Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 1 of 15 PageID 97
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`MEMPHIS DIVISION
`
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`
`
`v.
`
`
`BARNES & NOBLE, INC.,
`
`
`Defendant.
`
`
`
`Case No. 2:12-cv-02823-JPM-tmp
`
`
`
`JURY TRIAL REQUESTED
`
`
`
`
`
`
`
`
`
`
`MEMORANDUM IN SUPPORT OF DEFENDANT BARNES & NOBLE, INC.’S
`MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)
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`
`
`

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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 2 of 15 PageID 98
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`
`Table of Contents
`
`I. 
`
`II. 
`
`INTRODUCTION..............................................................................................................1 
`
`FACTUAL BACKGROUND............................................................................................3 
`
`A. 
`
`B. 
`
`C. 
`
`Barnes & Noble’s Relevant Witnesses and Documents are Predominantly
`Located in the Northern District of California.........................................................3 
`
`Plaintiff’s Connections to This Forum Are Minimal...............................................4 
`
`Potential Third Party Witnesses and Documents are Located Primarily in
`the Northern District of California...........................................................................4 
`
`III.  APPLICABLE LAW .........................................................................................................5 
`
`IV.  ARGUMENT......................................................................................................................6 
`
`A. 
`
`B. 
`
`C. 
`
`D. 
`
`B.E.’s Action Against Barnes & Noble Could Have Been Brought in the
`Northern District of California.................................................................................6 
`
`The Private Interest Factors Weigh in Favor of Transfer to the Northern
`District of California................................................................................................6 
`
`1. 
`
`2. 
`
`3. 
`
`4. 
`
`The convenience of the parties favors transfer. ...........................................6 
`
`The convenience of the witnesses favors transfer........................................7 
`
`The location of sources of proof favors transfer..........................................8 
`
`The other private interest factors do not weigh against transfer..................9 
`
`The Interests of Justice Favor Transfer....................................................................9 
`
`MDL Proceedings Should Not be a Factor............................................................11 
`
`V. 
`
`CONCLUSION ................................................................................................................11 
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`
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`i
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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 3 of 15 PageID 99
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`
`Cases 
`
`Table of Authorities
`
`Droplets, Inc. v. Amazon.com, Inc., No. 2:11-cv-392, 2012 WL 3578605 (E.D.Tex. June
`27, 2012) ................................................................................................................................... 10
`
`In re Genentech, Inc., 566 F.3d 1338 (Fed. Cir. 2009)............................................................... 7, 8
`
`In re Hoffman-La Roche, Inc., 587 F.3d 1333 (Fed. Cir. 2009) ............................................. 2, 7, 9
`
`In re Microsoft Corp., 630 F.3d 1361 (Fed. Cir. 2010) .............................................................. 2, 7
`
`In re Nintendo Co., Ltd., 589 F.3d 1194 (Fed. Cir. 2009) .......................................................... 7, 8
`
`In re Volkswagen AG, 371 F.3d 201 (5th Cir. 2004) ...................................................................... 7
`
`In re Zimmer Holdings, 609 F.3d 1378 (Fed. Cir. 2010).......................................................... 7, 10
`
`Just Intellectuals, PLLC v. Clorox Co., No. 10-12415, 2010 WL 5129014 (E.D. Mich.
`Dec. 10, 2010)............................................................................................................................. 9
`
`Karl Storz Endoscopy-America, Inc. v. Stryker Corp., No. 2:07-cv-02702-JPM, 2008
`WL 2690084 (W.D. Tenn. July 1, 2008).................................................................................... 5
`
`L&P Prop. Mgmt. Co. v. JTMD, LLC, No. 06-13311, 2007 WL 295027 (E.D. Mich. Jan.
