Case 2:12-cv-02830-JPM-tmp Document 22-1 Filed 12/18/12 Page 1 of 19 PageID 109
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`
`
` Civil Action No. 12-cv-02830 – JPM–tmp
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
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`
`
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`
`
`v.
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`GOOGLE INC.,
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`
`
`
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`Defendant.
`
`
`DEFENDANT’S MEMORANDUM IN SUPPORT OF ITS
`MOTION TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)
`AND FOR EXPEDITED HEARING
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`

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`Case 2:12-cv-02830-JPM-tmp Document 22-1 Filed 12/18/12 Page 2 of 19 PageID 110
`TABLE OF CONTENTS
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`Page
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`
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`I.
`II.
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`III.
`IV.
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`V.
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`60302142
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`C.
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`D.
`E.
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`2.
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`3.
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`3.
`4.
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`INTRODUCTION ............................................................................................................. 1
`BACKGROUND ............................................................................................................... 3
`A.
`The Nature of This Case ........................................................................................ 3
`B.
`The Locations of Witnesses and Evidence ............................................................ 3
`1.
`All of Google’s Relevant Witnesses and Documents are Located in
`the Northern District of California............................................................. 3
`Plaintiff’s “Connection” to This Forum Appears to Have Been
`Manufactured Solely for the Purposes of this Litigation........................... 4
`Potential Third Party Witnesses and Documents are Located
`Primarily in the Northern District of California ........................................ 5
`APPLICABLE LAW ......................................................................................................... 6
`ARGUMENT..................................................................................................................... 7
`A.
`This Case Could Have Been Brought in the Northern District of California ........ 7
`B.
`The Private Factors Favor Transfer to the Northern District of California ........... 8
`1.
`The Location of Sources of Proof in California Favors Transfer .............. 8
`2.
`Cost of Attendance for the Parties and the Convenience of
`Witnesses Favors Transfer......................................................................... 9
`Availability of Compulsory Process in California Favors Transfer ........ 10
`No Practical Problems Favor this District over the Northern
`District of California................................................................................ 11
`The Public Factors Favor Transfer to the Northern District of California .......... 11
`1.
`Court Congestion Does Not Weigh Against Transfer ............................. 11
`2.
`The Northern District of California Has a Substantial Connection
`to, and Local Interest in, the Adjudication of this Case........................... 12
`Plaintiff’s Choice of Venue Is Not Entitled Deference ....................................... 13
`MDL Proceedings Should Not Be A Factor In This Transfer Motion ................ 13
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`CONCLUSION................................................................................................................ 15
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`i
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`Case 2:12-cv-02830-JPM-tmp Document 22-1 Filed 12/18/12 Page 3 of 19 PageID 111
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`
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`
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`CASES
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`TABLE OF AUTHORITIES
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`Page(s)
`
`Bennett v. Bed Bath and Beyond, Inc.,
`No. C 11–02220, 2011 WL 3022126 (N.D. Cal. July 22, 2011) .............................................14
`
`Cherokee Export Co. v. Chrysler Int’l. Corp.,
`No. 96-1745, 142 F.3d 432, 1998 WL 57279 (6th Cir. (Mich.), Feb. 2, 1998).........................7
`
`Cont’l First Fed., Inc. v. Watson Quality Ford, Inc.,
`No. 3:08–0954, 2010 WL 1836808 (M.D. Tenn., May 6, 2010)...............................................7
`
`In re Best Buy Co., Inc., California Song–Beverly Credit Card Act Litig.,
`804 F. Supp. 3d 1376 ...............................................................................................................14
`
`In re Genentech, Inc.,
`566 F.3d 1338 (Fed. Cir. 2009)....................................................................................7, 8, 9, 12
`
`In re Hoffman-La Roche, Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)......................................................................................2, 12, 13
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2010)............................................................................................1, 13
`
`In re Nintendo Co., Ltd.,
`589 F.3d 1194 (Fed. Cir. 2009)..............................................................................................8, 9
`
`In re Zimmer Holdings, Inc.,
`609 F.3d 1378 (Fed. Cir. 2010)..........................................................................................11, 13
`
`Just Intellectuals, PLLC v. Clorox Co.,
`No. 10-12415, 2010 WL 5129014 (E.D. Mich., Dec. 10, 2010) ...................................8, 10, 12
`
`L&P Prop. Mgmt. Co. v. JTMD, LLC,
