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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`B.E. TECHNOLOGY, LLC,
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`Plaintiff,
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`PEOPLE MEDIA, INC.,
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`Defendant.
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`No.: 2:12-cv-02833-JPM-tmp
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`ORDER DENYING MOTION TO TRANSFER VENUE
`
`Before the Court is the Motion to Transfer Venue (“Motion
`to Transfer”) of Defendant People Media, Inc. (“Defendant” or
`“People Media”), filed February 5, 2013. (ECF No. 35.) For the
`reasons that follow, the Motion to Transfer is DENIED.
`I. BACKGROUND
`
`This case concerns People Media’s alleged infringement of
`United States Patent No. 6,628,314 (the “’314 patent”). (ECF
`No. 1.) Plaintiff B.E. Technology, LLC (“Plaintiff” or “B.E.”),
`is the assignee of the ’314 patent (ECF No. 40 at 2), currently
`owning “all right, title, and interest in the ’314 patent, and
`has owned all right, title, and interest throughout the period”
`of the alleged infringement (ECF No. 1 ¶ 10).
`B.E. alleges that People Media infringed the ’314 patent
`“by using a method of providing demographically targeted
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`advertising that directly infringes at least Claim 11 of the
`’314 patent either literally or under the doctrine of
`equivalents.” (Id. ¶ 11.)
`B.E. filed a Complaint in this Court on September 22, 2012.
`(ECF No. 1.) People Media filed its Answer and Counterclaim on
`December 31, 2012. (ECF No. 21.) On January 25, 2013, B.E.
`filed a Motion to Dismiss and Motion to Strike. (ECF No. 33.)
`On February 5, 2013, People Media filed its Motion to Transfer.
`(ECF No. 35.) On February 11, 2013, People Media filed a Motion
`to Stay the instant case pending resolution of its Motion to
`Transfer. (ECF No. 37.) The Court granted People Media’s
`Motion to Stay on February 12, 2013. (ECF No. 38.) B.E.
`responded in opposition to Defendant’s Motion to Transfer on
`February 22, 2013. (ECF No. 40.) With leave of this Court (ECF
`No. 41), People Media filed a Reply in support of Its Motion to
`Transfer on March 11, 2013 (ECF No. 43).
`People Media seeks to transfer this case to the Northern
`District of California. (ECF No. 35-1 at 1.) “People Media is
`a Delaware corporation, with its principal places of business in
`Los Angeles, California and Dallas, Texas.” (Id. at 6.) To
`support its Motion to Transfer, People Media contends “none of
`the nineteen Defendants that [B.E.] sued have any connection
`whatsoever” to the Western District of Tennessee; that “the
`overwhelming majority of Defendants are located in the Northern
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`District of California or on the West Coast;” that many of
`People Media’s relevant employees and documents are located in
`Los Angeles, California; that “B.E. has no meaningful connection
`to” the Western District of Tennessee; that “relevant non-party
`witnesses likely to have relevant information regarding the
`validity of the asserted patent” reside in the Northern District
`of California; and that the “cost and convenience of attendance
`for a majority of the willing witnesses plainly favors
`California.” (Id. at 1-2.) Further, People Media asserts that
`“judicial efficiency” will be “achieved by uniform treatment of
`the numerous transfer requests” currently before the Court.
`(Id. at 2.) Alternatively, People Media requests the Court
`transfer the instant case to the Northern District of Texas,
`which it asserts is a more convenient forum than the Western
`District of Tennessee. (Id.)
`B.E. argues that transfer is inappropriate because it has
`substantial connections with this district. (See ECF No. 40.)
`B.E. is a limited liability company incorporated in Delaware.
`(ECF No. 1 ¶ 2.) B.E. was originally registered in Michigan,
`but formally registered to conduct business in Tennessee in
`September 2012. (ECF No. 40 at 2.) B.E. contends that Memphis,
`Tennessee, is its principal place of business. (ECF No. 1 ¶ 2.)
`Martin David Hoyle (“Hoyle”), B.E.’s founder and CEO, is the
`named-inventor of the ’314 patent. (ECF No. 40 at 1-2.) B.E.
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`argues that Hoyle has been “present in this District since 2006,
`and B.E. since at least 2008,” and that this District is B.E.’s
`principal place of business. (Id. at 6.) B.E. also argues that
`transfer to either the Northern District of California or the
`Northern District of Texas would be less convenient for B.E.
