Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 1 of 16 PageID #: 1170
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`C.A. No. 6:12-cv-00799-LED
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`JURY TRIAL DEMANDED
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`§§
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`§
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`§§
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`§
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`§§
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`§
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`INVENSYS SYSTEMS, INC.,
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`v.
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`Plaintiff,
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`EMERSON ELECTRIC CO. and
`MICRO MOTION INC., USA,
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`Defendants.
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`PLAINTIFF INVENSYS SYSTEMS, INC.’S RESPONSE TO
`DEFENDANT MICRO MOTION INC., USA’S MOTION
`TO TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a)
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`Because the Coriolis flowmeters at
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`issue in this case are industrial products (not
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`consumer goods) specifically designed and manufactured for use in industries concentrated in
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`Texas (i.e., oil and gas and refineries), including the Eastern District of Texas, this forum has a
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`strong local interest in adjudicating this dispute. The remaining § 1404(a) convenience factors
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`tip toward the Eastern District as well, considering that: 1) Plaintiff Invensys Systems, Inc.
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`(“Invensys”) has identified several potential nonparty witnesses within the subpoena power of
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`this Court that can provide relevant and material information to support the testimony of
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`Invensys’s employee witnesses.
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`In contrast, Defendant Micro Motion, Inc. USA (“Micro
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`Motion”) has not identified a single third-party witness located in Colorado; 2) transfer would,
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`at best, simply shift the burden from one party to another, because Invensys will need its own
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`employees to testify in support its claim for lost profits and many of Invensys’s witnesses are
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`located in the Eastern District and other parts of Texas); and 3) Defendant Emerson Electric Co.
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`(“Emerson”) is based in Missouri and markets, sells, and provides technical and customer
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`support services for the accused Coriolis flowmeters in the Eastern District.
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`1
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`

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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 2 of 16 PageID #: 1171
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`Because Micro Motion cannot meet its burden to show that Colorado is “clearly more
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`convenient” than the Eastern District of Texas, its Motion to Transfer Venue Pursuant to
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`28 U.S.C. § 1404(a) should be denied. Alternatively, if the Court finds that the Eastern District
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`is not a convenient forum, it should transfer this case to the Southern District of Texas (Houston
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`Division), not Colorado.
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`BACKGROUND
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`Invensys manufactures (among other products) Coriolis flowmeters utilizing the patented
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`technology. Decl. of Bob Jones ¶ 3 (Ex. A). Coriolis flowmeters provide precise measurements
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`of the mass flow rate of liquids (i.e., the mass of a substance passing through a surface during a
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`specified period of time). Id. Coriolis flowmeters are used in a variety of applications, but the
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`primary users are in the oil and gas, refinery, and food and beverage industries. Id. ¶¶ 3, 10; see
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`also Allen Avery & Wil Chin, ARC Advisory Group, Flowmeter Worldwide Outlook: Market
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`Analysis and Forecast Through 2015, at 58 (2011) (Ex. B) (“ARC Advisory, Flowmeter
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`Worldwide”) (noting the “pervasive use of Coriolis meters in the chemical industry, and the
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`increasing demand for large [Coriolis] meters for oil & gas offloading at marine terminals, the
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`emerging use of compressed natural gas (CNG) as a transportation fuel, and steady growth in the
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`food & beverage industry”).1
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`On October 22, 2012, Invensys sued Emerson and its wholly-owned subsidiary Micro
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`Motion, two competitors in the Coriolis flowmeter market, for infringement of several of
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`Invensys’s patents covering Coriolis flowmeter technology.
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`Invensys is a Massachusetts
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`corporation headquartered in Houston and has an office with sixty employees in Plano. Jones
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`1 The ARC Advisory Group is an independent third-party source for information about the Coriolis flowmeter
`industry and is commonly used and relied on in that industry. Jones Decl. ¶ 13 (Ex. A).
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`2
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 3 of 16 PageID #: 1172
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`Decl. ¶ 2 (Ex. A). Invensys’s design and manufacturing facilities are located in Massachusetts.
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`Id.
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`Micro Motion is a Colorado corporation headquartered in Boulder. Micro Motion’s Mot.
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`to Transfer at 2-3. Emerson, Micro Motion’s parent company, is a Missouri corporation
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`headquartered in St. Louis. See id. at 2 n.1.
