Case 2:12-cv-02830-JPM-tmp Document 37 Filed 01/29/13 Page 1 of 16 PageID 282
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`IN THE UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
`
`C.A. No. 2:12-CV-02830-JPM-tmp
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`)))))))))))
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`B.E. TECHNOLOGY L.L.C.,
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`Plaintiff,
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`v.
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`GOOGLE INC.,
`
`Defendant.
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`DEFENDANT’S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION
`TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)
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`Case 2:12-cv-02830-JPM-tmp Document 37 Filed 01/29/13 Page 2 of 16 PageID 283
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`TABLE OF CONTENTS
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`Page
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`I.
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`II.
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`B.E.’S CHOICE OF VENUE IS NOT ENTITLED TO DEFERENCE............................ 2
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`THE PRIVATE FACTORS FAVOR TRANSFER........................................................... 3
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`A.
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`B.
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`C.
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`D.
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`The Location of Sources of Proof in California Favors Transfer .......................... 3
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`Witness Convenience Favors Transfer................................................................... 5
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`Availability of Compulsory Process for Non-Party Witnesses in California
`Favors Transfer ..................................................................................................... 7
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`Convenience of the Parties Favors Transfer .......................................................... 9
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`III.
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`THE PUBLIC INTEREST FACTORS FAVOR TRANSFER.......................................... 9
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`A.
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`B.
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`Court Congestion Does not Weigh Against Transfer ............................................ 9
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`The Northern District of California Has a Strong Local Interest......................... 10
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`III.
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`CONCLUSION................................................................................................................ 10
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`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`
`Droplets, Inc. v. Amazon.com, Inc.,
`2:11-CV-392, 2012 WL 3578605 (E.D. Tex. June 27, 2012) ...............................................8. 9
`
`Hunter Fan Co. v. Minka Lighting, Inc.,
`No.06-2108 Ml/P, 2006 WL 1627746 (W.D. Tenn. Jun 12, 1990)...................................2, 3, 9
`
`In re Acer America. Corp.,
`626 F.3d 1252 (Fed. Cir. Dec. 03, 2010) .............................................................................4, 10
`
`In re Genentech, Inc.,
`566 F.3d 1338, (Fed. Cir. May 22, 2009) ........................................................................4, 6, 10
`
`In re Hoffmann –La Roche Inc.,v.
`587 F.3d 1333, (Fed. Cir. Dec. 02, 2009) ................................................................................10
`
`In re Link_A_Media Devices Corp.
`662 F. 3d 1221 (Fed. Cir. Dec 02, 2011) ...................................................................................5
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. Jan 05, 2011) .................................................................................3, 8
`
`Innogenetics, N.V. v. Abbott Labs,
`512 F.3d 1363 (Fed. Cir. Jan 17, 2008) .....................................................................................8
`
`In re Volkswagen of America. Inc.,
`545 F.3d 304, 316 (Fed. Cir. Oct 10, 2008)...........................................................................4, 5
`
`Int'l Commodities Exp. Corp. v. N. Pac. Lumber Co., Inc.,
`737 F. Supp. 242 (S.D.N.Y. Mar 29, 1990)...........................................................................5, 6
`
`Nationwide Life Ins. Co. v. Koresko,
`2:05CV1066, 2007 WL 2713783 (S.D. Ohio, Sep. 14, 2007)...................................................5
`
`Network Prot. Sciences, LLC v. Juniper Networks, Inc.,
`2:10-CV-224-JRG, 2012 WL 194382 (E.D. Tex. Jan. 23, 2012)..............................................4
`
`Nilssen v. Everbrite, Inc.,
`CIV.A. 00-189-JJF, 2001 WL 34368396 (D. Del. Feb. 16, 2001) ............................................6
`
`NISSM Corp. v. Time Warner, Inc.,
`No. 07-20624CIV, 2008 WL 540758 (S.D. Fla. Feb. 25, 2008) ...............................................5
`
`Rinks v. Hocking,
`No. 1:10-CV-1102, 2011 WL 691242 (W.D. Mich. Feb 16, 2011) ..........................................6
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`Case 2:12-cv-02830-JPM-tmp Document 37 Filed 01/29/13 Page 4 of 16 PageID 285
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`TABLE OF AUTHORITIES
`(continued)
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`Page