`29, 2007) ..................................................................................................................................... 8
`
`Moses v. Bus. Card Express, Inc., 929 F.2d 1131 (6th Cir. 1991) ................................................. 5
`
`Pergo, Inc. v. Alloc, Inc., 262 F. Supp. 2d 122 (S.D.N.Y. 2003) ................................................. 11
`
`Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).......................................................................... 5
`
`Tuna Processors, Inc. v. Hawaii Int’l Seafood, Inc., 408 F. Supp. 2d 358 (E.D. Mich.
`2005) ........................................................................................................................................... 5
`
`U.S. ex rel. Kairos Scientia, Inc. v. Zinsser Co., 2011 WL 127852 (N.D. Ohio, Jan. 14,
`2011) ......................................................................................................................................... 10
`
`Statutes 
`
`28 U.S.C. § 1391............................................................................................................................. 6
`
`28 U.S.C. § 1400............................................................................................................................. 6
`
`28 U.S.C. § 1404............................................................................................................................. 5
`
`
`
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`
`ii
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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 4 of 15 PageID 100
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`
`I.
`
`INTRODUCTION
`
`This is a patent infringement lawsuit filed by B.E. Technology, Inc. (“B.E.”) against
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`Barnes & Noble, Inc. It is one of a group of cases filed in September and October 2012, in
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`which B.E. has asserted one or both of U.S. Patent Nos. 6,771,290 (“the ’290 patent”) and
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`6,628,314 (“the ’314 patent”) against nineteen different companies.1 B.E. accuses Barnes &
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`Noble of infringing the ’290 patent by allegedly “using, selling, and offering to sell in the United
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`States tablet computer products” including the “Nook Simple Touch; Nook Simple Touch with
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`GlowLight; Nook Color; [and] Nook Tablet.” (See Compl., Dkt. No. 1 at ¶ 11.)
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`Neither B.E. nor the operative set of facts in this case has any meaningful connection to
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`this District. In contrast, compelling reasons support transferring this case to the Northern
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`District of California, where this case has direct, concrete, and extensive connections for Barnes
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`& Noble and third parties with relevant information.2
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`
`
`This case has no true connection to the Western District of Tennessee. B.E. was, until
`
`very recently, a company based out of Saginaw, Michigan. It appears to have registered to do
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`business in the Western District of Tennessee just one day before initiating its litigations against
`
`1 These companies will collectively be referred to as the “Defendants” herein, and include
`Amazon Digital Services, Inc. (12-cv-02767), Apple Inc. (12-cv-02831), Barnes & Noble (12-
`cv-02823), Facebook, Inc. (12-cv-02769), Google Inc. (12-cv-02830), Groupon, Inc. (12-cv-
`02781), LinkedIn Corp. (12-cv-02772), Match.com L.L.C. (12-cv-02834), Microsoft Corp. (12-
`cv-02829), Motorola Mobility Holdings LLC (12-cv-02866), Pandora Media, Inc. (12-cv-
`02782), People Media, Inc. (12-cv-02833), Twitter, Inc. (12-cv-02783), Samsung
`Telecommunications America, LLC (12-cv-02824), Samsung Electronics America, Inc. (12-cv-
`02825), Sony Computer Entertainment America LLC (12-cv-02826), Sony Mobile
`Communications (USA), Inc. (12-cv-02827), Sony Electronics, Inc. (12-cv-02828), and Spark
`Networks, Inc. (12-cv-02832).
`2 Barnes & Noble understands that many other Defendants in the B.E. Litigations are also
`located in the Northern District of California or elsewhere and have also filed, or are planning to
`file, motions to transfer. Barnes & Noble requests that the Court evaluate its transfer motion
`individually; however, to the extent the Court considers the cases filed by B.E. against other
`companies in this District, the fact that so many of them are located or have major operations in
`the Northern District of California counsels in favor of transfer to that venue.