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`Micro MotionTM is a brand of Emerson Process Management, one of five Emerson
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`divisions. See Emerson, Emerson Businesses, available at emerson.com/en-US/about/emerson-
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`businesses/Pages/default.aspx (“Emerson, Emerson Businesses”) (Ex. C); Emerson Process
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`Mgmt., Micro Motion Coriolis
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`Flow & Density Measurement,
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`available
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`at
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`emersonprocess.com/en-US/brands/micromotion/Pages/coriolis-flow-density-measurement.aspx
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`(“Emerson Process Mgmt., Micro Motion”) (Ex. C). Emerson Process Management’s business is
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`“[h]elping process industries better manage plants through intelligent control systems and
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`software, measurement
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`instruments, valves, and industry expertise.”
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`Emerson, Emerson
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`Businesses (Ex. C). Emerson Process Management has training centers in McKinney and
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`Sherman, Texas and has service centers in at least Beaumont, Texas, all within the Eastern
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`District.
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`See Emerson Process Mgmt., Global Training Centers,
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`available
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`at
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`emersonprocess.com/enUS/brands/edservices/globaltrainingcenters/nacontacts/Pages/nacontacts.
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`aspx (Ex. C); Scallon Controls, New I&VS Repair Center, available at scalloncontrols.com/
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`announcements/new-i-vs-repair-center (“Scallon, New I&VS Repair Center”) (Ex. D).
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`Tyler is approximately 200 miles from Houston and 700 miles from St. Louis.2 Denver is
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`approximately 1,100 miles from Houston and 900 miles from St. Louis.
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`2 All distances in this brief were calculated using Google Maps.
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`3
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`

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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 4 of 16 PageID #: 1173
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`ARGUMENT
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`Micro Motion acknowledges that transfer should be granted only when the transferee
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`venue is “clearly more convenient than the venue chosen by the plaintiff.” In re Volkswagen of
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`Am., Inc., 545 F.3d 304, 315 (5th Cir. 2008). Micro Motion has not, and cannot, meet this
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`burden.
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`In fact, “ ‘the courts which have transferred cases have emphasized that the plaintiffs did
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`not have any connection with the Eastern District and that, instead, relevant evidence and
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`witnesses were located in and around the transferee forum.’ ” Emanuel v. SPX Corp., Civ. No.
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`6:09cv220, 2009 WL 3063322, at *9 (E.D. Tex. Sept. 21, 2009) (quoting ICHL, LLC v. NEC
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`Corp. of Am., No. 5:08CV65, 2009 WL 1748573, at *6 (E.D. Tex. June 19, 2009)). In contrast,
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`this dispute has a strong connection to Texas because the industries in which Coriolis flowmeters
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`are marketed and sold are highly concentrated in Texas. In addition, Invensys’s documents and
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`witnesses are located across the country in Texas, Washington D.C., Massachusetts, and
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`overseas. Because this dispute has a strong local connection to the forum, and there is no other
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`locale in which the relevant evidence and witnesses are clustered, transfer should be denied.
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`I.
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`Because This Case Has a Strong Local Connection to Texas and the Eastern
`District, the Public Interest Factors Weigh Against Transfer.
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`A.
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`The Eastern District Has a Strong Interest in Resolving This Dispute.
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`1.
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`Two of the key industries that use the products at issue in this suit are
`concentrated in Texas.
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`The Coriolis flowmeters at issue in this suit are used primarily in the oil and gas field and
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`in refineries, industries that are concentrated in Texas. See Jones Decl. ¶¶ 3, 10 (Ex. A); see also
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`ARC Advisory, Flowmeter Worldwide, at 58 (Ex. B). Six states produce most of our country’s
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`oil. See Eric Fox, Bubbling Crude: America’s Top 6-Oil Producing States (June 8, 2011),
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`available
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`at
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`msnbc.msn.com/id/43085246/ns/business-oil_and_energy/t/bubbling-crude-
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`4
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`

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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 5 of 16 PageID #: 1174
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`americas-top-oil-producing-states/ (“Fox, Bubbling Crude”) (Ex. E). Texas is the country’s
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`leading oil producer, outpacing second-place Alaska by almost 50%. See id.