`No. 06-13311, 2007 WL 295027 (E.D. Mich., Jan 29, 2007) .............................7, 8, 10, 12, 13
`
`Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
`523 U.S. 26 (1998)...................................................................................................................14
`
`Moses v. Bus. Card Express, Inc.,
`929 F.2d 1131 (6th Cir. 1991) ...............................................................................................6, 7
`
`Quality Gold, Inc. v. West,
`No. 1:11-CV-891, 2012 WL 1883819 (S.D. Ohio, May 22, 2012)...........................................7
`
`60302142
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`Case 2:12-cv-02830-JPM-tmp Document 22-1 Filed 12/18/12 Page 4 of 19 PageID 112
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`
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`Returns Distribution Specialists, LLC v. Playtex Prods., Inc.,
`No. 02-1195-T, 2003 WL 21244142 (W.D. Tenn., May 28, 2003) ..................................6, 7, 9
`
`Stewart Org., Inc. v. Ricoh Corp.,
`487 U.S. 22 (1988).....................................................................................................................6
`
`U.S. ex rel. Kairos Scientia, Inc. v. Zinsser Co.,
`2011 WL 127852 (N.D. Ohio, Jan. 14, 2011)....................................................................12, 13
`
`Van Dusen v. Barrack,
`376 U.S. 612 (1964)...................................................................................................................6
`
`Winningham v. Biomet Orthopedics, LLC,
`No. C 12–00503 JSW, 2012 WL 3860806 (N.D. Cal., Aug. 31, 2012) ............................13, 15
`
`Zimmer Enters., Inc. v. Atlandia Imps., Inc.,
`478 F. Supp. 2d 983 (S.D. Ohio, 2007) ...................................................................................10
`
`STATUTES
`
`28 U.S.C. § 1400..............................................................................................................................7
`
`28 U.S.C. § 1400(b) .........................................................................................................................7
`
`28 U.S.C. § 1404(a) ...............................................................................................................1, 6, 14
`
`OTHER AUTHORITIES
`
`U.S. Patent No. 6,628,314................................................................................................................3
`
`U.S. Patent No. 6,771,290................................................................................................................3
`
`60302142
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`iii
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`Case 2:12-cv-02830-JPM-tmp Document 22-1 Filed 12/18/12 Page 5 of 19 PageID 113
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`Defendant Google Inc. (“Google”) respectfully moves this Court to transfer this case to
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`the Northern District of California, pursuant to 28 U.S.C. § 1404(a).
`
`I.
`
`INTRODUCTION
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`The Western District of Tennessee has no interest in adjudicating this dispute, and neither
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`defendant B.E. Technology, L.L.C (“B.E.”) nor the operative set of facts in this case have any
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`meaningful connection to this District. In contrast, compelling reasons support transferring this
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`case to the Northern District of California.
`
`First, the Northern District of California has direct, concrete, and extensive connections
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`to this case, while the Western District of Tennessee has virtually none. B.E. was, up until
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`recently, a company based out of Saginaw, Michigan, and appears to have registered to do
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`business in the Western District of Tennessee just one day before initiating its litigations against
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`19 defendants in this District. Unsurprisingly, B.E.’s contacts with this District bear no relation
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`to any of the facts relevant to this lawsuit. In addition, B.E.’s lead counsel is located in the
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`Northern District of California. B.E’s contacts with this District therefore are minimal and
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`recent, and appear to have been manufactured solely for litigation purposes. Accordingly, B.E.’s
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`choice of venue is entitled to no deference. In re Microsoft Corp., 630 F.3d 1361, 1364 (Fed.
`
`Cir. 2010) (courts should not “honor connections to a preferred forum made in anticipation of
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`litigation and for the likely purpose of making that forum appear convenient”).
`
`Second, the Northern District of California is both uniquely connected to and clearly a
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`more convenient venue for this litigation. Google is headquartered in the Northern District of
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`California and is exclusively run and operated out of Mountain View, California. To the extent
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`Google can surmise what products and services are accused of infringement, namely “a method
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`of providing demographically targeted advertising” and “tablet computer products…include[ing]
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`1
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`Google Nexus products” such products and services have been developed and are operated out of
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`Mountain View. As such, all witnesses, documents, and other relevant evidence about Google’s
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`accused products and services are located in the Northern District of California. Moreover, B.E.
