Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 1 of 22 PageID 109
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`
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`B.E. TECHNOLOGY, L.L.C.,
`
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`Civil Action No. 12-cv-02824-JPM-cgc
`
`JURY TRIAL DEMANDED
`
`SAMSUNG TELECOMMUNICATIONS
`AMERICA, LLC,
`
`
`
`Defendant.
`
`
`
`B.E. TECHNOLOGY, L.L.C.,
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`SAMSUNG ELECTRONICS AMERICA
`INC.,
`
`
`
`
`
`Defendant.
`
`Civil Action No. 12-cv-02825-JPM-tmp
`
`JURY TRIAL DEMANDED
`
`
`DEFENDANTS SAMSUNG TELECOMMUNICATIONS AMERICA, LLC AND
`SAMSUNG ELECTRONICS AMERICA INC.’S MEMORANDUM IN SUPPORT OT ITS
`MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)
`
`
`
`
`
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`

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`Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 2 of 22 PageID 110
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`TABLE OF CONTENTS
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`
`Page
`
`2.
`
`3.
`
`INTRODUCTION ............................................................................................................. 1
`FACTUAL BACKGROUND ............................................................................................ 2
`A.
`Procedural History ................................................................................................. 2
`B.
`The Parties ............................................................................................................. 3
`1.
`Defendants Have No Pertinent Connection to the Western District
`of Tennessee............................................................................................... 3
`a.
`Samsung Electronics America, Inc. (“SEA”) ................................ 3
`b.
`Samsung Telecommunications America, Inc. (“STA”) ................. 3
`Plaintiff Has Minimal Connection to the Western District of
`Tennessee, And Any Connection Was Apparently Manufactured
`Solely for Purposes of this Litigation ........................................................ 4
`Potential Third Party Witnesses and Documents are Located
`Primarily Outside of Tennessee ................................................................. 5
`ARGUMENT ..................................................................................................................... 6
`A.
`Legal Standard ....................................................................................................... 6
`B.
`B.E. Technology Could Have Brought Suit in the District of New Jersey ............ 8
`C.
`The Private Factors Strongly Favor Transfer to the District of New Jersey .......... 8
`1.
`The Location of Sources of Proof Favors Transfer ................................... 8
`2.
`Cost of Attendance for the Parties and the Convenience of
`Witnesses Favors Transfer ....................................................................... 10
`The Availability of Compulsory Process to Compel Unwilling
`Witnesses Is At Least Neutral .................................................................. 11
`No Practical Problems Favor this District over the District of New
`Jersey........................................................................................................ 12
`The Public Interest Factors Favor Transfer to the District of New Jersey ........... 13
`B.E. Technology’s Choice of Venue Is Not Entitled to Deference ..................... 15
`In the Alternative, This Case Should Be Transferred to the Northern
`District of California ............................................................................................ 16
`CONCLUSION ................................................................................................................ 17
`
`3.
`
`4.
`
`D.
`E.
`F.
`
`-i-
`
`I.
`II.
`
`III.
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`IV.
