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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`B.E. TECHNOLOGY, LLC,
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`Plaintiff,
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`SAMSUNG TELECOMMUNICATIONS
`AMERICA, INC.,
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`Defendant.
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`B.E. TECHNOLOGY, LLC,
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`Plaintiff,
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`SAMSUNG ELECTRONICS AMERICA, )
`INC.,
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`Defendant.
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`No.: 2:12-cv-02824-JPM-cgc
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`No.: 2:12-cv-02825-JPM-tmp
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`ORDER DENYING MOTION TO TRANSFER VENUE
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`Before the Court is the Motion to Transfer Venue Pursuant
`to 28 U.S.C. § 1404(a) (see Civil Case No. 12-2824, ECF No. 27;
`Civil Case No. 12-2825, ECF No. 31), of Defendants Samsung
`Telecommunications America, Inc. (“STA”), and Samsung
`Electronics America, Inc. (“SEA”) (collectively “Samsung”),1
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`1 STA “is a wholly owned subsidiary of [SEA].” (Civil Case No. 12-2824, ECF
`No. 27-13, ¶ 2.)
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`B.E. TECHNOLOGY, LLC,
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`Plaintiff,
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`v.
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`SAMSUNG TELECOMMUNICATIONS
`AMERICA, INC.,
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`Defendant.
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`B.E. TECHNOLOGY, LLC,
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`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS AMERICA, )
`INC.,
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`Defendant.
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`No.: 2:12-cv-02824-JPM-cgc
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`No.: 2:12-cv-02825-JPM-tmp
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`ORDER DENYING MOTION TO TRANSFER VENUE
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`
`Before the Court is the Motion to Transfer Venue Pursuant
`to 28 U.S.C. § 1404(a) (see Civil Case No. 12-2824, ECF No. 27;
`Civil Case No. 12-2825, ECF No. 31), of Defendants Samsung
`Telecommunications America, Inc. (“STA”), and Samsung
`Electronics America, Inc. (“SEA”) (collectively “Samsung”),1
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`1 STA “is a wholly owned subsidiary of [SEA].” (Civil Case No. 12-2824, ECF
`No. 27-13, ¶ 2.)
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`Case 2:12-cv-02824-JPM-tmp Document 43 Filed 07/12/13 Page 2 of 30 PageID 428
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`filed January 22, 2013.2 For the reasons that follow, the Motion
`is DENIED.
`I. BACKGROUND
`
`This case concerns Samsung’s alleged infringement of United
`States Patent No. 6,771,290 (the “’290 patent”). (Civil Case
`No. 12-2824, ECF No. 1; Civil Case No. 12-2825, ECF No. 1.)
`Plaintiff B.E. Technology, LLC (“Plaintiff” or “B.E.”), is the
`assignee of the ’290 patent (Civil Case No. 12-2824, ECF No. 34,
`at 2; Civil Case No. 12-2825, ECF No. 38, at 2), currently
`owning “all right, title, and interest in the ’290 patent, and
`has owned all right, title, and interest throughout the period”
`of the alleged infringement (Civil Case No. 12-2824, ECF No. 1,
`¶ 10; Civil Case No. 12-2825, ECF No. 1, ¶ 7).
`A. Civil Case No. 12-2824
`
`B.E. alleges that STA infringed “the ’290 patent by using,
`selling, and offering to sell in the United States tablet
`computer products that directly infringe at least Claim 2 of the
`’290 patent either literally or under the doctrine of
`equivalents.” (ECF No. 1 ¶ 11.) The STA products alleged to
`infringe the ’290 patent include “Samsung Smart Phones: Galaxy
`
`
`2 Because the Motions to Transfer Venue of STA and SEA are identical, the
`Court will refer to the Motion to Transfer Venue on STA’s docket, Civil Case
`No. 12-2824, at ECF No. 27. Additionally, B.E. Technology, LLC’s Responses
`to the Motion to Transfer Venue, and STA and SEA’s Replies in support of
`their Motion to Transfer Venue are identical. Accordingly, the Court will
`refer to the Response and Reply on STA’s docket, Civil Case No. 12-2824, at
`ECF No. 34 and ECF No. 37.
