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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`v_
`
`MICROSOFT CORPORATION,
`
`Defendant.
`
`Q/%%%%%%%%%
`
`Civil Action No. 2:12-cv-2829 JPM
`
`REPLY IN SUPPORT OF DEFENDANT MICROSOFT CORPORATION’S MOTION
`
`TO TRANSFER VENUE TO THE WESTERN DISTRICT OF WASHINGTON, OR IN
`THE ALTERNATIVE, TO THE NORTHERN DISTRICT OF CALIFORNIA
`
`Bradley E. Trammell (TN #13980)
`Adam Baldridge (TN #023488)
`Baker, Donelson, Bearman, Caldwell &
`Berkowitz, P.C.
`165 Madison Avenue, Suite 2000
`Memphis, TN 38103
`Telephone: 901.577.2121
`Email: btramme11@bakerdonelson.com
`Email: abaldridge@bakerdonelson.com
`
`Kelly C. Hunsaker (Pro Hac Vice)
`Leeron G. Kalay (Pro Hac Vice)
`FISH & RICHARDSON P.C.
`
`500 Arguello Street, Suite 500
`Redwood City, CA 94063
`Telephone: (650) 839-5070
`Email: hunsaker@fr.com
`Email: ka1ay@fr.com
`
`Attorneysfor Defendant
`MICROSOFT CORPORA TION
`
`

`
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`TABLE OF CONTENTS
`
`Page(s)
`
`1.
`
`II.
`
`INTRODUCTION ............................................................................................................ .. 1
`
`B.E.’S CHOICE OF FORUM IS NOT ENTITLED TO DEFERENCE .......................... .. 2
`
`III.
`
`THE PRIVATE INTEREST FACTORS FAVOR TRANSFER ...................................... .. 3
`
`A. The Relative Ease of Access to Sources of Proof Favors Transfer ........................... .. 3
`
`B. The Convenience to Most of the Likely Witnesses Favors Transfer ........................ .. 4
`
`1. Availability of Compulsory Process for Non-Party Witnesses in the
`Respective Transferee Districts Favors Transfer ............................................ .. 6
`
`C. The Convenience of the Parties Favors Transfer ...................................................... .. 7
`
`IV.
`
`THE PUBLIC INTEREST FACTORS FAVOR TRANSFER......................................... .. 8
`
`A. Artificial Conveniences Created by B.E.’s Decision to File Suit Against Multiple
`Defendants Do not Weigh Against Transfer ............................................................. .. 8
`
`B. The Western District of Tennessee Has Little or No Localized Interest in Deciding
`This Case ................................................................................................................... .. 9
`
`C. Transfer to the Western District of Washington or Northern District of California
`Would Not Delay Disposition of This Matter ........................................................... .. 9
`
`V.
`
`CONCLUSION ............................................................................................................... .. 10
`
`

`
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`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`Droplets, Inc. v. Amazon.com, Inc.,
`No. 2:11-CV-392, 2012 WL 3578605 (E.D. Tex. June 27, 2012)........................................... ..7
`
`Fusion-I0, Inc.,
`No. 12-139, 2012 WL 6634939, *1 (Fed. Cir. Dec. 21, 2012) ............................................... ..6
`
`Geotag, Inc. v. Aromatique, Inc., et al,
`Case No. 2:10-cv-570 (E.D. Tex. Jan. 14, 2013) ................................................................. ..8, 9
`
`Hunter Fan Co. v. Minka Lighting, Inc.,
`No. 06-2108 M1/P, 2006 WL 1627746 (W.D. Tenn. June 12, 2006) ..................................... ..2
`
`In re EMC Corp.,
`677 F.3d 1351 (Fed. Cir. 2012)............................................................................................ ..6, 8
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)............................................................................................ ..4, 6
`
`In re Hoflmann-La Roche Inc. ,
`587 F.3d 1333 (Fed. Cir. 2009)................................................................................................ ..9
`
`In re Link_A_Media Devices, Corp.
`662 F. 3d 1221, 1224 (Fed. Cir. 2011) ..................................................................................... ..4
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2011)x.............................................................................................. ..7
`
`In re Nintendo Co., Ltd.,
`589 F.3d 1194 (Fed. Cir. 2009) ............................................................................................ ..3, 4
`
`In re Volkswagen ofAm., Inc.,
`545 F.3d 304 (Fed. Cir. 2008) (en banc).............................................................................. ..4, 6
`
`Koh v. Microtek Int ’l, Inc. ,
`250 F. Supp. 2d 627 (E.D. Va. 2003) ...................................................................................... ..5
`
`Returns Distribution Specialists, LLC v. Playtex Products, Inc.,
`No. 02-1195-T, 2003 WL 21244142 (W.D. Tenn. May 28, 2003) ......................................... ..3
`
`Rinks v. Hocking,
`1:10-CV-1102, 2011 WL 691242 (W.D. Mich. Feb. 16, 2011) .............................................. ..5
`
`

