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`UNITED STATES DISTRICT COURT
`
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`B.E. TECHNOLOGY, LLC,
`
`Plaintiff,
`
`V.
`
`TWITTER, INC.,
`
`Defendant.
`
`\/\/y/\/\/xyg/xax/\/q
`
`Case No. 2:12-cv-02783-JPM-cgc
`
`JURY DEMAND
`
`REPLY IN SUPPORT OF DEFENDANT TWITTER INC.’S
`
`MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404§a[
`
`Glen G. Reid, Jr. (#8184)
`greid@wyattfirrn.com
`Mark Vorder-Bruegge, Jr. (#06389)
`mvorder-bruegge@wyattfirrn.com
`WYATT, TARRANT & COMBS, LLP
`The Renaissance Center
`
`1715 Aaron Brenner Dr., Suite 800
`
`Memphis, TN 38120-4367
`(901) 537 1000
`
`Counsel for Defendant
`Tw1TTER,1Nc_
`
`J. David Hadden
`dhadden@fenwick.com
`Darren F. Donnelly
`dd0f1flC11Y@f€nWiCk-C0111
`Saina S. Shamilov
`sshami1oV@fenwick.com
`Ryan J. Marton
`rmarton@fenwick.com
`Clifford Web
`
`cweb@fenwick.com
`Justin Hulse
`
`jhu1se@,fenwick.com
`FENWICK & WEST LLP
`801 California Street, 6”‘ Floor
`Mountain View, CA 94041
`
`(650) 988-8500
`
`

`
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`TABLE OF CONTENTS
`
`Page
`
`I .
`
`II.
`
`INTRODUCTION ............................................................................................................. ..1
`
`ARGUMENT ..................................................................................................................... ..l
`
`A.
`
`B.
`
`B.E.’s Choice of Forum Is Not Entitled to Deference. .......................................... ..l
`
`The Private Interest Factors Favor Transfer to the Northern District of
`
`California................................................................................................................ ..3
`
`1.
`
`2.
`
`3.
`
`4.
`
`Nearly All of the Documents Relevant to This Case Are Located in the
`Northern District of California................................................................... ..3
`
`The Vast Majority of Witnesses Are Located in the Northern District of
`California. .................................................................................................. ..5
`
`The Availability of Compulsory Process to Secure the Attendance of
`Third Party Witnesses Favors Transfer...................................................... ..7
`
`There Are No Practical Problems that Outweigh the Significant
`Benefits of Transfer. .................................................................................. ..8
`
`C.
`
`The Public Interest Factors Favor Transfer ............................................................ ..9
`
`III.
`
`CONCLUSION ................................................................................................................ ..10
`
`

`
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`TABLE OF AUTHORITIES
`
`Page(s)
`
`CASES
`
`Adoma v. Univ. ofPhoenix, Inc.,
`711 F. Supp. 2d 1142 (E.D. Cal. 2010 ..................................................................................... ..7
`
`Cover v. Albany Law School of Union Univ,
`No. 04 Civ. 0643, 2005 U.S. Dist. LEXIS 13669 (S.D.N.Y. July 8, 2005) ............................ ..6
`
`Droplets, Inc. v. Amazon. com, Inc.,
`No. 2:11-CV-392, 2012 WL 3578605 (E.D. Tex. June 27, 2012) .......................................... ..8
`
`Esperson v. Trugeen Ltd. P ’ship,
`No. 2:10-cv-02130, 2010 WL 4362794 (W.D. Tenn. Oct. 5, 2010) ........................................ ..2
`
`Functional Pathways of Tenn., LLC v. Wilson Senior Care, Inc. ,
`866 F. Supp. 2d 918 (E.D. Tenn. 2012) ................................................................................... ..2
`
`Hunter Fan Co. v. Minka Lighting, Inc.,
`No. 06-2108, 2006 WL 1627746 (W.D. Tenn. June 12, 2006) ............................................... ..2
`
`In re Acer Am. Corp.,
`626 F.3d 1252 (Fed. Cir. 2010) ................................................................................................ ..4
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009) ................................................................................................ ..5
`
`In re Hoflman—La Roche, Inc. ,
`587 F.3d 1333 (Fed. Cir. 2009) .............................................................................................. ..10
`
`In re Link_A_Mea’ia Devices Corporation,
`662 F.3d 1221 (Fed. Cir. 2011) ................................................................................................ ..5
`
`In re Microsoft Corp. ,
`630 F.3d 1361 (Fed. Cir. 2011) ................................................................................................ ..7
`
`In re Volkswagen ofAm., Inc.,
`545 F.3d 304 (Fed. Cir. 2008) (en banc) ................................................................................. ..5
`
`MBCP Peerlogic LLC v. Critial Path, Inc.,
`No. 02 Civ. 3310, 2002 U.S. Dist. LEXIS 23268 (S.D.N.Y. Dec. 5, 2002) ............................ ..6
`
`