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`In fact, between
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`the beginning of 2010 and the end of 2012, oil production in Texas has nearly doubled. See U.S.
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`Energy Info. Admin., Crude Oil Production, available at
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`eia.gov/dnav/pet/pet_crd_
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`crpdn_adc_mbbl_m.htm (click “Texas”) (Ex. F); see also Jones Decl. ¶ 10. Colorado is not a top
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`oil producing state. See Fox, Bubbling Crude. In fact, last year Texas produced seventeen-times
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`more oil than Colorado. See U.S. Energy Info. Admin., Rankings: Crude Oil Production,
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`September 2012, available at eia.gov/beta/state/rankings/?sid=US#/series/46 (Ex. G). Texas is
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`also the leading producer of natural gas, and while Colorado ranks fifth, Texas produces four-
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`times as much natural gas as Colorado. See U.S. Energy Info. Admin., Rankings: Natural Gas
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`Marketed Production, 2011, available at eia.gov/beta/state/rankings/?sid=US#/series/47 (Ex. H).
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`Because of their high accuracy, Coriolis flowmeters play an important role in the oil and gas
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`industry, particularly for custody transfers
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`(i.e., anytime ownership or possession of
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`hydrocarbons changes hands, from the wellhead, to the pipeline, to refining, to transport). See
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`ARC Advisory, Flowmeter Worldwide at 8-9, 15).
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`According to the Texas Chemical Council, Texas has “the country’s largest concentration
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`of petrochemical plants, with more than 200 manufacturing facilities.” Kate Galbraith, Boom
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`Promises 20,000 New Jobs but Shortages Too, N.Y. TIMES, July 15, 2012, at A23 (Ex. I).
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`Twenty-six operating refineries are located in Texas compared to only two in Colorado. U.S.
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`Energy Info. Admin., Refinery Capacity Report, available at eia.gov/petroleum/refinerycapacity/
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`(Ex. J). Two of the world’s largest refineries are in Texas. See Warren R. True, Asia, Middle
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`East Lead Modest Recovery in Global Refining, OIL & GAS J., Dec. 3, 2012, at 32, 36 tab.3 (Ex.
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`K).
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`In addition, three of the largest refineries in the United States are in the Eastern District
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`5
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 6 of 16 PageID #: 1175
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`(ExxonMobil’s Beaumont plant, Valero’s Port Arthur plant, and Motiva Enterprises’s Port
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`Arthur plant),3 and four of the other largest facilities are in or near Houston (ExxonMobil’s
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`Baytown plant, BP’s Texas City plant, Deer Park Refining’s Deer Park plant, and Access
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`Industries’ Houston plant). U.S. Energy Info. Admin., U.S. Refineries Operable Capacity,
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`available at eia.gov/energyexplained/index.cfm?page=oil_refining#tab4 (Ex. L).
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`In addition, the Golden Triangle and Houston ship channel are some of the most heavily
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`industrialized areas of the country, especially in the refining industry, and thus, they are among
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`the largest markets for Coriolis flowmeters. Jones Decl. ¶ 12 (Ex. A). All manufacturers of
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`Coriolis flowmeters do significant business there.
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`Id.
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`In addition, one of the primary uses for
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`Coriolis flowmeters in the oil and gas field is custody transfer, such as transporting oil to and
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`from offshore tankers. See ARC Advisory, Flowmeter Worldwide, at 58 (Ex. B); see also Jones
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`Decl. ¶ 11 (Ex. A). The Houston ship channel is one of the largest centers for such transfers in
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`the country, while Colorado obviously does not have any offshore transfer facilities.
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`Two of the industries with the highest demand for Coriolis flowmeters, oil and gas and
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`refineries, are concentrated in Texas. That a product is primarily used in a handful of specific
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`districts weighs against transfer. See In re Affymetrix, Inc., Misc. No. 913, 2010 WL 1525010, at
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`*2 n.1 (Fed. Cir. Apr. 13, 2010) (per curiam). This is particularly true when the parties are
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`competitors and the patentee is seeking lost profits, as is the case here. See Canrig Drilling
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`Tech. Ltd. v. Omron Oilfield & Marine, Inc., No. 6:09-CV-414, 2010 WL 3257648, at *4 (E.D.