`
`
`
`1
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`

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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 5 of 15 PageID 101
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`19 Defendants in this District. Unsurprisingly, B.E.’s recently engineered contacts with this
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`District bear no relation to any of the facts relevant to this lawsuit. In addition, B.E.’s lead
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`counsel is located in the Northern District of California. B.E’s contacts with this District
`
`therefore are minimal and recent, and appear to have been manufactured solely for litigation
`
`purposes. Accordingly, B.E.’s choice of venue is entitled to no deference. In re Microsoft Corp.,
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`630 F.3d 1361, 1364 (Fed. Cir. 2010) (courts should not “honor connections to a preferred forum
`
`made in anticipation of litigation and for the likely purpose of making that forum appear
`
`convenient”).
`
`The Northern District of California, in contrast, is both uniquely connected to and clearly
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`a more convenient venue for this litigation. Barnes & Noble is a retailer with national sales of
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`books and other products, including the accused NOOK® devices. It is incorporated in Delaware
`
`with headquarters in New York, but the vast majority of activities related to Barnes & Noble’s
`
`accused NOOK® products take place at Barnes & Noble’s offices in Palo Alto, California. As a
`
`result, the Northern District of California possesses a unique, particularized local interest in
`
`passing judgment on Barnes & Noble’s accused NOOK® products—the design and development
`
`of which occurred within its boundaries. See In re Hoffman-La Roche, Inc., 587 F.3d 1333, 1336
`
`(Fed. Cir. 2009) (finding a strong local interest where a case “calls into question the work and
`
`reputation of several individuals residing in or near that district.”) By contrast, there is no unique
`
`local connection to Tennessee, as Barnes & Noble’s activities related to the accused NOOK®
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`products are not in Tennessee and until very recently, B.E. did not have any contacts with this
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`District.
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`
`
`2
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`

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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 6 of 15 PageID 102
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`
`II.
`
`FACTUAL BACKGROUND
`
`A.
`
`Barnes & Noble’s Relevant Witnesses and Documents are Predominantly
`Located in the Northern District of California.
`
`The Northern District of California is the center of gravity of the accused activity for
`
`Barnes & Noble. Its activities relating to the accused NOOK® products take place primarily at
`
`Barnes & Noble’s offices in Palo Alto. (Declaration of Daniel Gilbert in Support of Barnes &
`
`Noble, Inc.’s Motion to Transfer Venue (“Gilbert Decl.”) at ¶¶ 3-4. [Copy attached.]) Over 400
`
`employees work at Barnes & Noble’s offices in Palo Alto. (Id. at ¶ 3.) The Barnes & Noble
`
`employees who are primarily responsible for selecting and sourcing components for NOOK®
`
`products, designing NOOK® products, developing the specifications for NOOK® products, and
`
`developing software for NOOK® products work at Barnes & Noble’s Palo Alto offices. (Id.)
`
`Thus, the Barnes & Noble employees most knowledgeable about the design, development, and
`
`operation of the accused NOOK® products are located in the Northern District of California.
`
`Likewise, the Barnes & Noble documents most relevant to the design, development, and
`
`operation of the accused NOOK® products are located in its Palo Alto offices.3 (Id. at ¶ 4.)
`
`Although Barnes & Noble has employees in the Western District of Tennessee in
`
`connection with its brick and mortar bookstore operations, they are not the individuals
`
`knowledgeable about the relevant technical aspects of the accused NOOK® products or any other
`
`anticipated subject matter of this litigation who will serve as Barnes & Noble’s corporate
`
`witnesses. (Id. at ¶ 5.) None of Barnes & Noble’s employees that are most knowledgeable about
`
`the design, development, and operation of the accused NOOK® products work in the Western
`
`3 Barnes & Noble acknowledges that there are likely some witnesses and documents relevant to
`other issues, such as the sales and marketing of the accused NOOK® products, that may be
`located outside the Northern District of California. However, the majority of relevant documents
`and witnesses in this case, including those relating to the allegations of infringement in the
`Complaint, are located in the Northern District of California.