`
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`TABLE OF AUTHORITIES
`
`(CONTINUED)
`
`Pages(s)
`
`Morris v. Mid—Century Ins. Co.,
`No. 4:11-cv-1836, 2012 U.S. Dist. LEXIS 60246 (N.D. Ohio Apr. 30, 2012) ....................... ..l
`
`Nationwide Life Ins. Co. v. Koresko,
`No. 2:05CV1066, 2007 WL 2713783 (S.D. Ohio Sep. 14, 2007) ........................................... ..5
`
`Nilssen v. Everbrite, Inc.,
`No. Civ.A. 00-189-JJF, 2001 WL 34368396 (D. Del. Feb. 16, 2001) .................................... ..5
`
`Norwood v. Kirkpatrick,
`349 U.S.29 (1955) ............................................................................................................... ..l,2
`
`Precision Franchising, LLC v. Coombs,
`No. 1:06-cv-1148, 2006 WL 3840334 (E.D. Va. Dec. 27 2006) ............................................. ..4
`
`Riley v. Cochrane Furniture Co. ,
`No. 94-cV—7l016,No. 1994 U.S. Dist. LEXIS 12059 (E.D. Mich. July 7, 1994) ................... ..1
`
`Rinks v. Hocking,
`No. l:10—cV-1102, 2011 WL 691242 (W.D. Mich. Feb 16, 2011) .......................................... ..5
`
`Tuna Processors, Inc. v. Hawaii Int’! Seafood, Inc.,
`408 F. Supp. 2d 358 (E.D. Mich. 2005) ................................................................................... ..2
`
`US. Ethernet Innovations, LLC v. Acer, Inc.,
`No. 6:09-CV-448—JDL, 2010 WL 2771842 (E.D. Tex. July 13, 2010) ..................................... ..8
`
`Union Planters Bank NA. v. EMC Mort. Corp.,
`67 F. Supp. 2d 915 (W.D. Tenn. 1999) .................................................................................... ..2
`
`United States ex rel. Kairos Scientia, Inc. v. Zinsser Co.,
`No. 5:10—CV-383, 2011 WL 127852 (N.D. Ohio Jan. 14, 2011) ............................................ ..9
`
`RULES
`
`Local Patent Rule 3.2(b) ................................................................................................................ ..4
`
`iii
`
`

`
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`I.
`
`INTRODUCTION
`
`B.E. does not dispute that Twitter, all of its witnesses, and all of its documents are located
`
`in the Northern District of California. B.E. also does not dispute that the majority of the other 18
`
`defendants it sued in this district are located in the Northern District of California, and none of
`
`the defendants are located in Tennessee or have any evidence here. B.E. even admits that it
`
`registered to do business in Tennessee because it decided to file lawsuits here, and it has no
`
`offices or other business operations in the State. To establish an illusion of its presence in
`
`Tennessee, however, B.E. relies on the personal residence of the named inventor of the asserted
`
`patent. But
`
`the inventor’s personal residence does not and cannot establish any required
`
`presence of B.E., the company, in this district.
`
`It would be grossly unfair to subject Twitter and
`
`all its witnesses, along with the 18 other defendants, to endure the significant inconvenience of
`
`litigating in this district simply because one witness resides here.
`
`II.
`
`ARGUMENT
`
`A.
`
`B.E.’s Choice of Forum Is Not Entitled to Deference.
`
`B.E. contends that
`
`its choice of the Western District of Tennessee is entitled to
`
`“substantial weight” and that Twitter has the burden to show “that the balance of convenience
`
`strongly favors transfer.”
`
`(Dkt. No. 33 (“Opp.”) at 3-6.) This is no longer the applicable
`
`standard in the Sixth Circuit.
`
`In Norwood v. Kirkpatrick, the Supreme Court found that movants
`
`under Section 1404(a) should not to be held to the higher “strongly in favor” standard applicable
`
`to the forum non conveniens doctrine.
`
`349 U.S. 29, 39-40 (1955). Following that decision,
`
`courts in the Sixth Circuit have recognized that the only appropriate inquiry is whether the
`
`m0vant’s proposed forum is “more convenient vis a vis the plaintiffs initial choice.” See, e. g.,
`
`Riley v. Cochrane Furniture Co., No. 94-cv-71016, No. 1994 U.S. Dist. LEXIS 12059, at *5
`
`(E.D. Mich. July 7, 1994) (following Norwood v. Kirkpatrick, 349 U.S. 29 (1955)); Morris v.
`
`