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`Robocast, Inc. v. Apple, Inc.,
`No. CIV.A. 11-235-RGA, 2012 WL 628010 (D. Del. Feb. 24, 2012) ..................................7, 8
`
`Tuna Processors, Inc. v. Hawaii Int'l Seafood, Inc.,
`408 F. Supp. 2d 358 (E.D. Mich. Jul 27, 2005).........................................................................2
`
`U.S. Ethernet Innovations, LLC v. Acer, Inc.,
`6:09-CV-448-JDL, 2010 WL 2771842 (E.D. Tex. July 13, 2010)............................................8
`
`Van Andel Inst. v. Thorne Research, Inc.,
`No.1:12-CV-731, 2012 WL 5511912 (W.D. Mich. Nov. 14, 2012) ...................................9, 10
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`B.E. Technology, L.L.C. (“B.E.”) does not dispute that the Northern District of California
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`is the locus of operative fact in this case. Specifically, B.E. does not contest that the Northern
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`District of California is: (i) the location of Google Inc.’s headquarters; (ii) the location of the vast
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`majority of relevant documents,
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`including the documents relating to the research, design,
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`development, marketing, and sales information for the 10 different Google accused products; (iii)
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`the more convenient district for the vast majority of witnesses, including at least 2 material
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`witnesses; (iv) the more convenient district for at least 10 non-party witnesses;
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`(v) the only
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`district with subpoena power over at least 6 of those non-party witnesses; (vi) the more
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`convenient location for 11 of the other defendants B.E. has asserted its patents against in this
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`District;1 (vii) the location of B.E.’s counsel; (viii) a district whose trial statistics are comparable
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`to those of the Western District of Tennessee; (ix) the district that is home to 10 of the companies
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`B.E. has sued,2 who employ thousands of employees in the state of California; and therefore (x)
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`the district with the more significant interest in this dispute.
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`Rather, B.E. merely argues that the Western District of Tennessee is: (i) the home of one
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`of its employees (its CEO, Mr. Hoyle); (ii) the location of one of its witnesses (Mr. Hoyle); (iii)
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`the location of documents relating to the two patents B.E. has asserted in this litigation, currently
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`housed in Mr. Hoyle’s family home; and (iv) one of several districts it has registered to do
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`business in (registering in Tennessee only days before initiating this litigation campaign).
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`Additionally, in an apparent attempt to bolster its position that transfer should not be granted,
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`B.E. has requested that the Court adopt a consolidation plan that would require 19 different
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`1 These defendants include including Facebook, Inc., LinkedIn Corp., Groupon, Inc., Pandora Media, Inc., Barnes &
`Noble, Apple, Inc., Motorola Mobility Holdings LLC, Twitter, Inc., Sony Computer Entertainment America LLC,
`Sony Mobile Communications (USA) Inc., and Sony Electronics Inc. Two additional defendants moved to transfer
`to the West Coast: Spark Networks (Central District of California) and Microsoft (Western District of Washington).
`2 While eleven defendants have moved to transfer to the Northern District of California, Sony Mobile
`Communications (USA) Inc. is headquartered in Atlanta.
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`defendants, a majority of whom are West Coast based, to travel to Tennessee for discovery
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`proceedings, Markman, and trial.3 See Dkt. 30 (Patent Scheduling Conference Notice). The
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`factors outlined above make clear that transfer should be granted. The Northern District of
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`California is neither an equally convenient forum, nor simply a forum more to Google’s liking.
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`The Northern District of California is the more convenient forum.
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`I.
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`B.E.’S CHOICE OF VENUE IS NOT ENTITLED TO DEFERENCE
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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 Ml/P, 2006 WL 1627746 (W.D. Tenn. Jun 12, 1990), deference is
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`accorded to a plaintiff’s selection of forum as a “general rule,” but “’Plaintiff’s choice of forum
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`is not entitled to the ordinary degree of deference [where] Plaintiff maintains little connection to
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`[its chosen forum].’” 2006 WL 1627746, at *3 (W.D. Tenn. 1990) (citing Tuna Processors, Inc.