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`has asserted the patents at issue in this case against a total of 18 other defendants in this District,
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`a majority of whom are located on the West Coast, and a large number of whom are also
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`headquartered in the Northern District of California. Google is aware that other defendants are
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`likely to move to transfer venue, and that a majority will likely request transfer to the Northern
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`District of California. Also, a large number of third-party witnesses likely to have knowledge
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`and documents relevant to invalidity reside in California.
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`Third, the Northern District of California possesses a unique, particularized local interest
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`in passing judgment on the products and technology—the design and development of which
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`occurred within its boundaries—now before this Court. See In re Hoffman-La Roche, Inc., 587
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`F.3d 1333, 1336 (Fed. Cir. 2009) (finding a strong local interest where a case “calls into
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`question the work and reputation of several individuals residing in or near that district.”) By
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`contrast, there is no unique local connection to Tennessee, as Google does not operate in
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`Tennessee and until very recently, B.E. did not have any contacts with this District.
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`Given that the center of gravity of the accused activity is the Northern District of
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`California, and given the comparative absence of relevant defendant witnesses or evidence in
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`Tennessee, the public and private factors relevant to venue transfer strongly weigh in favor of
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`transfer to the Northern District of California. Accordingly, Google’s motion should be granted.
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`2
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`
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`II.
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`BACKGROUND
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`A.
`
`The Nature of This Case
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`B.E. filed this case on September 21, 2012, as part of a broad litigation campaign against
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`a number of companies, including Google, Motorola Mobility Holdings LLC (“Motorola”),
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`Amazon Digital Services, Inc., Facebook, Inc., LinkedIn Corp., Groupon, Inc., Pandora Media,
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`Inc., Twitter, Inc., Barnes & Noble, Samsung Telecommunications America, LLC, Samsung
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`Electronics America, Inc., Sony Computer Entertainment, Sony Mobile Communications, Sony
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`Electronics, Inc., Microsoft Corp., Apple, Inc., Spark Networks, Inc., People Media, Inc., and
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`Match.com L.L.C. (collectively, the “Defendants”).1 B.E. accuses Google of infringing U.S.
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`Patent No. 6,628,314 (“the ’314 Patent”) by allegedly “providing demographically targeted
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`advertising,” and further accuses Google of infringing U.S. Patent No. 6,771,290 (“the ’290
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`Patent”) by allegedly “offering to sell in the United States tablet computer products” including
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`“Google Nexus products.” See Compl., Dkt. No. 1. B.E. similarly accuses the other Defendants
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`of infringing either or both of the ’314 and ’290 Patents. Google’s answer to B.E.’s Complaint is
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`due December 31, 2012.
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`B.
`
`The Locations of Witnesses and Evidence
`
`1.
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`All of Google’s Relevant Witnesses and Documents are Located in the
`Northern District of California.
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`The West Coast, and especially the Northern District of California, is the center of
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`gravity of the accused activity for Google. Google is a Delaware corporation with its
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`headquarters in Mountain View, California, which is within the Northern District of California.
`
`See Ex. A (Decl. of Abeer Dubey, “Dubey Decl.”) at ¶ 2. Google’s management and primary
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`1 Case Nos. 12-cv-02830, 12-cv-02866, 12-cv-02767, 12-cv-02769, 12-cv-02772, 12-cv-02781,
`12-cv-02782, 12-cv-02783, 2:12-cv-02823, 12-cv-02824, 12-cv-02825, 2:12-cv-02826, 12-cv-
`02827, 12-cv-02828, 12-cv-02829, 12-cv-02831, 12-cv-02832, 12-cv-02833, and 12-cv-02834,
`respectively (collectively, the “B.E. Litigations”).
`3
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`research and development facilities are located in the Northern District of California. See id. at
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`¶¶ 4-5. Google employees most knowledgeable about the design, development and operation of
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`its advertising applications and its tablet computer products – the accused Google applications
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`and products in this case – are located in the Northern District of California. See id. at ¶ 4.
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`Google does not have any offices, facilities or employees in Tennessee. See id. at ¶ 6.