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`

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`Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 3 of 22 PageID 111
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`
`
`CASES
`
`TABLE OF AUTHORITIES
`
`Page
`
`Advel Corp. v. Mecure,
`58 N.J. 264 (1971) .................................................................................................................... 8
`
`Akro Corp. v. Luker,
`45 F.3d 1541 (Fed. Cir. 1995)................................................................................................... 8
`
`Cherokee Export Co. v. Chrysler Int’l. Corp.,
`No. 96-1745, 142 F.3d 432, 1998 WL 57279 (6th Cir. Feb. 2, 1998) ...................................... 7
`
`Cont’l First Fed., Inc. v. Watson Quality Ford, Inc., No. 3:08–0954, 2010 WL
`1836808 (M.D. Tenn. May 6, 2010) ..................................................................................... 6, 7
`
`Geotag, Inc. v. Aromatique, Inc.,
`No. 2:10-cv-570, slip op. (E.D. Tex. Jan. 14, 2013) ........................................................... 9, 13
`
`Grober v. Mako Prods., Inc.,
`686 F.3d 1335 (Fed. Cir. 2012)................................................................................................. 8
`
`In re EMC Corp.,
`677 F.3d 1351 (Fed. Cir. 2012)............................................................................................... 13
`
`In re Genentech,
`566 F.3d 1338 (Fed. Cir. 2009)......................................................................................... 10, 13
`
`In re Hoffman-La Roche Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)......................................................................................... 14, 15
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2010)............................................................................................... 15
`
`In re Nintendo Co.,
`589 F.3d 1194 (Fed. Cir. 2009)........................................................................................... 9, 10
`
`In re Volkswagen of Am., Inc.,
`545 F.3d 304 (Fed. Cir. 2008)................................................................................................... 6
`
`In re Zimmer Holdings, Inc.,
`609 F.3d 1378 (Fed. Cir. 2010)..................................................................................... 7, 12, 15
`
`Just Intellectuals, PLLC v. Clorox Co.,
`No. 10-12415, 2010 WL 5129014 (E.D. Mich., Dec. 10, 2010) ........................ 8, 9, 10, 14, 16
`
`
`
`
`
`
`-ii-
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`

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`Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 4 of 22 PageID 112
`
`TABLE OF AUTHORITIES
`
`Page
`
`L&P Prop. Mgmt. Co. v. JTMD, LLC,
`No. 06-13311, 2007 WL 295027 (E.D. Mich. Jan 29, 2007) ................................... 7, 9, 10, 15
`
`Micromuse, Inc. v. Aprisma Mgmt. Techs., Inc.,
`No. 05 Civ 0894SAS, 2005 WL 1241924, (S.D.N.Y. May 24, 2005) ................................... 12
`
`Moses v. Bus. Card Express, Inc.,
`929 F.2d 1131 (6th Cir. 1991) .................................................................................................. 6
`
`Optimum Power Solutions LLC v. Apple, Inc.,
`794 F. Supp. 2d 696 (E.D. Tex. 2011) .................................................................................... 11
`
`Quality Gold, Inc. v. West,
`No. 1:11-CV-891, 2012 WL 1883819 (S.D. Ohio May 22, 2012) ........................................... 7
`
`Returns Distribution Specialists, LLC v. Playtex Prods., Inc.,
` No. 02-1195-T, 2003 WL 21244142 (W.D. Tenn. May 28, 2003) ............................... 6, 7, 10
`
`Speedshape, Inc v. Meechan,
`No. 11-14670, 2012 WL 1672979 (E.D. Mich. May 14, 2012) ............................................. 12
`
`U.S. ex rel. Kairos Scientia, Inc. v. Zinsser Co.,
`2011 WL 127852 (N.D. Ohio Jan. 14, 2011).................................................................... 14, 16
`
`Van Dusen v. Barrack,
`376 U.S. 612 (1964) .................................................................................................................. 6
`
`Viam Corp. v. Iowa Exp.-Imp. Trading Co.,
`84 F.3d 424 (Fed. Cir. 1996)..................................................................................................... 8
`
`STATUTES
`28 U.S.C. § 1391 ............................................................................................................................. 8
`28 U.S.C. § 1400 ............................................................................................................................. 8
`28 U.S.C. § 1404 ................................................................................................................... 6, 8, 12
`RULES
`Fed. R. Civ. P. 4 .............................................................................................................................. 8
`
`-iii-
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`

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`Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 5 of 22 PageID 113
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`
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`I.
`
`INTRODUCTION
`
`These patent infringement actions have no meaningful connection to this District, and
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`should be transferred to the District of New Jersey. Neither of the Defendants reside in
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`Tennessee—Samsung Electronics America, Inc. (“SEA”) is headquartered in New Jersey, and
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`Samsung Telecommunications America LLC (“STA”) is headquartered in Texas. Plaintiff, B.E.
