Streetspace, Inc v. Google, Inc. et al

Filing 57

Order Transferrring Case to the Northern District of CA; The Court grants the motion to transfer 23 and, therefore, does not rule on the other motions 29 , 49 ; Files transferred electronically to: *District of Northern District of CA*.*450 Golden Gate Avenue**San Francisco, CA 94102*. Signed by Judge Larry Alan Burns on 9/12/11. (All non-registered users served via U.S. Mail Service)(kaj) (Additional attachment(s) added on 9/13/2011: # 1 Transfer Order) (kaj).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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STREETSPACE, INC., etc.,

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CASE NO. 10cv1757-LAB
Plaintiff,

ORDER TRANSFERRING CASE
TO NORTHERN DISTRICT OF
CALIFORNIA

vs.
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GOOGLE INC., etc., et al.,
Defendants.

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There are three motions pending in this case, all of them fully briefed and ready for

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a ruling. The first, filed by Defendants, is a motion to transfer this case to the Northern

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District of California. (Dkt. No. 23.) The second, filed by Streetspace, is a motion to

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disqualify Cooley Godward, counsel for Defendant Millennial Media. (Dkt. No. 29.) The

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third, filed by Defendants, is a motion to dismiss Streetspace’s complaint for failure to state

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a claim. (Dkt. No. 49.) The Court GRANTS the motion to transfer and, therefore, does not

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rule on the other two motions. See Sinochem Int’l Co. Ltd. v. Malaysia Int’l Shipping Corp.,

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549 U.S. 422, 432 (2007) (venue questions are threshold matters).

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I.

Factual Background

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This is a patent infringement action. Streetspace, a Delaware company with its

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principal place of business in Malaysia, owns a patent — the ‘969 patent — that enables

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personalized and targeted advertisements to be delivered to a consumer’s “Internet-enabled
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terminal,” which presumably refers to a computer or smartphone. (Compl. ¶ 1.) The patent

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does this by utilizing the consumer’s personal information, location data, and Internet usage

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history. (Id.) The patent is entitled “Method and System for Providing Personalized Online

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Services and Advertisements in Public Spaces.” (Compl. ¶ 3.)

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Streetspace accuses each of the Defendants of infringing the ‘969 patent in the
following ways:
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Google provides targeted and personalized advertising through

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AdSense, AdWords, and Mobile Ads by collecting personal information

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and location data of computer users. (Compl. ¶ 12.)

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Admob collects consumer information such as browser identifiers,

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browser cookies, and IP addresses to display advertisements that may

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be of interest to those consumers on websites they visit. (Compl. ¶ 14.)

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Apple products — particularly the iPhone, iPad, and iPod Touch — are

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capable of supporting targeted and personalized advertising. (Compl.

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¶ 16.)

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Quattro Wireless collects consumers’ personal information and Internet
browsing behavior to “facilitate optimal ad matching.” (Compl. ¶ 18.)

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Nokia develops and sells smartphones capable of supporting targeted

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personalized advertising, and Nokia “collects personal information . . .

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to display customized content and advertising.” (Compl. ¶ 21.)

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Navteq “collects personal information, certain technical information, and

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location data to display advertising customized to a recipient’s interests

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and preferences.” (Compl. ¶ 23.)

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•

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Millennial Media collects consumer data to deliver personalized and
targeted advertising to those consumers. (Compl. ¶ 25.)

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Jumptap operates a mobile advertising network that matches

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advertisements to consumers’ Internet browsing behaviors and other

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personal information. (Compl. ¶ 27)
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What is probably more relevant, though, is where the Defendants are located and where

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they do business.

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Google is a Delaware corporation with its principal place of business in

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Mountain View, California, which is in the Northern District of California.

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(Compl. ¶ 11.) It has no office or corporate presence in the Southern

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District of California. (Google and Admob Decl. ¶ 6.)

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Admob has been acquired by Google and is also a Delaware

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corporation with its principal place of business in Mountain View.

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(Compl. ¶ 13.) At the time of its acquisition by Google, Admob was

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located in San Mateo, California, also in the Northern District of

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California; its employees and records have since been moved to

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Google’s Mountain View headquarters. (Google and Admob Decl. ¶ 4.)

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Admob has no office or corporate presence in the Southern District of

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California. (Google and Admob Decl. ¶ 6.)

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Apple is a California corporation with its principal place of business in

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Cupertino, California, which is in the Northern District of California.

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(Compl. ¶ 15.) Apple has five retail stores in the Southern District of

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California, but does not otherwise maintain any facilities, employees, or

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records in the District. (Apple and Quattro Decl. ¶¶ 10–11.)