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`Google is not aware of any documents related to the accused applications or products that are
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`located in Tennessee. See id. Google is not aware of any employees who work in Tennessee
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`with relevant knowledge concerning the accused applications or products, or any other aspect of
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`the subject matter of this litigation. See id. No Google employees involved in the development
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`or management of the accused applications and products work in Tennessee. See id. at ¶¶ 6-7.
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`In contrast to B.E.’s limited connections to this forum – which appear to have been
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`manufactured solely for the purposes of filing this litigation – the foreseeable relevant defense
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`witnesses and evidence related to the accused applications and products, including those whom
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`Google anticipates including in their initial disclosures, are all located within the Northern
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`District of California.
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`2.
`
`Plaintiff’s “Connection” to This Forum Appears to Have Been
`Manufactured Solely for the Purposes of this Litigation.
`
`B.E. is a Delaware corporation. See Compl. (Dkt. No. 1) at ¶ 2. B.E.’s patent filings list
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`it as a Saginaw, Michigan-based company as recently as June 21, 2012. See Ex. B (Application
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`No. 13/328,743). In fact, according to the Tennessee Secretary of State website, it was not until
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`September 6, 2012 – the day before filing the first of its Litigations here – that Plaintiff even
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`registered to do business in Tennessee. See Ex. C (B.E. Filing Information). Plaintiff does not
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`offer any products for sale, and does not appear to even have an office in Memphis, which it now
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`4
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`alleges is its principal place of business. Indeed, Plaintiff’s counsel in this case is based in the
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`Northern District of California.
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`3.
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`Potential Third Party Witnesses and Documents are Located Primarily
`in the Northern District of California.
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`Other third party witnesses are located outside of Tennessee. The attorney who filed and
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`argued the applications for the patents-in-suit, James D. Stevens, is located in Troy, Michigan.
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`See Ex. D (http://www.reising.com/attorneys.php?t=stevens). Moreover, a substantial number of
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`other third-party witnesses and documents knowledgeable about prior art to the ’314 and ’290
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`Patents also are located in California. These, include, for example, the named inventors of at
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`least the following patents:
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`• U.S. Patent No. 5,933,811, with inventors in Los Angeles and Redondo Beach,
`California (both in the Central District of California);
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`• U.S. Patent No. 6,128,663, with an inventor from Campbell, California (Northern
`District of California);
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`• U.S. Patent No. 6,134,532, with inventors from San Diego, California (Southern
`District of California);
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`• U.S. Patent No. 6,285,985, with an inventor from Cupertino, California (Northern
`District of California);
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`• U.S. Patent No. 6,285,987, with inventor from San Francisco, California
`(Northern District of California);
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`• U.S. Patent No. 5,740,549, with inventors in San Francisco and Cupertino,
`California (both in the Northern District of California);
`
`• U.S. Patent No. 5,263,164 with a named inventor in Rocklin, California and
`assignee in Redwood City, California (in the Central and Northern Districts of
`California);
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`• U.S. Patent No. 5,696,965 whose named inventor is in Hillsboro, Oregon and
`assignee in Santa Clara, California (Northern District of California);
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`• U.S. Patent No. 5,794,210 with inventors and assignee in Berkeley, California
`(Northern District of California);
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`5
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`• U.S. Patent No. 5,710,884, with inventor from Hillsboro, Oregon and assignee in
`Santa Clara, California (Northern District of California); and
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`• U.S. Patent No. 5,717,923, with inventors in Hillsboro, Oregon and assignee in
`Santa Clara, California (Northern District of California).
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`Each of these patents may be prior art to the ’314 and ’290 Patents pursuant to 35 U.S.C.
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`§ 102(e). In connection with establishing that the technology disclosed in these patents is, in
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`fact, prior art to the ’314 and ’290 Patents, Google expects to subpoena at least the inventors
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`and/or assignees of the patents for documents, and seek their testimony, as part of its invalidity
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`defense.
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`III. APPLICABLE LAW
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`Pursuant to 28 U.S.C. § 1404(a), for the “convenience of the parties and witnesses” and
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`“in the interest of justice,” a court may transfer a civil action to any judicial district in which it
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`could have been brought. 28 U.S.C. § 1404(a); see Moses v. Bus. Card Express, Inc., 929 F.2d
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`1131, 1137 (6th Cir. 1991). The Supreme Court of the United States has noted that Section
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`1404(a) is intended to give the district court discretion to adjudicate motions to transfer
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`according to an “individualized, case-by-case consideration of convenience and fairness.”
