PERSONALIZED USER MODEL LLP v. GOOGLE, INC.

Full title: PERSONALIZED USER MODEL LLP, Plaintiff, v. GOOGLE, INC., Defendant

Court: United States District Court, D. Delaware

Date published: Oct 27, 2009

Civil Action No. 09-525-JJF (D. Del. Oct. 27, 2009)

Opinion

Civil Action No. 09-525-JJF.

October 27, 2009

Karen Jacobs Louden, Esquire and Jeremy Alexander Tigan, Esquire of Morris, Nichols, Arsht Tunnell, Wilmington, Delaware. Attorneys for Plaintiff.

David Ellis Moore, Esquire and Richard L. Horwitz, Esquire of Potter Anderson Corroon, LLP, Wilmington, Delaware Attorneys for Defendants.

MEMORANDUM OPINION

FARNAN, District JudgePage 1

Pending before the Court is a Motion To Transfer Venue To The Northern District Of California (D.I. 9) filed by Defendant Google, Inc. ("Google"). Plaintiff, Personalized User Model, L.L.P. ("Personalized User Model"), opposes the Motion. (D.I. 12.) For the reasons discussed below, the Motion will be denied.

I. THE LEGAL STANDARD FOR CHANGE OF VENUE

A change of venue or "transfer" may be granted by a district court pursuant to 28 U.S.C. § 1404(a) which provides:

For the convenience of 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.

Id. Section 1404(a) is not complicated. It instructs a district court that it may transfer a case if:

1) the case could have been filed initially in the district the court is considering transferring the case to;

2) the parties and witnesses for both sides of the case would find it more convenient to litigate in the district under consideration by the court; and

3) the transfer to another court for the convenience of the parties and witnesses is in the interest of justice, or to state another way, it is fair and reasonable to send the parties and witnesses to another federal district for convenience purposes.

From these simple, straightforward principles, a legend of case law has developed concerning the transfer of venue for the convenience of the parties and witnesses. In the Third Circuit district courts are required to analyze and weigh a set of eleven (11) private/public factors. Those factors are best set forth inJumara v. State Farm Ins. Co., 55 F.3d 873, (3d Cir. 1995):

The Private Factors:

1) The plaintiff's forum preference as manifested in the original choice;

2) the defendant's preference;

3) whether the claim arose elsewhere;

4) the convenience of the parties;

5) the convenience of the witnesses, but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and

6) the location of books and records, but only to the extent that they may actually be unavailable for trial in one of the fora.

The Public Factors:

1) The enforceability of the judgment;

2) practical considerations that could make the trial easy, expeditious, or inexpensive;

3) the relative administrative difficulty in the two fora resulting from court congestion;

4) the local interest; and

5) the public policies of the fora.

II. THE PARTIES' CONTENTIONS

The parties' contentions concerning these private and public factors are: Private Factors — Parties' Contentions Public Factors — Parties' Positions

Plaintiff Defendant 1. Plaintiff's Plaintiff's choice of Plaintiff's choice preference as forum is due great of forum should manifested by its deference under Third receive choice of forum Circuit precedent. considerably less deference because Plaintiff has no connection to this District (i.e. Delaware is not Plaintiff's "home turf"). 2. The defendant's No argument made. Defendant prefers preference transfer arguing convenience. 3. Whether the The infringement Plaintiff's claim plaintiff's claim claims of Plaintiff arose in the United arose elsewhere occurred in every States District federal district, and Court for the therefore, the claims Northern District arose in California of California. to the same extent the claims arose in Delaware. 4. The convenience Defendant's The convenience of of the parties incorporation in the parties weighs Delaware makes it in favor of impossible for transfer because of Defendant to argue the parties' that it is not locations, convenient for principal places of Defendant to litigate business, the in its home state, expense of travel, Delaware. and the effect of absent witnesses. 5. The convenience Defendant has not Several non-party of the witnesses, established that any witnesses would be but only to the witnesses will refuse unavailable in extent that the to travel to Delaware Delaware because witnesses may or that the cost of they are outside of actually be traveling to Delaware subpoena authority unavailable for would be burdensome. of the Delaware trial in one of District Court. the fora 6. The location of Defendant does not The location of the books and records, contend that records documentary but only to the could not be produced evidence favors extent that they in Delaware, only transfer because may actually be that it would produce transporting a high unavailable for a hardship and number of trial in one of Plaintiff contends Defendant's the fora that hardship is confidential greatly exaggerated. technical documents would increase the chances of a confidentiality breach. Plaintiff Defendant 1. The No argument made. A judgment in enforceability of either district the judgment could be enforced against Defendant. 2. Practical No argument made. The practical considerations considerations of that could make cost and witness the trial easy, availability expeditious, or addressed in the inexpensive private factors also favor transfer for this public factor. 3. The relative Docket congestion Docket congestion administrative does not favor favors transfer difficulty in the transfer because the because the case two fora resulting backlog in both load in the from court districts is California Court is congestion comparable; however, less than in Delaware is slightly Delaware. less congested. 4. The local There are no local California has a interest interests in a patent greater interest in case because patent the subject matter infringement is a of this litigation national issue. because it is where the technology and alleged infringement started. 5. The public Delaware has No argument made. policies of the extensive experience fora with patent cases.