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`v. Hawaii Int'l Seafood, Inc., 408 F. Supp. 2d 358, 361 (E.D. Mich. 2005)). In Hunter Fan Co.,
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`the Court denied transfer because the plaintiff was a Tennessee based company with design,
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`engineering, manufacturing facilities, and relevant patent records in the state. However, this
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`Court expressly distinguished its holding in Hunter Fan Co. from that in Tuna Processors, Inc. v.
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`Hawaii Int'l Seafood, Inc., 408 F. Supp. 2d 358 (E.D. Mich. July 27, 2005), where transfer was
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`granted and no deference was accorded to plaintiff because plaintiff had “little connection” to the
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`chosen forum. Id. at *1, 4; Tuna Processors, 408 F. Supp. 2d at 360.
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`This case is akin to Tuna Processors, as B.E. has little connection to the Western District
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`of Tennessee. In support of its opposition to transfer, B.E. attempts to deflect attention from this
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`3 Google is opposing consolidation of trial proceedings. However, recognizing that considerations of efficiency and
`judicial economy may counsel in favor of coordinating dates as well as consolidating Markman proceedings, Google
`submits that that the cases should proceed in the location most convenient for the majority of parties. As Google’s
`Opening Motion and this Reply make clear, that location is the Northern District of California.
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`fact by urging the Court to focus on the location of Mr. Hoyle’s personal residence and the
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`length of time his family has lived here. See Dkt. 29 (Opp.) at 2, 5-6. But Mr. Hoyle is not the
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`plaintiff in this litigation—B.E. is the plaintiff. Mr. Hoyle’s declaration changes nothing about
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`the fact that:
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`(i) B.E. maintains no office in the Western District of Tennessee; (ii) B.E.
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`continues to have an office in Michigan; (iii) B.E. claimed Michigan as its principal place of
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`business until the start of this litigation campaign; (iv) B.E. offers no products or services in
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`Tennessee; and (v) B.E. employs people in Michigan. See Hoyle Decl. Mr. Hoyle’s declaration
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`even suggests that aside from Mr. Hoyle himself, B.E.’s executive level employees do not reside
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`in Tennessee. See Hoyle Decl. ¶ 6 (mentioning a Michigan-based co-manager of the company).
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`In fact, Mr. Hoyle’s declaration makes clear that B.E. registered to do business in Tennessee in
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`order to file these litigations. See Hoyle Decl. ¶ 8; see also Exs. C and F. In light of these facts,
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`B.E.’s contention that it has a meaningful connection to Tennessee must be rejected. See In re
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`Microsoft Corp., 630 F.3d 1361, 1364-1365 (Fed. Cir. Jan 05, 2011) (finding plaintiff could not
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`claim the forum state as its principal place of business where the only connection was
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`incorporating under the laws of the forum state immediately before filing suit).
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`II.
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`THE PRIVATE FACTORS FAVOR TRANSFER.
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`Even if, assuming arguendo, B.E.’s choice of venue is entitled to deference, as discussed
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`below, transfer should still be granted because Google has carried its burden of “demonstrating
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`the balance of convenience strongly favors transfer.” Hunter Fan Co. v. Minka Lighting, Inc.,
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`2006 WL 1627746, at *2 (W.D. Tenn. 1990) (internal quotation and citation omitted).
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`A.
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`The Location of Sources of Proof in California Favors Transfer.
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`B.E.’s attempt to frame this issue as one of equipoised inconvenience, namely that
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`Google has documents in California and B.E. has documents in Tennessee, is grossly misleading.
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`The volume of potentially relevant documents located in California far exceeds the volume of
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`documents in Tennessee. California is the locus of operative facts in this dispute. The location
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`of the vast majority of the documents related to the design, development, operation and
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`manufacture of the Google accused products is the Northern District of California. See Dubey
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`Decl. at ¶¶ 4-5.4
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`In contrast, Tennessee is the location of B.E.’s documents related to two
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`patents.5 Because the number and volume of Google’s documents in California far exceed
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`B.E.’s documents in Tennessee, this factor weighs in favor of transfer. See Network Prot.
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`Sciences, LLC v. Juniper Networks, Inc., 2:10-CV-224-JRG, 2012 WL 194382 (E.D. Tex. Jan.
