Case 2:12-cv-02833-JPM-tmp Document 40 Filed 02/22/13 Page 1 of 25 PageID 370
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff/Counter-Defendant,
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`v.
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`PEOPLE MEDIA, INC.,
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`Defendant/Counterclaimant.
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`Case No. 2:12-cv-02833-JPM tmp
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`JURY DEMAND
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`REQUEST HEARING ON MOTION
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`PLAINTIFF’S MEMORANDUM IN OPPOSITION TO DEFENDANT’S
`MOTION TO TRANSFER VENUE
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`
`
`Dated: February 22, 2013
`
`
`Richard M. Carter (TN B.P.R. #7285)
`Adam C. Simpson (TN B.P.R. #24705)
`MARTIN, TATE, MORROW & MARSTON, P.C.
`6410 Poplar Avenue, Suite 1000
`Memphis, TN 38119-4839
`Telephone: (901) 522-9000
`
`Robert E. Freitas (CA Bar No. 80948)
`Craig R. Kaufman (CA Bar No. 159458)
`Daniel J. Weinberg (CA Bar No. 227159)
`James Lin (CA Bar No. 241472)
`Qudus B. Olaniran (CA Bar No. 267838)
`FREITAS TSENG & KAUFMAN LLP
`100 Marine Parkway, Suite 200
`Redwood Shores, CA 94065
`Telephone: (650) 593-6300
`
`Attorneys for Plaintiff
`B.E. Technology, L.L.C.
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`

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`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.
`VI.
`
`
`C.
`
`INTRODUCTION ............................................................................................................. 1
`STATEMENT OF FACTS ................................................................................................ 2
`A.
`B.E. Technology, L.L.C ......................................................................................... 2
`B.
`B.E. v. People Media ............................................................................................. 3
`THE LAW GOVERNING MOTIONS TO TRANSFER .................................................. 3
`TRANSFER IS NOT APPROPRIATE ............................................................................. 4
`A.
`B.E.’s Choice of Forum is Entitled to Substantial Weight .................................... 4
`B.
`Private Factors Favor B.E.’s Choice of Forum ...................................................... 8
`1.
`Convenience of the Parties Weighs Against Transfer ............................... 8
`2.
`Convenience of the Witnesses Weighs Against Transfer .......................... 9
`a.
`Party Witnesses ............................................................................ 10
`b.
`Non-Party Witnesses .................................................................... 12
`Location of Sources of Proof ................................................................... 14
`People Media Would Not Be Materially Burdened Bearing The
`Expense of Litigating in the Western District of Tennessee .................... 16
`Public Factors Favor B.E.’s Choice of Forum ..................................................... 16
`1.
`Transfer to the Northern District of California and the Northern
`District of Texas Would Delay Trial ....................................................... 16
`The Western District of Tennessee Has a Substantial Local Interest
`in the Vindication of B.E.’s Patent Rights ............................................... 17
`REQUEST FOR ORAL ARGUMENT ........................................................................... 18
`CONCLUSION ................................................................................................................ 20
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`3.
`4.
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`2.
