Motorola Mobility, Inc-v-Microsoft Corporation

Filing 69

ORDER by Judge Samuel Conti granting 39 Motion to Transfer Case; denying 55 Motion to Stay (sclc1, COURT STAFF) (Filed on 11/21/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MOTOROLA MOBILITY, INC.

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)
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Claimant,

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v.

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MICROSOFT CORPORATION,

United States District Court

For the Northern District of California

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Defendant.

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Case No. 11-3136 SC
ORDER GRANTING MOTION TO
TRANSFER AND DENYING MOTION
FOR LIMITED STAY OF
DISCOVERY

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I.

INTRODUCTION

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Now before the Court is Counterclaim Defendant Microsoft

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Corporation's ("Microsoft") Motion to Transfer Motorola Mobility,

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Inc.'s ("Motorola") Counterclaims to the Western District of

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Washington, or, in the alternative, to stay this action pending

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resolution of Microsoft's patent infringement claims in the Western

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District of Washington.

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briefed.

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brought a Motion for a Limited Stay of Discovery pending resolution

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of its Motion to Transfer.

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below, the Court GRANTS Microsoft's Motion to Transfer and DENIES

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Microsoft's Motion for a Limited Stay of Discovery as moot.

ECF No. 39 ("Mot.").

ECF Nos. 49 ("Opp'n"), 58 ("Reply).

ECF No. 55.

This Motion is fully
Microsoft has also

For the reasons set forth

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II.

BACKGROUND
Motorola is a Delaware corporation with its principal place of

business in Libertyville, Illinois.

ECF No. 1 ("Not. of Removal")

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Ex. A ("Counterclaims") ¶ 1.

Motorola's products include Android

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smartphones and tablets, various versions of which have been

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marketed since 2009.

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corporation headquartered in Redmond, Washington with offices

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around the United States and around the world.

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Decl. ¶ 3.1

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including a mobile operating system platform, Windows Mobile, and

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Windows Phone 7.

Id. ¶ 7.

Microsoft is a Washington

Id. ¶ 3; Eppenauer

Microsoft also markets a variety of mobile products,

Counterclaims ¶¶ 17, 20.

United States District Court

On October 1, 2010, Microsoft filed a complaint against

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For the Northern District of California

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Motorola in the Federal District Court for the Western District of

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Washington, Case No. 10-CV-1577 (the "Washington 10-1577 action"),

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alleging that Motorola's Android devices infringe nine of

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Microsoft's patents.

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Compl.").2

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U.S. International Trade Commission ("ITC") commence an

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investigation related to the same nine patents.

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22; Mot. at 2.

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2010, and instituted Investigation No. 337-TA-744 (the "744

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Investigation" or the "ITC Proceeding").

Id. ¶ 23; Giardina Decl. Ex. 1 ("WDWA 10-1577

Also on October 1, 2010, Microsoft requested that the

Counterclaims ¶

The ITC granted Microsoft's request on November 5,

Counterclaims ¶ 22.

On June 22, 2011, Motorola filed its Counterclaims against

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Microsoft in the ITC Proceeding, alleging that Microsoft breached

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its commitments to the SD Card Association ("SDA"), a standard

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setting organization ("SSO"), and its members by "engaging in a

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pattern of deliberate, deceptive, and anticompetitive conduct,

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1

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David Bartley Eppenauer ("Eppenauer"), Microsoft's Chief Patent
Counsel and Assistant Corporate Secretary, submitted a declaration
in support of Microsoft's Motion to Transfer. ECF No. 40
("Eppenauer Decl.").
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David C. Giardina ("Giardina"), counsel for Microsoft, also
sumitted a declaration in support of Microsoft's Motion. ECF No.
41.
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which allowed it to exert improper influence over standard setting

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processes for telecommunication technology standards and to acquire

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unlawful monopoly power in several markets."

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alleges that Microsoft manipulated the standard-setting process to

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ensure certain standards were adopted that would allow it to claim

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that it owns patents essential to practicing certain industry

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standards.

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counter to commitments it made to the SDA during the standards-

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setting process that it would grant licenses on reasonable, and

United States District Court

For the Northern District of California

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Id.

Id. ¶ 10.

Motorola

Microsoft allegedly made license demands which run

non-discriminatory terms.

Id.