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`2
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`S, Galaxy S 4G, Galaxy S II, Captivate, Continuum, Droid Charge,
`Galaxy S III, Epic 4G, Fascinate, Exhibit 4G, Galaxy Ace, Galaxy
`Prevail, Gem, Indulge, Infuse 4G, Intercept, Mesmerize, Nexus S
`4G, Replenish, Vibrant; Smart Tablets: Galaxy Note 10.1; Galaxy
`Tab; Galaxy Player 5.0.” (Id.)
`B.E. filed a Complaint in this Court on September 21, 2012.
`(ECF No. 1.) STA filed its Answer to the Complaint on December
`31, 2012 (ECF No. 22), and its Motion to Transfer Venue on
`January 22, 2013 (ECF No. 27). On January 29, 2013, STA filed a
`Motion to Stay pending resolution of its Motion to Transfer
`Venue. (ECF No. 30.) The Court granted STA’s Motion to Stay on
`February 8, 2013. (ECF No. 33.) B.E. filed its Response in
`opposition to STA’s Motion to Transfer Venue on February 8,
`2013. (ECF No. 34.) With leave of Court (ECF No. 36), STA
`filed a Reply in support of its Motion to Transfer on February
`21, 2013 (ECF No. 37).
`
`B. Civil Case No. 12-2825
`B.E. alleges that SEA infringed “the ’290 patent by using,
`selling, and offering to sell in the United States tablet
`computer products that directly infringe at least Claim 2 of the
`’290 patent either literally or under the doctrine of
`equivalents.” (ECF No. 1 ¶ 8.) The SEA products alleged to
`infringe the ’290 patent include “Smart TVs: LED 8000 Series
`Smart TV, Plasma 8000 Series Smart TV, LED 7500 Series Smart TV,
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`LED 7550 Series Smart TV; Smart Blu-Ray/DVD Players: BD-E6500,
`BDES6000, BD-E5900, BD-E5700, BD-EM57C, BD-EM59C.” (Id.)
`B.E. filed a Complaint in this Court on September 21, 2012.
`(ECF No. 1.) SEA filed its Answer to the Complaint on December
`31, 2012 (ECF No. 26), and its Motion to Transfer Venue on
`January 22, 2013 (ECF No. 31). On January 29, 2013, SEA filed a
`Motion to Stay pending resolution of its Motion to Transfer
`Venue. (ECF No. 34.) The Court granted SEA’s Motion to Stay on
`February 8, 2013. (ECF No. 37.) B.E. filed its Response in
`opposition to SEA’s Motion to Transfer Venue on February 8,
`2013. (ECF No. 38.) With leave of Court (ECF No. 40), SEA
`filed a Reply in support of its Motion to Transfer on February
`21, 2013 (ECF No. 41).
`C. Motion to Transfer Venue3
`Samsung seeks to transfer this case to the District of New
`Jersey. (ECF No. 27-1 at 1.) In the alternative, Samsung seeks
`to transfer this case to the Northern District of California.
`(Id. at 16.) STA is headquartered in Texas and maintains
`offices in New Jersey, and SEA is headquartered in New Jersey.
`(Id. at 1) Samsung argues that the “patent infringement actions
`have no meaningful connection to [the Western District of
`Tennessee].” (Id.) In support, Samsung asserts the following:
`
`3 All references to the Motion to Transfer Venue, Response in opposition to
`the Motion to Transfer Venue, and Reply in support of the Motion to Transfer
`Venue, will be to those documents filed in Civil Case No. 12-2824. See supra
`note 2 and accompanying text.
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`that B.E. has only a tenuous connection to the Western District
`of Tennessee as there are few relevant witnesses and documents
`that are likely to be located in this district; that the vast
`majority of evidence from Defendants is located in the District
`of New Jersey; that the District of New Jersey is more
`convenient for the relevant witnesses in the instant action; and
`that the “alleged acts of infringement bear a much greater
`relation to the District of New Jersey than to the [Western
`District of Tennessee].” (Id.)