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`-i-
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`
`
`TABLE OF AUTHORITIES
`
`Federal Cases
`
`Page(s)
`
`Adoma v. Univ. of Phoenix, Inc.,
`711 F. Supp. 2d 1142 (E.D. Cal. 2010)....................................................................................10
`
`American S.S. Owners Mut. Prot. & Indem. Ass’n, Inc. v. Lafarge North Am., Inc.,
`474 F. Supp. 2d 474 (S.D.N.Y. 2002) ......................................................................................15
`
`Board of Trs. v. Baylor Heading & Air Conditioning, Inc.,
`702 F. Supp. 1253 (E.D. Va. 1988) .........................................................................................10
`
`Cincinnati Ins. Co. v. O’Leary Paint Co.,
`676 F. Supp. 2d 623 (W.D. Mich. 2009) .................................................................................15
`
`E2Interactive, Inc. v. Blackhawk Network, Inc.,
`2010 WL 3937911 (W.D. Wis. Oct. 6, 2010) ..........................................................................17
`
`Ellipsis, Inc. v. Colorworks, Inc.,
`329 F. Supp. 2d 962 (W.D. Tenn. 2004) ..................................................................................16
`
`Esperson v. Trugreen Ltd. P’ship,
`2010 WL 4362794 (W.D. Tenn. Oct. 5, 2010) ......................................................11, 13, 16, 17
`
`Hanning v. New England Mut. Life Ins. Co.,
`710 F. Supp. 213 (S.D. Ohio 1989) ...........................................................................................5
`
`In re Hoffman-La Roche, Inc.,
`587 F.3d 1333 (Fed. Cir. 2009)..............................................................................................7, 8
`
`Hunter Fan Co. v. Minka Lighting, Inc.,
`2006 WL 1627746 (W.D. Tenn. June 12, 2006) (McCalla, J.) ....................................... passim
`
`Imagepoint, Inc. v. Keyser Indus., Inc.,
`2005 WL 1242067 (E.D. Tenn. May 25, 2005) .....................................................................4, 5
`
`Innogenetics, N.V. v. Abbott Labs,
`512 F.3d 1363 (Fed. Cir. 2008)................................................................................................12
`
`Kerobo v. Southwestern Clean Fuels Corp.,
`285 F.3d 531 (6th Cir. 2002) .....................................................................................................3
`
`Koh v. Microtek Int’l, Inc.,
`250 F. Supp. 2d 627 (E.D. Va. 2003) ......................................................................................10
`
`ii
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`

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`Case 2:12-cv-02833-JPM-tmp Document 40 Filed 02/22/13 Page 4 of 25 PageID 373
`
`
`TABLE OF AUTHORITIES
`(CONT.)
`
`Federal Cases
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`Page(s)
`
`In re Link_A_Media Devices Corp.,
`662 F.3d 1221 (Fed. Cir. 2011)................................................................................................15
`
`Lucent Techs., Inc. v. Aspect Telecomms. Corp.,
`1997 WL 476356 (E.D. Pa. Aug. 20, 1997) ..........................................................................8, 9
`
`Max Rack, Inc. v. Hoist Fitness Sys., Inc.,
`2006 WL 640497 (S.D. Ohio March 10, 2006) .................................................................14, 15
`
`MCNIC Oil & Gas Co. v. IBEX Resources Co., L.L.C.,
`23 F. Supp. 2d 729 (E.D. Mich. 1998) .......................................................................................4
`
`In re Microsoft Corp.,
`630 F.3d 1361 (Fed. Cir. 2011)..............................................................................................6, 7
`
`Moses v. Business Card Express, Inc.,
`929 F.2d 1131 (6th Cir. 1991) ...................................................................................................4
`
`Nationwide Mut. Life Ins. v. Koresko,
`2007 WL 2713783 (S.D. Ohio Sept. 14, 2007) ...................................................................3, 15
`
`Parsons v. Chesapeake & Ohio Ry. Co.,
`375 U.S. 71 (1963) ...................................................................................................................17
`
`Plough, Inc. v. Allergan, Inc.,
`741 F. Supp. 144 (W.D. Tenn. 1990).....................................................................................3, 4
`
`Returns Distribution Spec., LLC v. Playtex Prods., Inc.,
`2003 WL 21244142 (W.D. Tenn. May 28, 2003) .....................................................................4
`
`Rinks v. Hocking,
`2011 WL 691242 (W.D. Mich. Feb. 16, 2011)................................................................ passim
`
`Roberts Metals, Inc. v. Florida Props. Mktg. Grp., Inc.,
`138 F.R.D. 89 (N.D. Ohio 1991) .......................................................................................11, 13
`
`Samsung Elecs. Co. v. Rambus, Inc.,
`386 F. Supp. 2d 708 (E.D. Va. 2005) ......................................................................................10
`
`- iii -
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`

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`Case 2:12-cv-02833-JPM-tmp Document 40 Filed 02/22/13 Page 5 of 25 PageID 374
`
`
`TABLE OF AUTHORITIES
`(CONT.)