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`Tex. Aug. 17, 2010).
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`In fact, Canrig Drilling concluded that even when other factors slightly
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`favor transfer, when a case has a significant connection to the Eastern District, transfer should be
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`denied. See id. at *5.
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`3 When the expansion is operational, Motiva’s Port Arthur facility will be the largest in the country. Id. at 40.
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`6
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 7 of 16 PageID #: 1176
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`The two cases Micro Motion cites for the proposition that Texas does not have a
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`significant local interest in this dispute are readily distinguishable because they both involved
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`consumer goods used throughout the nation, not industrial products used primarily in industries
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`concentrated in one state. See In re TS Tech. USA Corp., 551 F.3d 1315, 1318 (Fed. Cir. 2008)
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`(vehicle headrest assemblies sold throughout the United States); Odom v. Microsoft Corp., 596
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`F. Supp. 2d 995, 997 (E.D. Tex. 2009) (Microsoft Office 2007). Similarly, although Micro
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`Motion and its employees may have some interest in defending their business and professional
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`reputations in their home forum, this concern is attenuated in this case since Micro Motion and
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`its employees also have a significant interest in defending themselves in a forum in which the
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`industries using their accused products are highly concentrated.
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`2.
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`Micro Motion and Emerson have significant contacts with the Eastern
`District.
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`Micro Motion and Emerson have a significant economic interest and a large presence in
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`the Eastern District. Emerson sells its Micro MotionTM brand Coriolis flowmeters through one
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`of its divisions, Emerson Process Management. See Emerson, Emerson Businesses (Ex. C);
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`Emerson Process Mgmt., Micro Motion (Ex. C). Micro Motion acknowledges that it has sales
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`agents in Texas. Micro Motion’s Mot. to Transfer at 12.
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`In addition, Emerson is the largest
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`supplier of flowmeters for the oil and gas and refining industries (45.1% and 38.4% market
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`share, respectively). See ARC Advisory, Flowmeter Worldwide at 45 fig.3-14, 48 fig.3-17 (Ex.
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`B). Because of the concentration of these industries in Texas, Micro Motion cannot deny that its
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`presence in Texas and the Eastern District is significant. See supra Part I.A.1.
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`Emerson also appears to be actively expanding its Texas operations, having recently
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`posted openings for three jobs in Texas related to its flowmeter products on LinkedIn. See
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`Emerson Process Mgmt. Job Postings (Ex. M). Emerson has also recently stated that it was
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`7
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 8 of 16 PageID #: 1177
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`“deepening our commitment to the Golden Triangle” by opening a new service center in
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`Beaumont. Scallon, New I&VS Repair Center (quoting Denny Cahill, V.P. and General Manager
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`of Emerson’s Instrument & Valve Services business) (Ex. D).
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`In fact, “[f]or over sixty years,
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`Golden Triangle industrial plants have relied on Emerson products such as . . . Micro Motion
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`Coriolis flowmeters.” Id.
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`In addition to actively selling and servicing its Coriolis flowmeter products in Texas to
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`numerous customers within the subpoena power of this Court (some of which Invensys lost
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`because of Micro Motion’s activities in this forum, see Avery Decl. ¶ 6), Micro Motion is a
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`member of the American Petroleum Institute (“API”) and thus, its representatives would travel to
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`Texas
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`regularly.
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`See
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`API,
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`API
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`Member
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`Companies,
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`available
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`api.org/globalitems/globalheaderpages/membership/api-member-companies.aspx
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`(Ex.
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`at
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`P).
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`Representatives of Micro Motion have also traveled to Texas for Instrumentation, Systems, and
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`Automation Society Annual Conferences in which competitor Coriolis flowmeters were
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`displayed. In the face of its substantial contacts with the Eastern District, Micro Motion cannot
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`claim that this forum is inconvenient.
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`3.
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`Invensys has significant contacts with Texas and the Eastern District,
`but little connection to Colorado.
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`This is not a case in which Invensys filed suit in a forum with which it has no meaningful
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`connection. To the contrary, Invensys has a real, non-litigation relationship to this district and
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`this State. Invensys is headquartered in Houston and has an office in Plano. Jones Decl. ¶ 2 (Ex.
