Case 2:12-cv-02825-JPM-tmp Document 41 Filed 02/21/13 Page 1 of 13 PageID 330
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`
`CIVIL ACTION NO.
`2:12-CV-02824-JPM-tmp
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`
`
`CIVIL ACTION NO.
`2:12-CV-02825-JPM-tmp
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`
`
`
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
`
`v.
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`SAMSUNG TELECOMMUNICATIONS
`AMERICA L.L.C.,
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`Defendants.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
`
`v.
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`SAMSUNG ELECTRONICS AMERICA,
`INC.,
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`Defendants.
`
`
`REPLY MEMORANDUM IN SUPPORT OF THE SAMSUNG DEFENDANTS’ MOTION
`TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)
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`Case 2:12-cv-02825-JPM-tmp Document 41 Filed 02/21/13 Page 2 of 13 PageID 331
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`I.
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`INTRODUCTION
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`Plaintiff B.E. Technology, L.L.C. (“B.E.”) does not dispute that the District of New
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`Jersey is the location of the vast majority of defendant Samsung Electronics America, Inc.’s
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`(“SEA’s”) relevant documents and witnesses; a location where SEA’s subsidiary, defendant
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`Samsung Telecommunications America L.L.C. (“STA”) (SEA and STA are referred to
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`collectively as “Samsung” or “Defendants”), maintains documents and a place of business; and
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`the more convenient location for non-party witnesses. B.E., therefore, cannot reasonably dispute
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`that the District of New Jersey is the most appropriate venue for this case.
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`Instead, B.E. relies almost exclusively on the personal residence of a single individual
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`(the inventor of the asserted patent and B.E.’s part-time CEO), the fact that it recently registered
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`to do business here in Tennessee, and the existence of a small number of documents in the
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`district, as purportedly showing that this case has strong ties to the district. But B.E. admits that
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`it registered to do business in Tennessee only because it decided to file lawsuits in the district,
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`and that it does not otherwise have offices or regularly conduct business operations in the State.
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`B.E. also admits that its CEO works out of his “home office,” which cannot constitute B.E.’s
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`“nerve center” despite its contentions to the contrary. Under these circumstances, it would be
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`unfair to subject Samsung, its witnesses, and numerous third party witnesses to the significant
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`inconvenience of litigating a case with de minimus ties to this District.
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`II.
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`ARGUMENT
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`A.
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`B.E.’s Choice of Forum Is Not Entitled to Deference
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`B.E. is incorrect that Samsung has the burden to show “that the balance of convenience
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`strongly favors transfer.” (D.E. 34 (“Opp.”) at 4.) 1 As the Supreme Court found in Norwood v.
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`1 All citations to the docket herein refer to the entries in Case No. 2:12-cv-2824, captioned B.E.
`Technology, L.L.C. v. Samsung Telecommunications America LLC. Identical documents are filed in Case
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`Kirkpatrick, 349 U.S. 29, 39-40 (1955), movants under Section 1404(a) cannot be held to the
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`higher “strongly in favor” standard applicable to the forum non conveniens doctrine. Rather, the
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`appropriate inquiry is whether the movant’s proposed forum is “more convenient vis a vis the
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`plaintiff’s initial choice.” See, e.g., Esperson v. Trugeen Ltd. P’ship, No. 2:10-cv-02130, 2010
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`WL 4362794, at *2-6 (W.D. Tenn. Oct. 5, 2010) (discussing the history of “strongly favors”
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`standard, rejecting it, and following Norwood); Riley v. Cochrane Furniture Co., No. 94-cv-
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`71016, No. 1994 U.S. Dist. LEXIS 12059, at *5 (E.D. Mich. July 7, 1994) (following Norwood).