`
`Federal Cases
`
`Page(s)
`
`Siteworks Solutions, LLC v. Oracle Corp.,
`2008 WL 4415075 (W.D. Tenn. Sept. 22, 2008) .....................................................................16
`
`Stewart Organization, Inc. v. Ricoh Corp.,
`487 U.S. 22 (1988) .....................................................................................................................4
`
`Tuna Processors, Inc. v. Hawaii Int’l Seafood,
`408 F. Supp. 2d 358 (E.D. Mich. 2005) .....................................................................................4
`
`Van Dusen v. Barrack,
`376 U.S. 612 (1964) ...................................................................................................................4
`
`Viron Int’l Corp. v. David Boland, Inc.,
`237 F. Supp. 2d 812 (W.D. Mich. 2002) ...........................................................................10, 11
`
`In re Zimmer Holdings,
`609 F.3d 1378 (Fed. Cir. 2010)..................................................................................................8
`
`Federal Statutes
`
`28 U.S.C. § 1404 ..............................................................................................................................2
`
`28 U.S.C. § 1404(a) .........................................................................................................................3
`
`Fed. R. Civ. P. 45(b)(2)..................................................................................................................13
`
`Rules
`
`
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`- iv -
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`I.
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`INTRODUCTION.
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`This case arises from the infringement by defendant People Media, Inc. (“People Media”)
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`of United States Patent No. 6,628,314. This patent describes and claims inventions relating to
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`user interfaces for accessing computer applications and information to provide advertising over a
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`computer network. Plaintiff B.E. Technology, L.L.C. (“B.E.”) has brought this action because
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`People Media has infringed B.E.’s patent in this District and across the United States. The
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`inventor, Martin David Hoyle, is also the Chief Executive Officer of B.E. Mr. Hoyle has lived in
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`the Western District of Tennessee since 2006 and currently resides at 116 W. Viking Drive,
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`Cordova, Tennessee, part of the City of Memphis. Mr. Hoyle has directed B.E.’s business from
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`this District since at least 2008.
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`Disregarding critical facts establishing B.E.’s connection to this District, and relying on
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`dated information from a more than decade-old B.E. business plan, People Media has asked the
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`Court to transfer this case from the inventor’s and the plaintiff company’s home District to one
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`of People Media’s principal places of business, the Northern District of California (or
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`alternatively, to the Northern District of Texas where People Media’s engineering and
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`technological operations are based). This case does not involve a plaintiff taking steps to
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`manufacture venue as People Media contends. The Western District of Tennessee is, and has
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`long been, the physical location and home of B.E. and its Chief Executive Officer, who is the
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`inventor of the patent-in-suit. People Media cannot disprove that.
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`Despite Mr. Hoyle’s and B.E.’s longstanding connection to this District, and having no
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`real connection to the Northern District of California, D.E. 35-1 at 11, People Media argues that
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`transfer to the Northern District of California would be more convenient because other
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`defendants sued by B.E. have sought transfer there and it has an office in Los Angeles (in the
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`Central District of California). Alternatively, People Media contends that it would be more
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`1
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`Case 2:12-cv-02833-JPM-tmp Document 40 Filed 02/22/13 Page 7 of 25 PageID 376
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`convenient to transfer the case to the Northern District of Texas, where People Media maintains
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`facilities relevant to this action. Transfer to California or Texas might theoretically be more
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`convenient for People Media, but either location would be less convenient for B.E. Transfer
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`under 28 U.S.C. § 1404 requires a “more convenient forum,” not merely a “forum likely to prove
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`equally convenient or inconvenient,” or “a forum the defendant finds more to its liking.”