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`23, 2012) (factor weighed in favor of transfer where “there is no indication that Plaintiff’s
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`documents in Texas are substantial enough, whether in terms of volume or importance, to
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`counter [defendants’] documents in California.”); see also In re Acer Am. Corp., 626 F.3d 1252,
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`1256, 97 USPQ2d 1253 (Fed. Cir. Dec. 03, 2010) (finding that “it is unreasonable to suggest that
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`[plaintiff’s] evidence alone could outweigh the convenience of having the evidence from
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`multiple defendants located within the transferee venue of trial.”).
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`B.E.’s argument that the location of documents “is increasingly less important in deciding
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`motions to transfer” because of the electronic nature of modern document production has been
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`expressly rejected by the Federal Circuit. Specifically, the Federal Circuit has declared that the
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`electronic storage and transmission of documents should not play a substantial role in the venue
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`analysis, noting that if it did, it “would render this factor superfluous.” In re Genentech, Inc.,
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`566 F.3d 1338, 1346 (Fed. Cir. May 22, 2009) (citing In re Volkswagen of Am., Inc., 545 F.3d
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`4 Moreover, Google understands that B.E. has identified Google products in infringement contentions served on a
`number of the other 19 defendants. As such, to the extent the other 19 cases involve Google products, the majority
`of those documents will also be in Google’s possession in the Northern District of California.
`5 Tellingly, B.E. reveals nothing about the volume of documents involved, but given that the documents are stored at
`Mr. Hoyle’s personal residence, and that they have already been moved at least twice in the past 7 years, it is clear
`they are nowhere near as voluminous as the documents located in California. See Hoyle Decl. ¶¶ 3-5, 7.
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`Case 2:12-cv-02830-JPM-tmp Document 37 Filed 01/29/13 Page 9 of 16 PageID 290
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`304, 316 ( Fed. Cir. Oct. 10, 2008) (en banc) (“That access to some sources of proof presents a
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`lesser inconvenience now than it might have absent recent developments does not render this
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`factor superfluous.”).
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`Indeed, In re Link_A_Media Devices Corporation, 662 F. 3d 1221 (Fed.
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`Cir. Dec. 02, 2011) a case B.E. cites, makes clear that “it is improper to ignore [this factor]
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`entirely,” and that a district court’s refusal to consider the location of sources of proof on the
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`ground that the issue was “outdated, irrelevant, and should be given little weight” amounts to a
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`clear abuse of discretion. 662 F.3d 1221, 1224 (Fed. Cir. 2011).6
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`B.
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`Witness Convenience Favors Transfer.
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`Google has established that most of its witnesses, including at least 2 material witnesses,
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`as well as at least 10 non-party witnesses it intends to rely on, are located in or around the
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`Northern District of California. See Dubey Decl. at ¶¶ 4-5; see also Declaration of Abeer Dubey,
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`dated Jan. 28, 2013 (“Jan. Dubey Decl.”) at ¶ 3; see also infra §II.C. B.E., in turn, has identified
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`only one witness—Mr. Hoyle—who is located in the Western District of Tennessee.
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`Nonetheless, B.E. urges the Court to find that the location of one witness in Tennessee outweighs
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`the convenience of what are likely to be at least a dozen witnesses, including material witnesses,
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`located in the Northern District of California.7 This argument should be rejected. See NISSM
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`Corp. v. Time Warner, Inc., No. 07-20624CIV, 2008 WL 540758, at *2 (S.D. Fla. Feb. 25, 2008)
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`(granting transfer where the only resident in the forum state was the CEO/inventor of the patents
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`but by comparison, “Defendants ha[d] numerous potentially critical witnesses residing in the
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`Central District of California.”); Int'l Commodities Exp. Corp. v. N. Pac. Lumber Co., Inc., 737
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`6 Plaintiff also suggests that Google producing documents to B.E.’s counsel in California should render this factor
`neutral. This, of course, is irrelevant and would in no way lessen the inconvenience of litigating in Tennessee. (If
`anything, the fact that Plaintiff’s counsel is based in Northern California makes clear that litigating in Northern
`California is not inconvenient for Plaintiff.) Indeed, the case B.E. relies on to make its argument actually supports
`Google’s position. Nationwide Life Ins. Co. v. Koresko, 2:05CV1066, 2007 WL 2713783 (S.D. Ohio, Sep. 14,
`2007) (ordering transfer despite Plaintiff offering to accept document production in transferor district).
