Case 2:12-cv-02832-JPM-tmp Document 28 Filed 01/17/13 Page 1 of 5 PageID 296
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`B.E. TECHNOLOGY, L.L.C.,
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`Civil Action No: 2:12-cv-02832-JPM-tmp
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`SPARK NETWORKS, INC.
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`Plaintiff,
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`v.
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`Defendant.
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`MOTION AND MEMORANDUM FOR LEAVE TO FILE
`REPLY SUPPORTING DEFENDANT’S MOTION TO TRANSFER
`(INCLUDING CERTIFICATE OF CONSULTATION)
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`Pursuant to this Court’s Local Rule 7.2(c), defendant Spark Networks, Inc.
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`(“Spark”) respectfully moves for entry of the accompanying proposed Order, granting leave to
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`file a reply memorandum, not exceeding 10 pages in length, supporting defendant’s pending
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`motion to transfer venue of this action under 28 U.S.C. § 1404. In support of the relief sought
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`herein, Spark respectfully submits the following:
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`1.
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`This action was commenced on September 22, 2012. (D.I. 1) Spark
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`timely responded to the complaint on December 31, 2012. (D.I. 21) On December 21, 2012,
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`Spark filed a motion and supporting documents seeking transfer of this action to the Central
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`District of California, or in the alternative to the Northern District of California, under 28 U.S.C.
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`§ 1404. (D.I. 20) Plaintiff filed a response opposing such transfer. (D.I. 26)
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`Case 2:12-cv-02832-JPM-tmp Document 28 Filed 01/17/13 Page 2 of 5 PageID 297
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`2.
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`The determination of which venue best serves the interests of justice and
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`the convenience of parties and witnesses is among the most important matters the Court will
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`decide in this action. It will determine which Court’s resources will be employed in managing
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`and deciding the case, whether and how the parties may procure relevant evidence, and a
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`potentially extended series of travel and lodging arrangements for a large number of people.
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`Indeed, given the existence of 18 other cases filed by the same plaintiff (most involving the same
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`‘314 patent asserted against Spark as detailed in Spark’s transfer motion), the filing of transfer
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`motions in at least the majority of the cases, and the relationship of all the motions to the Court’s
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`consideration of each, the Court’s decision will likely affect an extremely large number of
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`people. The issue merits thorough consideration of all relevant facts, arguments, and authorities.
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`3.
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`As the party moving for transfer, Spark bears the burden on the underlying
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`motion. Allowing Spark an opportunity for rebuttal, through a reply memorandum, comports
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`with fair application of that burden.
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`4.
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`The opposition to transfer filed by Plaintiff includes arguments that were
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`not predictable as certain or requiring pre-emptive or hypothetical argument in defendant’s
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`opening motion papers, including arguments whose seemingly contradictory nature merits
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`analysis. For example, Plaintiff has suggested on the one hand that this action should be
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`consolidated with 18 others, yet addresses the transfer motion as a contest between only two
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`parties’ circumstances. Additionally, Plaintiff’s opposition contains factual assertions, not
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`previously ascertainable by Spark, to which Spark should be given an opportunity to respond.
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`While Spark believes the circumstances tilt strongly in favor of either proposed transferee
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`district, the Court should have the benefit of full argument on the implications of Plaintiff’s
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`assertions in making its venue determination.
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`Case 2:12-cv-02832-JPM-tmp Document 28 Filed 01/17/13 Page 3 of 5 PageID 298
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`5.
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`This action is in an early stage. No Scheduling Order has been entered
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`yet. The proposed Order on this motion would require Spark to file its reply memorandum
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`within just 7 days from the grant of leave. Allowing these few additional days before the motion
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`is at issue for decision will not materially impede the progress of this action.
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`6.
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`Like any Section 1404 motion in a case of this type, briefing must address
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`a number of issues and circumstances. While Spark is committed to its reply being as concise as
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`possible, coverage of the issues meriting a reply appears likely to require more than the 5 pages
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`normally permitted by Local Rule 7.2(e). This motion respectfully requests authorization to use
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`up to 10 pages for such purpose.
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`Respectfully submitted,
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`By: s/Glen G. Reid, Jr.
`Glen G. Reid, Jr. (#8184)
`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
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`By: s/Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge (#6389)
`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
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`Case 2:12-cv-02832-JPM-tmp Document 28 Filed 01/17/13 Page 4 of 5 PageID 299
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`Laurence S. Rogers (admission pending)
`ROPES & GRAY LLP
`1211 Avenue of the Americas
`New York, NY 10036
`Phone: 212.596.9033
`Facsimile: 212-596-9090
`Laurence.Rogers@ropesgray.com
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`Brandon H. Stroy (admission pending)
`ROPES & GRAY LLP
`1900 University Avenue
`East Palo Alto, CA 94303
`Phone: 650.617.4028
`Facsimile: 650.617.4090
`Brandon.Stroy@ropesgray.com
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`Attorneys for Defendant
`Spark Networks, Inc.
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`CERTIFICATE OF CONSULTATION
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`The undersigned attorney hereby certifies that prior to the filing of this motion, multiple
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`consultations over several days including January 16, 2013, were held with Richard Carter,
`attorney for plaintiff, to determine whether plaintiff would agree to the relief sought; but such
`consultations were not successful in reaching agreement.
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`s/Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr.
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`CERTIFICATE OF SERVICE
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`s/Mark Vorder-Bruegge, Jr.
`Mark Vorder-Bruegge, Jr.
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`4
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`The foregoing document was filed under the Court’s CM/ECF system, automatically
`effecting service on counsel of record for all other parties who have appeared in this action on
`the date of such service.
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`Case 2:12-cv-02832-JPM-tmp Document 28 Filed 01/17/13 Page 5 of 5 PageID 300
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`Case 2:12—cv—O2832—JPM—tmp Document 28 Filed 01/17/13 Page 5 of 5 Page|D 300Case 2:12—cv—O2832—JPM—tmp Document 28 Filed 01/17/13 Page 5 of 5 Page|D 300
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