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Quattro Wireless is a Delaware corporation with its principal place of

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business in Waltham, Massachusetts. (Compl. ¶ 17.) Quattro was

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acquired by Apple, however, and its employees and records were

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moved to Apple’s headquarters in Cupertino. (Apple and Quattro Decl.

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¶ 4.)

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Nokia is a Finnish limited liability company with its principal place of
business in Espoo, Finland. (Compl. ¶ 19.)

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Navteq, a wholly-owned subsidiary of Nokia, is a Delaware corporation
with its principal place of business in Chicago, Illinois. (Compl. ¶ 22.)
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Millennial Media is a Delaware corporation with its principal place of

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business in Baltimore, Maryland. (Compl. ¶ 24.) Millennial Media has

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an office in San Francisco, in the Northern District of California, and no

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facilities of any kind in the Southern District of California. (Millennial

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Media Decl. ¶¶ 2, 8.)

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Jumptap is a Delaware corporation with its principal place of business

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in Cambridge, Massachusetts. (Compl. ¶ 26.) Jumptap has two

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employees who work in the Northern District of California, but it does

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not maintain any facilities, employees, or documents in the Southern

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District of California. (Jumptap Decl. ¶¶ 7–8.)
II.

Legal Standard

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“For the convenience of parties and witnesses, in the interest of justice, a district

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court may transfer any civil action to any other district or division where it might have been

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brought.” 28 U.S.C. § 1404(a). The Ninth Circuit has identified multiple factors a district

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court should take into consideration: (1) the plaintiff’s choice of forum; (2) the respective

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parties’ contacts with the forum; (3) the contacts relating to the plaintiff’s cause of action in

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the chosen forum; (4) the difference between the costs of litigating in the two forums; (5) the

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availability of compulsory process to compel attendance of unwilling non-party witnesses;

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and (6) the ease of access to sources of proof. Jones v. GNC Financing, Inc., 211 F.3d 495,

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498–99 (9th Cir. 2000). The weighing of these factors “involves subtle considerations and

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is best left to the discretion of the trial judge.” Commodity Futures Trading Comm’n v.

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Savage, 611 F.2d 270, 279 (9th Cir. 1979).1

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While plaintiffs generally bear the burden of demonstrating proper venue,

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Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800, 802 (9th Cir. 2004), the party

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moving for a transfer pursuant to § 1404(a) — here, the Defendants — bears the burden of

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Typically, before going through the Jones factors, a district court would have to
consider whether a case could have been filed in the district to which the defendant seeks
to have it transferred. Here, there is no dispute that this case could have been filed in the
Northern District of California.
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demonstrating that another forum is more convenient and serves the interest of justice.

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Jones, 211 F.3d at 499.

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III.

Streetspace’s Choice of Forum

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Streetspace argues that its choice of forum is entitled to substantial weight. That is

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true — sometimes. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (“[U]nless the

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balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be

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disturbed.”); Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir.

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1986) (“The defendant must make a strong showing of inconvenience to warrant upsetting

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the plaintiff’s choice of forum.”); Florens Container v. Cho Yang Shipping, 245 F. Supp. 2d

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1086, 1092 (N.D. Cal. 2002) (“Additionally, under Ninth Circuit law, a plaintiff’s choice of

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forum is accorded substantial weight . . . and courts generally will not transfer an action

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unless the ‘convenience’ and ‘justice’ factors strongly favor venue elsewhere.”).

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The Ninth Circuit has recognized, however, that a foreign plaintiff’s forum choice is

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entitled to less deference than that of a domestic plaintiff. Ravelo Monegro v. Rosa, 211

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F.3d 509, 514 (9th Cir. 2000); dpix, LLC v. Am. Guarantee and Liability Ins. Co., 2011 WL

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1211541 at *2 (N.D. Cal. Mar. 30, 2011) (“Courts in the Ninth Circuit give less deference than

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normally is accorded to a plaintiff’s choice of forum only when the plaintiff is not a resident

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of its chosen forum or when it has no contacts with its chosen forum.”). Streetspace is

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incorporated in Delaware and conducts most of its business in Malaysia; it follows from

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Ravelo Monegro and dpix that the Court needn’t defer greatly to Streetspace’s decision to

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initiate this action in the Southern District of California.2

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Defendants cite Panetta v. SAP America, Inc., 2005 WL 1774327 at *5 (N.D. Cal.
July 26, 2005), for the proposition that “[d]eference to plaintiff’s choice of forum is, however,
significantly diminished when plaintiff initiates an action in state in which he or she is not a
resident.” Streetspace attempts to distinguish Panetta by noting that the § 1404(a) analysis
in that case was partially informed by a forum-selection clause in an agreement between the
parties. It is true that the court in Panetta did find that the clause favored transfer. But,
importantly, it treated the clause as a separate and additional factor weighing in favor of
transfer; the clause had nothing to do with the question of how much deference to give a
plaintiff’s choice of forum. Id. at 5–6.
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In addition to Streetspace’s foreign status undercutting the deference due to its forum