`
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`Mid-Century Ins. Co., No. 4:11-cv-1836, 2012 U.S. Dist. LEXIS 60246, at *9 (N.D. Ohio Apr.
`
`30, 2012) (“the balance need not be ‘strongly in favor’ of the party seeking the transfer, but
`
`rather need only favor the party seeking the transfer”) (citation omitted). Even the case law that
`
`B.E. cites in its Opposition recognizes that this is now the appropriate standard. See Esperson v.
`
`Trugeen Ltd. P’shz'p, No. 2:10-cv-02130, 2010 WL 4362794, at *2-6 (W.D. Tenn. Oct. 5, 2010)
`
`(discussing the history of “strongly favors” standard, rejecting it, and following Norwood).
`
`While the plaintiffs choice of forum may be considered in assessing the convenience of
`
`transfer, it is not paramount or determinative. See, e. g., Functional Pathways of Tenn., LLC v.
`
`Wilson Senior Care, Inc., 866 F. Supp. 2d 918, 932 (E.D. Tenn. 2012) (rejecting contention that
`
`the plaintiffs choice of forum should be given “great deference”); Union Planters Bank NA. v.
`
`EMC Mort. Corp, 67 F. Supp. 2d 915, 921 (W.D. Tenn. 1999) (“the Sixth Circuit has affirmed
`
`that, when balancing the interests of a plaintiffs choice of forum against convenience, the
`
`plaintiffs choice is only one factor to be considered and is not to be determinative”). This
`
`Court’s decision in Hunter Fan Co., cited by B.E., is inapposite. Hunter Fan Co. v. Minka
`
`Lighting, Inc., No. 06-2108, 2006 WL 1627746 (W.D. Tenn. June 12, 2006).
`
`In that case, the
`
`Court explained that when a plaintiff has “little connection” to its chosen forum, as is the case
`
`here, the plaintiffs choice of forum is not entitled any deference.
`
`Id. at *3 (distinguishing Tuna
`
`Processors, Inc. v. Hawaii Int 7 Seafood Inc., 408 F. Supp. 2d 358, 362 (E.D. Mich. 2005)).
`
`In its Opposition, B.E. conflates itself with the inventor of the asserted patent, Mr. Hoyle,
`
`and its place of business with Mr. Hoyle’s residence. But B.E. is not Mr. Hoyle. While it may
`
`be the case that Mr. Hoyle moved to Tennessee in 2006, as he declares, B.E. offers no
`
`explanation of what it, the company, has been doing in Tennessee before filing its lawsuits in this
`
`district. Indeed, in its business registration application—-filed the day before this lawsuit—B.E.
`
`