`
`
`
`3
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`

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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 7 of 15 PageID 103
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`District of Tennessee. (Id. at ¶¶ 3, 5.) Nor is Barnes & Noble aware of any relevant documents
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`relating to the operation of the accused NOOK® products that are located in the Western District
`
`of Tennessee, other than product-related documents that would be in the possession of other
`
`Barnes & Noble bookstores throughout the United States. (Id. at ¶ 3.)
`
`B.
`
`Plaintiff’s Connections to This Forum Are Minimal
`
`B.E. is a Delaware corporation. See Compl. (Dkt. No. 1) at ¶ 2. B.E.’s patent filings list
`
`it as a Saginaw, Michigan-based company as recently as June 21, 2012. (See Google’s Mem. in
`
`Supp. of Its Mot. to Transfer, Case No. 2:12-cv-2830, Dkt. No. 22 (“Google Transfer Mem.”), at
`
`Ex. B.) In fact, according to the Tennessee Secretary of State website, it was not until September
`
`6, 2012 – the day before filing the first of its cases here – that B.E. was even registered to do
`
`business in Tennessee. (See id. at Ex. C.) B.E. does not offer any products for sale, and does not
`
`appear to have an office in Memphis, which it now alleges is its principal place of business. As
`
`described in Section II of Apple’s memorandum in support of its motion to transfer, the ‘290
`
`patent identifies Martin David Hoyle of Louisiana as the sole inventor, and although the
`
`available information is conflicting, a patent application filed as recently as December 2011 lists
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`Mr. Hoyle’s residence as New Orleans, LA (See Apple’s Mem. in Supp. of Its Mot. to Transfer,
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`Case No. 2:12-cv-2831, Dkt. No. 22 (“Apple Transfer Mem.”), at 2-3.) Additionally, Plaintiff’s
`
`lead trial counsel in this case is based in the Northern District of California.
`
`C.
`
`Potential Third Party Witnesses and Documents are Located Primarily in the
`Northern District of California
`
`As described in memoranda in support of other defendants’ motions to transfer to the
`
`Northern District of California, a substantial number of third party witnesses with knowledge of
`
`the prior art are located in California. (See Google Transfer Mem. at Sec. II.B.3; Apple Transfer
`
`Mem. at Sec. V.C.)
`
`
`
`4
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`

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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 8 of 15 PageID 104
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`III. APPLICABLE LAW
`
`Pursuant to 28 U.S.C. § 1404(a), “[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 where it
`
`might have been brought. . . .” The decision to transfer under section 1404(a) is committed to
`
`the sound discretion of the trial court. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981).
`
`The first inquiry in deciding a motion to transfer is whether the plaintiff might have
`
`brought the action in the transferee court. If so, the 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.’” Moses v. Bus. Card Express, Inc., 929 F.2d 1131, 1137
`
`(6th Cir. 1991); Karl Storz Endoscopy-America, Inc. v. Stryker Corp., No. 2:07-cv-02702-JPM,
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`2008 WL 2690084, at *2 (W.D. Tenn. July 1, 2008) (stating that private interests include: “the
`
`convenience of the parties, the convenience of the witnesses, the location of sources of proof,
`
`where the operative facts occurred, the relative ability of litigants to bear expenses in any
`
`particular forum, the possibility of prejudice in either forum, and other practical problems
`
`affecting the case”); Tuna Processors, Inc. v. Hawaii Int’l Seafood, Inc., 408 F. Supp. 2d 358,
`
`361 (E.D. Mich. 2005).
`
`Although a plaintiff’s choice of venue is generally entitled to deference, “where the
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`plaintiff has little or no connection to the chosen forum, its reasons for choosing and remaining
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`there should be given less weight.” Tuna Processors, 408 F. Supp. 2d at 360.
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`
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`5
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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 9 of 15 PageID 105
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`
`IV. ARGUMENT
`
`A.