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`Because People Media can offer no more, its motion to transfer should be denied.
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`II.
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`STATEMENT OF FACTS.
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`A.
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`B.E. Technology, L.L.C.
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`B.E. is a Delaware limited liability company. Declaration of Martin David Hoyle
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`(“Hoyle Decl.”) ¶ 5. Martin David Hoyle, who goes by David, founded B.E. in 1997 to develop
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`Internet-related technologies. Id. B.E. is the assignee of United States Patent No. 6,628,314 (the
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`“’314 patent”) (the “patent-in-suit”). Id. ¶ 7. Mr. Hoyle has been B.E.’s Chief Executive Officer
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`since 2008. Id. ¶ 6. He previously held other positions with B.E., including serving as its
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`President from 1997 to 2001. Id. Mr. Hoyle is the named inventor of the patent-in-suit.1 Id. ¶ 7.
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`In April 2006, Mr. Hoyle and his family moved from Mandeville, Louisiana to Eads,
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`Tennessee. Id. ¶ 2. They left Louisiana in the aftermath of Hurricane Katrina. Id. Mr. Hoyle
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`has remained in the Memphis area, and in this judicial district, ever since. See id. ¶¶ 2-4. In
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`2012, after contemplating a return to Louisiana, Mr. Hoyle and his wife moved to Cordova, in
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`the city of Memphis and also in this District. Id. ¶ 4.
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`B.E. originally maintained its registered office in Michigan where some of its members
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`and its accountant reside, id. ¶ 5, but it formally registered to conduct business in Tennessee in
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`2012. Id. ¶ 8. Mr. Hoyle runs the business of B.E. from his home office, including meeting with
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`1 In addition to his work for B.E., Mr. Hoyle is an independent technology consultant. Hoyle
`Decl. ¶ 9.
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`the B.E. Board of Directors, filing patent applications, and coordinating the enforcement of
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`B.E.’s intellectual property rights. Id. ¶ 6.
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`B.
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`B.E. v. People Media.
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`B.E. filed its Complaint in this matter on September 22, 2012. D.E. 1. People Media
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`filed its Answer on December 31, 2012, acknowledging that venue is proper in this District.
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`D.E. 21 ¶ 5 (“People Media admits that venue is proper in this district.”). This is one of nineteen
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`cases B.E. has filed in the Western District of Tennessee for the infringement of the patent-in-
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`suit and related patents not asserted against People Media. The defendants in these B.E. cases
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`include several of the world’s most sophisticated technology companies, each of which regularly
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`conducts business on a massive scale in this District.
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`III. THE LAW GOVERNING MOTIONS TO TRANSFER.
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`“For the convenience of parties and witnesses, in the interest of justice, a district court
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`may transfer any civil action to any other district or division where it might have been brought.”
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`28 U.S.C. § 1404(a). A decision to transfer venue is made “on an individual basis by
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`considering convenience and fairness.” Kerobo v. Southwestern Clean Fuels Corp., 285 F.3d
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`531, 537 (6th Cir. 2002) (internal quotes omitted). The “balance of convenience must weigh
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`heavily in favor of the transfer.” Nationwide Mut. Life Ins. v. Koresko, 2007 WL 2713783, at *5
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`(S.D. Ohio Sept. 14, 2007).
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`“As a general rule, there is a ‘strong presumption’ in favor of the plaintiff’s selection of
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`forum, and the plaintiff’s choice should not be altered ‘unless the defendant carries his burden of
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`demonstrating that the balance of convenience strongly favors transfer.’” Hunter Fan Co. v.
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`Minka Lighting, Inc., 2006 WL 1627746, at * 2 (W.D. Tenn. June 12, 2006) (McCalla, J.)