`B.E. opposes Samsung’s Motion to Transfer Venue. (ECF
`No. 34.) B.E. is a limited liability company incorporated in
`Delaware. (Id. at 2.) B.E. was originally registered in
`Michigan, but formally registered to conduct business in
`Tennessee in September 2012. (Id. at 3.) B.E. contends that
`Memphis, Tennessee, is its principal place of business. (Civil
`Case No. 12-2824, ECF No. 1, ¶ 2.) Martin David Hoyle
`(“Hoyle”), B.E.’s founder and CEO, is the named-inventor of the
`’290 patent. (ECF No. 34 at 1, 2.) Hoyle has been a resident
`of Tennessee since April, 2006. (Id.)
`B.E. argues that transfer is inappropriate because it has
`substantial connections with this district. B.E. argues that
`Hoyle has been “present in this District since 2006, and B.E.
`since at least 2008,” and this district is B.E.’s principal
`place of business. (Id. at 5.) B.E. also argues that none of
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`its witnesses are located in the District of New Jersey. (Id.
`at 9.) Furthermore, B.E. argues that its corporate documents,
`including documents relating to the “conception and reduction to
`practice” of the patents-in-suit, are located in this District.
`(Id. at 8.)
`II. STANDARD
`
`Samsung moves the Court to transfer this case to the
`District of New Jersey pursuant to 28 U.S.C. § 1404(a). (ECF
`No. 27-1 at 1.) The statute provides that “[f]or the
`convenience of the parties and witnesses, in the interest of
`justice, a district court may transfer any civil action to any
`other district or division where it might have been brought.”
`28 U.S.C. § 1404(a). “As the permissive language of the
`transfer statute suggests, district courts have ‘broad
`discretion’ to determine when party ‘convenience’ or ‘the
`interest of justice’ make a transfer appropriate.” Reese v. CNH
`Am. LLC, 574 F.3d 315, 320 (6th Cir. 2009).
`
`In determining whether to transfer a case under § 1404(a),
`the court must first determine whether the claim could have been
`brought in the transferee district. 28 U.S.C. § 1404(a)
`(allowing transfer to any other district in which the claim
`“might have been brought”). Once the court has made this
`threshold determination, the court must then determine whether
`party and witness “convenience” and “the interest of justice”
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`favor transfer to the proposed transferee district. Reese, 574
`F.3d at 320; Esperson v. Trugreen Ltd., No. 2:10-cv-02130-STA-
`cgc, 2010 WL 4362794, at *5 (W.D. Tenn. Oct. 5, 2010), adopted
`2010 WL 4337823 (W.D. Tenn. Oct. 27, 2010). In weighing these
`statutory factors, the court may still consider the private- and
`public-interest factors set forth in the pre-Section 1404(a)
`case, Gulf Oil v. Gilbert, 330 U.S. 501, 508-09 (1947), but
`courts are not burdened with “preconceived limitations derived
`from the forum non conveniens doctrine.” Norwood v.
`Kirkpatrick, 349 U.S. 29, 31 (1955) (quoting All States Freight
`v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952)) (internal
`quotation marks omitted); Esperson, 2010 WL 4362794, at *5. The
`United States Court of Appeals for the Sixth Circuit has stated
`that when deciding “a motion to transfer under § 1404(a), a
`district court should consider the private interests of the
`parties, including their convenience and the convenience of
`potential witnesses, as well as other public-interest concerns,
`such as systemic integrity and fairness, which come under the
`rubric of ‘interests of justice.’” Moore v. Rohm & Haas Co.,
`446 F.3d 643, 647 n.1 (6th Cir. 2006).
`Additionally, the “interest of justice” factor has been
`interpreted broadly by courts, influenced by the individualized
`circumstances of each case. The United States Court of Appeals
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`for the Federal Circuit has set forth a non-exhaustive list of
`pertinent public-interest factors:
`The public interest factors include (1) the
`administrative
`difficulties
`flowing
`from
`court
`congestion; (2) the local interest in having localized
`interests decided at home; (3) the familiarity of the
`forum with the law that will govern the case; and (4)
`the avoidance of unnecessary problems of conflicts of
`laws or in the application of foreign law.