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`A). Since 2006 to mid-January 2013, Invensys’s sales of Coriolis flowmeters in Texas have
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`been approximately $2 million (including sales in Beaumont, Plano, and Longview). Decl. of
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`Mark Avery ¶ 2 (Ex. N).
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`Invensys’s sales of Coriolis flowmeters in Texas accounts for
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`approximately a fifth of its U.S. business in this field, far higher than any other state.
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`Id.
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`In
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`8
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 9 of 16 PageID #: 1178
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`contrast, Invensys’s sales in Colorado during this time period have totaled only about $23,000,
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`less than one percent of Invensys’s sales. Id. ¶ 3.
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`In addition, the Eastern District represents a potentially larger market for Invensys’s
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`Coriolis flowmeters than represented by Invensys’s historical sales there.
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`Invensys’s patented
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`Coriolis flowmeter technology would have differentiated Invensys’s products, giving it a
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`competitive edge over Emerson and Micro Motion and allowing Invensys to obtain greater
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`market share. See id. ¶ 4. In fact, Invensys believes that it could increase its sales in the Eastern
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`District by twenty to thirty times current levels, but its marketing efforts have been hampered by
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`Micro Motion’s conduct.
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`Id. Specifically, Invensys has lost at least two Coriolis flowmeter
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`sales opportunities (Chicago Bridge & Iron and Chevron Pipeline, LLC) in the Eastern District.
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`Id. ¶ 6.
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`Invensys has lost at
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`least
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`two other potential customers (Rhodia and Carlson
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`Engineering) in other parts of the state. Id.
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`B.
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`Administrative Convenience Slightly Favors the Eastern District.
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`The statistics Micro Motion relies on do not support its claim that this case would be
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`resolved more expeditiously in Colorado. Data specifically on patent cases shows that this Court
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`is potentially more efficient. Although patent cases are disposed of slightly faster in Colorado
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`than in this Court (average time to resolution 0.88 and 1.24 years, respectively), patent cases in
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`this Court can expect to reach trial more than a year before cases in Colorado (average time to
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`trial 2.13 years in this Court compared to 3.19 years in Colorado). See Mark A. Lemley, Where
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`to File Your Patent Case, 38 AIPLA Q.J. 401, 414-17 (Fall 2010). In fact, while this Court is
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`one of the fastest in terms of time to trial, Colorado is one of the slowest. See id. at 416-18.
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`Obtaining a speedy disposition may be particularly important when the parties are competitors.
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`See Affymetrix, 2010 WL 1525010, at *1. Therefore, this factor leans toward retaining the case
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`in this Court.
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`9
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 10 of 16 PageID #: 1179
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`II.
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`The Private Interest Factors Favor Maintaining This Case in the Eastern District.
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`The private interest factors favor keeping this case in the Eastern District, because Micro
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`Motion identifies no potential nonparty witnesses in Colorado and only two party witnesses,
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`whereas there are a number of potential party and nonparty witnesses in this District and Texas
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`(and potentially more, given the critical local interest in and connection of the Coriolis flowmeter
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`technology to this forum).
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`A.
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`The Potential Availability of Nonparty Witnesses in This District Militates
`Against Transfer.
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`Subpoena power over non-party witnesses “weighs in favor of transfer, and not only
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`slightly.” In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009); see also Micro Motion’s
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`Mot. to Transfer at 7. Micro Motion’s sole declarant, Andrew Dudiak, identifies no nonparty
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`witnesses in Colorado with information relevant to the parties’ claims and defenses.
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`Invensys
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`has identified at least two entities located within the Eastern District’s subpoena power to which
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`it has lost sales to Emerson and Micro Motion, Chevron Pipeline and Chicago Bridge & Iron.
