgc Document 43 Filed 07/12/13 Page 3 of 26 PageID 410
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`applications, including those whom Pandora anticipates including
`in its initial disclosure, are located within” the transferee
`district, as well. (Id. at 3-4.) Further, Pandora asserts that
`a majority of third-party witnesses on whom it intends to rely
`are also located in the Northern District of California. (Id.
`at 1.)
`B.E. opposes Pandora’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. 27 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. 27 at 1, 2.) Hoyle 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 this district is B.E.’s principal
`place of business. (Id. at 4-5.) B.E. also argues that none of
`its witnesses are located in the Northern District of
`California. (Id. at 7.) Further, B.E. argues that its
`corporate documents, including documents relating to the
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`“conception and reduction to practice” of the patent-in-suit,
`are located in this District. (Id. at 4, 5, 7.)
`II. STANDARD
`
`Pandora moves the Court to transfer this case to the
`Northern District of California pursuant to 28 U.S.C. § 1404(a).
`(ECF No. 19-1 at 1.) The statute provides that “[f]or the
`convenience of the parties and witnesses, in the interest of
`justice, a 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
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`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
`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
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`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
`additional factors such as the relative docket congestion of
`each district).
`
`Initially, B.E. argues that there is a strong presumption
`in favor of its choice of forum, and 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. 27 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
`
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`(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
`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.
`
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`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,
`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
`
`Pandora asserts that B.E. could have brought this action in
`the Northern District of California. (See ECF No. 19-1 at 8.)
`B.E. does not dispute this assertion. (See ECF No. 27 at 4.)
`The Court agrees with the parties that B.E. could have brought
`suit in the Northern District of California as personal
`jurisdiction over Pandora exists in that district. Therefore,
`the only issue remaining is whether the balance of the statutory
`factors — the convenience to the witnesses, the convenience to
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`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
`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
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`“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.
`
`Pandora contends that witness convenience favors transfer
`to the Northern District of California. (ECF No. 33 at 3-6.)
`To support this contention, Pandora asserts that a majority of
`the witnesses on which it intends to rely are located in that
`district. These witnesses include at least five material
`witnesses who are Pandora employees and at least five non-party
`witnesses.
`
`In response, B.E. argues that “transfer to the Northern
`District of California would be equally inconvenient to B.E.’s
`witnesses, none of whom is located in the Northern District of
`California.” (ECF No. 27 at 7.) 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 5, 7-8.)
`
`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
`consideration, because it is generally presumed that party
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`witnesses will appear voluntarily in either jurisdiction, but
`non-party witnesses, with no vested stake in the litigation, may
`not.”).
`
`1. Party Witnesses
`Pandora asserts that “the key witnesses in this case . . .
`
`will be Pandora employees at Pandora’s offices in Oakland[,
`California,] who were responsible for the design and development
`of the accused applications.” (ECF No. 19-1 at 10.) In its
`Reply, Pandora specifically lists five employees that “might
`testify at trial” because of their knowledge of Pandora’s
`operations. (ECF No. 33 at 6; Morgan Decl., ECF No. 33-1, ¶ 3.)
`Pandora further states that “other Pandora executives, engineers
`and employees in the Oakland area also could testify on behalf
`of Pandora.” (ECF No. 37 at 6.)
`Pandora does not provide any evidence showing that any
`employees will be unwilling to testify in this district if asked
`to do so, though it has indicated that Pandora would be
`inconvenienced by their absence. See Esperson, 2010 WL 4362794,
`at *8. Nevertheless, 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
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`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 Pandora’s
`employees will be able to attend absent any evidence to the
`contrary.
`Therefore, regarding Pandora employees, Pandora cannot
`satisfy its burden. Pandora argues that due to the distance
`between Memphis and the Northern District of California,
`approximately 1800 miles, travel to Memphis “would impose a
`significant inconvenience.” (ECF No. 19-1 at 10-11.) Yet, the
`same is true for B.E.’s witnesses, which B.E. asserts do not
`reside in the Northern District of California. (ECF No. 27 at