`
`B.E.’s Action Against Barnes & Noble Could Have Been Brought in the
`Northern District of California
`
`Pursuant to 28 U.S.C. § 1400, a patent infringement action may be brought in the district
`
`where the defendant resides. 28 U.S.C. § 1400(b). A corporate defendant “resides” in any
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`district in which it is subject to personal jurisdiction at the time the suit is filed. 28 U.S.C. §
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`1391(c). Barnes & Noble maintains a presence and does business within the Northern District of
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`California, and the center of Barnes & Noble’s NOOK® operations is in its Palo Alto offices.
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`(Gilbert Decl. at ¶¶ 3-4.) Accordingly, personal jurisdiction exists and venue is proper in the
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`Northern District of California, and B.E. could have properly sued Barnes & Noble for patent
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`infringement in that district.
`
`B.
`
`The Private Interest Factors Weigh in Favor of Transfer to the Northern
`District of California
`
`1.
`
`The convenience of the parties favors transfer.
`
`Barnes & Noble is a Delaware corporation with its headquarters in New York, but its
`
`activities relating to the accused NOOK® products take place in Palo Alto, California. (Gilbert
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`Decl. at ¶¶ 3-4.) None of Barnes & Noble’s witnesses or key documents are located in this
`
`District. (Id.) Therefore, the Northern District of California is clearly more convenient for
`
`Barnes & Noble.
`
`B.E. is a Delaware corporation that identified itself as based in Michigan as recently as
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`June 21, 2012. (See Compl. (Dkt. No. 1) at ¶ 2; Google Transfer Mem. at Ex. B.) Additionally,
`
`B.E. was not registered to do business in Tennessee until September 6, 2012 – the day before
`
`filing the first of its cases here. (See id. at Ex. C.) Thus, B.E. does not appear to have a
`
`significant connection to this District. Although the plaintiff’s forum is typically entitled to
`
`deference, that is not the case where, as here, the plaintiff’s presence in the district “appears to be
`
`
`
`6
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`

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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 10 of 15 PageID 106
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`recent, ephemeral, and an artifact of litigation.” In re Zimmer Holdings, 609 F.3d 1378, 1381
`
`(Fed. Cir. 2010); see also In re Microsoft Corp., 630 F.3d at 1365 (plaintiff’s incorporation in the
`
`forum state 16 days before filing suit was “no more meaningful, and no less in anticipation of
`
`litigation” than other rejected reasons against transfer); In re Hoffmann-La Roche Inc., 587 F.3d
`
`at 1336-37 (plaintiff’s conversion and transfer of 75,000 pages of documents to plaintiff’s choice
`
`of forum is a “fiction which appears to be have been created to manipulate the propriety of
`
`venue”).
`
`Thus, any inconvenience to B.E. resulting from transfer of this case to the Northern
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`District of California would likely be outweighed by the inconvenience to Barnes & Noble that
`
`would result if the case proceeds in this District—a fact that B.E.’s selection of lead trial counsel
`
`in the Northern District of California, tends to underscore. Accordingly, because the parties’
`
`contacts with this District are minimal by comparison, this factor weighs in favor of transfer.
`
`2.
`
`The convenience of the witnesses favors transfer.
`
`The cost of attendance for and convenience of the witnesses “is probably the single most
`
`important factor in transfer analysis.” In re Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir.
`
`2009). “Additional distance [from home] means additional travel time; additional travel time
`
`increases the probability for meal and lodging expenses; and additional travel time with
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`overnight stays increases the time which these fact witnesses must be away from their regular
`
`employment.” In re Nintendo Co., Ltd., 589 F.3d 1194, 1199 (Fed. Cir. 2009) (quoting In re
`
`Volkswagen AG, 371 F.3d 201, 205 (5th Cir. 2004)). The proposed venue does not need to be
`
`more convenient for all of the witnesses—this factor favors transfer when a substantial number
`
`of material witnesses reside in the transferee venue. In re Genentech, 566 F.3d at 1345.