`
`Technology, L.L.C. (“B.E. Technology”) is a non-practicing entity whose sole business consists
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`of attempting to enforce intellectual property. B.E. Technology does not manufacture, market, or
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`sell any products to the public, let alone in this District. In fact, B.E. Technology apparently has
`
`no offices in this District and, aside from its Chief Executive Officer who apparently works part-
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`time for B.E. Technology, has no employees in this District. Thus, it will have few relevant
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`witnesses, and its relevant documents are likely limited to the patents-in-suit and other files that
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`are publicly available from the U.S. Patent and Trademark Office. Little or no weight should be
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`afforded to the forum choice of a non-practicing entity having such a tenuous connection to the
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`District.
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`By contrast, the District of New Jersey is a more convenient forum to litigate these
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`actions than the Western District of Tennessee. The vast majority of evidence will be coming
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`from Defendants, and SEA is located in Ridgefield Park, New Jersey, while STA maintains
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`offices in New Jersey. Consequently, a number of employees with knowledge of the accused
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`products and most of the discoverable documents are located in New Jersey. In addition, the
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`District of New Jersey is more convenient to witnesses outside the District of New Jersey that are
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`likely to be identified by Defendants. Furthermore, the alleged acts of infringement bear a much
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`greater relation to the District of New Jersey than to this District.
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`Accordingly, to serve the convenience of the parties and witnesses and the interests of
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`justice, the Court should transfer these actions to the District of New Jersey.
`-1-
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`

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`Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 6 of 22 PageID 114
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`
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`II.
`
`FACTUAL BACKGROUND
`
`A.
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`Procedural History
`
`These cases are at a very early stage. B.E. Technology filed its complaints against SEA
`
`and STA (collectively, “Defendants” or “Samsung”) on September 21, 2012. (See Case No.
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`2:12-cv-2824, D.E. 1 (“STA Complaint”); Case No. 2:12-cv-2825, D.E. 1 (“SEA Complaint”).)
`
`In its Complaints, B.E. Technology accused 24 of STA’s smartphones, 4 of SEA’s Smart TVs,
`
`and 6 of SEA’s Smart DVD/Blu-Ray Players of infringing U.S. Patent No. 6,771,290 (“the ’290
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`patent”). (See STA Complaint ¶ 8; SEA Complaint ¶ 8.) Samsung filed its answers on
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`December 31, 2012. (See Case No. 2:12-cv-2824, D.E. 22; Case No. 2:212-cv-2825, D.E. 26.)
`
`On January 7, 2013, pursuant to Local Patent Rule 3.1, B.E. Technology served its
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`Preliminary Infringement Contentions (“PICs”) which comprise more than 10,000 pages and
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`have materially expanded the purported scope of this litigation to include approximately 177
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`accused products in 8 product categories, including cameras, home theater systems, media
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`players, personal computers, phones, and tablets, along with “all reasonably similar products
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`and/or services” (the “Accused Products”). (Exs. 1 & 2.)1 The PICs also identify 19 separate
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`accused functionalities, one or more of which are alleged to be present or used in each Accused
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`Product.2 (Id.) Many of the software and services identified by B.E. Technology as allegedly
`
`
`1 Unless otherwise noted, all exhibits referenced herein are exhibits to the Declaration of Justin
`MacLean in Support of Samsung’s Motion to Transfer (“MacLean Decl.”), filed concurrently
`herewith.
`2 These accused functionalities include Google software/services (e.g., Android Market,
`YouTube, and Google Play), Samsung software/services (e.g., Samsung Apps, Smart Hub,
`Media Hub, Music Hub), Microsoft software/services (e.g., Windows Store, Xbox Video, Xbox
`Music, Xbox Games, Windows Phone Marketplace, Windows Phone Store), Amazon
`software/services (e.g., Amazon (Prime) Instant Video, Kindle Store), and miscellaneous other
`software/services (e.g., Netflix, Hulu Plus, Nook Store (from Barnes & Noble), and Kno
`Textbooks (from Kno Inc.)). Google, Microsoft, Amazon, Barnes & Noble, Hulu, Netflix, and
`Kno Inc. are hereinafter referred to as “Third Parties”, and the accused functionalities developed
`by Third Parties are referred to as “Third Party Software.”