`7.) 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)).
`Pandora further argues that because it intends to call
`multiple witnesses located in the Northern District of
`California, and because B.E. only identified one witness, Hoyle,
`this factor weighs in favor of transfer. (ECF No. 33 at 4.)
`With respect to the material witnesses, Pandora does
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`specifically list five employees who “might testify at a trial
`on behalf of Pandora because they are knowledgeable about
`Pandora and its operations.” (ECF No. 33 at 6; Morgan Decl.,
`ECF No. 33-1 ¶ 3.) Although this assertion is imprecise as to
`the materiality of the testimony of the named individuals, and
`whether they are sure to testify, it is not asserted that their
`testimony will not be relevant and material in this case.
`Pandora’s general statement, however, that it believes “other
`Pandora executives, engineers and employees” in the transferee
`district would be material witnesses (see ECF No. 33 at 6), 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. Pandora cannot rely on such “bare allegations”
`to satisfy its burden. Esperson, 2010 WL 4362794, at *8.
`Pandora, therefore, has only identified five material witnesses
`on whom it intends to rely for purposes of transfer under
`§ 1404(a).
`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, Pandora’s
`identification of five material witnesses who are Pandora
`employees and may testify does not satisfy its burden on this
`
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`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 Pandora’s
`California-based employees will be deposed in California where
`B.E.’s lead counsel is based.” (ECF No. 27 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
`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). Pandora
`asserts that it intends to rely on non-party witnesses who have
`knowledge about five prior-art patents related to the patent-in-
`suit. (ECF No. 19-1 at 5-6; ECF No. 33 at 6-7.) Pandora states
`that “the inventors and assignees identified on the face of
`these patents are potential witnesses to be deposed or called to
`testify at trial by Pandora, and the relevant documents in their
`
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`possession may also be required for this litigation.” (ECF No.
`22-1 at 5.) Pandora further contends that many of these
`witnesses are located in California, including the transferee
`district. (Id.) To support its contention, Pandora cites the
`locations of the inventors and assignees as indicated on their
`respective patents. (Id. at 5-6; ECF No. 19-8.) Pandora also
`indicates another potential third-party witness, the attorney
`who filed and prosecuted the ‘314 Patent, is located in Troy,
`Michigan. (ECF No. 19-1 at 6.) Pandora 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 the prior-
`art witnesses to testify at trial in the Northern District of
`California, and that the “relative cost of obtaining the
`attendance of a willing non-party witness will be comparatively
`lower in California than in” the transferor district. (ECF No.
`19-1 at 9.)
`B.E. argues that the convenience of third-party witnesses
`is not entitled to great weight in the instant case because
`Pandora has not established that the “third party testimony will
`be material or important.” (ECF No. 27 at 10.) B.E. argues
`that Pandora has not stated the “relevance, materiality, and
`importance” of the non-party witnesses’ testimony “who allegedly
`could not be subpoenaed.” (Id. at 11-12.) B.E. further argues
`that prior-art testimony is “almost certain to be severely
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`limited by the time of trial” and, therefore, such testimony
`does not weigh in favor of transfer. (Id. at 10-11.)
`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
`prior-art witnesses to testify at trial. See Fed. R. Civ. P.
`45(b)(2). In contrast, the prior-art witnesses would not 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.
`Pandora, however, has not disclosed the particulars of the
`testimony of the potential non-party witnesses, nor why
`depositions of non-party witnesses would be inadequate and live
`testimony from non-party witnesses required. To the extent the
`non-party witnesses’ testimony may be presented by deposition,
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`witness inconvenience would not be an issue. Pandora merely
`states that the named prior-art witnesses are “potentially
`critical to the claims and defenses in this case.” (ECF No. 19-
`1 at 9.) This general statement is not sufficient to allow the
`Court to determine whether live testimony of Pandora’s non-party
`witnesses is necessary. Further, Pandora does not state whether
`it is aware that any of the non-party witnesses would be
`unwilling to testify in this district if asked to do so. As a
`result, this factor does not weigh in favor of transfer.
`B. Convenience of the Parties
`Pandora argues that the Northern District of California is
`
`“clearly more convenient for the parties.” (ECF No. 19-1 at 1.)
`While Pandora 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.
`1. Location of Sources of Proof
`
`
`
`Pandora argues that “most, if not all, Pandora documents
`related to the research, design, and development of Pandora’s
`Internet radio services are located in the Northern District of
`California.” (ECF No. 19-1 at 8.) As a result, Pandora
`contends that the “vast majority of the physical and documentary
`evidence relevant to the issues of Pandora’s alleged
`
`
`
`17
`
`