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`Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); Van Dusen v. Barrack, 376 U.S. 612,
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`622 (1964); Returns Distribution Specialists, LLC v. Playtex Prods., Inc., No. 02-1195-T, 2003
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`WL 21244142, at *6 (W.D. Tenn., May 28, 2003) (noting that a district court has “broad
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`discretion under section 1404(a) when determining whether to transfer a case”) (citation
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`omitted).
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`In the Sixth Circuit, the “threshold” determination for the district court under Section
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`1404(a) is whether the claims could have been brought in the proposed transferee district.
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`Returns Distribution Specialists, 2003 WL 21244142, at *6. The district court must then
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`consider the convenience of the parties and witnesses in both forums, balancing several private
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`6
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`Case 2:12-cv-02830-JPM-tmp Document 22-1 Filed 12/18/12 Page 11 of 19 PageID 119
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`
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`and public interest factors. Moses v. Bus. Card Exp., Inc., 929 F.2d at 1138; Cont’l First Fed.,
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`Inc. v. Watson Quality Ford, Inc., No. 3:08–0954, 2010 WL 1836808 (M.D. Tenn., May 6,
`
`2010).
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`The private interest factors include “(1) the relative ease of access to sources of proof; (2)
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`the availability of compulsory process to secure the attendance of witnesses; (3) the cost of
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`attendance for willing witnesses; and (4) all other practical problems that make trial [of a case]
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`easy, expeditious and inexpensive.” Quality Gold, Inc. v. West, No. 1:11-CV-891, 2012 WL
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`1883819, at *2 (S.D. Ohio, May 22, 2012) (citing In re Genentech, Inc., 566 F.3d 1338, 1342
`
`(Fed. Cir. 2009); see also Cherokee Export Co. v. Chrysler Int’l. Corp., No. 96-1745, 142 F.3d
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`432, 1998 WL 57279, at *3 (6th Cir. (Mich.), Feb. 2, 1998). The public interest factors include
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`“(1) the administrative difficulties flowing from court congestion; [and] (2) the localized interest
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`in having localized interests decided at home.” Id. Notably, while a plaintiff’s choice of venue
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`is generally entitled to “some deference, it is not sacrosanct, and will not defeat a well-founded
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`motion for change of venue.” L&P Prop. Mgmt. Co. v. JTMD, LLC, No. 06-13311, 2007 WL
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`295027, at *3 (E.D. Mich., Jan 29, 2007) (internal citation omitted); Returns Distribution
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`Specialists, 2003 WL 21244142, at *9 (ordering transfer where “the overwhelming
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`inconvenience to the witnesses outweighs the Plaintiff’s interest in choosing their own forum.”).
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`IV. ARGUMENT
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`A.
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`This Case Could Have Been Brought in the Northern District of California.
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`Pursuant to 28 U.S.C. § 1400, a patent infringement action may be brought in the district
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`where the defendant resides. 28 U.S.C. § 1400(b). A corporate defendant “resides” in any
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`district in which it is subject to personal jurisdiction at the time the suit is filed. 28 U.S.C.
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`§ 1391(c). Google’s corporate headquarters and operations are located in the Northern District
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`of California. See Dubey Decl. ¶ 2. Accordingly, personal jurisdiction exists and venue is
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`Case 2:12-cv-02830-JPM-tmp Document 22-1 Filed 12/18/12 Page 12 of 19 PageID 120
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`proper in the Northern District of California. Consequently, Plaintiff could have properly sued
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`Google for patent infringement in this district.
`
`B.
`
`The Private Factors Favor Transfer to the Northern District of California.
`
`1.
`
`The Location of Sources of Proof in California Favors Transfer.
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`The first private interest factor is the relative ease of access to sources of proof, which
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`takes into consideration the location of documents and physical evidence. Just Intellectuals,
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`PLLC v. Clorox Co., No. 10-12415, 2010 WL 5129014, at *4 (E.D. Mich., Dec. 10, 2010). “In
`
`patent infringement cases, the bulk of the relevant evidence usually comes from the accused
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`infringer. Consequently, the place where the defendant’s documents are kept weighs in favor of
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`transfer to that location.” In re Nintendo Co., Ltd., 589 F.3d 1194, 1199 (Fed. Cir. 2009) (citing
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`In re Genentech, 566 F.3d at 1345 (Fed. Cir. 2009)). Thus, the location of an alleged infringer’s
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`research and development-related documents and evidence is an important factor to consider.