`-2-
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`
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`infringing were not developed by either SEA or STA, but were instead developed by third parties
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`(see n.2, supra), none of which has been alleged by B.E. Technology to be primarily located in
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`this District. Indeed, some of those third parties, such as Google, Microsoft, and Barnes &
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`Noble, have already moved to transfer their respective lawsuits to another forum. (See Case No.
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`2:12-cv-02830-JPM-tmp, D.E. 22 (Google); Case No. 2:12-cv-02823-JPM-tmp, D.E. 28 (Barnes
`
`& Noble); Case No. 2:12-cv-02829-JPM-tmp, D.E. 30 (Microsoft). No further discovery has
`
`taken place.
`
`B.
`
`The Parties
`
`1.
`
`Defendants Have No Pertinent Connection to the Western District of
`Tennessee
`
`a.
`
`Samsung Electronics America, Inc. (“SEA”)
`
`Defendant SEA is headquartered in Ridgefield Park, New Jersey. (Declaration of Daniel
`
`Schinasi in Support of Samsung’s Motion to Transfer (“Schinasi Decl.”) ¶ 2.) Ridgefield Park is
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`within the District of New Jersey, a mere thirty minute drive from the District of New Jersey’s
`
`Newark courthouse. (Id. ¶ 11.) SEA comprises multiple business units including the Consumer
`
`Business Division and Enterprise Business Division, which market and sell numerous products
`
`across the United States including the accused non-cellular tablets, Blu-ray Disc players, media
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`players, home theater systems, and personal computers. (Id. ¶ 3.) SEA’s relevant documents are
`
`stored in SEA’s Ridgefield Park offices in New Jersey, and witnesses relating to, inter alia, the
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`sales, marketing, and financial information concerning the accused products sold by SEA work
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`in those same offices in New Jersey. (Id. ¶ 7.)
`
`b.
`
`Samsung Telecommunications America, Inc. (“STA”)
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`Defendant STA, headquartered in Richardson, Texas, is a wholly-owned subsidiary of
`
`SEA. (Declaration of Justin Denison in Support of Samsung’s Motion to Transfer (“Denison
`
`
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`-3-
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`

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`Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 8 of 22 PageID 116
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`
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`Decl.”) ¶ 2.) STA markets and sells a variety of wireless communications devices throughout
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`the United States including smartphones, Galaxy cameras, and cellular-equipped tablets. (Id.
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`¶ 3.)
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`2.
`
`Plaintiff Has Minimal Connection to the Western District of
`Tennessee, And Any Connection Was Apparently Manufactured
`Solely for Purposes of this Litigation
`
`B.E. Technology has no meaningful connection to the Western District of Tennessee.
`
`There is no evidence in the record, even in the Declaration of B.E. Technology’s Chief Executive
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`Officer, Martin David Hoyle, submitted to the Court in opposition to the motions to transfer filed
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`by some of the defendants in the other patent infringement cases filed by B.E. Technology, that
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`B.E. Technology has any offices in the Western District of Tennessee, nor is there any evidence
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`that, aside from Mr. Hoyle, B.E. Technology has any employees in the Western District of
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`Tennessee. Rather, B.E. Technology is a Delaware corporation that, until September 6, 2012—
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`the day before filing the first of its Litigations here when it registered to do business in
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`Tennessee—was registered to do business in only one location: Michigan. (See Exs. 3-4; see
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`also SEA Complaint and STA Complaint at ¶ 2.) In fact, B.E. Technology’s filing with the
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`Michigan Secretary of State, which was amended as recently as February 2012, still lists B.E.