`
`In re Acer Am. Corp., 626 F.3d 1252, 1254 (Fed. Cir. 2010); see
`also In Re Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir.
`2009) (finding the local-interest factor weighed heavily in
`favor of transfer); Cincinnati Ins. Co. v. O’Leary Paint Co.,
`676 F. Supp. 2d 623, 633 (W.D. Mich. 2009) (considering
`additional factors such as the relative docket congestion of the
`transferor and transferee districts).
`
`Initially, B.E. argues that there is a strong presumption
`in favor of its choice of forum, and its choice of forum should
`not be disturbed unless the defendant carries its burden to
`demonstrate that the balance of convenience strongly favors
`transfer. (ECF No. 34 at 5-6.) B.E.’s argument is erroneously
`derived from the more stringent forum-non-conveniens standard.
`Compare Hunter Fan Co. v. Minka Lighting, Inc., No. 06–2108
`M1/P, 2006 WL 1627746 (W.D. Tenn. June 12, 2006) (applying the
`appropriate private- and public-interest factors but relying on
`the forum-non-conveniens doctrine to accord strong deference to
`the plaintiff’s choice of forum), with OneStockDuq Holdings, LLC
`
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`v. Becton, Dickinson, & Co., No. 2:12–cv–03037–JPM–tmp, 2013 WL
`1136726, at *3 (W.D. Tenn. Mar. 18, 2013), and Roberts Metals,
`Inc. v. Florida Props. Mktg. Grp., Inc., 138 F.R.D. 89, 92-93
`(N.D. Ohio 1991) (recognizing defendants need to make a lesser
`showing to overcome plaintiff’s choice of forum under
`§ 1404(a)), aff’d per curiam, 22 F.3d 1104 (6th Cir. 1994).
`Although there is a strong presumption in favor of the
`plaintiff’s choice of forum under the doctrine of forum non
`conveniens, under § 1404(a), a plaintiff’s choice of forum may
`be considered, but is entitled to less deference. Discussing
`the difference between the common-law doctrine of forum non
`conveniens and the federal transfer-of-venue statute in Norwood,
`the Supreme Court stated,
`When Congress adopted § 1404(a), it intended to
`do more than just codify the existing law on forum non
`conveniens. . . . [W]e believe that Congress, by the
`term “for the convenience of parties and witnesses, in
`the interest of justice,” intended to permit courts to
`grant
`transfers
`upon
`a
`lesser
`showing
`of
`inconvenience. This is not to say that the relevant
`factors have changed or that the plaintiff’s choice of
`forum is not to be considered, but only that the
`discretion to be exercised is broader.
`
`Norwood, 349 U.S. at 32; see also Lemon v. Druffel, 253 F.2d
`680, 685 (6th Cir. 1958) (“The choice of the forum by the
`petitioner is no longer as dominant a factor as it was prior to
`the ruling in Norwood v. Kirkpatrick[.]”); Esperson, 2010 WL
`4362794, at *5-6.
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`Defendant’s burden under § 1404(a) is to demonstrate that a
`change of venue to the transferee district is warranted. See
`Eaton v. Meathe, No. 1:11-cv-178, 2011 WL 1898238, at *2 (W.D.
`Mich. May 18, 2011); Amphion, Inc. v. Buckeye Elec. Co., 285 F.
`Supp. 2d 943, 946 (E.D. Mich. 2003); Roberts Metals, Inc., 138
`F.R.D. at 93. “Merely shifting the inconvenience from one party
`to another does not meet Defendant’s burden.” McFadgon v. Fresh
`Mkt., Inc., No. 05-2151-D/V, 2005 WL 3879037, at *2 (W.D. Tenn.