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`See Avery Decl. ¶ 6 (Ex. N). In addition, under Federal Rules of Civil Procedure 45(c)(3)(A)(ii)
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`and 45(c)(3)(B)(iii), witnesses can be compelled to attend trial anywhere in the state if doing so
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`would not cause them unreasonable expense. Thus, any potential customer witnesses in Texas
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`(of which there are likely be many) could be subpoenaed for trial in Tyler. Moreover, to the
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`extent Micro Motion claims that its Beaumont sales facility is run by a third party, see Dudiak
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`Decl. ¶ 12, its relevant staff would also be within the Court’s subpoena power. As Micro Motion
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`concedes, none of the other relevant nonparty witnesses (such as the inventors of the patents-in-
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`suit) are within the subpoena power of either court. In In re Hoffman-La Roche, Inc., 587 F.3d
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`1333, 1335 (Fed. Cir. 2009), the Court favored transfer because of the presence of a handful of
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`nonparty witnesses in the transferee forum and none in the transferor forum. Here, the facts are
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`10
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 11 of 16 PageID #: 1180
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`reversed and squarely militate against transfer, particularly since Micro Motion concedes that
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`convenience and cost to non-party witnesses are afforded greater weight than the convenience of
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`party witnesses.
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`B.
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`A Transfer Would Merely Shift the Conveniences for the Parties.
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`Merely shifting the burden from one party to the other is not a proper basis for a
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`§ 1404(a) transfer. See Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., 867 F. Supp. 2d 859,
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`870 (E.D. Tex. 2012) (“[A] case should not be transferred if the only practical effect is to shift
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`inconvenience from the moving party to the nonmoving party.” (quotations omitted)). A number
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`of Invensys’s witnesses either reside in the Eastern District or elsewhere in Texas. Emerson is
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`based in Missouri and presumably all of its witnesses are located there.
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`In contrast, Micro
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`Motion’s representations regarding its own witnesses seem overstated.
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`This is not a case in which virtually all the party fact witnesses will be employees of the
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`defendant. Invensys is a publicly traded direct competitor of Micro Motion and Emerson in the
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`Coriolis flowmeter market and is seeking lost profits damages. Thus, Invensys’s sales,
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`marketing, and technical personnel will be witnesses in this case. A summary of these potential
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`witnesses’ testimony and their locations (sorted by proximity to Tyler) is provided in the
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`following table:
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`Tara Kirby
`Mike Reese
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`Title
`Name
`VP, Fin.
`Craig Barth
`Alastaire Davidson Sr. Dir., Fin.
`Controls
`Dir. of Fin.
`Measurement &
`Instrumentation
`(“M&I”) Bus.
`Dev. Manager
`Prod. Sales
`Exec., M&I
`
`Robert Arias
`
`Subject of Testimony
`Invensys’s financial information
`Invensys’s financial information
`
`Invensys’s financial information
`Sales and marketing of Invensys’s
`Coriolis flowmeters to customers in
`Texas, including the Eastern District
`
`Sales and marketing of Invensys’s
`Coriolis flowmeters to customers in
`Texas, including the Eastern District
`
`Location
`Plano, TX
`Plano, TX
`
`Plano, TX
`Kaufman, TX
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`Houston, TX
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`11
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 12 of 16 PageID #: 1181
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`Name
`Mark Avery
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`Mark Ferencik
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`Bob Jones
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`Wade Mattar
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`Michael Plaziak
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`Title
`Sr. Dir. N. Am.
`Equip. Bus.
`
`Consulting
`Systems Analyst
`VP & Gen.
`Manager of the
`Foxboro M&I
`Div.
`Flow Prods.
`Mktg. Manager
`
`Principal
`Software Dev.
`Eng’r
`
`Subject of Testimony
`Sales and marketing of Invensys’s
`Coriolis flowmeters to customers in
`Texas, including the Eastern District
`Business analysis of electronic
`financial information
`Sales and marketing of Invensys’s
`Coriolis flowmeters
`
`Location
`Houston, TX
`
`Foxboro, MA
`
`Foxboro, MA
`
`Engineering support for sales and
`marketing of Invensys’s Coriolis
`flowmeters
`Design and manufacture of
`Invensys’s Coriolis flowmeters
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`Foxboro, MA
`
`Foxboro, MA
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`Invensys’s Director of Finance, Tara Kirby, and two other Invensys employees who have
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`knowledge of Invensys’s finances (Craig Barth and Alastaire Davidson) work in Plano. Jones
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`Decl. ¶ 4 (Ex. A). Three of Invensys’s potential witnesses on its sales and marketing efforts
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`work in Texas in relatively close proximity to Tyler, and Invensys’s potential technical witnesses
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`(and analysts who provide computer support for sales data) work in Massachusetts. Id. ¶¶ 5-6.