`
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`Robocast, Inc. v. Apple, Inc.,
`No. Civ. A. 11-235-RGA, 2012 WL 628010 (D. Del. Feb. 24, 2012) .................................... ..7
`
`US. Ethernet Innovations, LLC v. Acer, Inc.,
`No. 6:09-CV-448-JDL, 2010 WL 2771842 (E.D. Tex. July 13, 2010) ................................... ..7
`
`STATUTES
`
`28 U.S.C. § 1404(a) ....................................................................................................................... ..1
`
`35 U.S.C. § 299 .............................................................................................................................. ..9
`
`iii
`
`

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`I.
`
`INTRODUCTION
`
`The core of B.E. Technology LLC’s opposition to transfer is based upon an assertion that
`
`“the Western District of Tennessee is, and has long been, the physical location and home of B.E.
`
`Technology LLC (hereinafter “B.E.”) and its Chief Executive Officer.”l But as detailed herein,
`
`this argument is inconsistent with B.E.’s own pre-suit representations to state and federal
`
`agencies. First, the company’s claim of a longstanding Tennessee presence is belied by
`
`representations that B.E. made in its September 2012 application to conduct business in the state.
`
`Second, B.E. wholly fails to explain a December 2011 Patent and Trademark Office application
`
`that lists Mr. Hoyle as a resident of New Orleans Louisiana, and provides a Michigan contact
`
`address for B.E.
`
`Even if B.E.’s chronology of purported ties to this District is correct, the balance of
`
`private and public interests weigh in favor of transfer to the Western District of Washington, or
`
`alternatively, to the Northern District of California in accordance with 28 U.S.C. §l404(a). B.E.
`
`does not seriously dispute that the Western District of Washington and the Northern District of
`
`California (i) are districts in which Microsoft maintains a significant presence;2 (ii) are the
`
`location of the vast majority of relevant documents, including the design and development of the
`
`“accused products;” (iii) are the more convenient forums for most, if not all, of the relevant
`
`engineers who designed and developed the “accused products”; (iv) are the location of
`
`companies that are likely sources of prior art — including Intel, NetGravity, and PointCast; and
`
`(v) include the headquarters of most of the defendants in the related actions.
`
`' Plaintiff’ s Memorandum in Opposition to Defendant’s Motion to Transfer Venue Pursuant to
`28 U.S.C. § l404(a) (hereinafter “B.E. Opp.”) at 1.
`
`2 B.E. mistakenly states that Microsoft’s headquarters are located in the Northern District of
`California. Microsoft’s corporate headquarters are located in Redmond, Washington.
`
`1
`
`