`Oct. 21, 2005). “[T]he movant must show that the forum to which
`he desires to transfer the litigation is the more convenient one
`vis a vis the Plaintiff’s initial choice.” Roberts Metals,
`Inc., 138 F.R.D. at 93 (quoting Mead Corp. v. Oscar J. Boldt
`Constr. Co., 508 F. Supp. 193, 198 (S.D. Ohio 1981)) (internal
`quotation marks omitted). If the court determines that the
`“balance between the plaintiff’s choice of forum and defendant’s
`desired forum is even, the plaintiff’s choice of [forum] should
`prevail.” Stewart v. Am. Eagle Airlines, Inc., No. 3:10-00494,
`2010 WL 4537039, at *2 (M.D. Tenn. Nov. 3, 2010).
`III. ANALYSIS
`
`Samsung asserts that B.E. could have brought this action in
`the District of New Jersey. (See ECF No. 27-1 at 8.) B.E. does
`not dispute this assertion. (See ECF No. 34 at 4.) The Court
`agrees with the parties that B.E. could have brought this suit
`in the District of New Jersey as personal jurisdiction over
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`Samsung exists in that district. Therefore, the only issue
`remaining is whether the balance of the statutory factors — the
`convenience to the witnesses, the convenience to the parties,
`and the interest of justice — favors transfer to the District of
`New Jersey. The Court will address each statutory factor
`separately and balance these factors to determine whether
`transfer to the District of New Jersey pursuant to § 1404(a).
`The Court will then address whether, alternatively, transfer to
`the Northern District of California is appropriate.
`A. Convenience of the Witnesses
`When asserting that a transferee district is more
`convenient for witnesses, a party “must produce evidence
`regarding the precise details of the inconvenience” of the forum
`chosen by the plaintiff. Esperson, 2010 WL 4362794, at *8. To
`satisfy its burden, the movant must do “more than simply
`assert[] that another forum would be more appropriate for the
`witnesses; he must show that the witnesses will not attend or
`will be severely inconvenienced if the case proceeds in the
`forum district.” Id. (quoting Roberts Metals, Inc., 138 F.R.D.
`at 93). Further, “[t]o sustain a finding on [this factor] . . .
`the party asserting witness inconvenience has the burden to
`proffer, by affidavit or otherwise, sufficient details
`respecting the witnesses and their potential testimony to enable
`a court to assess the materiality of evidence and the degree of
`
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`inconvenience.” Eaton v. Meathe, No. 1:11-cv-178, 2011 WL
`1898238, at *3 (W.D. Mich. May 18, 2011) (quoting Rinks v.
`Hocking, 1:10-CV-1102, 2011 WL 691242, at *3 (W.D. Mich. Feb.
`16, 2011)) (internal quotation marks omitted). It is the
`“materiality and importance of the testimony of prospective
`witnesses, and not merely the number of witnesses,” that is
`crucial to this inquiry. Rinks, 2011 WL 691242, at *3.
`
`Samsung contends that witness convenience favors transfer
`to the District of New Jersey. (See ECF No. 27-1 at 10-11; ECF
`No. 37 at 9.) To support this contention, Samsung asserts that
`“[a]ll potential witnesses from SEA with relevant knowledge
`concerning the [accused products] work at SEA’s offices in
`Ridgefield Park, New Jersey, and reside nearby” (Decl. Of Daniel
`Schinasi, ECF No. 27-14, ¶ 7), and that “the majority of
`potential witnesses from STA . . . work at STA’s offices in
`Richardson, Texas, and reside nearby” but “travel to Samsung’s
`facilities in Ridgefield, New Jersey[,] in connection with the
`employment at STA” (Decl. of Justin Denison, ECF No. 27-13,
`¶¶ 8, 12). Samsung asserts that Justin Denison, Chief Strategy
`Officer at STA, located in Richardson, Texas, will be likely to
`testify at trial as he has knowledge of the marketing, sale, and
`relevant financial information related to the accused STA
`products. (Id. ¶¶ 1-2, 4, 8.) Samsung also asserts that the
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`following SEA employees located in Ridgefield Park, New Jersey,
`will be likely to testify at trial:
` Daniel Schinasi, Senior Manager in Product Planning/Home
`Entertainment Marketing, and approximately ten employees
`who “would have relevant knowledge concerning marketing,
`sales, and financial information on the accused Smart
`TV’s;”
` Travis Merrill, Director of Marketing for Galaxy
`products, and at least five employees who “would have
`. . . relevant knowledge concerning marketing, sales, and
`financial information on the accused non-cellular
`equipped tablets and media players;”
` James Kiczek, Director of Marketing for digital audio and
`video products, William Hadam, Senior Manager in Home
`Entertainment Marketing, and at least three employees who
`“would have . . . relevant knowledge concerning
`marketing, sales, and financial information on the
`accused Blu-ray Disc players and home theater systems;”
` Brian Nowlin, Senior Manager of Mobile Computing
`Marketing, and at least eight employees who “would have
`. . . relevant knowledge concerning marketing, sales, and
`financial information on the accused personal computers;”
`
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` Individuals in the Solutions Group who would “have
`relevant knowledge about the Third Party Software and
`relevant communications with or knowledge of the Third
`Parties;” and
` “Other employees with knowledge of the design and
`operation of the of the Accused SEA Products.”