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`Technology’s address as Saginaw, Michigan. (Ex. 4.) This is consistent with the records of the
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`United States Patent & Trademark Office (“USPTO”) which, as recently as June 2012, also
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`identified B.E. Technology’s location as Saginaw, Michigan. (Ex. 5.) While Mr. Hoyle
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`currently resides in the Western District of Tennessee, and while Mr. Hoyle’s private home is
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`listed on B.E. Technology’s recent application with the Tennessee Secretary of State as its
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`“business address,” B.E. Technology itself has no contact with this jurisdiction. This is not
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`surprising, since an attorney for B.E. Technology has acknowledged that the company’s
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`Tennessee operations consist solely of enforcing patents. (See Ex. 6.)
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`Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 9 of 22 PageID 117
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`
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`B.E. Technology’s Complaints against Samsung allege infringement of the ‘290 patent,
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`which identifies Mr. Hoyle of Louisiana as the sole inventor. (See SEA Complaint, Ex. A; STA
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`Complaint, Ex. A.) Although Mr. Hoyle states that he moved to Tennessee in 2006 to pursue his
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`work for Hilton Hotels (Ex. 10), a patent application filed in December 2011 and published in
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`June 2012 lists his residence as New Orleans, LA. (Ex. 5.) Mr. Freitas and his firm are based out
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`of Redwood City, California, which is in the Northern District of California. (See
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`http://www.ftklaw.com.) The patent-in-suit was prosecuted by the law firm of Reising,
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`Ethington, Barnes, Kisselle, P.C. (SEA Complaint, Ex. A; STA Complaint, Ex. A.) The Reising
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`firm has offices in Michigan and Texas, and does not appear to have any connection to
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`Tennessee. (See http://www.reising.com/contact.php.) The attorney who filed and prosecuted
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`the applications for the patents-in-suit, James D. Stevens, is located in Troy, Michigan. (See Ex.
`
`7.)
`
`3.
`
`Potential Third Party Witnesses and Documents are Located
`Primarily Outside of Tennessee
`
`
`In its Preliminary Infringement Contentions, B.E. Technology alleges that Samsung’s
`
`Accused Products infringe the ’290 patent by incorporating (in addition to Samsung’s own
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`software and services) Third Party Software from Third Parties Google, Microsoft, Amazon,
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`Barnes & Noble, Netflix, Hulu, and Kno Inc. (Exs.1 & 2.) Many of these Third Parties are
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`defendants in a number of other cases filed by B.E. Technology as part of a broad litigation
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`campaign. See, e.g., Case Nos. 2:12-cv-02830-JPM-tmp (Google); 2:12-cv-02829-JPM-tmp
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`(Microsoft); 2:12-cv-02767-JPM-tmp (Amazon); 2:12-cv-02823-JPM-tmp (Barnes & Noble)
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`(W.D. Tenn.). Samsung further understands that the Third Parties are headquartered in
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`California, Washington, and New York (see MacLean Decl. ¶ 4), and thus, the witnesses and
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`documents implicated by these Third Parties are not likely to be located in Tennessee.
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`
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`-5-
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`
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`III. ARGUMENT
`
`A.
`
`Legal Standard
`
`Under 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the
`
`interest of justice, a district court may transfer any civil action to any other district or division
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`where it might have been brought . . . .” See also Moses v. Bus. Card Express, Inc., 929 F.2d
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`1131, 1137 (6th Cir. 1991). Section 1404(a) is intended to “prevent the waste of time, energy
`
`and money to protect litigants, witnesses and the public against unnecessary inconvenience and
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`expense” and “reflects an increased desire to have federal civil suits tried in the federal system at
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`the place called for in the particular case.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964)
`
`(internal citations omitted); see also Returns Distribution Specialists, LLC v. Playtex Prods.,
`
`Inc., No. 02-1195-T, 2003 WL 21244142, at *6 (W.D. Tenn. May 28, 2003) (noting that a
`
`district court has “broad discretion under section 1404(a) when determining whether to transfer a
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`case”) (citation omitted). “[T]he underlying premise of § 1404(a) is that courts should prevent
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`plaintiffs from abusing their privilege [of choosing venue] under § 1391 by subjecting
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`defendants to venues that are inconvenient under the terms of § 1404(a).” In re Volkswagen of
`
`Am., Inc., 545 F.3d 304, 313 (Fed. Cir. 2008). While plaintiffs have the privilege of filing their
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`claims in any judicial division appropriate under the general venue statute, Ҥ 1404(a) tempers
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`the effects of the exercise of this privilege” by allowing courts to transfer civil actions to a more
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`convenient venue. Id.