`
`Based on Barnes & Noble’s current understanding of B.E.’s allegations, Barnes &
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`Noble’s witnesses work and/or reside primarily in the Northern District of California, and none
`7
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`

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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 11 of 15 PageID 107
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`are located in Tennessee. (Gilbert Decl. at ¶¶ 3, 5.) Though Barnes & Noble’s headquarters are
`
`in New York, the center of gravity for the design and development of the accused NOOK®
`
`products is in Palo Alto, in the Northern District of California. (Id. at ¶¶ 3-4.) This office houses
`
`more than 400 employees, including the employees who are most knowledgeable in the company
`
`regarding the design, development, and operation of the accused products. (Id. at ¶ 3.)
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`Memphis, Tennessee is over 1,700 miles from the Northern District of California, and
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`travel there would impose a significant inconvenience for Barnes & Noble’s witnesses. The
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`absence of Barnes & Noble employees who are most knowledgeable, and therefore likely to
`
`serve as witnesses regarding the accused NOOK® products, would adversely affect Barnes &
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`Noble’s operations. (Id. at ¶ 5.) Because a substantial number of the material witnesses are
`
`located in the Northern District of California, and none of Barnes & Noble’s likely witnesses are
`
`located within or near the Western District of Tennessee, this factor strongly favors transfer.
`
`3.
`
`The location of sources of proof favors transfer.
`
`The location of the foreseeable sources of proof relating to the issues in this case favors
`
`transfer to the Northern District of California. “In patent infringement cases, the bulk of the
`
`relevant evidence usually comes from the accused infringer. Consequently, the place where the
`
`defendant’s documents are kept weighs in favor of transfer to that location.” In re Nintendo, 589
`
`F.3d at 1199 (citing In re Genentech, 566 F.3d at 1345). In this case, the potentially relevant
`
`Barnes & Noble documents relating to the accused NOOK® products are located in the Northern
`
`District of California, not in this District. Because the physical and documentary evidence
`
`relevant to at least the critical issue of alleged infringement are located in the Northern District of
`
`California, this factor weighs in favor of a transfer to that district. L&P Prop. Mgmt. Co. v.
`
`JTMD, LLC, No. 06-13311, 2007 WL 295027, at *5 (E.D. Mich. Jan. 29, 2007) (finding this
`
`factor weighed in favor of transfer where all of the defendants’ documents were located in the
`8
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`

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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 12 of 15 PageID 108
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`transferee district and plaintiffs had not identified any sources of evidence located in the
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`transferring district); Just Intellectuals, PLLC v. Clorox Co., No. 10-12415, 2010 WL 5129014,
`
`at *4 (E.D. Mich. Dec. 10, 2010) (same).
`
`4.
`
`The other private interest factors do not weigh against transfer.
`
`The majority of operative facts at issue in this case occurred in the Northern District of
`
`California because that is the center of gravity for Barnes & Noble’s activities relating to the
`
`accused NOOK® products—including design and development of the NOOK® products.
`
`(Gilbert Decl. at ¶¶ 3-4.) The expense for B.E. to litigate this case in the Northern District of
`
`California should not be significantly, if any, higher than in the Western District of Tennessee
`
`because its lead trial counsel is located in the Northern District of California. B.E. will not face
`
`prejudice in the Northern District of California, and to the extent there are any practical problems
`
`affecting this case, they are a direct result of B.E. having filed lawsuits against nineteen different
`
`companies, and should not weigh against transfer.
`
`C.
`
`The Interests of Justice Favor Transfer.
`
`The Northern District of California has a strong local interest in this case because it is
`
`home to Barnes & Noble’s NOOK® operations, and therefore the relevant witnesses and
`
`evidence relating to the products accused of infringement. (See supra Sec. II.A.) See In re
`
`Hoffman-La Roche, Inc., 587 F.3d at 1336 (“[The destination venue’s] local interest in this case
`
`remains strong because the cause of action calls into question the work and reputation of several
`
`individuals residing in or near that district.”). There is no unique local connection to the Western
`
`District of Tennessee, as Barnes & Noble’s operations that are relevant to this case are not in
`
`Tennessee and B.E. has had only minimal contacts with this District. (See supra Sec. II.A.)