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`Insofar as the plaintiff’s choice of forum may still be considered in assessing the convenience of
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`transfer, it is neither paramount nor determinative. See, e.g., Union Planters Bank N.A. v. EMC
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`Mort. Corp., 67 F. Supp. 2d 915, 921 (W.D. Tenn. 1999) (“the Sixth Circuit has affirmed that,
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`when balancing the interests of a plaintiff’s choice of forum against convenience, the plaintiff’s
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`choice is only one factor to be considered and is not to be determinative”). Indeed, a plaintiff’s
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`choice of forum is routinely rejected where, as here, the plaintiff relocated to the forum shortly
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`before initiating suit so as to create a false impression of strong ties to its chosen forum. See,
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`e.g., In re Zimmer Holdings, Inc., 609 F.3d 1378, 1381 (Fed. Cir. 2010) (holding that where a
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`plaintiff’s presence is “recent, ephemeral, and an artifact of litigation,” the plaintiff’s presence
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`should not be given weight in the transfer analysis).
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`B.E.’s claim that its choice of venue is entitled to deference simply because it is the
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`plaintiff in this litigation is without basis. As this Court explained in Hunter Fan Co. v. Minka
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`Lighting, Inc., No. 06-2108, 2006 WL 1627746 (W.D. Tenn. June 12, 2006), “Plaintiff’s choice
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`of forum is not entitled to the ordinary degree of deference [where] Plaintiff maintains little
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`No. 2:12-cv-2825, captioned B.E. Technology, L.L.C. v. Samsung Electronics America, Inc., with a
`docket number four entries later than that in Case No. 2:13-cv-2824. Thus, the Hoyle Declaration
`referenced here is at D.E. 34-1 in Case No. 2:12-cv-2824 and D.E. 38-1 in 2:12-cv-2825.
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`connection to [its] chosen forum.” 2006 WL 1627746, at *3 (citing Tuna Processors, Inc. v.
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`Hawaii Int’l Seafood, Inc., 408 F. Supp. 2d 358, 362 (E.D. Mich. 2005)).
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`In Hunter Fan, the plaintiff had its “design, engineering, and manufacturing facilities” in
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`Memphis, and the invention was “conceived of, produced, and marketed” in Memphis. Id. at *2.
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`The court expressly distinguished its holding from that in Tuna Processors, where the transfer
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`was granted and no deference was accorded to plaintiff because plaintiff had “little connection”
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`to the chosen forum. Id. at *1, 4; see also Civix-DDI, LLC v. Loopnet, Inc., No. 2:12cv2, 2012
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`WL 3776688, at *3 (E.D. Va. Aug. 30, 2012) (NPE’s choice of forum “will not be given great
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`weight” where it has “no manufacturing facilities, operations, offices, or employees that are
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`located in this district besides its principal … who owns a home in Alexandria”). Thus, B.E.’s
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`cited precedent supports the requested transfer.
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`More specifically, B.E. has failed to show meaningful or longstanding ties to this district
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`or otherwise establish that its chosen forum is entitled to deference. Rather, B.E.’s opposition
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`focuses on the residential history of Mr. Hoyle, a single employee. But Mr. Hoyle is not the
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`plaintiff; B.E. is the plaintiff. B.E. does not claim to itself have any independent facilities in
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`Tennessee. In fact, B.E. admits that it first applied to conduct business in the State in September
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`2012, shortly before initiating suit. (Opp. at 6.) Thus B.E.’s ties to the forum are de minimus at
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`best.