`
`In the Sixth Circuit, the “threshold” determination for the district court under Section
`
`1404(a) is whether the claims could have been brought in the proposed transferee district.
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`Returns Distribution Specialists, 2003 WL 21244142, at *6. The district court must then
`
`consider the convenience of the parties and witnesses in both forums, balancing several private
`
`and public interest factors. Moses, 929 F.2d at 1138; Cont’l First Fed., Inc. v. Watson Quality
`-6-
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`

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`Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 11 of 22 PageID 119
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`
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`Ford, Inc., No. 3:08–0954, 2010 WL 1836808 (M.D. Tenn. May 6, 2010). The private interest
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`factors include “(1) the relative ease of access to sources of proof; (2) the availability of
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`compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing
`
`witnesses; and (4) all other practical problems that make trial [of a case] easy, expeditious and
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`inexpensive.” Quality Gold, Inc. v. West, No. 1:11-CV-891, 2012 WL 1883819, at *2 (S.D.
`
`Ohio May 22, 2012) (citing In re Genentech, Inc., 566 F.3d 1338, 1342 (Fed. Cir. 2009)); see
`
`also Cherokee Export Co. v. Chrysler Int’l. Corp., No. 96-1745, 142 F.3d 432, 1998 WL 57279,
`
`at *3 (6th Cir. Feb. 2, 1998). The public interest factors include (1) the administrative
`
`difficulties flowing from court congestion; (2) the localized interest in having localized interests
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`decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4)
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`the avoidance of unnecessary problems of conflicts of laws or in the application of foreign law.”
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`Quality Gold, Inc., 2012 WL 1883819, at *2.
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`Notably, while a plaintiff’s choice of venue is generally entitled to “some deference, it is
`
`not sacrosanct, and will not defeat a well-founded motion for change of venue.” L&P Prop.
`
`Mgmt. Co. v. JTMD, LLC, No. 06-13311, 2007 WL 295027, at *3 (E.D. Mich. Jan 29, 2007)
`
`(internal citation omitted); Returns Distribution Specialists, 2003 WL 21244142, at *9 (ordering
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`transfer where “the overwhelming inconvenience to the witnesses outweighs the Plaintiff’s
`
`interest in choosing their own forum.”). Furthermore, if a party’s presence in a venue “appears
`
`to be recent, ephemeral, and an artifact of litigation” it is subject to close scrutiny “to ensure that
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`the purposes of jurisdictional and venue laws are not frustrated by a party’s attempts at
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`manipulation.” In re Zimmer Holdings, Inc., 609 F.3d 1378, 1381 (Fed. Cir. 2010) (citing Hertz
`
`Corp. v. Friend, 130 S. Ct. 1181, 1195 (2010)).
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`
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`-7-
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`

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`Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 12 of 22 PageID 120
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`
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`B.
`
`B.E. Technology Could Have Brought Suit in the District of New Jersey
`
`B.E. Technology could have properly filed these actions in the District of New Jersey.
`
`Under 28 U.S.C. § 1400(b), a party may bring a patent infringement action in any “district where
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`the defendant resides.” A corporate defendant shall be deemed to reside in “any judicial district
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`in which it is subject to personal jurisdiction at the time the action is commenced.” 28 U.S.C.
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`§ 1391(c). Because personal jurisdiction in a patent infringement action is “intimately involved
`
`with the substance of patent laws,” Federal Circuit law governs. Akro Corp. v. Luker, 45 F.3d
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`1541, 1543 (Fed. Cir. 1995); see also Grober v. Mako Prods., Inc., 686 F.3d 1335, 1345 (Fed.