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`Because Invensys’s headquarters are in Houston and its manufacturing facilities are in
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`Massachusetts, any additional witnesses will likely be found there. See id. ¶ 2. None of
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`Invensys’s witnesses are in Colorado.
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`Id. ¶ 9. Likewise, Invensys’s sales and financial
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`information and its design documents are also located primarily in Houston, Plano, and
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`Massachusetts (although most of Invensys’s documents are stored electronically). Id. ¶ 8.
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`In addition, Micro Motion has not presented any evidence regarding the effect of a
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`transfer on St. Louis, Missouri-based Emerson. Micro Motion states that Emerson “is seeking to
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`be dismissed as a party by stipulation or by motion.” See Micro Motion’s Mot. to Transfer at 2
`
`n.1. Although Micro Motion did ask counsel for Invensys to dismiss Emerson, claiming that
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`Emerson is not involved in the sale of the accused Coriolis flowmeters, Invensys rightfully
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 13 of 16 PageID #: 1182
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`refused, pointing to numerous publicly available sources indicating that Emerson has significant
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`direct involvement in the Coriolis flowmeter business and is itself a direct or an indirect
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`infringer. See generally Ex. D; see also supra “Background.” Moreover, Emerson’s documents
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`and witnesses are presumably located in St. Louis, and St. Louis is closer to Tyler than it is to
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`Denver and essentially equidistant to Houston.
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`Indeed, Emerson has not moved to transfer or
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`joined in Micro Motion’s transfer request, and there is nothing to suggest that Colorado is a more
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`convenient forum for Emerson than Texas. See T-NETIX, Inc. v. Global Tel*Link Corp., Civ.
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`No. 2:06-CV-426 (TJW), 2007 WL 2819742, at *3 (E.D. Tex. Sept. 26, 2007) (noting that
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`convenience factors are neutral when the defendants are geographically dispersed).4
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`Finally, Micro Motion’s representations about the locations of its own witnesses and
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`documents may be either distorted or inaccurate. Micro Motion uses a direct sales force to sell
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`its products. Avery Decl. ¶ 7 (Ex. N). Obviously, Micro Motion’s sales personnel do not all
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`reside in Colorado or travel from Colorado to Texas to sell Micro Motion’s Coriolis flowmeters.
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`(Since Texas and the Eastern District are large markets for any Coriolis flowmeter manufacturer,
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`presumably many of Micro Motion’s sales personnel are located in Texas. See supra Part I.A.)
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`Moreover, one of the critical issues in this case will relate to the software that operates the
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`accused Coriolis flowmeters and calculates flow rates and other data. See generally U.S. Patent
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`No. 7,124,646 B2 at col.67, l.17 to col.68, l.66. Source code is typically subject to the most
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`stringent protective measures, and the review of Micro Motion’s source code can occur
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`anywhere, but will likely occur in the offices of its counsel, who are located in Wisconsin.
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`Moreover, Micro Motion has not identified any documents or evidence located in Colorado that
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`4 A court should not evaluate the merits of the plaintiff’s claims in ruling on a motion to transfer under § 1404(a).
`See McDonnell Douglas Corp. v. Conductron Corp., 429 F.2d 30, 30-31 (3d Cir. 1970) (per curiam) (“To
`undertake a consideration of the merits of the action is to assume, even temporarily, that there will be no transfer
`before the transfer issue is decided.”).
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 14 of 16 PageID #: 1183
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`cannot be produced electronically and have not otherwise shown that transporting documents and
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`physical evidence to Tyler would pose additional inconvenience. See Plant Equip., Inc. v.
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`Intrado, Inc., No. 2-09-cv-396-TJW, 2010 WL 2465358, at *3 & n.1 (E.D. Tex. June 16, 2010)
`
`(distinguishing TS Tech).
`
`C.
`
`Attending Trial in Tyler Is Not Significantly More Costly Than Attending
`Trial in Colorado.
`
`Since Invensys will subpoena customers it lost to Micro Motion in the Eastern District,
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`and many of Invensys’s witnesses related to its financial information, marketing, and sales are
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`located in or near the Eastern District, a trial in Tyler would not be more costly. See supra Part
`
`II.A & B. At least three of the potential witnesses work in Plano.