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`B.E.’s attempt to explain away this shortcoming should be rejected. More specifically,
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`B.E. represents that Mr. Hoyle’s “[home] office” serves as its “nerve center” in Cordova and that
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`“Mr. Hoyle has controlled and directed B.E. business activities [from Cordova] since at least
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`2008.” (Opp. at 6.) However, these representations are inconsistent with B.E.’s previous, non-
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`litigation-driven representations, including the application submitted by B.E. to conduct business
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`in Tennessee. For example, Tennessee requires a Certificate of Authority to conduct business in
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`the State in which the applicant must provide the date on which it “commenced doing business in
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`Tennessee [if] prior to the approval of this application.” (MacLean Reply Decl. Ex. 1.)2 Yet,
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`B.E. did not state 2008 as it now claims; rather B.E.’s response was “N/A”:
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`(Id.) Moreover, B.E. held itself out to be a Michigan-based corporation with a Michigan-based
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`managing member in public filings with the Michigan Secretary of State as recently as February
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`10, 2013, after filing its opposition to the Motion. (Id. Ex. 2.) Thus, B.E. either submitted
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`incorrect statements to Tennessee and Michigan authorities, or mischaracterized the strength of
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`its ties to Tennessee in opposing the instant motion.
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`B.E.’s representations regarding Mr. Hoyle’s purported residency in Tennessee are
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`similarly problematic. According to documentation filed with the U.S. Patent & Trademark
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`Office, Mr. Hoyle maintained his residency in Louisiana for purposes of his B.E.-related
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`business long after he allegedly moved to Tennessee. (Id. Ex. 3.) Mr. Hoyle does not appear to
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`dispute this fact. (D.E. 34-1 (“Hoyle Decl.”) ¶ 4.)
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`Given the above, Samsung respectfully submits that B.E.’s presence in Tennessee is
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`“recent, ephemeral, and an artifact of litigation” and, thus, is entitled to no deference. In re
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`Zimmer Holdings, 609 F.3d at 1381.
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`2 All citations to “MacLean Reply Decl.” refer to the concurrently-submitted Declaration of Justin A.
`MacLean in Support of Samsung’s Reply Memorandum Supporting Its Motion to Transfer Venue and
`exhibits thereto.
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`B.
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`The Private Interest Factors Favor Transfer to the District of New Jersey
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`1. The Location of Relevant Documents and Things Strongly Favors
`Transfer
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`B.E. does not dispute that the majority of discovery in this case will be produced by the
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`Samsung defendants, and that the majority of SEA’s relevant documents, and many STA
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`documents, are maintained in the District of New Jersey. (D.E. 27-1 “MOL” at 9.) Instead, B.E.
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`attempts to frame the issue as one of equal inconvenience, namely, that Samsung has documents
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`in New Jersey and B.E. has documents in Tennessee. (Opp. at 14; Hoyle Decl. ¶ 7.) In so
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`framing the issue, B.E. ignores the fact that the relative inconveniences potentially faced by each
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`party are overwhelmingly disproportional and favor transfer. See In re Genentech, Inc., 566 F.3d
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`1338, 1345 (Fed. Cir. 2009) (“In patent infringement cases, the bulk of the relevant evidence
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`usually comes from the accused infringer. Consequently, the place where the defendant’s
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`documents are kept weighs in favor of transfer to that location.”)
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`More specifically, B.E. contends that documents relating to the conception and reduction
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`to practice of the alleged invention are located in Tennessee. However, B.E. purports to have
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`produced those same documents on January 7, 2013—and its production totaled 222 documents.3
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`(See MacLean Reply Decl. ¶ 5 and Ex. 4.) The limited size of this production belies B.E.’s claim
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`of inconvenience, considering that a significantly greater number of documents and things are
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`located at Samsung’s offices in New Jersey. See In re Acer Am. Corp., 626 F.3d 1252, 1256
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`(Fed. Cir. 2010) (finding that “it is unreasonable to suggest that [plaintiff’s] evidence alone could
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`outweigh the convenience of having the evidence from multiple defendants located within the
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`transferee venue of trial”).
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`3 Patent Local Rule 3.2 requires the production of “all” such documents.