`(Decl. Of Daniel Schinasi, ECF No. 27-14, ¶¶ 7(a)-(e).) Samsung
`further asserts that “it is likely to call as witnesses relevant
`[t]hird [p]arties who have developed the software and services
`that B.E. Technology alleges are used to infringe the ’290
`patent.” (ECF No. 27-1 at 12.)
`
`In response, B.E. argues that “transfer to [the District of
`New Jersey] would be equally inconvenient to B.E.’s witnesses,
`none of whom is located in the District of New Jersey.” (See
`ECF No. 34 at 9.) B.E. identifies Hoyle, the named-inventor of
`the patents-in-suit and founder and CEO of B.E., as its key
`witness who is located in the Western District of Tennessee.
`(Id. at 7-8.)
`
`Because the convenience of party and non-party witnesses is
`given different weight, the Court will analyze the potential
`witnesses separately. See Azarm v. $1.00 Stores Servs., Inc.,
`No. 3:08-1220, 2009 WL 1588668, at *4 (M.D. Tenn. June 5, 2009)
`(“[T]he convenience of potential non-party witnesses, who are
`not subject to the control of the parties, is a particularly
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`weighty consideration, because it is generally presumed that
`party witnesses will appear voluntarily in either jurisdiction,
`but non-party witnesses, with no vested stake in the litigation,
`may not.”).
`1. Party Witnesses
`
`
`
`Samsung asserts that “it would be far more convenient and
`much less costly for Samsung’s witnesses if these cases were
`litigated in the District of New Jersey.” (ECF No. 27-1 at 10.)
`Samsung contends that SEA employees likely to be called as
`witnesses are located in Ridgefield Park, New Jersey, which is a
`thirty minute drive from the federal courthouse, and that STA
`employees regularly travel to the New Jersey facility in
`connection with their employment. (Id. at 10-11.) Samsung
`contends that its identification of six named SEA employees, as
`well as their areas of knowledge, is “more than sufficient to
`‘enable the court to assess the materiality of evidence and the
`degree of inconvenience.’” (ECF No. 37 at 8 (quoting Rinks,
`2011 WL 691242, at *3).)
`
`Samsung, however, cannot satisfy its burden in
`demonstrating that the convenience of its employees favors
`transfer to the District of New Jersey. First, while Samsung
`argues that given the close proximity of its New Jersey facility
`to the federal courthouse makes the District of New Jersey a
`“far more convenient” forum for its employees (ECF No. 27-1 at
`
`
`
`15
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`
`11), Samsung does not address the fact that it would be less
`convenient for B.E.’s witnesses, which B.E. asserts do not
`reside in the District of New Jersey (ECF No. 34 at 9).
`Furthermore, STA’s employees are located in Texas, not New
`Jersey, and would have to travel to the designated forum whether
`it is the Western District of Tennessee or the District of New
`Jersey. Therefore, because § 1404(a) provides for transfer “to
`a more convenient forum, not to a forum likely to prove equally
`convenient or inconvenient,” the distance of travel for employee
`witnesses does not weigh in favor of transfer. Hunter Fan, 2006
`WL 1627746, at *2 (citing Van Dusen v. Barrack, 376 U.S. 612,
`645-46 (1964)).