`
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`told the State of Tennessee that
`
`it conducted no business in Tennessee before filing the
`
`application and starting the lawsuit campaign in this district.
`
`1. The name of the Limited Liability Company is:
`
`7.
`
`it the limited liability company commenced ctoi
`commencement (month, day and yea!)
`48-249~913(d).
`
`business in Tennessee prior to the apptoval of this application. the date of
`. NUTS: Addifionat fittng fees may appty. See section
`
`(Declaration of Amanda Hudson in Support of Twitter’s Reply (“Hudson Decl.”) Ex. 1.)
`
`Admittedly, B.E registered to do business in Tennessee only when it decided to file lawsuits in
`
`this district] (Dkt. No. 33-1, Declaration of Martin David Hoyle (“Hoyle Decl.”) 1[ 6). B.E.’s
`
`decision to litigate in Tennessee, and its ephemeral connection to the State, does not counsel
`
`against transfer.
`
`B.
`
`The Private Interest Factors Favor Transfer to the Northern District of
`California.
`
`1.
`
`Nearly All of the Documents Relevant to This Case Are Located in the
`Northern District of California.
`
`B.E. does not dispute that all of Twitter’s relevant information and documents are
`
`maintained in the Northern District of California.
`(Id. at 12-13; see also Dkt. No. 30-3,
`Declaration of Ed Axelsen (“Axelsen Decl.”) fllfll 9-10.) Nor does it dispute that the bulk of
`
`discovery in this case will be produced by Twitter.
`
`Instead, B.E. contends that this factor does
`
`not favor transfer because Twitter is “wealthier” and B.E. maintains “documents demonstrating
`
`the conception and reduction to practice of Mr. Hoyle’s inventions” in the district.
`
`(Opp. at 12-
`
`14.) Any financial success of Twitter—a company that is based in California with no business
`
`1 Mr. Hoyle’s purported activities—“meeting” with B.E.’s unidentified board of directors, “filing
`patent applications, and coordinating the enforcement of B.E.’s intellectual property rights”-
`only further confirm B.E.’s status as a non-practicing patent assertion entity. (Hoyle Decl. 11 6.)
`
`

`
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`operations in Tennessee—does not render this district more convenient than the Northern District
`
`of California. Precision Franchising, LLC v. Coornbs, No. 1:06-cv-1148, 2006 WL 3840334, at
`
`*5 (E.D. Va. Dec. 27 2006) (“Richmond is an inconvenient location for Plaintiff to pursue their
`
`suit, and the assertion that ‘forum should not matter to the Plaintiff because it is a successful and
`
`wealthy corporation lacks merit or legal basis”). Further, B.E.’s possession of any purported
`
`conception and reduction to practice documents does not shift the balance of convenience given
`
`the significant disparity between the quantities of the parties’ respective documents.
`
`Under the Local Patent Rules, B.E. was obligated to produce to Twitter “[a]Zl documents
`
`evidencing the conception and first reduction to practice of each claimed invention” on January
`
`7, 2013. See Local Patent Rule 3.2(b) (emphasis added). B.E. made that production through its
`
`lead counsel from the Northern District of California.
`
`( Hudson Decl. Ex. 2.) That production
`
`included only 222 documents.
`
`(Id.
`
`11 3.) On its face, the size of this production belies B.E.’s
`
`claim of inconvenience, considering that the bulk of discovery in this case and a significantly
`
`greater number of documents are located in California at Twitter’s offices. See In re Acer Am.
`
`Corp., 626 F.3d 1252, 1256 (Fed. Cir. 2010) (finding that “it is unreasonable to suggest that
`
`[plaintiffs] evidence alone could outweigh the convenience of having the evidence from
`
`multiple defendants located within the transferee venue of trial”). But even if the existence of
`
`this small number of documents in Tennessee could have represented any inconvenience, which
`
`is unlikely, that burden was effectively wiped out the second they were produced. For the
`
`purposes of this litigation, these documents are no longer in Tennessee, and they do not represent
`
`any continuing inconvenience to litigation of this case in California.
`
`B.E.’s argument that the location of documents “is increasingly less important in deciding
`
`motions to transfer” because of the electronic nature of modern document production has been
`
`