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`In addition, B.E. has accused of infringement several software applications developed by
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`third parties located outside Tennessee (see D.E. 27-2 (“MacLean Decl.”) ¶ 4), which supports a
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`transfer. For example, documents relevant to the design and operation accused software
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`applications from Hulu and Netflix are likely located in the Northern District of California. Both
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`Samsung and B.E. will require access to these non-parties’ documents during the course of this
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`case, access to which will be more convenient if this case is transferred.4
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`Finally, B.E. contends that the location of documents “is increasingly less important in
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`deciding motions to transfer” because of the electronic nature of modern document production.
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`(Opp. at 14.) However, this argument has been expressly rejected by the Federal Circuit.
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`Specifically, the Federal Circuit has rejected the notion that the location of documents in the era
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`of electronic storage and transmission should not play a substantial role in the venue analysis,
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`noting that this “would render this factor superfluous.” In re Genentech, Inc., 566 F.3d at 1346
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`(citing In re Volkswagen of Am., Inc., 545 F.3d 304, 316 (Fed. Cir. 2008) (en banc)). Indeed, In
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`re Link_A_Media Devices Corp., a case cited by B.E., makes clear that “it is improper to ignore
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`[this factor] entirely,” and that a district court’s refusal to consider the location of sources of
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`proof on the ground that the issue was “outdated, irrelevant, and should be given little weight”
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`amounts to a clear abuse of discretion. 662 F.3d 1221, 1224 (Fed. Cir. 2011).
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`2. The Vast Majority of Party Witnesses Are Located in the District of New
`Jersey
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`B.E. does not dispute that all or substantially all of SEA’s relevant witnesses are located
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`in the District of New Jersey. Instead, B.E. faults Samsung for not specifically naming its
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`witnesses and providing the topics of their testimony. (Opp. at 8.) However, B.E. has not cited
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`4 While Samsung prefers transfer to New Jersey which is a more convenient forum for both
`Samsung and the third party witnesses, it has alternatively requested transfer to the Northern
`District of California where other accused infringers are based.
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`any cases requiring witnesses to be identified by name, let alone “name, position, title, location,
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`the subject matter on which they will testify, or the burdens they would endure by traveling to
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`Tennessee to testify.” (Id. at 11.) Nonetheless, Samsung has identified six employees, by name,
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`who have primary responsibility for the various accused products, and has identified other
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`employees by group who either report to or communicate with them regularly. (D.E. 27-14
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`(“Schinasi Decl.”) ¶¶ 1, 7; D.E. 27-13 (“Denison Decl.”) ¶ 1.)5 Samsung has also identified the
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`areas of their knowledge and testimony (Schinasi Decl. ¶ 7; Denison Decl. ¶¶ 5, 8.) Moreover,
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`Samsung identified specific inconveniences that would be suffered by these witnesses should
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`they be required to testify in Tennessee. (Schinasi Decl. ¶ 12.) These descriptions are more than
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`sufficient to “enable the court to assess the materiality of evidence and the degree of
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`inconvenience.” Rinks v. Hocking, No. 1:10-cv-1102, 2011 WL 691242, at *3 (W.D. Mich. Feb
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`16, 2011) (internal citation omitted); see also Nilssen v. Everbrite, Inc., No. Civ.A. 00-189-JJF,
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`2001 WL 34368396, at *2-3 (D. Del. Feb. 16, 2001) (identification of witnesses not by name but
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`as “employees” or “former employees of Defendant,” with “knowledge of the allegedly
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`infringing designs,” “especially when fact discovery has yet to take place, is sufficient for
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`purposes of venue transfer analysis”).
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`B.E. also accuses Samsung of “obscuring the fact” that STA’s witnesses are located in
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`and around Richardson, Texas. (Opp. at 9-10.) To the contrary, STA’s Chief Strategy Officer
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`submitted a declaration informing the Court and B.E. of this fact. (Denison Decl. ¶ 8.) B.E. also
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`argues, without support, that transfer to New Jersey would be “expensive and inconvenient” for
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`STA’s witnesses (Opp. at 10), but neglects to address the circumstances mitigating any such
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`5 B.E.’s infringement contentions are deficient in that the 10,000-plus pages of claim charts supplied
`therewith only reference generic advertisements and screenshots without identifying where each specific
`limitation is present. (E.g., MacLean Reply Decl. Ex. 5.) Thus, Samsung cannot further identify any
`particular individuals with more detailed knowledge about any specific features of its products without
`additional explanation by B.E. sufficient to satisfy its obligations under Patent Local Rule 3.1(c).