`7 Notably, there are even more material witnesses located in the Northern District of California across the 11
`defendants who have also moved to transfer to that venue.
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`Case 2:12-cv-02830-JPM-tmp Document 37 Filed 01/29/13 Page 10 of 16 PageID 291
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`F. Supp. 242 (S.D.N.Y. Mar. 29, 1990) (granting transfer where plaintiff named only one witness
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`likely to testify in the transferor district); In re Genentech, Inc., 566 F.3d at 1345 (finding factor
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`weighed in favor of transfer when “a substantial number of material witnesses reside within the
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`transferee venue and the state of California”).
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`B.E.’s contention that Google has failed to identify its witnesses and the content of their
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`testimony is equally unavailing. Google has identified employees who work at Google’s
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`Northern California headquarters as witnesses who possess the “most knowledge[] of the design,
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`development and operation of, and the financial information regarding [the accused] products
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`and services.” Dubey Decl. at ¶ 4. The level of information Google has provided is sufficient
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`“to enable a court to assess the materiality of evidence and the degree of inconvenience.” Rinks
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`v. Hocking, No. 1:10-CV-1102, 2011 WL 691242, at *3 (W.D. Mich. Feb 16, 2011) (internal
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`citation omitted); see also Nilssen v. Everbrite, Inc., CIV.A. 00-189-JJF, 2001 WL 34368396 (D.
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`Del. Feb. 16, 2001) (identification of witnesses not by name but “as employees or former
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`employees of Defendant,” with “knowledge of the allegedly infringing designs,” “especially
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`when fact discovery has yet to take place, is sufficient for purposes of venue transfer analysis.”)
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`Notably, none of the cases B.E. cites stand for the proposition that witnesses must be identified
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`by name, let alone “name, position title, location, the subject matter on which they will testify, or
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`the burdens they would endure by traveling to Tennessee to testify.” Opp. at 8.
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`Even if Google was required to do so, it could not have identified its witnesses with any
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`greater specificity in its opening motion because Google was unaware of the full list of accused
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`products or services until January 7, 2013, when B.E. served its infringement contentions. Prior
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`to filings its Motion to Transfer, however, Google did attempt to learn this information from
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`Case 2:12-cv-02830-JPM-tmp Document 37 Filed 01/29/13 Page 11 of 16 PageID 292
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`B.E.8 However, it was only when B.E. served its infringement contentions and identified with
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`more specificity the accused products and services that Google could narrow its witness list and
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`identify employees with material knowledge in this case, including Oren Zamir and Wei-Hsin
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`Lee. See Jan. Dubey Decl. at ¶ 3. However, Google believes that additional material witnesses
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`are also located in the Northern District of California but is unable to identify those witnesses
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`because B.E.’s infringement contentions lack specificity as to the functionality of the accused
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`products and services that allegedly infringe. See Ex. H (Excerpts of Infringement Contentions).
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`C.
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`Availability of Compulsory Process for Non-Party Witnesses in California
`Favors Transfer.
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`B.E. does not dispute the Northern District of California’s absolute subpoena power over
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`numerous non-party witnesses and does not claim that there are non-party witnesses located
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`within the subpoena power of this Court. See Fed. R. Civ. P. 45(b)(2)(C) (permitting service of a
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`subpoena anywhere within the issuing court's state if a state statute allows statewide service);
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`Cal. Code Civ. P. § 1989 (permitting statewide service of subpoenas); Brackett v. Hilton Hotels
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`Corp., 619 F. Supp. 2d 810, 821 (N.D. Cal. 2008) (“California district courts have the power to
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`subpoena witnesses throughout the state”).
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`Instead, B.E. calls into question whether the non-
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`party witnesses identified by Google as being located in the Northern District of California are
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`actually located there, without providing any counterevidence to show they are not.
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`In
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`submitting the names and last known locations for its potential prior art witnesses, Google
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`provided this Court with sufficient information to conclude that this factor weighs in favor of
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`transfer. Robocast, Inc. v. Apple, Inc., No. CIV.A. 11-235-RGA, 2012 WL 628010, at *3 (D.