`
`Accordingly, the Northern District of California is clearly the center of gravity of the accused
`
`activity and the district in which the litigation should proceed.
`
`
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`9
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`

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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 13 of 15 PageID 109
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`The relative congestion of the Northern District of California and this District does not
`
`weigh against transfer. In 2011, the median time to trial for a civil case was 34.3 months in the
`
`Northern District of California, and 22.6 months in the Western District of Tennessee. (See
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`Google Transfer Mem. at Ex. E.) However, the average docket of pending cases per judge in the
`
`same year was higher in the Western District of Tennessee (499) than it was in the Northern
`
`District of California (475), and the average life span of a case from filing to disposition was
`
`around three months longer in this District than in the Northern District of California. (Id.)
`
`Accordingly, this factor is neutral. See, e.g., U.S. ex rel. Kairos Scientia, Inc. v. Zinsser Co.,
`
`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”).
`
`Nor does transferring this case to the Northern District of California cause a waste of
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`judicial resources because all of the B.E. Litigations are at a very early stage and a majority of
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`the Defendants have filed or plan to file motions to transfer to the Northern District of California,
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`or other more convenient venues. To the extent there is a risk of inconsistent judgments due to
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`proceedings in more than one district court, those concerns are diminished here because the cases
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`involve different defendants and non-overlapping accused products. See In re Zimmer Holdings,
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`Inc., 609 F.3d at 1382 (rejecting argument that transfer would be inefficient where co-pending
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`cases involve different accused products, different defendants, and a single overlapping patent);
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`see also Droplets, Inc. v. Amazon.com, Inc., No. 2:11-cv-392, 2012 WL 3578605, at *8 (E.D.Tex.
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`June 27, 2012) (transferring case to the Northern District of California despite existence of co-
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`pending litigation in the Southern District of New York because “considerations of judicial
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`economy are outweighed by the location of sources of proof, the availability of compulsory
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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 14 of 15 PageID 110
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`process, the convenience of witnesses, and the strong local interest of the Northern District of
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`California in this suit”); Pergo, Inc. v. Alloc, Inc., 262 F. Supp. 2d 122, 133 (S.D.N.Y. 2003)
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`(rejecting the argument that transfer of cases to more than one destination venue could result in
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`inconsistent judgments where cases involved different products and defendants).
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`Thus, the interests of justice favor transfer because the Northern District of California
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`has a more substantial local interest in this case than the Western District of Tennessee.
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`D. MDL Proceedings Should Not be a Factor
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`As described in Section IV.E of Google’s memorandum in support of its motion to
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`transfer to the Northern District of California, whether the B.E. Litigations are ultimately
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`subjected to an MDL action should not be a consideration in the Defendants’ motions to transfer
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`venue.
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`V.
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`CONCLUSION
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`For all of the foregoing reasons, Barnes & Noble respectfully moves the Court to transfer
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`this case to the Northern District of California. When all of the relevant factors are weighed and
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`balanced, that forum is clearly the most convenient.
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`Case 2:12-cv-02823-JPM-tmp Document 28-1 Filed 01/07/13 Page 15 of 15 PageID 111
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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
`
`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
`
`David Eiseman
`Brett Watkins
`Pamela L. Van Dort
`QUINN EMANUEL URQUHART & SULLIVAN, LLP
`1299 Pennsylvania Avenue NW
`Suite 825
`Washington, D.C. 20004
`Telephone: 202.538.8000
`Facsimile: 202.538.8100
`davideiseman@quinnemanuel.com
`brettwatkins@quinnemanuel.com
`pamelavandort@quinnemanuel.com
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`Attorneys for Defendant Barnes & Noble, Inc.
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`60308416.1
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