`because Hoyle — CEO of B.E. and inventor of the ’314 patent —
`resides in the Western District of Tennessee. (Id. at 8.)
`Further, B.E. argues that the majority of B.E.’s documents have
`been maintained for years in the Western District of Tennessee.
`(Id. at 14.)
`II. STANDARD
`
`People Media moves the Court to transfer this case to the
`Northern District of California pursuant to 28 U.S.C. § 1404(a)
`or, alternatively, to the Northern District of Texas. (ECF
`No. 35-1 at 2.) The statute provides that “[f]or the
`convenience of the parties and witnesses, in the interest of
`justice, a district court may transfer any civil action to any
`other district or division where it might have been brought.”
`28 U.S.C. § 1404(a). “As the permissive language of the
`transfer statute suggests, district courts have ‘broad
`discretion’ to determine when party ‘convenience’ or ‘the
`interest of justice’ make a transfer appropriate.” Reese v. CNH
`Am. LLC, 574 F.3d 315, 320 (6th Cir. 2009).
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`In determining whether to transfer a case under § 1404(a),
`
`the court must first determine whether the claim could have been
`brought in the transferee district. 28 U.S.C. § 1404(a)
`(allowing transfer to any other district in which the claim
`“might have been brought”). Once the court has made this
`threshold determination, the court must then determine whether
`party and witness “convenience” and “the interest of justice”
`favor transfer to the proposed transferee district. Reese, 574
`F.3d at 320; Esperson v. Trugreen Ltd., No. 2:10-cv-02130-STA-
`cgc, 2010 WL 4362794, at *5 (W.D. Tenn. Oct. 5, 2010), adopted
`2010 WL 4337823 (W.D. Tenn. Oct. 27, 2010). In weighing these
`statutory factors, the court may still consider the private- and
`public-interest factors set forth in the pre-Section 1404(a)
`case, Gulf Oil v. Gilbert, 330 U.S. 501, 508-09 (1947), but
`courts are not burdened with “preconceived limitations derived
`from the forum non conveniens doctrine.” Norwood v.
`Kirkpatrick, 349 U.S. 29, 31 (1955) (quoting All States Freight
`v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952)) (internal
`quotation marks omitted); Esperson, 2010 WL 4362794, at *5. The
`United States Court of Appeals for the Sixth Circuit has stated
`that when deciding “a motion to transfer under § 1404(a), a
`district court should consider the private interests of the
`parties, including their convenience and the convenience of
`potential witnesses, as well as other public-interest concerns,
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`such as systemic integrity and fairness, which come under the
`rubric of ‘interests of justice.’” Moore v. Rohm & Haas Co.,
`446 F.3d 643, 647 n.1 (6th Cir. 2006).
`Additionally, the “interest of justice” factor has been
`interpreted broadly by courts, influenced by the individualized
`circumstances of each case. The United States Court of Appeals
`for the Federal Circuit has set forth a non-exhaustive list of
`pertinent public-interest factors:
`The public interest factors include (1) the
`administrative
`difficulties
`flowing
`from
`court
`congestion; (2) the local interest in having localized
`interests decided at home; (3) the familiarity of the
`forum with the law that will govern the case; and (4)
`the avoidance of unnecessary problems of conflicts of
`laws or in the application of foreign law.
`
`In re Acer Am. Corp., 626 F.3d 1252, 1254 (Fed. Cir. 2010); see
`also In Re Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir.
`2009) (finding the local-interest factor weighed heavily in
`favor of transfer); Cincinnati Ins. Co. v. O’Leary Paint Co.,
`676 F. Supp. 2d 623, 633 (W.D. Mich. 2009) (considering
`additional factors such as the relative docket congestion of the
`transferor and transferee districts).
`
`Initially, B.E. argues that there is a strong presumption
`in favor of its choice of forum, and that its choice of forum
`should not be disturbed unless the defendant carries its burden
`to demonstrate that the balance of convenience strongly favors
`transfer. (ECF No. 40 at 4-8.) B.E.’s argument is erroneously
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`derived from the more stringent forum-non-conveniens standard.