Motorola's Counterclaims arise, in part, out of its

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Host/Ancillary Product License Agreement ("HALA") with the SDA and

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the SDA Intellectual Property Policy ("SDA IP Policy"), which is

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incorporated by reference into the HALA.

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SDA IP policy requires all members of the SDA, including Microsoft,

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"to license in a non-discriminatory fashion, and on reasonable

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terms, to all other Members and non-member licensees . . ., such

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Member's Patent Claims which are required to implement the Adopted

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Specifications ('Essential Patent Claim(s)')."

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("SDA IP Policy") § 2.3

See id. ¶¶ 90-105.

The

Perlson Decl. Ex. 1

On June 24, 2011, Motorola removed its Counterclaims to the

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Northern District of California.

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claimed that venue was proper in this district because:

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Motorola's claims arise out of Microsoft's agreements with the SDA,

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which contain forum selection clauses requiring that all suits

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Not. of Removal.

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Motorola
(1)

David A. Perlson ("Perlson"), counsel for Motorola, submitted two
declarations in support of Motorola's opposition to the Motion.
ECF Nos. 50 ("Perlson Decl."), 51 ("Perlson Supp. Decl."). The
parties also refer to another declaration by Perlson, filed under
seal in connection with Motorola's earlier motion for a temporary
restraining order ("Perlson TRO Decl").
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arising out of the agreements be finally settled by the federal or

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state courts located in this district; (2) Microsoft maintains a

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place of business in this district; (3) venue is proper under 28

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U.S.C. §§ 1391(b) and (c) and sections of the Clayton Antitrust

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Act; and (4) Microsoft's participation in the standard-setting

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process has had harmful and anti-competitive effects in this

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district.

On September 2, 2011, Microsoft moved to transfer this case to

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Id. at 2.

the Western District of Washington.

Among other things, Microsoft

United States District Court

For the Northern District of California

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argues that transfer is appropriate since: a majority of witnesses

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reside in Redmond, Washington; the bulk of evidence regarding

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Motorola's claims is located in Washington; there is no meaningful

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connection between the facts of this case and the Northern District

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of California; the forum selection clauses in the HALA and SDA IP

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Policy do not provide a basis for keeping this case in California;

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and transferring the case will allow better coordination with five

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other disputes between Microsoft and Motorola pending in the

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Western District of Washington, including the Washington 10-1577

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action.4

Mot. at 10-17.

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In the alternative, Microsoft seeks an order staying this

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action pending resolution of Microsoft's patent infringement claims

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in the Washington 10-1577 action.

Id. at 17.

Microsoft has also

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The four other actions involve (1) Motorola's alleged breach of
contract related to a wi-fi and H.264 video compression standard;
(2) Microsoft's alleged patent infringement related to a wi-fi and
H.264 compresseion standard; (3) Microsoft's alleged patent
infringment related to its Xbox 360 gaming system; (4) patent
infringement claims relating to almost a dozen other Microsoft
products. Mot. at 2-5. The last three actions were recently
transferred to the Western District of Washington from various
other districts. Id.
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filed a motion seeking a limited stay of discovery pending the

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Court's resolution of its Motion to Transfer.

ECF No. 55.

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III. LEGAL STANDARD
Under Section 1404(a) of Title 28 of the United States Code

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("Section 1404(a)"), a district court has discretion to "transfer

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any civil action to any other district or division where it may

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have been brought" "for the convenience of parties and witnesses,

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[and] in the interest of justice."

The purpose of Section 1404(a)

United States District Court

For the Northern District of California

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is "to prevent the waste of time, energy, and money and to protect

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litigants, witnesses, and the public against unnecessary

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inconvenience and expense."

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622 (1964) (internal quotation marks omitted).

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transfer lies within the broad discretion of the district court,

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and must be determined on an individualized basis."

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Nationwide Mut. Ins. Co., No. 07-4928, 2007 U.S. Dist. LEXIS 95240,

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at *3-4 (N.D. Cal. Dec. 14, 2007) (citing Jones v. GNC Franchising,

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Inc., 211 F.3d 495, 498 (9th Cir. 2000)).

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Van Dusen v. Barrack, 376 U.S. 612,
"A motion for

Foster v.

Once venue is determined to be proper in both districts, the

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court may evaluate a variety of factors to determine which venue

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will be more convenient for the parties and witnesses and will

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promote the interests of justice.