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`(quoting Plough, Inc. v. Allergan, Inc., 741 F. Supp. 144, 148 (W.D. Tenn. 1990)) (denying a
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`motion to transfer even though the majority of defendant’s witnesses and documents were
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`located in California and California was the epicenter of the accused infringing activity). “When
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`a plaintiff has selected its home forum, this choice is given particular weight.” Id. (citing Tuna
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`Processors, Inc. v. Hawaii Int’l Seafood, 408 F. Supp. 2d 358, 360 (E.D. Mich. 2005)).
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`The threshold question on any motion to transfer is whether the plaintiff could have filed
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`the action in the transferee forum. See Returns Distribution Spec., LLC v. Playtex Prods., Inc.,
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`2003 WL 21244142, at *6 (W.D. Tenn. May 28, 2003); MCNIC Oil & Gas Co. v. IBEX
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`Resources Co., L.L.C., 23 F. Supp. 2d 729, 739 (E.D. Mich. 1998) (same). If so, then the
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`“district court should consider the private interests of the parties, including their convenience and
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`the convenience of potential witnesses, as well as other public-interest concerns, such as
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`systemic integrity and fairness, which come under the rubric of ‘interests of justice.’” Moses v.
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`Business Card Express, Inc., 929 F.2d 1131, 1137 (6th Cir. 1991) (quoting Stewart
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`Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 30 (1988)).
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`IV.
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`TRANSFER IS NOT APPROPRIATE.
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`B.E. agrees that its patent infringement claims could have been brought in the Northern
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`District of California or the Northern District of Texas because People Media infringes in both
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`places, just as it does in this District. The relevant question presented by People Media’s motion
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`is whether People Media has met its high burden to establish that the Northern District of
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`California or the Northern District of Texas is “a more convenient forum,” not merely an
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`“equally convenient or inconvenient” forum when compared to the Western District of
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`Tennessee. Van Dusen v. Barrack, 376 U.S. 612, 645-46 (1964). People Media has not made
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`that showing.
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`A.
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`B.E.’s Choice of Forum is Entitled to Substantial Weight.
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`As mentioned above, it is well-settled that a plaintiff’s choice of forum is entitled to
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`substantial weight. Hunter Fan Co., 2006 WL 1627746, at *2; see also Imagepoint, Inc. v.
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`Case 2:12-cv-02833-JPM-tmp Document 40 Filed 02/22/13 Page 10 of 25 PageID 379
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`Keyser Indus., Inc., 2005 WL 1242067, at *3 (E.D. Tenn. May 25, 2005) (explaining the
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`plaintiff’s “choice of forum will be given deference”); Hanning v. New England Mut. Life Ins.
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`Co., 710 F. Supp. 213, 214-15 (S.D. Ohio 1989) (“considerable weight”). The Western District
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`of Tennessee is B.E.’s principal place of business and its Chief Executive Officer, who is the
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`named inventor, lives here. B.E.’s choice of forum should be accorded substantial weight.
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`People Media argues that B.E.’s contacts with this District are entitled to no weight
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`because the contacts were established in order to manipulate venue. D.E. 35-1 at 2. That is not
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`true, see Hoyle Decl. ¶¶ 2-7, and People Media’s incorrect deductions about the relevant facts
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`should be rejected. For example, People Media states that “[i]t was not until B.E. decided to sue
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`in this District that it conveniently began to change the location of its principal offices from
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`Michigan to Tennessee [and that] B.E. filed for authority to do business in this State just twenty-
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`two days before suing People Media . . . .” D.E. 35-1 at 5 (emphasis omitted). B.E.’s principal
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`office has been located in Tennessee since at least 2008. Hoyle Decl. ¶ 6. People Media
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`disregards that fact to focus on when B.E. registered to conduct business in Tennessee. But the
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`focus on the timing of the business registration is misplaced because B.E. has never relied on the
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`fact that it is registered to conduct business in Tennessee as a basis for establishing its connection
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`to the District. As previously explained in opposition to other B.E. defendant motions to
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`transfer, B.E. registered because it has a connection to Tennessee; it did not register to establish a
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`connection. See, e.g., Plaintiff [B.E.’s] Memorandum in Opposition to Defendant [Facebook
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`Inc.’s] Motion to Transfer Venue, D.E. 38 at 6, Case No. 2:12-cv-02769-JPM-tmp (January 31,
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`2013).