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`expressly rejected by the Federal Circuit.
`
`(Opp. at 13.) Specifically, the Federal Circuit has
`
`rejected the argument that the location of documents in the era of electronic storage and
`
`transmission should not play a substantial role in the venue analysis, noting that this “would
`
`render this factor superfluous.” In re Genentech, Inc., 566 F.3d 1338, 1346 (Fed. Cir. 2009)
`
`(citing In re Volkswagen ofAm., Inc., 545 F.3d 304, 316 (Fed. Cir. 2008) (en banc).
`
`Indeed, In
`
`re Link_A_Mea’ia Devices Corporation, a case B.E. cites, makes clear that “it is improper to
`
`ignore [this factor] entirely,” and that a district court’s refusal to consider the location of sources
`
`of proof on the ground that the issue was “outdated, irrelevant, and should be given little weight”
`
`amounts to a clear abuse of discretion. 662 F .3d 1221, 1224 (Fed. Cir. 2011) (vacating and
`
`transferring to the Northern District of California).2 This factor strongly favors transfer.
`
`2.
`
`The Vast Majority of Witnesses Are Located in the Northern District
`of California.
`
`B.E. does not challenge that all of Twitter’s relevant witnesses in this case are located in
`
`the Northern District of California. B.E. instead faults Twitter for not specifically naming its
`
`witnesses and providing the topics of their testimony.
`
`(Opp. at 8-9.) Twitter, however, has
`
`provided the information required “to enable the court to assess the materiality of evidence and
`
`the degree of inconvenience.” Rinks v. Hocking, No. 1:10-cv-1102, 2011 WL 691242, at *3
`
`(W.D. Mich. Feb 16, 2011) (internal citation omitted); see also Nilssen v. Everbrite, Inc., No.
`
`Civ.A. 00-189-JJF, 2001 WL 34368396, at *2-3 (D. Del. Feb. 16, 2001) (identification of
`
`witnesses not by name but as “employees” or “former employees of Defendant,” with
`
`2 The fact that Twitter can produce documents to B.E.’s counsel in California is irrelevant and
`would in no way lessen the inconvenience of litigating in Tennessee.
`If anything, the fact that
`B.E.’s counsel is based in Northern California makes clear that litigating in Northern California
`is not inconvenient for B.E. The very case B.E. relies on supports transfer to California.
`Nationwide Life Ins. Co. v. Koresko, No. 2:05CV1066, 2007 WL 2713783, at *6 (S.D. Ohio Sep.
`14, 2007) (ordering transfer despite plaintiff offering to accept document production in transferee
`district).
`
`

`
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`“knowledge of the allegedly infringing designs,” “especially when fact discovery has yet to take
`
`place, is sufficient for purposes of venue transfer analysis”). Twitter has established that all of
`
`its witnesses reside in the Northern District of California.
`
`(Axelsen Decl. W 6, 8, 11.) B.E.
`
`cannot genuinely dispute that Twitter will rely on these witnesses at trial, and they will testify
`
`regarding the accused technology.
`
`It would be premature and prejudicial for Twitter to be
`
`required to identify the specific witnesses most appropriate to testify regarding the accused
`
`technology at this early stage in the case (only weeks after having received B.E.’s infringement
`
`contentions and before any substantive discovery) in order to secure transfer to a significantly
`
`more convenient forum.
`
`(Hudson Decl. 1] 3.) More importantly, it would be irrelevant. Because
`
`all of Twitter’s potential witnesses reside in the Northern District of California, and the topics of
`
`their testimony are not
`
`in doubt,
`
`the names of the specific witnesses add nothing to the
`
`determination of inconvenience.
`
`In cases such as this, where the undisputed facts show that the
`
`majority of the material witnesses reside in the transferee district, there is no need to identify any
`
`specific witnesses. See, e.g., Cover v. Albany Law School of Union Univ., No. 04 Civ. 0643,
`
`2005 U.S. Dist. LEXIS 13669, at *7 (S.D.N.Y. July 8, 2005) (“where the events demonstrate that
`
`the majority of witnesses are located in the transferee district, it is unnecessary to submit a
`
`statement naming the witnesses who will specifically be inconvenienced by maintaining the
`
`present venue”); MBCP Peerlogic LLC v. Critial Path, Inc., No. 02 Civ. 3310, 2002 U.S. Dist.
`
`LEXIS 23268, at * 10 (S.D.N.Y. Dec. 5, 2002) (“Even though defendants have not provided a list
`
`that identifies potential witnesses .
`
`.
`
`. the events giving rise to this action demonstrate that the
`
`vast majority of material witnesses are in Northern California and would therefore find it more
`
`convenient to testify in California than in New York”).
`
`The cases B.E. cites in its Opposition do not suggest a different result. None of them
`
`