III. DISCUSSION OF THE RELEVANT FACTORS

With the parties' positions set forth in the contention charts, the following are the Court's findings on each factor. Private Factors — Court's Findings Public Factors — Court's Findings Court's Finding 1. Plaintiff's A plaintiff's choice of venue is given forum preference great deference, and the Court will give as manifested in such deference to Plaintiff because it the original filed this case in this Court for choice legitimate reasons. Accordingly, this factor weighs against transfer. 2. The defendant's Defendant clearly prefers a transfer, and preference thus, this factor favors transfer. 3. Whether the Because of the national scope of the claim arose technology in question, the Court finds elsewhere that Plaintiff's claim arose in Delaware to the same extent as in any other district. Accordingly, this factor weighs against transfer. 4. The convenience Although Defendant may find it more of the parties convenient to litigate in California, Plaintiff chose to litigate in Delaware because it believed this Court was more convenient for it. Thus, this factor is neutral with regard to transfer. 5. The convenience Defendant can not establish that witnesses of the witnesses, would refuse or be physically unable to but only to the attend trial in Delaware. Accordingly, extent that the the Court finds that this factor weighs witnesses may against transfer. actually be unavailable for trial in one of the fora 6. The location of Defendant has not convincingly books and records, demonstrated that maintaining but only to the confidentiality of records and technology extent that they will be more difficult in Delaware than in may actually be California, and therefore, the Court finds unavailable for this factor weighs against transfer. trial in one of the fora Court's Findings 1. The A judgment in either the Delaware or enforceability of California court would be enforceable. the judgment Accordingly, the Court finds that this factor is neutral with regard to transfer. 2. Practical There are no significant public efficiency considerations differences between the two districts, that could make and, accordingly, the Court finds that the trial easy, this factor is neutral with regard to expeditious, or transfer. inexpensive 3. The relative There are no significant congestion administrative differences between the two districts, difficulty in the and, accordingly, the Court finds that two fora resulting this factor is neutral with regard to from court transfer. congestion 4. The local Patent cases are national cases and seldom interest open to a local interest analysis. Thus, the Court finds that this factor weighs against transfer. 5. The public There are no significant public policy policies of the differences between the two districts, fora and, accordingly, the Court finds that this factor is neutral with regard to transfer.

IV. DECISION

In sum, after considering the private and public factors the Court finds that this case could have been filed in the District of Northern California. However, Plaintiff chose to file the case in Delaware because Google is incorporated in and a resident of Delaware. For this reason, Google cannot complain that it is unfair or unreasonable to be sued in its home state. Additionally, although Google may find it more convenient for it to litigate this case in California, Plaintiff chose Delaware because Plaintiff finds Delaware convenient for it. Consequently, convenience of the parties does not support a transfer of venue.

Interestingly, the Court would reach the same conclusion by applying the three principles of Section 1404(a) without the enhanced analysis required by the eleven private/public factors of the case law.

Accordingly, the Court finds that Google has not established that a transfer of venue to the Northern District of California would be more convenient than the District of Delaware for the parties and most of the witnesses that will be involved in this litigation. Therefore, the Motion to Transfer Venue to the Northern District of California filed by Google will be denied by an order to be entered.