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`People Media also wrongly states that “[B.E.] does not have any offices in Tennessee.”
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`D.E. 35-1 at 14. B.E. clearly has an office in Tennessee. It is Mr. Hoyle’s home office in
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`Cordova and it is the place from which Mr. Hoyle controls and directs B.E. business activities.
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`Hoyle Decl. ¶ 6. See In re Microsoft Corp., 630 F.3d 1361, 1364 (Fed. Cir. 2011) (explaining
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`the court should identify “the place of actual direction, control and coordination.”). People
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`Media also strangely adds that Mr. Hoyle “only recently decided to reside permanently in
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`Tennessee;” id. (emphasis added), apparently ignoring or discounting the previous six years
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`when he also lived in Tennessee. Mr. Hoyle has been physically present in this District since
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`2006, and B.E. since at least 2008. Hoyle Decl. ¶¶ 2-7. Mr. Hoyle’s move to this District, six
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`years before the filing of this action, was not the first step in manufacturing venue; and his wife’s
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`and his decision to buy a home in Cordova was not designed to create venue in this District.
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`Hoyle Decl. ¶ 4.
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`In an attempt to further undermine B.E.’s connection to this District, People Media oddly
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`proclaims that the “majority of B.E.’s witnesses and documents appear to be in either Michigan
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`or Louisiana . . .” and that the “only documents located in Tennessee belong to Mr. Hoyle.” D.E.
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`35-1 at 14-15. As B.E. wrote in opposition to Facebook’s motion to transfer, there are no
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`documents located in Louisiana, and few, if any relevant documents located in Michigan. The
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`relevant B.E. records, including documents demonstrating the conception and reduction to
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`practice of Mr. Hoyle’s inventions, are physically located in this District. Plaintiff [B.E.’s]
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`Memorandum in Opposition to Defendant [Facebook Inc.’s] Motion to Transfer Venue, D.E. 38
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`at 6, Case No. 2:12-cv-02769-JPM-tmp (January 31, 2013). This is not a recent development, a
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`fictitious arrangement strategically to place important evidence in the Western District of
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`Tennessee, and People Media, if it has been paying attention, should already know this.
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`People Media further questions B.E.’s connection to this District by pointing to the
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`December 2011 patent application where Mr. Hoyle represented that he was a resident of New
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`Orleans. D.E. 35-1 at 4-5, 13. Like the other B.E. defendants that have previously argued the
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`patent application, People Media fails to rebut or offer new information about Mr. Hoyle’s
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`personal situation or the circumstances that led him briefly to seek to establish residence in New
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`Orleans when the December 2011 patent application was filed. See Hoyle Decl. ¶ 4. Nor does
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`People Media present any information that demonstrates Mr. Hoyle’s statements in this Court are
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`inconsistent with the representation made to the Patent Office about his residency. Mr. Hoyle is
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`a resident of this District and his presence and residence here have nothing at all do with a desire
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`to manufacture venue.
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`Next, People Media points to dated information from a May 2000 B.E. business plan
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`apparently to establish that B.E. operates from outside the Western District of Tennessee.
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`Nonsense. B.E. plainly operates from within this District. For example, People Media states
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`“[o]f the three individuals that play leading roles in B.E.’s management, only one is allegedly
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`located in Tennessee, the other two live and reside in Michigan.” D.E. 35-1 at 4-5. Only Mr.
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`Hoyle plays a leading role in the management of B.E. Hoyle Decl. ¶ 6. He is B.E.’s current
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`CEO and has been since 2008. Id. The presumed location of former employees or managers is
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`of no relevance to this motion and B.E.’s present connection to the Western District of
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`Tennessee. The existence and whereabouts of individuals identified in a nearly thirteen year old
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`document changes none of that.