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consider: "(1) plaintiff's choice of forum, (2) convenience of the

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parties, (3) convenience of the witnesses, (4) ease of access to

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the evidence, (5) familiarity of each forum with the applicable

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law, (6) feasibility of consolidation with other claims, (7) any

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local interest in the controversy, and (8) the relative court

Specifically, the Court may

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congestion and time of trial in each forum."

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Foster, 2007 U.S.

Dist. LEXIS 95240, at *4.

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IV.

DISCUSSION

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The parties do not dispute that venue would be proper in

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either the Northern District of California or the Western District

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of Washington.

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promote the interests of justice and the convenience of the

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parties.

They do disagree about whether transfer would

The Court finds that the balance of factors weighs in

United States District Court

For the Northern District of California

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favor of transferring this case to the Western District of

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Washington.

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A.

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"The convenience of the witnesses is often the most important

Convenience

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factor in resolving a motion to transfer."

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Logistics, No. C 05-02015-JSW, 2006 U.S. Dist. LEXIS 82201, at *8

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(N.D. Cal. Nov. 7, 2005).

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District of Washington is more convenient since Microsoft is

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headquartered in Redmond, Washington; the technology at issue in

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this dispute was developed at Microsoft's facilities in Washington;

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and Microsoft employees that interfaced with the SDA concerning the

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underlying technology at issue work in Washington.

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Microsoft further argues that the bulk of evidence related to

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Motorola's Counterclaims is located in Washington, where Microsoft

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manages its licensing operations.

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Ruiz v. Affinity

Microsoft argues that the Western

Mot. at 11.

Id. at 12.

Motorola responds that this district would be more convenient

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for non-party witnesses located here, including the SDA, which

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published the SD specifications; SD-3 LLC, one of the parties to

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the HALA; Google, Inc., which provides software for Motorola

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products; and various organizations who hold positions on SDA's

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board.

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individuals from these organizations who may testify: (1) Paul

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Reinhardt ("Reinhardt"), the former director of the SDA, who is

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"the named recipient of at least one assurance letter Microsoft

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provided the SDA," and (2) Raymond Creech ("Creech"), the founding

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president of SDA, who may testify "concerning the policies and

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procedures of the SDA, as well as Microsoft and Motorola's

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interactions with the organization."

Opp'n at 18-19.

Motorola specifically names only two

Id.

Motorola argues that

United States District Court

For the Northern District of California

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this district is also more convenient since it possesses "usable"

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subpoena power over these individuals while the Western District of

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Washington does not.

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Microsoft would not be inconvenienced by litigating in this

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district because it has litigated here before and because it has

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not indicated that any of its potential employee witnesses would

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not appear in this district.

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that the majority of Motorola employees likely to have knowledge

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about the technology at issue in this litigation work at its

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facilities in Sunnyvale, California or Libertyville, Illinois.

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at 8.

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located in this district who may have knowledge relevant to this

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case.

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Id. at 19-20.

Motorola contends that

Id. at 20-21.

Motorola also states

Id.

Motorola specifically names only two Motorola employees

See id. at 22.
The Court finds that the convenience factor weighs in favor of

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transferring the case to the Western District of Washington.

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Microsoft is headquartered in Redmond, Washington; Microsoft

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employees who possess relevant knowledge about the underlying

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technology and Microsoft's commitments to the SDA work in

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Washington; and Microsoft's licensing operations, which are at the

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heart of this dispute, are managed out of Washington.

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it would be equally inconvenient for the Motorola's employees

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working at Motorola's headquarters in Libertyville, Illinois to

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travel to either the Western District of Washington or this

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district.

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District of Washington should not be burdensome as Microsoft and

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Motorola are already litigating at least five other matters there.

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The Court also finds that Motorola has not sufficiently

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Presumably,

Further, transporting Motorola employees to the Western

explained the materiality of its asserted non-party witnesses.

United States District Court

For the Northern District of California

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Motorola has only specifically identified two non-party witnesses

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by name, Reinhardt and Creech.

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Reinhardt and Creech's testimony would be compared to the testimony

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of other party and non-party witnesses who reside in the Western

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District of Washington or other locations outside of this district.

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It is also unclear whether the Western District of Washington would

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need to exercise its subpoena power as there is no indication that

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these two individuals would be unwilling to testify at trial.