`Compare Hunter Fan Co. v. Minka Lighting, Inc., No. 06–2108
`M1/P, 2006 WL 1627746 (W.D. Tenn. June 12, 2006) (applying the
`appropriate private- and public-interest factors but relying on
`the forum-non-conveniens doctrine to accord strong deference to
`the plaintiff’s choice of forum), with OneStockDuq Holdings,
`LLC v. Becton, Dickinson, & Co., No. 2:12–cv–03037–JPM–tmp, 2013
`WL 1136726, at *3 (W.D. Tenn. Mar. 18, 2013), and Roberts
`Metals, Inc. v. Florida Props. Mktg. Grp., Inc., 138 F.R.D. 89,
`92-93 (N.D. Ohio 1991) (recognizing defendants need to make a
`lesser showing to overcome plaintiff’s choice of forum under
`§ 1404(a)), aff’d per curiam, 22 F.3d 1104 (6th Cir. 1994).
`Although there is a strong presumption in favor of the
`plaintiff’s choice of forum under the doctrine of forum non
`conveniens, under § 1404(a), a plaintiff’s choice of forum may
`be considered, but is entitled to less deference. Discussing
`the difference between the common-law doctrine of forum non
`conveniens and the federal transfer-of-venue statute in Norwood,
`the Supreme Court stated,
`When Congress adopted § 1404(a), it intended to
`do more than just codify the existing law on forum non
`conveniens. . . . [W]e believe that Congress, by the
`term “for the convenience of parties and witnesses, in
`the interest of justice,” intended to permit courts to
`grant
`transfers
`upon
`a
`lesser
`showing
`of
`inconvenience. This is not to say that the relevant
`factors have changed or that the plaintiff’s choice of
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`forum is not to be considered, but only that the
`discretion to be exercised is broader.
`
`Norwood, 349 U.S. at 32; see also Lemon v. Druffel, 253 F.2d
`680, 685 (6th Cir. 1958) (“The choice of the forum by the
`petitioner is no longer as dominant a factor as it was prior to
`the ruling in Norwood v. Kirkpatrick[.]”); Esperson, 2010 WL
`4362794, at *5-6.
`Defendant’s burden under § 1404(a) is to demonstrate that a
`change of venue to the transferee district is warranted. See
`Eaton v. Meathe, No. 1:11-cv-178, 2011 WL 1898238, at *2 (W.D.
`Mich. May 18, 2011); Amphion, Inc. v. Buckeye Elec. Co., 285 F.
`Supp. 2d 943, 946 (E.D. Mich. 2003); Roberts Metals, Inc., 138
`F.R.D. at 93. “Merely shifting the inconvenience from one party
`to another does not meet Defendant’s burden.” McFadgon v. Fresh
`Mkt., Inc., No. 05-2151-D/V, 2005 WL 3879037, at *2 (W.D. Tenn.
`Oct. 21, 2005). “[T]he movant must show that the forum to which
`he desires to transfer the litigation is the more convenient one
`vis a vis the Plaintiff’s initial choice.” Roberts Metals,
`Inc., 138 F.R.D. at 93 (quoting Mead Corp. v. Oscar J. Boldt
`Constr. Co., 508 F. Supp. 193, 198 (S.D. Ohio 1981)) (internal
`quotation marks omitted). If the court determines that the
`“balance between the plaintiff’s choice of forum and defendant’s
`desired forum is even, the plaintiff’s choice of [forum] should
`
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`prevail.” Stewart v. Am. Eagle Airlines, Inc., No. 3:10-00494,
`2010 WL 4537039, at *2 (M.D. Tenn. Nov. 3, 2010).
`III. ANALYSIS
`People Media states that it consents to jurisdiction in the
`Northern District of California. (See ECF No. 35-1 at 11.)
`B.E. does not dispute that this action could have been brought
`in the Northern District of California. (See ECF No. 40 at 4.)
`The Court agrees that B.E. could have brought suit in the
`Northern District of California. Therefore, the only issue
`remaining is whether the balance of the statutory factors — the
`convenience to the witnesses, the convenience to the parties,
`and the interest of justice — favors transfer to the Northern
`District of California. The Court will address each statutory
`factor separately and balance these factors to determine whether
`transfer to the Northern District of California is proper
`pursuant to § 1404(a). The Court will then address whether,
`alternatively, transfer to the Northern District of Texas is
`appropriate.