`
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`The locus of operative fact in this case is in the Western District of Washington, or
`
`alternatively the Northern District of California. Accordingly, Microsoft respectfully requests
`
`that the Court grant Microsoft Corporation’s Motion to Transfer Venue to the Western District of
`
`Washington, or Alternatively to the Northern District of California.
`
`II.
`
`B.E.’S CHOICE OF FORUM IS NOT ENTITLED TO DEFERENCE
`
`“Plaintiff” s choice of forum is not entitled to the ordinary degree of deference [where]
`
`plaintiff maintains little connection to [its chosen forum].” Hunter Fan Co. v. Minka Lighting,
`
`Inc., No. 06-2108 M1/P, 2006 WL 1627746, at *3 (W.D. Tenn. June 12, 2006). While much of
`
`B.E.’s brief in opposition focuses on the residential history of Mr. Hoyle, he is not the plaintiff
`
`The only connection that the named plaintiff — B.E. — has to this District is recent and tenuous.
`
`B.E. does not claim to have any employees (besides its CEO Mr. Hoyle), customers, or
`
`independent facilities in the Western District of Tennessee. B.E. admits that it first applied to
`
`conduct business in the State of Tennessee in September 2012.
`
`B.E., however, repeatedly argues that the company has been located in this District since
`
`at least 2008.3 B.E.’s argument is squarely contradicted by the application submitted by B.E. to
`
`conduct business in this District. The Certificate of Authority to conduct business in the State of
`
`Tennessee requires that B.E. provide the date on which it “commenced doing business in
`
`Tennessee [it] prior to the approval of this application.” [Kalay Declaration In Support of
`
`Microsoft’s Motion to Transfer, ECF No. 32 (hereinafter “Kalay Decl.”), Ex. J.]
`
`3 See, e.g., B.E. Opp. at 1 (“Mr. Hoyle has directed B.E.’s business fiom this District since at
`least 2008.”); at 5 (“Mr. Hoyle has been physically present in this District since 2006, and B.E.
`since at least 2008.”); at 6 (“It is and has been the place from which Mr. Hoyle has controlled
`and directed B.E. business activities since at least 2008.”); at 7 (“Mr. Hoyle is B.E.’s current
`CEO, has been since 2008, and operates B.E. from this District.”).
`
`

`
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`B.E. did not provide the 2008 date that it now claims; rather B.E.’s response was “N/A”:
`
`7.
`
`it the limited liability company commenced do!
`commencement (month. day and year)
`Q
`48-249-913(d).
`
`ustness in Tennessee prior to the approval of this application. the date of
`. NOTE: Additional flung fees may apply. see section
`
`Id. B.E. attempts to explain away why it failed to register with the State of Tennessee prior to
`
`2012, but it cannot justify these contradictory representations. (See Hoyle Decl., 118.)
`
`B.E. similarly fails to address the contradictory documents regarding the residency of Mr.
`
`Hoyle. Mr. Hoyle appears to have maintained residency in Louisiana for the purpose of his B.E.
`
`business, as indicated in a patent application data sheet filed on December 16, 2011, long after
`
`his initial presence in Tennessee. (Kalay Decl., Ex. L, Application Data Sheet, Dec. 16, 2011.)
`
`Hoyle does not appear to dispute this residency. (Hoyle Decl. 1l 4.) As noted above, Mr. Hoyle’s
`
`residential history as a witness is a separate matter than “plaintiffs choice of forum.” To the
`
`extent that Mr. Hoyle’s residence as an individual bears upon B.E. ’s location, it appears that he
`
`presented himself as a New Orleans resident until recently.
`
`Accordingly, the plaintiff in this action is not entitled to any deference in its choice of
`
`forum. See, e.g., In re Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir. 2009) (“[I]n a case
`
`featuring most witnesses and evidence closer to the transferee venue with few or no convenience
`
`factors favoring the venue chosen by the plaintiff, the trial court should grant a motion to
`
`transfer”); Returns Distribution Specialists, LLC v. Playtex Products, Inc., No. 02-1195-T, 2003
`
`WL 21244142, at *9 (W.D. Tenn. May 28, 2003) (ordering transfer where “the overwhelming
`
`inconvenience to the witnesses outweighs the Plaintiff’ s interest in choosing their own forum”).
`
`III.
`
`THE PRIVATE INTEREST FACTORS FAVOR TRANSFER
`
`A.
`
`The Relative Ease of Access to Sources of Proof Favors Transfer
`
`B.E. does not dispute that most of the documents and operative events in this matter have
`
`no connection to the chosen forum, but are instead located primarily in the Western District of
`
`