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`8 Google wrote to Plaintiff requesting specific identification of the accused products and services along with the
`accused features and functionalities of those products and services on November 12, 2012. See Ex. G. While B.E.
`provided some information, it was not until B.E. served its infringement contentions on January 7, 2013 that a full
`list of accused products and services were identified. Yet, even B.E.’s infringement contentions lack the substance
`Google needs to understand the accused functionalities of those products and services.
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`Case 2:12-cv-02830-JPM-tmp Document 37 Filed 01/29/13 Page 12 of 16 PageID 293
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`Del. Feb. 24, 2012) (finding factor favors transfer where defendants’ submitted the last known
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`locations for their prior art witnesses, and there was “statistically greater likelihood that such
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`witnesses would be within the subpoena power of the Northern District of California than within
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`the subpoena power of the District of Delaware.”) Nevertheless, Google has confirmed that at
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`least 6 prior art witnesses reside in the Northern District of California and that all but one of the
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`prior art patents have either an inventor or assignee who resides in the District. See Ex. I.
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`B.E.’s argument that the location of these prior art witnesses should not be entitled “great
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`weight” because Google has not established that
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`the potential
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`testimony is “material and
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`important” since it is “is almost certain to be limited by the time of trial,” should also be rejected.
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`See Opp. at 11-12. First, the potential that testimony may be limited in scope has no bearing on
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`the materiality of that testimony. Second, B.E.’s claim is plainly incorrect, and the only case
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`B.E. cites in support of its position is inapposite. See Innogenetics, N.V. v. Abbott Labs, 512
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`F.3d 1363, 1375 (Fed. Cir. Jan 17, 2008) (affirming summary judgment order limiting prior art
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`inventor’s testimony on the ground that inventor could not give scientific testimony if he had not
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`been disclosed as an expert). Courts routinely acknowledge the importance of a prior art
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`inventor’s testimony, and use the location of prior art inventors in the transferee district as a
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`factor in granting motions to transfer. See, e.g., In re Microsoft Corp., 630 F.3d at 1363
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`(vacating district court’s order denying motion to transfer on the grounds that, inter alia, “all of
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`[defendant’s] witnesses relating to…prior art…technology reside in the [transferee district].”);
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`U.S. Ethernet Innovations, LLC v. Acer, Inc., 6:09-CV-448-JDL, 2010 WL 2771842 (E.D. Tex.
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`July 13, 2010) (granting transfer where “there are potentially important non-party witnesses such
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`as inventors, prior art witnesses, and the prosecuting attorney [in the transferee district]”);
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`Droplets, Inc. v. Amazon.com, Inc., 2:11-CV-392, 2012 WL 3578605, at *4 (E.D. Tex. June 27,
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`2012) (granting transfer and finding the location of “many prior art inventors with knowledge
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`and documents relevant to the validity issue…in the Northern District of California” “weigh[ed]
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`heavily in favor of transfer”).
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`D.
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`Convenience of the Parties Favors Transfer.
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`B.E. claims that the convenience of the parties weighs against transfer because B.E.
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`resides in this District, and because it is “reasonable” to require large and wealthy companies to
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`litigate in jurisdictions in which they regularly conduct business. B.E. may reside in this District
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`in the expansive sense of the definition in 28 U.S.C. § 1391, but this District is not its home
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`forum. See infra, §II.A; cf. Hunter Fan Co. v. Minka Lighting, Inc., 2006 WL 1627746, at *2
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`(W.D. Tenn. 1990).
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`Further, the relevant inquiry in a transfer analysis is convenience, not
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`whether it is reasonable for a company to expect to litigate in a jurisdiction in which it conducts
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`business.
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`In any event, it is also “reasonable” to expect Plaintiff to face the prospect—and
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`cost—of litigating in the district that is more convenient for the majority of the 19 different
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`defendants it has chosen to sue.9
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`III.
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`THE PUBLIC INTEREST FACTORS FAVOR TRANSFER
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`A.