`
`Second, Samsung does not provide any evidence showing that
`any STA or SEA employees will be unwilling to testify in this
`district if asked to do so or how such employees will be
`“severely inconvenienced” if the case proceeds in this district.
`See Esperson, 2010 WL 4362794, at *8. Moreover, courts have
`noted that “normally a corporation is able to make its employees
`available to testify when needed.” Clark v. Dollar Gen. Corp.,
`No. 3-00-0729, 2001 U.S. Dist. LEXIS 25975, at *9 (M.D. Tenn.
`Mar. 6, 2001); see also Zimmer Enters. V. Atlandia Imps., Inc.,
`478 F. Supp. 2d 983, 991 (S.D. Ohio Mar. 14, 2007) (finding that
`the convenience of witnesses who are employees “will not
`ordinarily be considered, or at least, that the convenience of
`
`
`
`16
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`
`such employees will not generally be given the same
`consideration as is given to other witnesses”). Accordingly, it
`appears that Samsung’s employees will be able to attend absent
`any evidence to the contrary.
`Third, Samsung has not carried its burden in demonstrating
`that the majority of the material witnesses in this case reside
`in the District of New Jersey. Although Samsung identifies six
`SEA employees by name, it does not address (1) what the
`testimony of such additional material witnesses will be; (2)
`whether such witnesses will be unable to attend; or (3) whether
`and to what extent such witnesses will be inconvenienced by
`testifying in this district. Additionally, Samsung provides
`even less information regarding which STA employees are likely
`to testify and as to what matters they will testify. These
`“bare allegations” that STA and SEA employees will have
`pertinent knowledge about the devices is insufficient to enable
`this court “to ascertain how much weight to give a claim of
`inconvenience.” Rinks, 2011 WL 691242, at *3. While B.E. did
`not specifically identify any witnesses beyond Hoyle, B.E. does
`not have the burden to do so. Despite B.E. not identifying any
`individuals beyond Hoyle, Samsungs’ identification of
`individuals as potential witnesses without any additional
`information regarding why their knowledge is relevant and what
`matters they are likely to testify about does not satisfy its
`
`
`
`17
`
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`
`burden on this factor. Additionally, a simple numerical
`advantage in potential witnesses is insufficient on the issues
`raised by a motion to transfer.
`2. Non-Party Witnesses
`While convenience to party witnesses is an important
`consideration, “it is the convenience of non-party witnesses,
`rather than employee witnesses . . . that is the more important
`factor and is accorded greater weight.” Steelcase Inc. v. Smart
`Techs., 336 F. Supp. 2d 714, 721 (W.D. Mich. Mar. 5, 2004)
`(citation omitted) (internal quotation marks omitted).
`Samsung states that “[m]any of the software and services
`identified by B.E. Technology as allegedly infringing were not
`developed by SEA or STA, but were instead developed by third
`parties.” (ECF No. 27-1 at 2-3.) Samsung further states that
`“it is likely to call as witnesses relevant [t]hird [p]arties
`who have developed the software and services that B.E.
`Technology alleges are used to infringe the ’290 patent.” (Id.
`at 12.) While these third parties are not located in the
`District of New Jersey, they are also not located in the Western
`District of Tennessee, which means that it will be equally
`difficult to compel their testimony. (Id. at 12.) Samsung
`asserts that the District of New Jersey would be more convenient
`for possible third-party witnesses as there are “many more
`options for non-stop travel to New Jersey than to Tennessee.”
`
`
`
`18
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`
`(Id. at 11 (citing Optimum Power Solutions LLC v. Apple, Inc.,
`794 F. Supp. 2d 696, 701 (E.D. Tex. 2011)).)
`B.E. argues that the convenience of third-party witnesses
`is not entitled to great weight in the instant case because
`Samsung has not established that the “third party witness
`testimony will be material or important.” (ECF No. 34 at 13.)
`Samsung has not met its burden. First, the fact that the
`compulsory process for unwilling third-party witnesses is
`unavailable in both the District of New Jersey and the Western
`District of Tennessee means that this factor is neutral.