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other non-parties named by Motorola are organizations, and it is

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unclear who from these organizations would have pertinent knowledge

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of the facts at issue in this case, where these individuals are

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located, and whether they would be unwilling to testify at trial.

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It is unclear how important

The

For the foregoing reasons, the Court finds that the Western

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District of Washington would best serve the convenience of the

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parties.

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B.

Feasibility of Consolidation with Other Claims

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Microsoft argues that transfer will allow for better

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coordination with the multiple cases currently pending in the

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Western District of Washington.

Mot. at 17.

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The Court agrees.

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Motorola's Counterclaims were brought in response to the patent

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infringement claims Microsoft asserted at the ITC.

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patent infringement claims were also brought in the Washington 10-

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1577 action.

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conserve judicial resources and reduce the risk of inconsistent

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rulings on Motorola's claims in this action and parallel defenses

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that might be raised in the Washington 10-1577 action.

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argues that the Washington 10-1577 action was improperly filed in

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the Western District of Washington and transferring this case would

These same

Transfer to the Western District of Washington will

Motorola

United States District Court

For the Northern District of California

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reward Microsoft for breaching the forum selection clauses in the

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HALA and SDA IP Policy.

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section IV.C below, these forum selection clauses are not

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controlling.

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in consolidating litigation weighs heavily in favor of transferring

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this action to the Western District of Washington, where the

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underlying dispute between Microsoft and Motorola was first filed.

Opp'n at 24.

However, as discussed in

Accordingly, the Court finds that the public interest

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C.

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The existence of a forum selection clause is a "significant

The Forum Selection Clauses

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factor" in assessing a motion to transfer, but is not dispositive.

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See Jones, 211 F.3d at 499, n. 20.

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selection clauses in the HALA and the SDA IP Policy, which was

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incorporated by reference into the HALA, warrant denial of

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Microsoft's transfer motion.

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provides that it "will be governed by the laws of the State of

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California, USA and the federal and state courts located in

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California shall have exclusive jurisdiction regarding any matters

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under this IP Policy."

Motorola argues that the forum

Opp'n at 12-16.

SDA IP Policy § 11.

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The SDA IP Policy

The Microsoft HALA

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also includes a forum selection clause, which states, in relevant

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part:

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15.5
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED
ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA, AS IF
THIS AGREEMENT WERE WHOLLY EXECUTED AND WHOLLY PERFORMED
WITHIN SUCH STATE . . .

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15.6
ALL DISPUTES BETWEEN THE PARTIES HERETO ARISING
OUT OF OR IN CONNECTION WITH THE INTERPRETATION OR
EXECUTION OF THIS AGREEMENT, LICENSORS' LICENSING OF THE
ESSENTIAL PATENT CLAIMS . . . OR LICENSEE'S USE OF THE
ESSENTIAL PATENT CLAIMS OF THE SD GROUP . . . SHALL BE
FINALLY SETTLED BY THE FEDERAL OR STATE COURTS LOCATED IN
THE COUNTY OF SANTA CLARA IN THE STATE OF CALIFORNIA.5

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United States District Court

For the Northern District of California

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Perlson Supp. Decl. Ex A ("HALA") at 19.

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Microsoft contends that the forum selection clauses do not

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justify keeping this case in the Northern District of California.

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Mot. at 14-16.

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selection clause is not dispositive on a motion to transfer and, in

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the instant action, is outweighed by other relevant factors.

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at 14.

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does not apply here because Motorola was not a party to the HALA.

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Id. at 16.

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selection clause applies to "disputes between the parties" and that

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Motorola allowed its SDA license agreement to lapse in 2008 due to

As an initial matter, Microsoft argues that a forum

Id.

Microsoft also argues that the HALA forum selection clause

Microsoft points to the fact that the HALA forum

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This case was originally before Judge Fogel, in the San Jose
Courthouse located in Santa Clara County. It was later reassigned
to this Court, located in the City and County of San Francisco.
ECF No. 54. Neither party has addressed whether, under the HALA, a
San Francisco court could properly retain jurisdiction over this
matter under the HALA, which specifically refers to courts located
in Santa Clara County. As this Order transfers the action to the
Western District of Washington, the Court declines to address the
issue.
10

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non-payment of dues.6

2

the contract as a whole, the HALA forum selection clause does not

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apply to third parties such as Motorola.