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`alleged inconvenience, such as the location of STA facilities and documents stored in New
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`Jersey and the frequency with which STA employees travel to New Jersey in the ordinary course
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`of business. (Denison Decl. ¶¶ 9, 12.) Nor does B.E. challenge the existence of these mitigating
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`factors, or otherwise argue that such mitigating factors would exist if the litigation were to
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`remain in Tennessee (they would not). In any case, it is not necessary that New Jersey be more
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`convenient for all witnesses; rather, this factor weighs in favor of transfer if “a substantial
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`number of material witnesses reside within the transferee venue[,]” In re Genentech, Inc., 566
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`F.3d at 1345 (emphasis added), which is the case here.
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`3. The District of New Jersey Is Significantly More Convenient for Non-
`Party Witnesses
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`B.E.’s only argument in response to Samsung’s evidence on the third party convenience
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`issue is that Samsung “fail[s] to establish that the potential third party witness testimony will be
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`material or important.” (Id.) However, in its infringement contentions, B.E. specifically accused
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`Samsung products of infringement based, at least in part, on their use of third party software
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`(MacLean Decl. Exs. 1-2), making the testimony of witnesses having knowledge about such
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`software both material and important. See, e.g., Koh v. Microtek Int’l, Inc., 250 F. Supp. 2d 627,
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`636-37 (E.D. Va. 2003) (“it is permissible to infer, absent any contrary evidence from the non-
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`movant, that witnesses are located at or near the center of the allegedly infringing activities and
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`that witnesses involved in the design and manufacture of the accused products are material.”).
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`For these reasons, this factor favors transfer to the District of New Jersey, or at least Samsung’s
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`alternative venue, the Northern District of California.6
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`6 B.E. also argues that the unavailability of compulsory process in both Tennessee and New Jersey weighs
`against transfer, but has cited no law for this proposition. In contrast, Samsung has cited law establishing
`the neutrality of this factor in such a situation. (See MOL at 11-12.) In any case, compulsory process
`could be made available by granting Samsung’s alternative request to transfer these cases to the Northern
`District of California. (Id. at 16.)
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`4. Convenience of the Parties Favors Transfer
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`B.E. contends that the convenience of the parties weighs against transfer because B.E.
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`allegedly resides in this District, and because it is “reasonable” to require large and wealthy
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`companies to litigate in jurisdictions in which they regularly conduct business. (Opp. at 8-9.)
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`Contrary to B.E.’s contention and as discussed above, the Western District of Tennessee is not
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`B.E.’s home forum. See infra, §II.A; cf. Hunter Fan, 2006 WL 1627746, at *2. Furthermore, the
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`relevant inquiry in a transfer analysis is convenience, not whether it is reasonable for a company
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`to expect to litigate in a jurisdiction in which it conducts business. Any financial success of SEA
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`or STA does not render this district more convenient than, or even equally convenient to, the
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`District of New Jersey. Precision Franchising, LLC v. Coombs, No. 1:06-cv-1148, 2006 WL
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`3840334, at *5 (E.D. Va. Dec. 27 2006) (“Richmond is an inconvenient location for Plaintiff to
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`pursue their suit, and the assertion that ‘forum should not matter to the Plaintiff’ because it is a
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`successful and wealthy corporation lacks merit or legal basis”).