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`Court Congestion Does not Weigh Against Transfer
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`Plaintiff argues that the Western District of Tennessee has a shorter median time from
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`filing to trial, and fewer intellectual property cases, but neglects to mention that the average
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`docket of pending cases per judge was actually higher in this District. See Ex. E. Regardless,
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`given the statistics provided by Google in its opening brief, and the fact that this case is governed
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`by a special set of local rules, overall, this factor is neutral. See Van Andel Inst. v. Thorne
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`9 B.E. claims it would suffer significant financial burden if the case were transferred, because it would be forced to
`pay for Mr. Hoyle’s travel and because Mr. Hoyle might lose consulting opportunities while travelling. See Hoyle
`Decl. at ¶ 9. This argument should not be given weight as B.E. chose to embark on this litigation campaign.
`Moreover, the loss of consulting opportunities, even if realized, would affect Mr. Hoyle, not B.E.
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`Case 2:12-cv-02830-JPM-tmp Document 37 Filed 01/29/13 Page 14 of 16 PageID 295
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`Research, Inc., 1:12-CV-731, 2012 WL 5511912, at *4 (W.D. Mich. Nov. 14, 2012) (finding
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`median time slightly in favor of plaintiff, but taken as a whole, the public interest factors
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`appeared neutral); see also In re Genentech, 566 F.3d at 1347 (noting that court congestion is the
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`“most speculative” of the factors and “should not alone outweigh all of those other factors.”).
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`Irrespective of the differential time to trial, Google submits that the other factors discussed
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`herein outweigh this factor and favor transfer.
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`B.
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`The Northern District of California Has a Strong Local Interest
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`Plaintiff has not disputed the Northern District of California is the center of gravity of the
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`accused activity in this case, arguing instead that the Court should ignore this fact because of
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`B.E.’s strong connections to this forum. As discussed above, Plaintiff’s ties to this District are
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`weak, and were created for purposes of litigation. See In re Hoffmann-La Roche, 587 F.3d at
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`1337. (Fed. Cor. Dec. 02, 2009) (“A plaintiff's attempts to manipulate venue in anticipation of
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`litigation or a motion to transfer falls squarely within... prohibited activities.”). Moreover, B.E.’s
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`claim that this District has a strong interest in this case because “Google sells goods and services
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`to Tennesseans on a massive scale” should also be rejected, because “the sale of an accused
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`product that is offered nationwide does not create a substantial interest in any venue.” In re Acer
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`Am. Corp., 626 F.3d at 1256 (citing Hoffmann La Roche, 587 F.3d at 1338)). Because Google
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`and the center of its activities are located in the Northern District of California, that Court has a
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`stronger legal interest in the underlying suit.
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`IV.
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`CONCLUSION
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`Google has met its burden in demonstrating that the Northern District of California is
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`more convenient and this Court should grant Google’s motion to transfer.
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`Case 2:12-cv-02830-JPM-tmp Document 37 Filed 01/29/13 Page 15 of 16 PageID 296
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`Respectfully submitted,
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`s/Glen G. Reid, Jr. (#8184)
`Glen G. Reid, Jr.
`WYATT, TARRANT & COMBS, LLP
`1715 Aaron Brenner Drive, Suite 800
`Memphis, TN 38120-4367
`Phone: 901.537.1000
`Facsimile: 901.537.1010
`greid@wyattfirm.com
`
`s/Mark Vorder-Bruegge, Jr. (#06389)
`Mark Vorder-Bruegge, Jr.
`WYATT, TARRANT & COMBS, LLP
`1715 Aaron Brenner Drive, Suite 800
`Memphis, TN 38120-4367
`Phone: 901.537.1000
`Facsimile: 901.537.1010
`mvorder-bruegge@wyattfirm.com
`
`Attorneys for Defendant
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`Of counsel:
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`A. John P. Mancini
`MAYER BROWN LLP
`1675 Broadway
`New York, NY 10019-5820
`(212) 506-2500
`jmancini@mayerbrown.com
`
`Brian A. Rosenthal, pro hac pending
`Ann Marie Duffy, pro hac pending
`MAYER BROWN, LLP
`1999 K Street, NW
`Washington, DC 20006
`(202) 263-3000
`brosenthal@mayerbrown.com
`aduffy@mayerbrown.com
`
`Attorneys for Defendant
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`Case 2:12-cv-02830-JPM-tmp Document 37 Filed 01/29/13 Page 16 of 16 PageID 297
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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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`the date of such service.
`
`s/Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr.
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