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`See Nintendo, 589 F.3d at 1199; L&P Prop. Mgmt. Co., 2007 WL 295027, at *4.
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`Here, the vast majority of potentially relevant documents related to the research, design,
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`development and sales of any of the potentially implicated instrumentalities and products is
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`located in the Northern District of California. See Dubey Decl. at ¶¶ 4-5. In contrast, no
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`relevant documents or other evidence are physically located in Tennessee. See id. at ¶¶ 6-7.
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`Thus, all of the physical and documentary evidence relevant to the issues of infringement,
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`invalidity, and damages will be found in California. See id. at ¶¶ 4-5. This factor weighs
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`heavily in favor of a transfer to the Northern District of California. L&P Prop. Mgmt. Co., 2007
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`WL 295027, at *5 (finding this factor weighed in favor of transfer where “[a]ll of Defendants’
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`documents are located at their headquarters in [the transferee district]… [and] Plaintiffs have not
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`identified any sources of evidence … that exist in [the transferring district]”); Just Intellectuals,
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`2010 WL 5129014, at *4 (same).
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`2.
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`Cost of Attendance for the Parties and the Convenience of Witnesses
`Favors Transfer.
`
`The cost of attendance for and convenience of the witnesses “is probably the single most
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`important factor in transfer analysis.” In re Genentech, 566 F.3d 1338, 1343; see also Returns
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`Distribution Specialists, 2003 WL 21244142, at *8. “Additional distance [from home] means
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`additional travel time; additional travel time increases the probability for meal and lodging
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`expenses; and additional travel time with overnight stays increases the time which these fact
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`witnesses must be away from their regular employment.” Nintendo, 589 F.3d at 1199 (citing In
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`re TS Tech, 551 F.3d at 1320). Simply put, it is more convenient for witnesses to testify at home.
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`The proposed venue does not need to be more convenient for all of the witnesses. Instead, this
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`factor favors transfer when a substantial number of material witnesses reside in the transferee
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`venue. See In re Genentech, 566 F.3d at 1345. Additionally, this factor favors transfer where
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`witnesses likely to be called at trial are important to the operation of defendant’s business.
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`Returns Distribution Specialists, 2003 WL 21244142, at *7 (noting that “[i]t would be difficult
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`for Defendants to operate their businesses if their employees were required to be in Tennessee
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`during the trial of this matter.”)
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`Based on Google’s current understanding of B.E.’s allegations, the vast majority of the
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`relevant engineers and employees work and/or reside in the Northern District of California, and
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`none are located in Tennessee. See Dubey Decl. ¶¶ 4-5. Memphis, Tennessee is over 1,700
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`miles from the Northern District of California, and travel there would impose a significant
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`inconvenience for Google’s witnesses. Moreover, the Google employees who are likely to serve
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`as trial witnesses are a core group of employees, whose absence would adversely affect Google’s
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`operations. In addition, the relevant third party witnesses, including inventors and assignees of
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`relevant prior art, are all located in the Northern District of California or on the West Coast, and
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`Case 2:12-cv-02830-JPM-tmp Document 22-1 Filed 12/18/12 Page 14 of 19 PageID 122
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`travel to Memphis would be similarly inconvenient for them. See infra § B.3. Because an
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`overwhelming majority of the parties’ witnesses live over 1,700 miles from Memphis,
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`Tennessee, transfer is strongly favored. See, e.g., L&P Prop. Mgmt. Co., 2007 WL 295027, at *
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`5 (finding this factor weighed heavily in favor of transfer where all of defendants’ witnesses
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`were located outside the transferring district and plaintiff had not identified any witnesses who
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`resided in the transferring district).
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`3.
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`Availability of Compulsory Process in California Favors Transfer.
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`Another private interest factor to consider is the Court’s ability to compel non-party
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`witnesses to attend trial. Id. Non-party witnesses potentially critical to the claims and defenses
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`in this case reside in and are subject to compulsory process only in the Northern District of
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`California. Specifically, numerous inventors and assignees of relevant prior art are located in the
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`Northern District of California. For its invalidity defense, Google will need to subpoena these
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`third parties for documents and depositions. In addition, some of these third parties may become
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`key witnesses for Google’s defense at trial.