`
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`Washington or the Northern District of California. See In re Genentech, Inc., 566 F.3d 1338,
`
`1345 (Fed. Cir. 2009); In re Nintendo, 589 F.3d at 1198. B.E. notes that “the majority of B.E.’s
`
`documents” are located in Tennessee, but B.E. provides no description as to the volume of such
`
`documents or identify where the company’s other documents reside. See B.E. Opp. at 14.4
`
`Instead, B.E. argues that the location of documents “is increasingly less important in
`
`deciding motions to transfer” because of the electronic nature of modern document production.
`
`Ia’. This argument has been expressly rejected by the Federal Circuit. The Federal Circuit has
`
`held that the electronic storage and transmission of documents should not play a substantial role
`
`in the venue analysis, noting that if it did, it “would render this factor superfluous.” In re
`
`Genentech, Inc., 566 F.3d at 1346 (citing In re Volkswagen ofAm., Inc., 545 F.3d 304, 316 (Fed.
`
`Cir. 2008) (en banc) (“That access to some sources of proof presents a lesser inconvenience now
`
`than it might have absent recent developments does not render this factor superfluous.”)).
`
`Indeed, a case that B.E. relies upon for this proposition, In re Link_A_Media Devices
`
`Corporation, makes clear that failure to consider the location of sources of proof on the ground
`
`that the issue was “outdated, irrelevant, and should be given little weight” amounts to a clear
`
`abuse of discretion. 662 F. 3d 1221, 1224 (Fed. Cir. 2011).
`
`B.
`
`The Convenience to Most of the Likely Witnesses Favors Transfer
`
`In support of its transfer request, Microsoft provided a declaration that explained that
`
`most, if not all, of the core Microsoft employees who designed and developed the accused
`
`products are based in either the Western District of Washington, or the Northern District of
`
`California. See Declaration of Tom Bailey in Support of Microsoft’s Motion to Transfer
`
`(“Bailey Decl.”) 114. Microsoft’s transfer motion specifically addressed the accused products and
`
`4 Mr. Hoyle acknowledges that the company’s accountant resides in Michigan, not this District.
`Hoyle Decl., 115.
`
`

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`the inconvenience imposed upon Microsoft’s likely witnesses relating to questions of non-
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`infringement and invalidity. See ECF No. 30-1 at 10.
`
`B.E., however, demands an unreasonably high level of specificity, arguing that a motion
`
`to transfer venue must contain specific names, titles and locations of witnesses and the content of
`
`their testimony. B.E. Opp. at 9 (citing Koh v. Microtek Int ’I, Inc., 250 F. Supp. 2d 627, 636
`
`(E.D. Va. 2003)). B.E.’s memorandum in opposition fails to note that the District Court in Koh
`
`granted transfer, and omits the following instructive portion of Koh:
`
`[T]here is a tension in transfer motions between the duty to file such motions
`early in the action and the need to support that motion with affidavits identifying
`witnesses and the materiality of their testimony, information which may not be
`known until later in the case. Furthennore, it is permissible to infer, absent any
`contrary evidence from the non-movant, that witnesses are located at or near the
`center of the allegedly infringing activities and that witnesses involved in the
`design and manufacture of the accused products are materials
`
`Koh, 250 F. Supp. 2d at 636-37 (citations and internal quotation marks omitted).
`
`The “tension” recognized in Koh plainly weighs against unduly burdening Microsoft with
`
`the task of providing affidavits with particularized witness information including expected trial
`
`testimony at the infant stages of this litigation. Indeed, the Federal Circuit has held that
`
`“[r]equiring a defendant to show that the potential witness has more than relevant and material
`
`information at this point in the litigation or risk facing denial of transfer on that basis is
`
`unnecessary.” In re Genentech, Inc., 566 F.3d 1338, 1343-44 (Fed. Cir. 2009) (emphasis added)
`
`(citing In re Volkswagen ofAm., Inc., 545 F.3d 304, 317 n. 12 (5th Cir.2008) (rejecting argument
`
`that defendants seeking transfer were required to submit affidavit evidence indicating What
`
`5 The other case frequently cited by B.E., Rinks v. Hocking, 1:10-CV-1102, 2011 WL 691242, at
`*3 (W.D. Mich. Feb. 16, 2011), involved an individual Defendant, who listed witnesses that
`“appear[ed] to be virtually irrelevant to the [key] question.” The witnesses in Rinks in no way
`correspond to Microsoft’s declaration regarding the core Microsoft employees who designed
`and developed the accused products in this case.
`
`

