Opinion
Civil Action No. 3:02-CV-2454-D
February 13, 2003
MEMORANDUM OPINION AND ORDER
In this patent infringement action brought by plaintiff Technology Licensing Corp. ("TLC") against defendant Tektronix, Inc. ("Tektronix"), Tektronix moves to transfer the case to the United States District Court for the District of Oregon, "Portland Division," under 28 U.S.C. § 1404 (a). For the reasons stated below, the court grants the motion.
From the court's review of 28 U.S.C. § 117, it does not appear that there is a "Portland Division" of the District of Oregon. Instead, Portland is simply one of the places within the judicial district where the court is authorized by statute to hold court. The court declines to transfer this case to a particular place of holding court.
Tektronix filed its motion on January 13, 2003 and TLC filed its response on February 3, 2003. Although the deadline for Tektronix has not elapsed, the court in its discretion, as permitted by ND. Tex. Civ. R. 7.1(f), is deciding this motion prior to receipt of a reply brief See Solomon v. Godwin Carlton, P.C., 898 F. Supp. 415, 416 n. 2 (ND. Tex. 1995) (Fitzwater, J.) (applying former Local Rule 5.1(f)).
I
TLC is a California corporation with its principal place of business in Los Gatos, California. Tektronix is an Oregon corporation with its principal place of business in Beaverton, Oregon. Tektronix maintains a sales office in Irving, Texas, which is located in the Dallas Division of this court. It sues Tektronix for infringing U.S. Patent No. 4, 829, 257, U.S. Patent No. 4,868,428, and U.S. Patent No. RE 33,535, a reissue of U.S. Patent No. 4,703,355. Tektronix maintains that none of the operative facts, including design, development, or manufacture of the accused products, occurred in Texas. It contends that it designs and manufactures the products in Beaverton, Oregon and sells them nationwide. See D. Br. at 1-3. Tektronix asserts that the principal witnesses on which it will rely are also located in and around Beaverton, Oregon. See id. at 2-3. Beaverton is "located in close proximity to Portland, Oregon." Id. at 2 n. 1.II A
Section 1404(a) provides that "[f]or 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." The decision to transfer is made to prevent waste of time, energy, and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense.Bank One, N.A. v. Euro-Alamo Invs., Inc., 211 F. Supp.2d 808, 811 (ND. Tex. 2002) (Fitzwater, J.) (citing Stabler v. NY. Times Co., 569 F. Supp. 1131, 1137 (S.D. Tex. 1983)).
The court considers several factors in their totality, including (1) plaintiff's choice of forum; (2) the availability of compulsory process for the attendance of unwilling witnesses; (3) the cost of obtaining the attendance of willing witnesses; (4) the accessibility and location of sources of proof; (5) the relative congestion of the courts' dockets; (6) the accessibility of the premises to jury view; (7) the relation of the community in which courts and the jurors are required to serve to the occurrence giving rise to the suit; and (8) the time, cost, and ease with which the trial can be conducted, and all other practical considerations relative to the trial and determination of the case.Id. at 811-12 (citing Fletcher v. S. Pac. Transp. Co., 648 F. Supp. 1400, 1401 (E.D. Tex. 1986); Greiner v. Am. Motor Sales Corp., 645 F. Supp. 277, 278 (E.D. Tex. 1986)).
The moving parties bear the burden of proving by a preponderance of the evidence that transfer is appropriate. See Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966). This requires a particularized showing regarding why transfer is necessary, including identification of key witnesses and the general content of their testimony. See Young v. Armstrong World Indus., Inc., 601 F. Supp. 399, 401-02 (N.D.Tex. 1984) (Sanders, J.).Id at 812.
Although a plaintiffs choice of forum is entitled to substantial weight and should be highly esteemed, see id. (citing Enserch International Exploration, Inc. v. Attock Oil Co., 656 F. Supp. 1162, 1167 n. 15 (N.D.Tex. 1987) (Fitzwater, J.)), the weight to be accorded the choice is diminished where plaintiff brings suit outside its home forum, Alexander Alexander, Inc. v. Donald F. Muldoon Co., 685 F. Supp. 346, 349 (S.D.N.Y. 1988), or if none of the operative facts occurred within the forum, Fletcher, 648 F. Supp. at 1404.
B
Tektronix has introduced evidence that demonstrates that this suit could have been brought in Oregon; that Tektronix designed and manufactured the accused products in Beaverton, Oregon; and that Beaverton is located in close proximity to Portland. See D. App. 1-6. Portland, in turn, is closer to both parties' principal places of business than is Dallas, Texas. See D. Br. at 6 n. 5. The parties will be able in the District of Oregon to subpoena more witnesses, and to accommodate willing witnesses with less time or expense, than will this court. Additionally, because of the location of the operative facts and the parties involved, "it would not be fair to burden jurors within the Northern District of Texas with service in this case." Heppner v. Krause Plow Corp., 2001 WL 124947, at *3 (ND. Tex. Feb. 8, 2001) (Fitzwater, J.).
TLC's reasons for arguing that the case should remain here are unavailing. TLC posits that it is a California corporation with shareholders in California and Ohio. It opted to sue Tektronix in this district because it is geographically located "midway between the two [groups of shareholders] where there is ease of access to the Dallas/Fort Worth International Airport." See P. Br. at 1; P. App. 1. The location of this court as equidistant between two groups of TLC's shareholders, neither of which is located in Texas, does not present a valid reason to fix venue here. TLC also relies on "favorable experiences" by the inventor of the patent-in-suit and TLC's consultant "in how patent infringement matters are handled in the Northern District of Texas." See P. Br. at 2; P. App. 1-2. This reason is flattering but insufficient. Although TLC maintains that patent issues are not local issues and that Tektronix has the resources to litigate in Texas, TLC does not contest that significantly fewer resources of the parties and the courts will be expended by transferring venue, and that the District of Oregon has much more interest in this matter than does this court.
One can only imagine what Judge Kent of the Southern District of Texas might have written in response to such an argument. Cf. Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782, 784 n. 2 (S.D. Tex. 1996) (addressing assertion of inconvenience rather than of perceived convenience, but doing so in immitable terms).
Having considered the other relevant factors, see Bank One, 211 F. Supp.2d at 811-12, the court discerns no reason not to transfer this case for the convenience of the parties and witnesses and in the interest of justice.
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Accordingly, Tektronix's January 13, 2003 motion to transfer is granted. The clerk of court shall effect the transfer to the United States District Court for the District of Oregon according to the usual procedure.