`A. Convenience of the Witnesses
`When asserting that a transferee district is more
`convenient for witnesses, a party “must produce evidence
`regarding the precise details of the inconvenience” of the forum
`chosen by the plaintiff. Esperson, 2010 WL 4362794, at *8. To
`satisfy its burden, the movant must do “more than simply
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`assert[] that another forum would be more appropriate for the
`witnesses; he must show that the witnesses will not attend or
`will be severely inconvenienced if the case proceeds in the
`forum district.” Id. (quoting Roberts Metals, Inc., 138 F.R.D.
`at 93). Further, “[t]o sustain a finding on [this factor] . . .
`the party asserting witness inconvenience has the burden to
`proffer, by affidavit or otherwise, sufficient details
`respecting the witnesses and their potential testimony to enable
`a court to assess the materiality of evidence and the degree of
`inconvenience.” Eaton v. Meathe, No. 1:11-cv-178, 2011 WL
`1898238, at *3 (W.D. Mich. May 18, 2011) (quoting Rinks v.
`Hocking, 1:10-CV-1102, 2011 WL 691242, at *3 (W.D. Mich. Feb.
`16, 2011)) (internal quotation marks omitted). It is the
`“materiality and importance of the testimony of prospective
`witnesses, and not merely the number of witnesses,” that is
`crucial to this inquiry. Rinks, 2011 WL 691242, at *3.
`People Media contends that witness convenience favors
`transfer to the Northern District of California. (ECF No. 35-1
`at 12-14; ECF No. 43 at 6-7.) To support this contention,
`People Media asserts that many of its witnesses responsible for
`maintaining relevant information reside in California. (ECF No.
`35-1 at 11.) Additionally, People Media asserts that “all of
`the presently known potential non-party witnesses affiliated
`with B.E. reside outside of Tennessee.” (Id. at 9.) People
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`Media identifies nine non-party witnesses with “relevant
`information regarding the technology at issue and prior art,”
`the majority of which reside in California. (Id. at 7-8, 11.)
`Further, People Media asserts that Hoyle is the “single relevant
`witness that lives in Tennessee.” (Id. at 13.)
`In response, B.E. argues that “the Western District of
`Tennessee is more convenient for B.E. than the Northern District
`of California,” as “B.E. and its CEO, the inventor of the [’314
`patent] reside within the District.” (ECF No. 40 at 8.)
`Further, B.E. asserts that “[n]one of People Media’s witnesses
`are located within the Northern District of California, and all
`of People Media’s potential witnesses that have technical
`knowledge relevant to the infringement of the [’314 patent] are
`located in Dallas.” (Id. at 9.) Accordingly, “it is more
`convenient and less disruptive for People Media’s Texas
`witnesses to testify in this District than in the Northern
`District of California.” (Id.)
`Because the convenience of party and non-party witnesses is
`given different weight, the Court will analyze the witnesses
`separately. See Azarm v. $1.00 Stores Servs., Inc., No. 3:08-
`1220, 2009 WL 1588668, at *4 (M.D. Tenn. June 5, 2009) (“[T]he
`convenience of potential non-party witnesses, who are not
`subject to the control of the parties, is a particularly weighty
`consideration, because it is generally presumed that party
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`witnesses will appear voluntarily in either jurisdiction, but
`non-party witnesses, with no vested stake in the litigation, may
`not.”).
`
`1. Party Witnesses
`People Media argues that “[i]n the aggregate, this
`litigation will be significantly less burdensome and costly for
`the parties if it is transferred to the Northern District of
`California” as “People Media’s [g]eneral manager and marketing,
`product management, and finance departments are located in
`California.” (ECF No. 35-1 at 13.) In its Motion to Transfer,
`People Media includes the Declaration of Chris Haltiner,
`Director of Development, which states the locations of various
`departments, operations, and employees charged with maintaining
`financial, sales, and marketing documents. (Haltiner Decl., ECF
`No. 35-28, ¶¶ 1, 4-6.)
`B.E. asserts that People Media has failed to provide any
`“particularized information enabling the Court to ascertain how
`much weight to give the claim of inconvenience.” (ECF No. 40 at
`10.) In support, B.E. states that People Media “offers precious
`little about whom the witnesses are that will be inconvenienced
`by the case staying in Tennessee, what they will say, and why
`they are important to this case.” (Id.) Accordingly, B.E.
`argues that People Media has not met its burden in demonstrating
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`that litigating the instant case in the Western District of
`Tennessee would be inconvenient for its witnesses. (Id.)