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`specific testimony they might offer and why such testimony is relevant or irnportant)). Notably,
`
`none of the cases B.E. cites stand for the proposition that witnesses must be identified by name,
`
`let alone “name, position title, location, the subject matter on which they will testify, or the
`
`burdens they would endure by traveling to Tennessee to testify.” Opp. at 10. B.E.’s demand for
`
`“particularized information,” at this stage is contrary to “Congress’ intent to prevent the waste of
`
`time, energy and money and to protect litigants, witnesses and the public against unnecessary
`
`inconvenience and expense.” In re EMC Corp., Misc. No. 142, 2013 WL 324154, at *2 (Fed.
`
`Cir. Jan. 29, 2013) (internal quotations omitted); see also Fusion-I0, Inc., No. 12-139, 2012 WL
`
`6634939, *1 (Fed. Cir. Dec. 21, 2012).
`
`1.
`
`Availability of Compulsory Process for Non-Party Witnesses in the
`Respective Transferee Districts Favors Transfer
`
`Microsoft’s motion seeks transfer to the Western District of Washington, or alternatively
`
`to the Northern District of California. B.E. does not dispute that the transferee District Court
`
`would have absolute subpoena power over numerous non-party witnesses in each respective
`
`district. Rather, B.E. questions the relevance and current location of the non-party witnesses.6
`
`First, in submitting the names and last known locations for its potential prior art
`
`witnesses, Microsoft provided this Court with sufficient information to conclude that this factor
`
`weighs in favor of transfer. Robocast, Inc. v. Apple, Inc., No. Civ. A. 11-235-RGA, 2012 WL
`
`628010, at *3 (D. Del. Feb. 24, 2012) (finding factor favors transfer where defendants submitted
`
`the last known locations for their prior art witnesses, and there was “statistically greater
`
`likelihood that such witnesses would be within the subpoena power of the Northern District of
`
`6 B.E. also does not appear to contest the relevance of potential prior art developed by Intel,
`NetGravity, and Pointcast. See B.E. Opp. 13. Should the Court transfer this matter to the
`Northern District of California, there is no genuine dispute regarding the applicability of the
`Northern District of California’s compulsory process.
`
`

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`California than within the subpoena power of the District of Delaware”). Nonetheless,
`
`Microsoft has confirmed that U.S. Patent Nos. 6,285,985, 6,285,987, 5,740,549, and 5,794,210,
`
`which were cited in Microsoft’s memorandum in support of transfer motion as possible prior art,
`
`have either an assignee or an inventor with a residence within the subpoena powers of the
`
`Northern District of California. Supplemental Declaration of Leeron G. Kalay in Support of
`
`Microsoft’s Motion to Transfer, Ex. A.
`
`Second, contrary to B.E.’s assertion, courts routinely acknowledge the importance of a
`
`prior art inventor’s testimony, and use the location of prior art inventors in the transferee district
`
`as a factor in granting motions to transfer. See, e.g., In re Microsoft Corp, 630 F.3d 1361, 1363
`
`(Fed. Cir. 2011) (vacating district court’s order denying motion to transfer on the grounds that,
`
`inter alia, “all of [defendant’s] witnesses relating to .
`
`.
`
`. prior art .
`
`.
`
`. technology reside in the
`
`[transferee district].”); U.S. Ethernet Innovations, LLC v. Acer, Inc., No. 6:09-CV-448-JDL,
`
`2010 WL 2771842 at *9 (E.D. Tex. July 13, 2010) (granting transfer where “there are potentially
`
`important non-party witnesses such as inventors, prior art witnesses, and the prosecuting attorney
`
`[in the transferee district]”); Droplets, Inc. v. Amazon.com, Inc., No. 2:11-CV-392, 2012 WL
`
`3578605, at *4 (E.D. Tex. June 27, 2012). The testimony of prior art witnesses is particularly
`
`important with respect to commercially available products, such as those by advertising
`
`companies such as NetGravity and PointCast. Accordingly this factor weighs in favor of
`
`transfer.
`
`C.
`
`The Convenience of the Parties Favors Transfer
`
`B.E. claims that the convenience of the parties weighs against transfer because B.E.
`
`resides in this District, and because it is “reasonable” to require large and wealthy companies to
`
`litigate in jurisdictions in which they regularly conduct business. B.E. may be located in this
`
`District, but as discussed above, this is not B.E.’s true home forum. Moreover, B.E. does not
`
`