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choice, the Ninth Circuit has also held that a plaintiff’s choice of forum is “entitled only to

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minimal consideration” where “the operative facts have not occurred within the forum of

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original selection and that forum has no particular interest in the parties or the subject

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matter.” Pac. Car & Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968); see also

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Saleh v. Titan Corp., 361 F. Supp. 2d 1152, 1157–58 (collecting cases in which “courts have

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given less deference to the plaintiff’s choice of forum where the action has little connection

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with the chosen forum”). This obviously begs for an analysis of some other § 1404(a)

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factors — namely, the respective parties’ contacts with the forum and the contacts relating

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to the cause of action in the chosen forum — but the Court is confident that the “operative

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facts” in this case are not so tied to the Southern District of California that the Court should

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presumptively honor Streetspace’s decision to file its lawsuit here. Streetspace argues that

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“Defendants’ accused products and services are widely available throughout the country,

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including in San Diego, and . . . hundreds of thousands if not more smartphone and other

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terminal users who receive targeted advertisements delivered by Defendants live here.”

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(Opp’n Br. at 8.) That doesn’t distinguish the Southern District of California from any other

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sizeable district in the country, and it certainly doesn’t tie Streetspace’s case to this district.

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Streetspace also argues its forum choice is entitled to deference because it is easy

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to travel to San Diego from Malaysia and because its lawyers are based in San Diego.

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There are two problems with this argument. First, traveling to the Northern District of

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California from Malaysia is no more difficult than traveling to the Southern District. Second,

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the location of counsel is not relevant.3 See In re Horseshoe Ent., 305 F.3d 354, 358 (5th

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To be precise, the location of counsel is not relevant, at least, to the amount of
deference a plaintiff’s choice of forum is due. The case law is not clear on whether the
location of counsel should not matter at all in the § 1404(a) analysis, or whether it should
matter only with respect to certain of the enumerated factors a court must take into
consideration. Compare Windward v. Pfizer, Inc., 2007 U.S. Dist. LEXIS 82885 at *11 (N.D.
Cal. 2007) (“The location of counsel and the need to retain counsel in the transferee district
is of little, if any weight in considering a motion to transfer pursuant to section 1404(a)”) with
Sierra Club v. U.S. Defense Energy Support Ctr., 2011 WL 89644 at *2 n. 1 (N.D. Cal. Jan.
11, 2011) (finding that location of counsel “bears no weight in the analysis of convenience
of the witnesses and the parties” but is relevant to the costs of litigating in a particular forum).
See also Clark v. Sprint Spectrum L.P., 2010 WL 5173872 at *3 (N.D. Cal. Dec. 15, 2010)
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Cir. 2002) (“The factor of ‘location of counsel’ is irrelevant and improper for consideration in

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determining the question of transfer of venue.”); Panetta at *5 (noting that “the location of

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plaintiff’s counsel is immaterial to a determination of the convenience and justice of a

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particular forum”).

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For the above reasons, the Court attaches little significance to Streetspace’s decision

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to bring its case in the Southern District of California. Its choice of forum does not weigh

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against the Defendants’ interest in transferring this case under § 1404(a).

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IV.

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Parties’ Contacts with the Forum
The next Jones factor to consider is the parties’ respective contacts with the Southern

District of California, as opposed to the Northern District.4

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Streetspace is a Delaware corporation whose principal place of business is Malaysia.

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It has no connection with the Southern District of California other than the location of its

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counsel’s office. In fact, Streetspace alleges it first implemented its patent in the Northern

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District of California — specifically, in public computer terminals throughout Berkeley.

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(Compl. ¶ 7.) It subsequently grew its user base “throughout California from San Francisco

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to San Jose.” (Id.) Both of these cities, obviously, are in the Northern District, and

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Streetspace alleges no meaningful contacts with the Southern District.