`
`Cir. 2012).
`
`A federal court may exercise personal jurisdiction over a defendant when the forum
`
`state’s long-arm statute would allow it to and doing so will not offend due process. See Fed. R.
`
`Civ. P. 4; Viam Corp. v. Iowa Exp.-Imp. Trading Co., 84 F.3d 424, 427 (Fed. Cir. 1996). New
`
`Jersey’s long-arm statute allows its courts to exercise personal jurisdiction “to the uttermost
`
`limits permitted by the United States Constitution.” Advel Corp. v. Mecure, 58 N.J. 264, 268
`
`(1971).
`
`Each Defendant is subject to personal jurisdiction in the District of New Jersey. SEA is
`
`headquartered in New Jersey. STA is a subsidiary of SEA and regularly transacts and conducts
`
`business in the District of New Jersey. Accordingly, B.E. Technology could have properly filed
`
`these actions in the District of New Jersey, so the threshold requirement of Section 1404(a) is
`
`satisfied.
`
`C.
`
`The Private Factors Strongly Favor Transfer to the District of New Jersey
`
`1.
`
`The Location of Sources of Proof Favors Transfer
`
`The first private interest factor is the relative ease of access to sources of proof, which
`
`takes into consideration the location of documents and physical evidence. Just Intellectuals,
`
`
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`-8-
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`Case 2:12-cv-02825-JPM-tmp Document 31-1 Filed 01/22/13 Page 13 of 22 PageID 121
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`PLLC v. Clorox Co., No. 10-12415, 2010 WL 5129014, at *4 (E.D. Mich. Dec. 10, 2010). “In
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`patent infringement cases, the bulk of the relevant evidence usually comes from the accused
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`infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of
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`transfer to that location.” In re Nintendo Co., 589 F.3d 1194, 1199 (Fed. Cir. 2009) (citing In re
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`Genentech, 566 F.3d at 1345). Thus, the location of an alleged infringer’s documents and
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`evidence is an important factor to consider. See Nintendo, 589 F.3d at 1199; L&P Prop. Mgmt.
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`Co., 2007 WL 295027, at *4.
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`Here, a large number of potentially relevant documents and things related to the Accused
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`Products—including samples of many of the Accused Products themselves—are located at
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`SEA’s headquarters in the District of New Jersey. (Schinasi Decl. ¶¶ 6-7.) Even STA stores
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`potentially relevant financial information on servers in New Jersey. (Denison Decl. ¶ 7.)
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`In contrast, B.E. Technology does not appear to have any business operations in
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`Tennessee other than asserting these patents and, therefore, it is not likely to have a large number
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`of documents relevant to these litigations. See, e.g., Geotag, Inc. v. Aromatique, Inc., No. 2:10-
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`cv-570, slip op. at 3-6 (E.D. Tex. Jan. 14, 2013) (D.E. 585) (Ex. 8) (holding that this factor
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`favored granting transfer, even though plaintiff alleged it had documentary evidence regarding
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`the patent and its prosecution in the transferring forum and that the plaintiff’s presence was “not
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`recent or ephemeral” and “not an artifact of prior litigation,”3 because the “bulk of the relevant
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`evidence” was more accessible from the transferee forum).
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`Given the above, this factor weighs heavily in favor of a transfer to the District of New
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`Jersey. L&P Prop. Mgmt. Co., 2007 WL 295027, at *5 (finding this factor weighed in favor of
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`transfer where “[a]ll of Defendants’ documents are located at their headquarters in [the transferee
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`3 By contrast, Samsung believes B.E. Technology’s presence in the Western District of
`Tennessee is recent, ephemeral, and an artifact of litigation. See § III.E., infra.
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`district]… [and] Plaintiffs have not identified any sources of evidence … that exist in [the
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`transferring district]”); Just Intellectuals, 2010 WL 5129014, at *4 (same).