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`There is no similarity between these facts and the facts of the cases on which People
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`Media relies. See In re Microsoft Corp., 630 F.3d 1361, 1362 (Fed. Cir. 2011) (“[Plaintiff] is
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`operated from the United Kingdom by the patent’s co-inventor and company’s managing
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`member” and employed no individuals at its office in the Eastern District of Texas.); In re
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`Hoffman-La Roche, Inc., 587 F.3d 1333, 1336-37 (Fed. Cir. 2009) (“[T]here appears to be no
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`Case 2:12-cv-02833-JPM-tmp Document 40 Filed 02/22/13 Page 13 of 25 PageID 382
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`connection between this case and the Eastern District of Texas except that in anticipation of this
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`litigation, [plaintiff’s] counsel in California converted into electronic format 75,000 pages of
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`documents demonstrating conception and reduction to practice and transferred them to the
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`offices of its litigation counsel in Texas.”); In re Zimmer Holdings, 609 F.3d 1378, 1381 (Fed.
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`Cir. 2010) (“[Plaintiff] transported copies of its patent prosecution files from Michigan to its
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`Texas office space, which it shares with another of its trial counsel’s clients.”). B.E.’s contacts
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`with the forum were not manufactured for litigation and as a result, its choice of forum is entitled
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`to “substantial weight.”
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`B.
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`Private Factors Favor B.E.’s Choice of Forum.
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`While B.E.’s choice of forum is entitled to substantial weight, the Court is nevertheless
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`required to evaluate private and public factors in determining whether to grant People Media’s
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`motion. “The private interests of the parties that courts consider when determining whether to
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`transfer a case include: the convenience of the parties, the convenience of witnesses, the location
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`of sources of proof, where the operative facts occurred, the relative ability of litigants to bear
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`expenses in any particular forum, and other practical problems affecting the case.” Hunter Fan,
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`2006 WL 1627746, at *2.
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`1.
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`Convenience of the Parties Weighs Against Transfer.
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`The Western District of Tennessee is more convenient for B.E. than the Northern District
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`of California. As previously explained, B.E. and its CEO, the inventor of the patents-in-suit,
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`reside within the District. B.E.’s corporate documents and records are here as well. Outside of
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`witness convenience, People Media does not make an explicit argument that it will be
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`inconvenienced by conducting litigation in Tennessee. It is reasonable to require companies with
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`the wealth and size of People Media to litigate in jurisdictions in which they regularly conduct
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`business. See Lucent Techs., Inc. v. Aspect Telecomms. Corp., 1997 WL 476356, at *4 (E.D. Pa.
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`Case 2:12-cv-02833-JPM-tmp Document 40 Filed 02/22/13 Page 14 of 25 PageID 383
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`Aug. 20, 1997) (finding it reasonable to force a public company with “$300 million a year in
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`sales and approximately $216 million in current assets, to travel to places where it is subject to
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`jurisdiction in order to defend its corporate interests”). People Media is a subsidiary of a very
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`wealthy company. As a private company, B.E. does not have access to People Media’s financial
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`information; however, People Media’s parent company, IAC/Interactive Corp, reported for the
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`fiscal quarter ending September 30, 2012 that People Media contributed to $178,190,000 in
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`revenue, with operating income of $56,078,000. Declaration of Daniel Weinberg (“Weinberg
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`Decl.”) Ex. A. As of February 21, 2013, People Media’s parent, IAC/Interactive Corp, had a
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`market capitalization of $3,500,000,000, and to defend it in this action, People Media has
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`retained lawyers from Nashville, Chicago, and Dallas. It is doubtful that People Media will
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`suffer hardship or inconvenience by litigating in the Western District of Tennessee.
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`2.
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`Convenience of the Witnesses Weighs Against Transfer.