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`address a situation, like that here, where all of the material witnesses are necessarily located in
`
`the transferee district.
`
`Indeed, the Adoma case cited by B.E. explicitly recognized that if “nearly
`
`all California potential collective action members were in the Central District” the defendants
`
`would not have had to identify any specific witnesses for their claim of inconvenience to carry
`
`weight. Adoma v. Univ. 0fPh0enz'x, Inc., 711 F. Supp. 2d 1142, 1151 (E.D. Cal. 2010).
`
`No matter what the names of Twitter’s witnesses are, they will have to take multi-leg
`
`flights to Tennessee to testify at trial, likely involving overnight stays away from family and
`
`work. The same is almost certainly true of witnesses in the other 18 actions filed by B.E. B.E.’s
`
`single Tennessee witness, with a financial interest in this litigation, cannot counterbalance this
`
`inconvenience. And in fact, transferring this case to California will reduce B.E.’s litigation
`
`expenses as it would not need to pay for its Northern Californian lead counsel to travel to
`
`Tennessee to attend case proceedings. This factor favors transfer.
`
`3.
`
`The Availability of Compulsory Process to Secure the Attendance of
`Third Party Witnesses Favors Transfer.
`
`B.E. concedes that if this case is not transferred, Twitter will be unable to ensure the
`
`attendance at trial of third party prior art witnesses who reside in the Northern District of
`
`California. (Opp. at 12.) B.E. argues, however, that these third party witnesses are not important
`
`because, in its words, prior art inventor testimony “may not be used to vary the words of the
`
`alleged prior art.” 3
`
`(Id. at 11.) While this is true as far as it goes, it ignores the fact that prior art
`
`witness testimony gives context necessary for the jury to assess the prior art and invalidity of the
`
`asserted patents. Such testimony is enormously important in presenting an effective invalidity
`
`case and cannot be ignored. See, e.g., In re Microsoft Corp., 630 F.3d 1361, 1363 (Fed. Cir.
`
`3 If B.E.’s argument were accepted, it would drastically undermine its rationale for litigating in
`this district as its only identified witness, and connection to the district, is the inventor of the
`asserted patent who cannot, according to B.E., “vary the words of’ the asserted patent.
`
`

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`2011) (vacating district court’s order denying motion to transfer on the grounds that, inter alia,
`
`“all of [defendant’s] witnesses relating to .
`
`.
`
`. prior art .
`
`.
`
`. technology reside in the [transferee
`
`district]”); U.S. Ethernet Innovations, LLC v. Acer,
`
`Inc., No. 6:09-cv-448-JDL, 2010 WL
`
`2771842, at *9 (ED. Tex. July 13, 2010) (granting transfer where “there are potentially
`
`important non—party witnesses such as inventors, prior art witnesses, and the prosecuting attorney
`
`[in the transferee district]”); Droplets, Inc. v. Amazon. com, Inc., No. 2:11-CV-392, 2012 WL
`
`3578605, at *4 (E.D. Tex. June 27, 2012) (granting transfer and finding the location of “many
`
`prior art inventors with knowledge and documents relevant to the validity issue. . .in the Northern
`
`District of California” “weigh[ed] heavily in favor of a transfer”).
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`If this case remains in this
`
`district, Twitter will be unable to secure the attendance of any of these prior art witnesses at trial
`
`and its invalidity case will be greatly prejudiced.
`
`B.E. also urges the Court to disregard these prior art witnesses because Twitter did not
`
`offer evidence of residence beyond their respective patents and patent applications and has not
`
`determined whether they will be unwilling to travel to Tennessee for trial.
`
`(Opp. at 11-12.)
`
`Even assuming that these documents were not sufficient to identify the witnesses’ likely current
`
`residences, based on easily accessible public documents, at least four of the named inventors and
`
`four assignees are still located in the Northern District of California. (Hudson Decl. Exs. 3-9.) It
`
`is highly doubtful that all of these important prior art witnesses would be willing to voluntarily
`
`travel across the country to testify at trial in Tennessee. This factor favors transfer.
`
`4.
`
`There Are No Practical Problems that Outweigh the Significant
`Benefits of Transfer.
`
`B.E. does not identify any practical problems that would flow from transfer of this case to
`
`the Northern District of California. All of the defendants in B.E.’s 19 suits have moved to
`
`transfer to the Northern District of California (at least as an alternative). The Northern District
`
`