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`2.
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`Cost of Attendance for the Parties and the Convenience of Witnesses
`Favors Transfer
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`The cost of attendance for and convenience of the witnesses “is probably the single most
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`important factor in transfer analysis.” In re Genentech, 566 F.3d at 1343; see also Returns
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`Distribution Specialists, 2003 WL 21244142, at *8. “Additional distance [from home] means
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`additional travel time; additional travel time increases the probability for meal and lodging
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`expenses; and additional travel time with overnight stays increases the time which these fact
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`witnesses must be away from their regular employment.” Nintendo, 589 F.3d at 1199 (citing In
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`re TS Tech, 551 F.3d 1315, 1320 (Fed. Cir. 2008)). Simply put, it is more convenient for
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`witnesses to testify at home. The proposed venue does not need to be more convenient for all of
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`the witnesses. Instead, this factor favors transfer when a substantial number of material
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`witnesses reside in the transferee venue. See In re Genentech, 566 F.3d at 1345. Additionally,
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`this factor favors transfer where witnesses likely to be called at trial are important to the
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`operation of defendant’s business. Returns Distribution Specialists, 2003 WL 21244142, at *7
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`(noting that “[i]t would be difficult for Defendants to operate their businesses if their employees
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`were required to be in Tennessee during the trial of this matter.”).
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`Here, it would be far more convenient and much less costly for Samsung’s witnesses if
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`these cases were litigated in the District of New Jersey. Defendant SEA is headquartered in the
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`District of New Jersey. (Schinasi Decl. ¶¶ 2, 12.) Employees of SEA are located in Ridgefield
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`Park, New Jersey, which is a thirty minute drive from the District of New Jersey’s Newark
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`courthouse. (Id. ¶ 11.) These employees possess evidence and have knowledge regarding issues
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`relevant to this case, including design, operation, sales, marketing, and financial performance of
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`the Accused Products in the United States, as well as the Third Parties and Third Party Software
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`that B.E. Technology accuses of infringement. (Id. ¶¶ 6-7.) Transfer to New Jersey will
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`therefore be far more convenient for SEA and its employees who will likely testify in this case.
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`(Id. ¶¶ 6-7, 12.) Further, STA is a wholly owned subsidiary of SEA and maintains a facility in
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`Bridgewater, New Jersey, and STA employees regularly travel to SEA’s Ridgefield facilities in
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`connection with their employment. (Denison Decl. ¶¶ 2, 7, 12.) Litigating these cases in the
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`District of New Jersey would also be vastly more convenient for witnesses of third parties, such
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`as the Third Parties, who would have many more options for non-stop travel to New Jersey than
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`to Tennessee. (MacLean Decl. ¶¶ 4-6.) This fact favors transfer. See, e.g., Optimum Power
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`Solutions LLC v. Apple, Inc., 794 F. Supp. 2d 696, 701 (E.D. Tex. 2011) (“[T]he existence or
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`non-existence of direct flights can impact the analysis of travel time”) (citing In re Volkswagen
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`AG, 371 F.3d 201, 204 n.3 (5th Cir. 2004)).
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`By contrast, B.E. Technology, as a non-practicing entity, is unlikely to have many
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`relevant documents. Materials relevant to the prosecution of the patents-in-suit are likely
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`publicly available from the files of the U.S. Patent and Trademark or reside with B.E.
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`Technology’s patent attorneys in Michigan. Any relevant documents that would need to be
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`collected from B.E. Technology are likely to be de minimis compared to the documents that will
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`need to be collected from the defendants. Accordingly, the location of the majority of witnesses,
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`documents, and other evidence strongly favors transferring these cases to the District of New
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`Jersey.
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`3.
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`The Availability of Compulsory Process to Compel Unwilling
`Witnesses Is At Least Neutral
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`The only witness resident in the Western District of Tennessee that B.E. Technology
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`appears likely to call is Martin David Hoyle, who is an officer of B.E. Technology. On the other
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