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`dispute the fact that it has no business operations in Tennessee besides pursuit of this litigation.
`
`Both B.E. and Microsoft have retained counsel in the Northern District of California and the
`
`Western District of Tennessee. B.E.’s description of the purported “financial burden” imposed
`
`by transfer is based only upon the travel expenses of Mr. Hoyle. B.E. Opp. at 15. To the extent
`
`that B.E.’s CEO is required to travel to testify at trial, it would be in furtherance of B.E.’s
`
`business, not an ancillary burden.7
`
`IV.
`
`THE PUBLIC INTEREST FACTORS FAVOR TRANSFER
`
`A.
`
`Artificial Conveniences Created by B.E.’s Decision to File Suit Against
`Multiple Defendants Do not Weigh Against Transfer
`
`A plaintiff cannot transform an otherwise inconvenient forum by bringing multiple suits
`
`there. In re EMC Corp., 677 F.3d 1351, 1355 (Fed. Cir. 2012) (cautioning against the mitigation
`
`of an individual defendant’s rights where “[e]ach defendant has simply been thrown into a mass
`
`pit with others to suit plaintiff’ s convenience.”); see also Geotag, Inc. v. Aromatique, Inc., et al,
`
`Case No. 2: 10-cv-570 (E.D. Tex. Jan. 14, 2013) (“The Court will not permit the existence of
`
`separately filed cases to sway its transfer analysis. Otherwise, a plaintiff could manipulate venue
`
`by serially filing cases within a single district”). Yet B.E. relies on “efficiencies” of its own
`
`design to make the Western District of Tennessee appear convenient. B.E. Opp. at 17. As
`
`demonstrated above, however, these alleged “efficiencies” are inconsistent with the policies
`
`underlying Congress’ enactment of the amended joinder rules in 35 U.S.C. § 299. Geotag, Inc.,
`
`No. 2:10-cv-570, slip op. at 10.
`
`Notably, B.E. ignores the tremendous inefficiencies of suing numerous defendants far
`
`from the center of accused activity, treating the costs and inconvenience of Microsoft separately
`
`7 B.E.’s argument regarding the loss of “consulting opportunities and hours” that Mr. Hoyle may
`incur if the matter is transferred is inapposite. Any loss of consulting opportunities would
`affect Mr. Hoyle, not B.E.
`
`