`
`Case 2:12-cv-02782-JPM-cgc Document 43 Filed 07/12/13 Page 18 of 26 PageID 425
`
`infringement, invalidity, and damages” is also located in the
`transferee district. (Id. at 9.) Pandora contends that the
`volume of these documents “vastly exceeds the volume of
`documents in Tennessee.” (ECF No. 33 at 7.)
`
`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 patent-in-suit],” are located in the Western
`District of Tennessee. (ECF No. 27 at 5.) B.E. notes that
`while Pandora’s sources of proof are located in the Northern
`District of California, B.E.’s own sources of proof are located
`in Tennessee and have been maintained there 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 Pandora 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,
`
`
`
`18
`
`

`
`Case 2:12-cv-02782-JPM-cgc Document 43 Filed 07/12/13 Page 19 of 26 PageID 426
`
`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, Inc., 566 F.3d 1338,
`1345-46 (Fed. Cir. 2009) (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 GmbH v. Genentech, Inc., 607 F. Supp.
`2d 769, 777 (E.D. Tex. 2009))).
`
`The Court agrees that it is likely that the sheer volume of
`documents Pandora has in its possession outnumbers the patent-
`related documents in B.E.’s possession, but the Court disagrees
`that this is enough to tip the balance in favor of transfer.
`The Court finds that both parties maintain documents in their
`respective districts; that both sets of documents will be
`integral to the proceedings; and that Pandora will be expected
`to serve its documents on B.E.’s counsel in Northern California,
`not in the Western District of Tennessee (see ECF No. 27 at 13).
`Pandora’s reliance on L&P Property Management Co. v. JTMD, LLC,
`No. 06-13311, 2007 WL 295027 (E.D. Mich. Jan. 29, 2007), is
`
`
`
`19
`
`

`
`Case 2:12-cv-02782-JPM-cgc Document 43 Filed 07/12/13 Page 20 of 26 PageID 427
`
`misplaced. (See ECF No. 19-1 at 9.) In that case the court
`found there were no relevant documents in the transferor
`district, therefore transfer was appropriate. See L&P Prop.
`Mgmt. Co., 2007 295027, at *4. In the instant case, B.E. has
`shown that relevant documents are located in Tennessee. Taken
`together, the aforementioned facts indicate that as to the
`location of the sources of proof, the Northern District of
`California is a somewhat more convenient venue for the parties
`to the instant case. This factor, however, is not sufficient,
`by itself, to require transfer.
`2. Financial Hardships Attendant to Litigating in
`the Chosen Forum
`
`Pandora argues that its potential witnesses work in the
`Northern District of California and none are located in the
`Western District of Tennessee. (ECF No. 19-1 at 10-11.) As a
`result, Pandora contends that travel to Tennessee would “impose
`a significant inconvenience,” and as the likely trial witnesses
`are “vital to Pandora’s business operations,” their absence
`“would adversely affect Pandora.” (Id. at 11.) In contrast,
`Pandora argues that “any inconvenience in asking B.E.’s sole
`known employee, who is also an interested party and the named
`inventor, to travel to California will not offset the
`interruption in Pandora’s business operations caused by taking
`
`
`
`
`
`20
`
`

`
`Case 2:12-cv-02782-JPM-cgc Document 43 Filed 07/12/13 Page 21 of 26 PageID 428
`
`several Pandora employees from their jobs to testify in
`Tennessee.” (Id.)
`B.E. states that it “would face a financial burden by
`having to litigate in the Northern District of California.”
`(ECF No. 27 at 14.) B.E.’s CEO Hoyle states that “B.E. will
`incur expenses it will not incur if the case remains in
`Memphis.” (Hoyle Decl., ECF No. 27-1, ¶ 9.) B.E. also states
`that “[i]t is reasonable to require companies with the wealth of
`Pandora to litigate in jurisdictions in which they regularly
`conduct business.” (ECF No. 27 at 7.)
`The Court has considered “the relative ability of litigants
`to bear expenses in any particular forum” among the factors in a
`§ 1404(a) case. Ellipsis, Inc. v. Colorworks, Inc., 329 F.
`Supp. 2d 962, 970 (W.D. Tenn. 2004). In the instant case,
`B.E.’s CEO stated that the company will incur additional
`expenses, but it has not shown with any specificity how
`detrimental those expenses would be to the company. Further,
`while Hoyle stated that his personal financial status would be
`adversely affected by litigating in the Northern District of
`California, he did not state why or how his personal finances
`would impact B.E., the party to the instant case. (See Hoyle
`Decl., ECF No. 27-1, ¶ 9.) B.E. has shown that Pandora has the
`ability to bear expenses in this forum (see ECF No. 27-3), but
`the Court does not find this to be a dispositive factor in
`
`
`
`21
`
`

`
`Case 2:12-cv-02782-JPM-cgc Document 43 Filed 07/12/13 Page 22 of 26 PageID 429
`
`denying Pandora’s Motion. But see Siteworks Solutions, LLC v.
`Oracle Corp., No. 08-2130-A/P, 2008 WL 4415075, at *4 (W.D.
`Tenn. Sept. 22, 2008) (finding the relative financial strengths
`of the parties did not weigh in favor of transferring the case,
`as the party opposed to transfer showed it “ha[d] no net worth,
`very little revenue, no gross profits, no assets, and [would
`have to] borrow from its owners in order to pay the litigation
`expenses”). The Court finds that the evidence presented is
`insufficient to make a showing that B.E. or Pandora will be
`adversely affected by litigating in either

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