Tessenderlo Kerley, Inc. v. D & M Chem, Inc.

Filing 46

ORDER by Judge Charles R. Breyer denying 45 Motion for Leave to File. (crblc1, COURT STAFF) (Filed on 11/17/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 11-03955 CRB

TESSENDERLO KERLEY, INC.,

ORDER DENYING MOTION FOR
LEAVE TO FILE A MOTION FOR
RECONSIDERATION AND MOTION
TO STAY

Plaintiff,
v.
D & M CHEM, INC.,
Defendant.

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Now pending is Plaintiff Tessenderlo Kerley, Inc.’s Motion for Leave to File a Motion

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for Reconsideration and Motion to Stay. See Mot. (dkt. 45). The Motion, brought under

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Civil Local Rule 7-9(b)(3), seeks reconsideration of the Court’s November 7, 2011 Order

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granting Defendant D&M Chem, Inc.’s Motion to Transfer the case to the Eastern District of

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Washington. See Order (dkt. 42). Local Rule 7-9(b)(3) permits a party to move for

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reconsideration where there has been “[a] manifest failure by the Court to consider material

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facts or dispositive legal arguments which were presented to the Court.”

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Plaintiff argues first that the Court erred by giving “no weight to [Plaintiff’s] choice of

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forum.” Mot. at 2. This is incorrect; the Court noted that a plaintiff’s choice of forum is

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usually entitled to deference, gave two reasons why that usual deference was diminished in

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this case, and concluded that “this factor weighs only minimally against transfer,” thus giving

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Plaintiff’s choice some, though not great, weight. See Order at 3.

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Plaintiff argues next that the Court’s conclusion that the bulk of the evidence is

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located in Washington is not supported by the facts. Mot. at 6. The Court simply disagrees.

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As explained in the Order, “In patent infringement cases, the bulk of the relevant evidence

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usually comes from the accused infringer. Consequently, the place where the defendant’s

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documents are kept weighs in favor of transfer to that location.” Order at 4-5 (citing In re

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Genentech, Inc., 566 F.3d 1338, 1346 (Fed. Cir. 2009)). True, the Court accepted Defendant

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D&M’s representations that “[a]ll of D&M’s research and development efforts relating to the

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Eclipse product, including all of its field tests, were accomplished within Washington State,”

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and that “D&M’s research documentation, books and records relating to its development,

United States District Court
For the Northern District of California

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marketing and sales of the Eclipse product all are located in the Eastern District of

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Washington, as are all the present and former D&M employees and personnel who were

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involved in or otherwise have knowledge of the development, marketing and sales of the

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Eclipse product,” id. at 5, but those representation were based on a declaration by the

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President of D&M, see Gargus Decl. (dkt. 16) ¶ 5, who is well positioned to know such

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things. Indeed, in the Court’s view, the evidence just described, all located in Washington,

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outweighs the evidence of Plaintiff’s operations in California, from non-party witnesses “in

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California and elsewhere throughout the United States,” and from “end users” in California,

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which Plaintiff represents that it will “probabl[y]” seek. See Mot. at 7.

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Plaintiff further complains that the Court impermissibly shifted the inconvenience

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from Defendant to Plaintiff. Mot. at 8. Again, the Court disagrees. The Court twice noted

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this principle, see Order at 2, 4, and does not find that its Order transgresses it, particularly as

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both the public and private factors favor transfer.

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Finally, Plaintiff objects to the Court’s October 24, 2011 decision, see dkt. 36, not to

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relate this case to another case in this district, Case No. CV 11-04100 PSG. Even if that

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decision were properly the subject of Plaintiff’s Motion for Reconsideration, the Court does

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not believe that the two cases are related. The actions – which involve different defendants1

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and different products – do not “concern substantially the same parties, property, transaction

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or event,” and do not pose the risk of “unduly burdensome duplication of labor and expense

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or conflicting results.” See Civil Local Rule 3-12(a).

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The Court concludes that it did not manifestly fail to consider material facts or

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dispositive legal arguments, see Civil Local Rule 7-9(b)(3), but that Plaintiff simply

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disagrees with the Court’s conclusions as to those facts and arguments. The Motion is

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therefore DENIED.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: November 17, 2011

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Plaintiff’s suggestion that the two defendants might have “had a relationship,” see Mot. at 10,
is not evidence, nor is it evidence that was presented to the Court in connection with the Motion to
Transfer.
G:\CRBALL\2011\3955\order re reconsideration.wpd

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