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`People Media argues that the Northern District of California would be a “much more
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`convenient” venue for its own witnesses because its “General Manager, marketing, product
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`management, and finance departments are located in Los Angeles, California” and because
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`“many of Defendants’2 witnesses are already located in California.” D.E. 35-1 at 13 (emphasis
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`added). None of People Media’s witnesses are located within the Northern District of California,
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`and all of People Media’s potential witnesses that have technical knowledge relevant to the
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`infringement of the patent-in-suit are located in Dallas. See D.E. 35-1 at 18. Thus, in addition to
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`being more convenient to B.E. to litigate in this District, it is more convenient and less disruptive
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`for People Media’s Texas-witnesses to testify in this District than the Northern District of
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`California. Although People Media purports to have many witnesses who are located in
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`2 Presumably, People Media is referring to other defendants accused of infringing B.E. patents in
`related actions pending before this Court, a reference it makes repeatedly to disguise the fact that
`it has no connection to the Northern District of California.
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`Case 2:12-cv-02833-JPM-tmp Document 40 Filed 02/22/13 Page 15 of 25 PageID 384
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`California, it is “the materiality and importance of the testimony of prospective witnesses, and
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`not merely the number of witnesses, [that] is crucial to this inquiry.” Rinks v. Hocking, 2011 WL
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`691242, at *3 (W.D. Mich. Feb. 16, 2011) (citing Viron Int’l Corp. v. David Boland, Inc., 237 F.
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`Supp. 2d 812, 816 (W.D. Mich. 2002)). People Media has failed on this showing.
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`People Media offers precious little about whom the witnesses are that will be
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`inconvenienced by the case staying in Tennessee, what they will say, and why they are important
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`to this case. “To sustain a finding on [the convenience of the witnesses] . . . the party asserting
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`witness inconvenience ‘has the burden to proffer, by affidavit or otherwise, sufficient details
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`respecting the witnesses and their potential trial testimony to enable the court to assess the
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`materiality of evidence and the degree of inconvenience.’” Rinks, 2011 WL 691242, at *3
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`(quoting Koh v. Microtek Int’l, Inc., 250 F. Supp. 2d 627, 636 (E.D. Va. 2003)); Samsung Elecs.
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`Co. v. Rambus, Inc., 386 F. Supp. 2d 708, 718 (E.D. Va. 2005) (same). District courts typically
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`require affidavits or declarations that contain admissible evidence setting forth “who the key
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`witnesses will be and what their testimony will generally include.” Rinks, 2011 WL 691242, at
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`*3 (quoting Adoma v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142, 1151 (E.D. Cal. 2010)); see
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`also Board of Trs. v. Baylor Heading & Air Conditioning, Inc., 702 F. Supp. 1253, 1258 (E.D.
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`Va. 1988) (“Witness convenience . . . cannot be assessed in the absence of reliable information
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`identifying the witnesses involved and specifically describing their testimony.”). People Media
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`provides none of that.
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`a. Party Witnesses.
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`People Media claims that its employees who are likely to be witnesses would be
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`inconvenienced if the case remains in Tennessee, but offers no particularized information
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`enabling the Court to ascertain how much weight to give the claim of inconvenience. People
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`Media fails to identify any witnesses by name, the subject matter on which they will testify, or
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`Case 2:12-cv-02833-JPM-tmp Document 40 Filed 02/22/13 Page 16 of 25 PageID 385
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`the burdens they would endure by traveling to Tennessee to testify. People Media merely states
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`that its “General manager and marketing, product management, and finance departments are
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`located in Los Angeles, California.” See Declaration of Chris Haltiner (“Haltiner Decl.”) ¶¶ 6, 5
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`(“[People Media’s] employees who design and develop the accused instrumentalities are located
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`in Dallas, Texas.”). “[A] party that ‘fails to identify the witnesses’ and ‘what their testimony
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`would be’ cannot establish that a particular forum is inconvenient.” Esperson v. Trugreen Ltd.
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`P’