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` Indeed, if B.E.’s
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`characterization of this factor were correct, successful companies such as Samsung would never
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`prevail in transferring cases to their home districts. That is not the law. See, e.g., Shared
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`Memory Graphics v. Apple, Inc., No. 5:09CV5128 BSM, 2010 WL 5151612 (W.D. Ark. May
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`27, 2010) (granting Apple and co-defendants SEA and STA’s motion to transfer).
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`C.
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`The Public Interest Factors Favor Transfer to the District of New Jersey
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`B.E. also does not seriously dispute that the relevant public interest factors favor transfer
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`to the District of New Jersey. For example, B.E. contends that the Western District of Tennessee
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`has a substantial interest in this dispute because it involves the invention of a resident, Mr.
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`Hoyle. (Opp. at 15.) It is indisputable, however, that the alleged invention was conceived and
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`reduced to practice in Louisiana, not Tennessee, and assigned to a company in Michigan with no
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`presence in Tennessee (until at the earliest the day before this lawsuit was filed). By contrast,
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`SEA is and has always been headquartered in the District of New Jersey, and STA has always
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`been a subsidiary of SEA. (Schinasi Decl. ¶ 2; Denison Decl. ¶ 2.) New Jersey is the center of
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`gravity of the accused infringing activity, and New Jersey has a strong local interest in
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`adjudicating B.E.’s allegations against its citizens. See In re Hoffman-La Roche, Inc., 587 F.3d
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`1333, 1336 (Fed. Cir. 2009).
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`B.E. also opposes transfer because, according to B.E., cases take longer to proceed to trial
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`in New Jersey. (Opp. at 14-15.) However, B.E. ignores that the median time to final disposition
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`of a case in the Western District of Tennessee is longer than in the District of New Jersey.
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`(MacLean Decl. Ex. 9.) As such, relative docket congestion is either neutral or weighs in favor
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`of transfer. See, e.g., United States ex rel. Kairos Scientia, Inc. v. Zinsser Co., No. 5:10-CV-383,
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`2011 WL 127852, at *7 (N.D. Ohio Jan. 14, 2011) (finding that where the median time to trial
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`was shorter, but the average docket of pending cases per judge and the average life span of a case
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`was longer in the transferring district, the “facts favor neither transfer nor retention”).
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`III. CONCLUSION
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`For the foregoing reasons, Samsung respectfully requests that the Court grant its motion
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`to transfer to the District of New Jersey, or in the alternative, to the Northern District of
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`California.
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`-11-
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`Case 2:12-cv-02825-JPM-tmp Document 41 Filed 02/21/13 Page 12 of 13 PageID 341
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`DATE:
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`February 21, 2013
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`
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`Respectfully submitted,
`
`/s/ Jonathan E. Nelson
`Shepherd D. Tate (TN BPR #05638)
`Jonathan E. Nelson (TN BPR #028029)
`BASS, BERRY & SIMS, PLC
`100 Peabody Place, Suite 900
`Memphis, Tennessee 38103
`Telephone: (901) 543-5900
`Facsimile:
`(901) 543-5999
`Email:
`state@bassberry.com
`
`jenelson@bassberry.com
`
`Richard C. Pettus (admitted pro hac vice)
`Joshua L. Raskin (admitted pro hac vice)
`Justin A. MacLean (admitted pro hac vice)
`GREENBERG TRAURIG, LLP
`200 Park Avenue
`New York, NY 10166
`Telephone:
`(212) 801-9200
`Facsimile:
`(212) 801-6400
`pettusr@gtlaw.com
`Email:
`
`
`raskinj@gtlaw.com
`
`
`macleanj@gtlaw.com
`
`Attorneys for Defendants, Samsung Electronics
`America, Inc. and Samsung Telecommunications
`America, LLC
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`-12-
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`CERTIFICATE OF SERVICE
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`The foregoing document was filed under the Court’s CM/ECF system, automatically
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`effecting service on counsel of record for all other parties who have appeared in this action on
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` /s/ Jonathan Nelson
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`
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`the date of such service.
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`
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`11627718.1
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`-13-