`
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`Case 2:l2—cv—O2783—JPM—cgc Document 36 Filed 03/04/13 Page 13 of 15 Page|D 341
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`of California has substantial experience in managing large patent cases, and any efficiency that
`
`can be ensured by keeping these cases in the Western District of Tennessee can also be had by
`
`transferring them to the Northern District of California. This factor too favors transfer.
`
`C.
`
`The Public Interest Factors Favor Transfer.
`
`B.E. also fails to cogently challenge Twitter’s argument that the relevant public interest
`
`factors favor transfer. As to the relative congestion of the courts in the Western District of
`
`Tennessee and the Northern District of California, B.E. argues that because cases take longer to
`
`proceed to trial in the Northern District, this case should not be transferred.
`
`(Opp. at 14-15.)
`
`B.E., however, ignores that the median time to final disposition of a case in the Western District
`
`of Tennessee is longer than in the Northern District of California.
`
`(Dkt. 30-4 Ex. 14.) As such,
`
`this factor is neutral. See, e. g., United States ex rel. Kairos Scientia, Inc. v. Zinsser Co., No.
`
`5:lO—CV-383, 2011 WL 127852, at *7 (N.D. Ohio Jan. 14, 2011) (finding that where the median
`
`time to trial was shorter, but the average docket of pending cases per judge and the average life
`
`span of a case was longer in the transferring district,
`
`the “facts favor neither transfer nor
`
`retention”).
`
`In terms of the relative local interests of the two districts, B.E. contends that the Western
`
`District of Tennessee has a substantial interest in this dispute because it involves the invention of
`
`a resident, Mr. Hoyle.
`
`(Opp. at 16.) That purported invention, however, has nothing to do with
`
`Tennessee.
`
`It is indisputable that the alleged invention was conceived and reduced to practice in
`
`Louisiana and assigned to a company in Michigan with minimal if any presence in Tennessee
`
`until
`
`the day before this lawsuit was filed.
`
`Twitter, however,
`
`is and has always been
`
`headquartered in the Northern District of California.
`
`(Axelsen Decl.
`
`1] 6.) The technology
`
`accused of infringing in this case was developed in the Northern District of California by
`
`

`
`Case 2:12-cv-02783-JPM-cgc Document 36 Filed 03/04/13 Page 14 of 15 PageID 342
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`developers who reside there.
`
`(Id. W 6, 11.)
`
`It is the center of gravity of the accused infringing
`
`activity, and California has a strong local interest in adjudicating B.E.’s allegations against its
`
`citizens. See In re Hofi’man—La Roche, Inc., 587 F.3d 1333, 1336 (Fed. Cir. 2009). This factor
`
`favors transfer.
`
`III.
`
`CONCLUSION
`
`Because the location of the single witness with an interest in this litigation and 222
`
`documents that have already been produced do not outweigh the significant inconveniences to
`
`Twitter and its witnesses posed by litigating this case in the Western District of Tennessee,
`
`Twitter respectfully requests that
`
`the Court
`
`transfer this case to the Northern District of
`
`California where Twitter and its employees reside, the accused technology was developed, and
`
`the bulk of discovery is located.
`
`10
`
`

`
`Case 2:12-cv-02783-JPM-cgc Document 36 Filed 03/04/13 Page 15 of 15 PageID 343
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`Respectfully submitted,
`
`s/Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr. (#06389)
`Email: mvorder-bruegge@wyattf1rm.com
`Glen G. Reid, Jr. (#8184)
`Email: greid@wyattfirIn.com
`Wyatt, Tarrant & Combs, LLP
`The Renaissance Center
`
`1715 Aaron Brenner Dr., Suite 800
`
`Memphis, TN 38120-4367
`Ph: 901.537-1000; Fax: 901.537.1010
`—and-
`
`J. David Hadden
`
`Email: dhadden@fenwick.com
`Darren F. Donnelly
`Email: ddonnelly@fenwick.com
`Saina S. Shamilov
`
`Email: sshami1ov@fenwick.com
`Ryan J. Marton
`Email: rmarton@fenwick.com
`Clifford Webb
`
`Email: cwebb@fenwick.com
`Justin G. Hulse
`
`Email: jhu1se@fenwick.com
`FENWICK & WEST LLP
`
`801 California Street, 6th Floor
`
`Mountain View, CA 94041
`Ph: 650.988-8500; Fax: 650.938.5200
`
`Attorneys for Defendant
`TWITTER, INC.
`
`11