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`Thus, if this case remains in Tennessee, Google will be unable to compel any of the
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`aforementioned witnesses, whose testimony is potentially critical to Google’s defenses.
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`However, Google can compel these witnesses to appear at trial in the Northern District of
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`California. Accordingly, this factor weighs in favor of transfer. See, e.g., Zimmer Enters., Inc. v.
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`Atlandia Imps., Inc., 478 F. Supp. 2d 983, 993 (S.D. Ohio, 2007) (ordering transfer in part in
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`order to ensure the availability of process for a key witness); Just Intellectuals, 2010 WL
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`5129014, at *4 (finding this factor weighed in favor of transfer where “non-party witnesses
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`likely reside in … some… are outside of the [transferring district.]”).
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`Case 2:12-cv-02830-JPM-tmp Document 22-1 Filed 12/18/12 Page 15 of 19 PageID 123
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`4.
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`No Practical Problems Favor this District over the Northern District of
`California.
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`This case is analogous to In re Zimmer Holdings, Inc., 609 F.3d 1378, 1382 (Fed. Cir.
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`2010) where the Federal Circuit held that the existence of a co-pending litigation in this District
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`with a single overlapping patent, different products, and the lack of any defendant common to
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`both cases was insufficient to overcome the other convenience considerations given the
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`“significantly different discovery, evidence, proceedings, and trial” for the cases. B.E. chose to
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`file suit against nineteen different defendants headquartered in various jurisdictions throughout
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`the United States, a majority of which are located on the west coast. However, simply because
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`B.E. filed these cases in this District does not weigh in favor of mandating that all defendants
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`stay in this District. The Court should consider the facts specific to the parties in this case,
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`namely Google and B.E. Google is headquartered in and run and operated out of the Northern
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`District of California. B.E. has few, if any, substantial contacts to this District. This case should
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`proceed in the forum that, on balance, is the most convenient for the parties in this case: the
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`Northern District of California.
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`C.
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`The Public Factors Favor Transfer to the Northern District of California.
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`1.
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`Court Congestion does not Weigh Against Transfer.
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`While cases in the Northern District of California may take longer to reach resolution
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`than those in this District, such a fact does not weigh against transfer. In 2011, the median time
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`to trial for a civil case was 34.3 months in the Northern District of California, and 22.6 months in
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`the Western District of Tennessee. See Ex. E (Judicial Caseload Profiles). However, the average
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`docket of pending cases per judge in the same year was higher in the Western District of
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`Tennessee (499) than it was in the Northern District of California (475), and the average life
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`span of a case from filing to disposition was around three months longer in this District than in
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`Case 2:12-cv-02830-JPM-tmp Document 22-1 Filed 12/18/12 Page 16 of 19 PageID 124
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`the Northern District of California. Id. Accordingly, this factor is neutral. See, e.g., U.S. ex rel.
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`Kairos Scientia, Inc. v. Zinsser Co., 2011 WL 127852, at *7 (N.D. Ohio, Jan. 14, 2011) (finding
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`that where the median time to trial was shorter, but the average docket of pending cases per
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`judge and the average life span of a case was longer in the transferring district, the “facts favor
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`neither transfer nor retention”).
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`2.
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`The Northern District of California Has a Substantial Connection to,
`and Local Interest in, the Adjudication of this Case.
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`The Northern District of California has significant connections to the events that gave
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`rise to a suit. See In re Genentech, 566 F.3d at 1347. There is no unique local connection to the
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`Western District of Tennessee, as Google does not operate in Tennessee and until very recently,
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`B.E. did not have any contacts with this District. See infra § B. 1, B.2. By contrast, the
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`Northern District of California has a very strong interest in this case because it is home to
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`Google, along with the relevant Google witnesses and evidence. See infra at §B.1. Accordingly,
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`it is clearly the center of gravity of the accused activity and the district in which the litigation
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`should proceed. See Just Intellectuals, 2010 WL 5129014, at *5 (ordering transfer and noting
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`the “fundamental principle…that the litigation should proceed in the district where the case finds
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`its center of