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also argues that the forum selection clause in the SDA IP Policy

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does not raise a "matter under the SDA IP Policy" because the

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negotiation of individual license agreements between Microsoft and

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other SDA licensees are strictly private matters, outside the scope

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of the SDA.

Id. at 6-7.

Microsoft argues that, reading

Id. at 16.

Microsoft

Id.

United States District Court

Motorola responds that this action should remain in the

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For the Northern District of California

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Northern District of California because Motorola is a third party

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beneficiary of the forum selection clauses in the HALA and SDA IP

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Policy.

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implementers" like itself are entitled to sue for breach of

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commitments to SSOs to provide licenses on reasonable and non-

15

discriminatory terms, and that such commitments would have little

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meaning otherwise since SSOs themselves rarely litigate such

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issues.

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selection clauses at issue, like Microsoft's commitment to provide

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licenses on reasonable and non-discriminatory terms, were created

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for the benefit of third party implementers such as itself.

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15.

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Policy refer to Members and non-member licensees.

Opp'n at 12-16.

Id. at 13.

Motorola contends that "third party

Motorola further argues that the forum

Id. at

Motorola points out that sections 2 and 5(ii) of the SPA IP
Id. at 15.

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Motorola contends that it has been a SDA Member "at all relevant
times" and that it contacted Microsoft about potential licensing
terms in December 2006 and February 2007, while it was an active
HALA Licensee and SDA Member. Opp'n at 5-6. Motorola does not
otherwise dispute that it allowed its SDA license to lapse in 2008.
Microsoft states that Motorola reinstated its SDA license on May
24, 2011, around the time when Motorola first asserted it had the
right to a reasonable and non-discriminatory license pursuant to
the commitments Microsoft made to the SDA. Opp'n at 6-7.
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The Court agrees with Microsoft and finds that the forum

1
2

selection clauses are not controlling here.

Under California law,

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"[a] contract must be so interpreted as to give effect to the

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mutual intention of the parties as it existed at the time of

5

contracting . . . ."

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contract is to govern its interpretation, if the language is clear

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and explicit, and does not involve an absurdity."

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"The words of a contract are to be understood in their ordinary and

9

popular sense, rather than according to their strict legal meaning;

Cal. Civ. Code § 1636.

"The language of a

Id. § 1638.

United States District Court

For the Northern District of California

10

unless used by the parties in a technical sense, or unless a

11

special meaning is given to them by usage, in which case the latter

12

must be followed."

Id. § 1644.

In the instant action, the HALA's forum selection clause

13
14

expressly applies to "ALL DISPUTES BETWEEN THE PARTIES."

HALA at

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19.

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it allowed its license agreement with the SDA to lapse in 2008

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before rejoining the organization in 2011.

18

Ex. A ("Termination Ltr."); Mot. at 6-7.

19

right to enforce the terms of the HALA as a third party implementer

20

or third party beneficiary.

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the HALA in its "ordinary and popular sense," the Court cannot

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conclude that the forum selection clause, which expressly applies

23

to the parties to the agreement, should extend to third parties.

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While third party beneficiaries or implementers may very well have

25

a right to enforce the other terms of the HALA, the language of the

It appears that Motorola was not a party to the HALA because

See Perlson TRO Decl.

Motorola focuses on its

However, interpreting the language of

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28

12

1

forum selection clause is specific to the parties to the

2

agreement.7
Additionally, based on the arguments and evidence currently

3
4

before the Court, the forum selection clause in the SDA IP Policy

5

does not warrant keeping this case in the Northern District of

6

California.

7

"matters under [the SDA] IP Policy."

8

IP Policy further provides that "SDA makes no representations as to

9

the reasonableness of any terms or conditions of the license

The SDA IP Policy provides that it applies only to
SDA IP Policy § 11.

The SDA

United States District Court

For the Northern District of California

10

agreements offered by such patent rights holders, and all

11

negotiations regarding such terms and conditions must take place

12

between the individual parties outside the context of SDA."

13

Policy § 5.

14

counterclaims allege that Microsoft breached some obligation in

15

connection with negotiations [between the parties], Motorola's

16

claims do not raise matters under the IP Policy to which its forum

17

selection clause applies."

18

coherently address this argument, and it is unclear from the papers

19

to what extent Motorola's Counterclaims raise matters under the SDA

20

IP Policy.8

SDA IP

Microsoft argues that "to the extent that Motorola

Mot. at 16.