`While People Media asserts that it has potential witnesses
`located in the Central District of California (Los Angeles,
`California) and the Northern District of Texas (Dallas, Texas),
`People Media does not assert that any of its witnesses are
`located in the Northern District of California. (See Haltiner
`Decl., ECF No. 35-28, ¶¶ 4-6; ECF No. 35-1; ECF No. 43 at 7.)
`Additionally, People Media has failed to provide any information
`about the identity of its potential witnesses, the materiality
`of their testimony, the subject matters on which they are likely
`to testify, or the burdens they would likely endure by traveling
`to Tennessee. Accordingly, People Media’s “bare allegations” of
`witness inconvenience are insufficient to satisfy its burden on
`this matter. Esperson, 2010 WL 4362794, at *8.
`Moreover, People Media does not provide any evidence
`showing that its employees will be unwilling to testify in this
`District if asked to do so. Courts have noted that “normally a
`corporation is able to make its employees available to testify
`when needed.” Clark v. Dollar Gen. Corp., No. 3-00-0729, 2001
`U.S. Dist. LEXIS 25975, at *9 (M.D. Tenn. Mar. 6, 2001); see
`also Zimmer Enters. v. Atlandia Imps., Inc., 478 F. Supp. 2d
`983, 991 (S.D. Ohio Mar. 14, 2007) (finding that the convenience
`of witnesses who are employees “will not ordinarily be
`
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`considered, or at least, that the convenience of such employees
`will not generally be given the same consideration as is given
`to other witnesses”). Accordingly, it appears that People
`Media’s employees will be able to attend absent any evidence to
`the contrary.
`People Media also asserts that the only party witness who
`would be inconvenienced by transfer to the Northern District of
`California is Hoyle. (ECF No. 43 at 7-8.) While B.E. did not
`specifically identify any witnesses beyond Hoyle, B.E. does not
`have the burden to do so. A simple numerical advantage is
`insufficient on the issues raised by a motion to transfer.
`Additionally, People Media has failed to appropriately identify
`a single likely material witness in this matter. As a result,
`convenience to party witnesses does not weigh in favor of
`transfer.
`
`2. Non-Party Witnesses
`While convenience to party witnesses is an important
`consideration, “it is the convenience of non-party witnesses,
`rather than employee witnesses . . . that is the more important
`factor and is accorded greater weight.” Steelcase Inc. v. Smart
`Techs., 336 F. Supp. 2d 714, 721 (W.D. Mich. Mar. 5, 2004)
`(citation omitted) (internal quotation marks omitted).
`People Media argues that “[t]he Northern District of
`California is the most convenient venue for the non-party
`
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`witnesses, which is often viewed as the most important factor in
`the transfer balance.” (ECF No. 35-1 at 12 (citing In re
`Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009)).) People
`Media asserts that “at least seven of the Defendants are
`headquartered in the Northern District of California or maintain
`significant technological operations in that District,” and
`“[c]onsequently, it is likely that numerous witnesses with
`knowledge about the technology . . . are located in California.”
`(Id.)
`People Media also asserts that “over a dozen witnesses with
`information regarding prior art . . . live in California.”
`(Id.) These individuals include Nick Grouf, David Waxman, Paul
`D. Angles, Douglas O. Blattner, C. Douglass Thomas, David W.
`Roth, Dylan Salisbury, A. Nathaniel Goldhaber, and Gary Fitts.
`(Id. at 7-8.) None of these individuals are located in the
`Western District of Tennessee and five of them are located in
`the Northern District of California. (Id.) People Media
`asserts that these “individuals possess knowledge regarding
`potentially invalidating prior art.” (Id. at 7.)
`Further, People Media asserts that “all of the presently
`known potential non-party witnesses affiliated with B.E. reside
`outside of Tennessee.” (Id. at 9.) These individuals include
`Randall R. Rupp, a managing member of B.E., located in Michigan,
`
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`and Mark J. McKinley, formerly a major shareholder and managing
`member of B.E., located in Michigan. (Id. at 5.)
`B.E. argues that the convenience of third-party witnesses
`is not entitled to great weight in the instant case because
`People Media has not established that the “third party testimony
`will be material or important.” (ECF No. 40 at 12 (citing
`Rinks, 2011 WL 691242, at *3).) B.E. argues that People Media
`has not stated the “relevance, materiality, and importance” of
`the non-party witnesses’ testimony. (Id. at 13-14.) B.E.