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`Jones Decl. ¶ 4 (Ex. A).
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`Invensys’s other U.S. witnesses are located in Texas (Kaufman and Houston) and Massachusetts.
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`Id. ¶¶ 1, 5-6. Kaufman is only about sixty miles from Tyler, and while Houston is approximately
`
`200 miles away, this additional travel time is not significant. The journey from Massachusetts to
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`either Texas or Colorado is almost 2,000 miles (although Tyler is slightly closer than Denver).
`
`Moreover, many of the third-party customer witnesses are in Texas and the Eastern District since
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`Texas is one of the largest markets for Coriolis flowmeters. See id. ¶¶ 3, 10. Thus, the primary
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`effect of a transfer to Colorado would merely be to shift travel expenses, not reduce them, and
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`merely shifting the expense of trial from one party to the other is not a proper basis for a
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`§ 1404(a) transfer. See Frito-Lay, 867 F. Supp. 2d at 870. Moreover, to the extent some of the
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`inventors live overseas, it will probably be easier for them to reach Tyler because Houston and
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`Dallas are major international gateways. See Office of the Assistant Sec’y for Aviation & Int’l
`
`Affairs, U.S. Dept. of Transp., U.S. International Air Passenger and Freight Statistics, tab. 6
`
`(June 2012), available at dot.gov/policy/aviation-policy/us-international-air-passenger-and-
`
`freigh-statistics-report (Ex. O) (stating that in 2012, Houston had approximately 8.5 million
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 15 of 16 PageID #: 1184
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`international air travelers, Dallas had approximately 5.5 million, but Denver had only 1.7
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`million). This factor weighs against transfer. See Emanuel, 2009 WL 3063322, at *7-8 (holding
`
`that convenience considerations weighed against
`
`transfer when the witnesses were not
`
`centralized in one region and the plaintiff, which was located in Houston, had chosen a forum
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`close to its own home).
`
`CONCLUSION
`
`Texas has a much stronger connection to this case than Colorado because the industries
`
`that primarily use the Coriolis flowmeters at issue in this suit are highly concentrated in this
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`state. The remaining § 1404(a) factors, including the relative ease of access to proof and the
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`convenience of the witnesses, also disfavor transfer. Accordingly, Micro Motion has failed to
`
`demonstrate that Colorado is a clearly more convenient forum, and its Motion to Transfer should
`
`be denied. Alternatively, this case should be transferred to the Southern District of Texas
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`(Houston Division), where Invensys is headquartered and where many of its witnesses and
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`documents are located.
`
`Date: February 11, 2013
`
`Respectfully submitted,
`
`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
`State Bar No. 21671300
`Jeffrey L. Johnson
`State Bar No. 24029638
`Amy P. Mohan
`State Bar No. 24051070
`DLA PIPER LLP
`1000 Louisiana, Suite 2800
`Houston, TX 77002
`Telephone: 713.425.8400
`Facsimile: 713.425.8401
`Claudia.Frost@dlapiper.com
`Jeffrey.Johnson@dlapiper.com
`Amy.Mohan@dlapiper.com
`ATTORNEYS FOR PLAINTIFF, INVENSYS
`SYSTEMS, INC.
`
`15
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`Case 6:12-cv-00799-JRG Document 26 Filed 02/11/13 Page 16 of 16 PageID #: 1185
`
`OF COUNSEL:
`
`Nicholas G. Papastavros
`Daniel Rosenfeld
`DLA PIPER LLP
`33 Arch Street, 26th Floor
`Boston, MA 02110
`Telephone: 617.406.6000
`Facsimile: 617.406.6100
`Nick.Papastavros@dlapiper.com
`Daniel.Rosenfeld@dlapiper.com
`
`ATTORNEYS FOR PLAINTIFF,
`INVENSYS SYSTEMS, INC.
`
`CERTIFICATE OF SERVICE
`
`I certify that the foregoing document was filed electronically on February 11, 2013,
`pursuant to Local Rule CV-5(a) and has been served on all counsel who have consented to
`electronic service. Any other counsel of record will be served by first class U.S. mail on this
`same date.
`
`/s/ Claudia Wilson Frost
`Claudia Wilson Frost
`
`16