Motorola does not

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27
28

7

For the purposes of this Order, the Court need not and, thus,
does not reach the issues of whether Motorola is actually a third
party beneficiary or implementer under the HALA; whether any of the
other terms of the HALA are applicable to third parties; or
whether, as a third party beneficiary or implementer, Motorola is
entitled to sue Microsoft for breach of commitments to the SDA.
8

Indeed, as framed by Motorola's opposition brief, the
Counterclaims appear to be largely predicated on Microsoft and
Motorola's bilateral negotiations concerning patent licensing
terms. See, e.g., Opp'n at 6 ("Microsoft did not respond to
Motorola's requests for licensing terms."), 15 ("Given its
contractual commitments to third party Motorola, Microsoft's
obligation to have provided a license to the [] Patents on
[reasonable and non-discriminatory] terms, or at least provided
13

1

Forum selection clauses are not dispositive on a motion to
See Jones, 211

2

transfer and may be outweighed by other factors.

3

F.3d at 499, n. 20.

4

apply here, and it is unclear to what extent the SDA IP Policy's

5

forum selection clause is applicable, the Court finds that these

6

forum selection clauses do not warrant keeping this case in the

7

Northern District of California.

As the HALA forum selection clause does not

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D.

9

The Court finds that other factors relevant to analyzing a

Other Factors

United States District Court

For the Northern District of California

10

motion to transfer do not weigh so heavily against transfer as to

11

offset the factors discussed above.

12

entitled to some weight, but is trumped by the fact that the

13

Western District of Washington is the center of gravity in this

14

dispute.

15

discussed above, Microsoft is headquartered in Redmond, Washington;

16

a number of witnesses and much of the evidence at issue are located

17

in the Western District of Washington; and Microsoft has already

18

filed a patent infringement action against Motorola in the Western

19

District of Washington concerning the technology at the heart of

20

this dispute.

Motorola's choice of forum is

See Ruiz, 2005 U.S. Dist. LEXIS 45203, at *4-7.

As

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Further, the factor concerning the local interest in the

22

controversy does not weigh in favor of either this district or the

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Western District of Washington.

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of business in Redmond and is employs over 40,000 people in the

25

Seattle, Washington area.

Microsoft has its principal place

Eppenauer Decl. ¶¶ 3-4.

Thus, the

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Motorola an opportunity to take or negotiate such a license, is
beyond dispute."). For the purposes of this Order, the Court need
not and, thus, does not address whether Motorola may state an
actionable claim for breach of the SDA IP Policy.
14

interest in resolving Motorola's claims against Microsoft.

3

Motorola also has a significant presence in this district,

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employing 130 people at its Santa Clara office and 538 people at

5

its Sunnyvale office.

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Microsoft's significant presence in the Western District of

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Washington and Motorola's presence in the Northern District of

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California, the local interest factor is a wash.

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United States District Court

residents of the Western District of Washington clearly have an

2

For the Northern District of California

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Whaley Dec. ¶¶ 3, 5.9

In light of

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28

9

David Whaley ("Whaley"), Motorola's Director of Partnership
Management, submitted a declaration in support of Motorola's
opposition to the Motion. ECF No. 53 ("Whaley Decl.").
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V.

CONCLUSION
Balancing all of the pertinent factors, the Court finds that

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this case belongs in the Western District of Washington.

The

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Western District of Washington would be more convenient for most of

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the potential witnesses with knowledge relevant to this case, and

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the bulk of the evidence is located in the Western District of

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Washington.

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resides in the Western District of Washington, as Microsoft has

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already filed a related case in that district.

Further, the center of gravity of the case currently

The choice of forum

United States District Court

For the Northern District of California

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provisions in the SDA IP Policy and the HALA do not weigh against

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transfer.

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Motorola's choice of forum is entitled to little weight.

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foregoing reasons, the Court GRANTS Microsoft's Motion to Transfer

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and DENIES Microsoft's Motion for a Limited Stay of Discovery as

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moot.

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District Court for the Western District of Washington.

In light of these and other factors discussed above,
For the

The clerk shall transfer this action to the United States

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IT IS SO ORDERED.

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Dated: November 21, 2011
UNITED STATES DISTRICT JUDGE

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