`further argues that People Media has not presented any evidence
`that prior-art witnesses will be unwilling or inconvenienced by
`testifying in Tennessee, and asserts that prior-art testimony is
`“almost certain to be severely limited at the time of trial”
`and, therefore, such testimony does not weigh in favor of
`transfer. (Id. at 12-13.) Finally, B.E. asserts that Hoyle has
`been the CEO of B.E. since 2008, and that the “presumed location
`of former employees or managers” is not relevant. (Id. at 7.)
`The availability of compulsory process for unwilling
`witnesses is a consideration closely related to the convenience-
`of-witnesses factor and the costs of procuring the witness, and
`therefore is an important consideration for the Court. See,
`e.g., In re Acer, 626 F.3d at 1255; Rinks, 2011 WL 691242, at
`*4. Whether this factor should be given considerable weight
`depends on the materiality of the testimony to the resolution of
`
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`the case. Rinks, 2011 WL 691242, at *4. A federal court in the
`Northern District of California would be able to compel the
`prior-art witnesses to testify at trial. See Fed. R. Civ. P.
`45(b)(2). In contrast, neither the third-party corporate
`witnesses nor the prior-art witnesses would be subject to the
`subpoena power in this district, see Fed. R. Civ. P.
`45(c)(3)(A)(ii), but would be available for deposition in the
`Northern District of California if unwilling to testify in this
`district. Therefore, the testimony of such witnesses
`potentially would “not be live and therefore could be less
`persuasive.” Rinks, 2011 WL 691242, at *4.
`The Court, however, finds that People Media has not met its
`burden in this case. People Media has failed to show that the
`third-party witnesses’ testimony will be material and does not
`submit any evidence suggesting that the third-party witnesses
`will be unwilling or inconvenienced by traveling to Tennessee to
`provide testimony. Additionally, to the extent the non-party
`witnesses’ testimony may be presented by deposition, witness
`inconvenience would not be an issue. While People Media sets
`forth the fact that third-party witnesses would not be subject
`to subpoena in the Western District of Tennessee, this general
`statement is not sufficient to allow the Court to determine
`whether live testimony of People Media’s non-party witnesses is
`
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`
`necessary. As a result, the convenience to non-party witnesses
`does not weigh in favor of transfer.
`B. Convenience of the Parties
`People Media argues that the Northern District of
`California is a more convenient forum than the Western District
`of Tennessee. (ECF No. 35-1 at 11, 14-15.) While People Media
`organizes its arguments somewhat differently than the Court, the
`Court finds the considerations relevant to the convenience-of-
`the-parties factor are the location of the sources of proof and
`the parties’ financial hardships due to litigation in the chosen
`forum.
`
`1. Location of Sources of Proof
`People Media argues its sales, financial, and marketing
`documents are located in Los Angeles, California. (ECF No. 35-1
`at 6.) People Media also argues that “multiple third party
`witnesses likely to have documents and information pertaining to
`the technology at issue are also located in California [and]
`many of [the other] Defendants are headquartered in the Northern
`California or maintain significant technological operations in
`that District.” (Id. at 15.)
`People Media further argues that, “because B.E. is a non-
`practicing entity, it will have little information in [the
`Western District of Tennessee].” (Id.) Additionally, People
`Media states that B.E.’s documents “appear to be in either
`
`
`
`18
`
`

`
`Case 2:12-cv-02833-JPM-tmp Document 48 Filed 07/12/13 Page 19 of 28 PageID 462
`
`Michigan or Louisiana, and the burden associated with accessing
`them will be approximately the same, regardless of whether this
`litigation occurs in Tennessee or California.” (Id. at 14.)
`B.E. asserts that “[n]one of People Media’s documents are
`located in the Northern District of California, and its
`technical documents relevant to the design and development of
`the accused instrumentalities are located in Dallas[,] far
`closer to [the Western District of Tennessee] than the Northern
`District of California.” (ECF No. 40 at 14.) Further, B.E.
`argues that none of its sources of proof are located in the
`Northern District of California, as the majority of B.E.’s
`documents have “for years [] been maintained in the Western
`District of Tennessee.” (Id.)