`Additionally, Samsung has not disclosed the particulars of the
`testimony of the potential non-party witnesses, nor why
`depositions of non-party witnesses would be inadequate and live
`testimony from non-party witnesses required. To the extent the
`non-party witnesses’ testimony may be presented by deposition,
`witness inconvenience would not be an issue. Samsung’s general
`statements about relevant third-party witness testimony are not
`sufficient to allow the Court to determine whether live
`testimony of Samsung’s non-party witnesses is necessary.
`Further, Samsung does not state whether it is aware that any of
`the non-party witnesses would be unwilling to testify in the
`Western District of Tennessee if asked to do so. As a result,
`this factor does not weigh in favor of transfer.
`
`
`
`
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`
`B. Convenience of the Parties
`Samsung argues that “the District of New Jersey is a more
`
`convenient forum to litigate these actions that the Western
`District of Tennessee.” (ECF No. 27-1 at 1.) While Samsung
`organizes its arguments somewhat differently than the Court, the
`Court finds the considerations relevant to the convenience-of-
`the-parties factor are the location of the sources of proof and
`the parties’ financial hardships due to litigation in the chosen
`forum.
`1. Location of Sources of Proof
`
`
`
`Samsung states that “a large number of the potentially
`relevant documents and things related to the Accused Products —
`including samples of many of the Accused Products themselves —
`are located at SEA’s headquarters in the District of New
`Jersey.” (ECF No. 27-1 at 9.) Further, Samsung states that
`“[e]ven STA stores potentially relevant financial information on
`servers in New Jersey.” (Id.) Samsung argues that B.E., on the
`other hand, “does not appear to have any business operations in
`Tennessee other than asserting these patents and, therefore, is
`not likely to have a large number of documents relevant to these
`litigations.” (Id.)
`
`While B.E. does not contest that SEA stores its documents
`in New Jersey, and that STA stores potentially relevant
`financial documents on servers in New Jersey, it notes that its
`
`
`
`20
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`
`own sources of proof are located in Tennessee and have been
`maintained there for years. (ECF No. 34 at 12.) B.E. also
`contends that “the location of relevant documentary evidence is
`increasingly less important in deciding motions to transfer,”
`and that because documents can be exchanged electronically, the
`weight given this factor should be minimal. (Id. at 14-15.)
`
`As an initial matter, the Court disagrees with B.E.’s
`contention that advances in electronic document transfer reduce
`the importance of the location-of-sources-of-proof factor. This
`notion has been expressly rejected by the Federal Circuit. See,
`e.g., In re Link_A_Media Devices Corp., 662 F.3d 1221, 1224
`(Fed. Cir. 2011) (reversing a district court that did not
`consider the factor, stating, “While advances in technology may
`alter the weight given to these factors, it is improper to
`ignore them entirely”); In re Genentech, Inc., 566 F.3d 1338,
`1345-46 (Fed. Cir. 2009) (finding clear error where a district
`court “minimized the inconvenience of requiring the petitioners
`to transport their documents by noting that ‘[t]he notion that
`the physical location of some relevant documents should play a
`substantial role in the venue analysis is somewhat antiquated in
`the era of electronic storage and transmission’” (quoting
`Sanofi-Aentis Deutschland GmbH v. Genentech, Inc., 607 F. Supp.
`2d 769, 777 (E.D. Tex. 2009))).
`
`
`
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`
`The Court agrees that it is likely that the sheer volume of
`
`documents Samsung has in its possession outnumbers the patent-
`related documents in B.E.’s possession, but the Court disagrees
`that this is enough to tip the balance in favor of transfer.
`The Court finds that both parties maintain documents in their
`respective districts and that both sets of documents will be
`integral to the proceedings. Samsung’s reliance on In re
`Nintendo and L&P Property Management Co. v. JTMD, LLC, No. 06-
`13311, 2007 WL 295027 (E.D. Mich. Jan. 29, 2007), is misplaced.
`(See ECF No. 27-1 at 13.) In both of those cases the courts
`found there were no relevant documents in the transferor
`district, therefore transfer was appropriate. S
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