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`from the defendants in the other cases. (ECF No. 38 at 8-9). While Microsoft maintains that the
`
`inconvenience imposed upon the engineers responsible for the disparate products accused by
`
`B.E. outweighs any inconvenience to Mr. Hoyle, the imbalance of inconvenience and
`
`inefficiencies becomes even more apparent when weighed against the aggregate inconvenience
`
`B.E. imposes on all the defendants in its nineteen cases. If the efficiencies of consolidating
`
`proceedings for the many defendants in these cases are to be considered, as B.E. urges (ECF No.
`
`38 at 3, 17), the aggregate costs imposed upon the numerous defendants being sued far from their
`
`home forums should also be weighed. B.E. cannot rely on aggregation resulting from its own
`
`manipulation for one purpose but entirely ignore it for another.
`
`B.
`
`The Western District of Tennessee Has Little or No Localized Interest in
`
`Deciding This Case
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`The Western District of Washington’s local interest in this controversy is “strong because
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`the cause of action calls into question the work and reputation of several individuals residing in
`
`or near that District and who presumably conduct business in that community.” In re Hofi9nann-
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`La Roche Inc., 587 F.3d 1333, 1336 (Fed. Cir. 2009). B.E. concedes that neither B.E nor Mr.
`
`Hoyle were located in Tennessee at the time of purported conception of the claimed inventions.
`
`The Western District of Tennessee has little or no interest in this case involving patents
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`developed elsewhere, that are asserted by a corporation that has done no business in the District
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`until recently, and whose only activities in the District are litigation driven. The public interest
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`in deciding localized interests at home therefore weighs in favor of transfer to the Western
`
`District of Washington or the Northern District of California.
`
`C.
`
`Transfer to the Western District of Washington or Northern District of
`California Would Not Delay Disposition of This Matter
`
`B.E.’s recitation of Federal Court Management Statistics is noticeably silent with respect
`
`to the average time from filing to disposition of civil cases. B.E.’s focus upon average times to
`
`

`
`Case 2:12-cv-02829-JPM-tmp Document 45 Filed 02/21/13 Page 14 of 16 PageID 510
`Case 2:12—cv—O2829—JPM—tmp Document 45 Filed 02/21/13 Page 14 of 16 Page|D 510
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`trial ignores the fact that the average time to disposition in both the Western District of
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`Washington and Northern District of California are shorter than the time to disposition in this
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`District. B.E.’s assertion that “transfer out of Tennessee would delay resolution of this action” is
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`not necessarily supported by its own statistics.
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`V.
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`CONCLUSION
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`For the reasons set forth above, Microsoft respectfiilly requests that this case be
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`transferred to the Western District of Washington; in the alternative Microsoft respectfully
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`requests that this case be transferred to the Northern District of California.
`
`

`
`Case 2:12-cv-02829-JPM-tmp Document 45 Filed 02/21/13 Page 15 of 16 PageID 511
`Case 2:12—cv—O2829—JPM—tmp Document 45 Filed 02/21/13 Page 15 of 16 Page|D 511
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`February 21, 2013
`
`Respectfully submitted,
`
`s/ Bradley E. Trammell
`Bradley E. Trarmnell (TN #13980)
`Adam Baldridge (TN #023488)
`Baker, Donelson, Bearman, Caldwell &
`Berkowitz, P.C.
`165 Madison Avenue, Suite 2000
`Memphis, TN 38103
`Telephone: 901.577.2121
`Email: btramme1l@bakerdonelson.com
`Email: abaldridge@bakerdonelson.com
`
`Kelly C. Hunsaker (Pro Hac Vice)
`Leeron G. Kalay (Pro Hac Vice)
`FISH & RICHARDSON P.C.
`
`500 Arguello Street, Suite 500
`Redwood City, CA 94063
`Telephone: (650) 839-5070
`Email: hunsaker@fr.com
`Email: kalay@fr.com
`
`Attorneys for Defendant
`MICROSOFT CORPORA TION
`
`11
`
`

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`Case 2:12-cv-02829-JPM-tmp Document 45 Filed 02/21/13 Page 16 of 16 PageID 512
`Case 2:12—cv—O2829—JPM—tmp Document 45 Filed 02/21/13 Page 16 of 16 Page|D 512
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`CERTIFICATE OF SERVICE
`
`I hereby certify that on February 21, 2013, a true and correct copy of the foregoing
`document was electronically filed with the United States District Court for the Western District
`of Tennessee, and was served on all counsel by the court’s electronic filing notification or via
`email.
`
`s/ Bradley E. Trammell