`B.E. also contends that “[t]he location of relevant
`documentary evidence is increasingly less important in deciding
`motions to transfer,” and that because documents can be
`exchanged electronically, the weight given this factor should be
`minimal. (Id. at 15.) B.E. finally argues that this factor
`does not weigh in favor of transfer because “it can be expected
`that People Media will eventually produce its documents to
`B.E.’s lead counsel in California, not to B.E. in Tennessee.”
`(Id.)
`As an initial matter, the Court disagrees with B.E.’s
`contention that advances in electronic document transfer reduce
`
`
`
`19
`
`

`
`Case 2:12-cv-02833-JPM-tmp Document 48 Filed 07/12/13 Page 20 of 28 PageID 463
`
`the importance of the location-of-sources-of-proof factor. This
`notion has been expressly rejected by the Federal Circuit. See,
`e.g., In re Link_A_Media Devices Corp., 662 F.3d 1221, 1224
`(Fed. Cir. 2011) (reversing a district court that did not
`consider the factor, stating, “While advances in technology may
`alter the weight given to these factors, it is improper to
`ignore them entirely”); In re Genentech, 566 F.3d at 1345-46
`(finding clear error where a district court “minimized the
`inconvenience of requiring the petitioners to transport their
`documents by noting that ‘[t]he notion that the physical
`location of some relevant documents should play a substantial
`role in the venue analysis is somewhat antiquated in the era of
`electronic storage and transmission’” (quoting Sanofi-Aentis
`Deutschland GmbH v. Genentech, Inc., 607 F. Supp. 2d 769, 777
`(E.D. Tex. 2009))).
`The Court agrees that it is likely that third-party
`documents relevant to the instant litigation are located in the
`Northern District of California on the basis that other
`Defendants are located in that district, but the Court disagrees
`that this is enough to tip the balance in favor of transfer.
`Motions to transfer venue pursuant to § 1404(a) are adjudicated
`“according to an individualized, case-by-case consideration of
`convenience and fairness . . . [and] balance [of] a number of
`case-specific factors.” Stewart Org., Inc. v. Ricoh Corp., 487
`
`
`
`20
`
`

`
`Case 2:12-cv-02833-JPM-tmp Document 48 Filed 07/12/13 Page 21 of 28 PageID 464
`
`U.S. 22, 29 (1988); accord United States v. Gonzales & Gonzales
`Bonds & Ins. Agency, Inc., 667 F. Supp. 2d 987, 992 (W.D. Tenn.
`2010). While People Media asserts that it will have relevant
`documents located in the Central District of California (Los
`Angeles, California) and the Northern District of Texas (Dallas,
`Texas), People Media does not assert that any of its own
`documents are located in the Northern District of California.
`(See ECF No. 35-1 at 1-3.) Accordingly, the fact that
`Defendants in other cases will have documents located in the
`Northern District of California is not pertinent to the Court’s
`consideration of this factor.
`Therefore, the Court finds that both parties maintain
`documents in their respective districts; that both sets of
`documents will be integral to the proceedings; and that People
`Media will be expected to serve its documents on B.E.’s counsel
`in California, not in the Western District of Tennessee (see ECF
`No. 40 at 15). Given that People Media will have sources of
`proof in both Texas and California – but not the transferee
`district, specifically - and that B.E. Technology will have
`sources of proof in Tennessee, this factor does not favor
`transfer.
`
`21
`
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`
`
`
`

`
`Case 2:12-cv-02833-JPM-tmp Document 48 Filed 07/12/13 Page 22 of 28 PageID 465
`
`2. Financial Hardships Attendant to Litigating in
`the Chosen Forum
`People Media argues that the vast majority of its employee-
`witnesses reside in California or Texas. (ECF No. 35-1 at 1-3,
`11, 13.) As a result, People Media contends that the “cost
`. . . of attendance for a majority of the willing witnesses
`plainly favors California,” and, as a result, “the Burden on
`[People Media] will be significantly lightened if this
`litigation is conducted in California.” (Id. at 2, 14.)
`B.E. states that it “would face a financial burden by
`having to litigate in the Northern District of California,”
`while People Media does not assert that it would be “financially
`incapable of bearing the expense of litigating” in the
`transferor district. (ECF No. 40 at 16.) B.E.’s CEO Hoyle
`states that “B.E. will incur expenses it will not incur if the
`case remains in Memphis.” (Hoyle Decl., ECF No. 40-1, ¶ 9.)
`The Court has considered “the relative ability of litigants
`to b

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