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Likewise, none of the Defendants have a meaningful presence in the Southern District

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of California. Google and AdMob are based in Mountain View, California, in the Northern

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(rejecting relevance of location of counsel to deference due to plaintiff’s choice of forum, but
with broad language suggesting the location of counsel is entirely irrelevant to a motion to
transfer venue).
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Streetspace acknowledges the Jones factors should guide the Court’s analysis,
although in its discussion it refers to this factor as “the convenience of the parties and
witnesses.” (Opp’n Br. at 11.) This is slightly different, and broader, than the parties’
contacts with the forum. But this is understandable. The Ninth Circuit in Decker Coal put
the factors differently than it did in Jones. See Sierra Club at *2 (citing Decker Coal as listing
the following factors: “a plaintiff’s choice of forum; convenience of the parties and witnesses;
ease of access to sources of proof; local interest in the controversy; familiarity of each forum
with the applicable law; and relative congestion in each forum”).
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District.5 (Google and AdMob Decl. ¶¶ 2,4.) Equally as important, the bulk of the work on

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the technology at issue in this case was done at Google’s headquarters in Mountain View.

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(Google and AdMob Decl. ¶ 5, 7.) Here, the question is simply whether Google has contacts

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with the Southern District of California — and it does not have any worth counting.

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Apple and Quattro are based in Cupertino, California, also in the Northern District.

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(Apple and Quattro Decl. ¶¶ 2,4.) Aside from 5 retail stores that Apple operates in the

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Southern District of California, neither of these Defendants has any offices here. (Apple and

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Quattro Decl. ¶¶ 11–12.) The Apple and Quattro technologies at issue were developed and

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marketed exclusively in Cupertino. (Apple and Quattro Decl. ¶¶ 6–8.)

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Millennial Media also has no presence in the Southern District of California, although

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it does have a minor presence in the Northern District. The company is incorporated in

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Delaware and does most of its business in Baltimore, Maryland. (Millennial Media Decl. ¶

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2.) It has an office in San Francisco where some of the design and development work for

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its advertising services took place. (Millennial Media Decl. ¶ 5.)

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Like Millennial Media, Jumptap has no official presence in the Southern District of

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California. The company is incorporated in Delaware and headquartered in Cambridge,

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Massachusetts. (Jumptap Decl. ¶ 2.) It does not have an office in the Northern District of

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California, but it does have two employees there. It has no office or employees in the

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Southern District of California. (Jumptap Decl. ¶ 7.)

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Google, AdMob, Apple, and Quattro have substantially greater contacts with the

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Northern District of California (and they are no doubt the biggest defendants in this case).

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Streetspace cites Personalized User Model LLP v. Google, Inc., 2009 WL 3460767
(D. Del. Oct. 27, 2009), in which Google failed to transfer a case from the District of
Delaware to the Northern District of California. True, the court in this case found that
“[b]ecause of the national scope of the technology in question . . . Plaintiff’s claim arose in
Delaware to the same extent as in any other district.” Id. at *2. It also found that Google
“has not convincingly demonstrated that maintaining confidentiality of records and
technology will be more difficult in Delaware than in California.” Id. What Streetspace
overlooks, however, is that Google is incorporated in Delaware, and this was integral to the
court’s 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.”
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Millennial Media and Jumptap have marginally greater contacts with the Northern District of

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California. On the other hand, the remaining Defendants Nokia and Navteq (which is a

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wholly-owned subsidiary of Nokia) have contacts with both the Southern and Northern

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District of California. Nokia’s largest California facility is a research center in San Diego, but

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it also has facilities in San Francisco, Mountain View, Palo Alto, Redwood City, and

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Berkeley, all of which are in the Northern District of California. (Fazio Decl. Ex. B. ¶ 5.) The

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Court does not have enough information to aggregate the significance of these contacts in

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the Northern District of California and weigh them against the Southern District contacts. But

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either way, in the balance the parties’ more extensive contacts with the Northern District of

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California weigh in favor of transferring this case there.

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V.

Contacts with the Forum Relating to the Cause of Action

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In assessing this factor, the critical question is the relative significance of the

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development of the accused technologies vis-a-vis their point of sale and availability.

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Streetspace argues that its infringement claims have a substantial relationship to the

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Southern District of California because the technologies in question are sold and distributed

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here. Defendants disagree; they argue that the site of the design and production of the

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technologies — not the Southern District of California — matters much more. There is case

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support for both arguments, to be fair, but the Court takes the Defendants’ side. “The locus

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of operative facts in patent infringement cases usually lies where the allegedly infringing

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product was designed, developed, and produced.” Neil Bros. Ltd. v. World Wide Lines, Inc.,

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425 F. Supp. 2d 325, 331 (E.D.N.Y. 2006); see also Invivo Research v. Magnetic Resonance

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Equip., 119 F. Supp. 2d 433, 439 (S.D.N.Y. 2000) (“Where a party’s products are sold in

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many states, sales alone are insufficient to establish a material connection to the forum and

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to override other factors favoring transfer.”).

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Many of the cases on which Streetspace relies are distinguishable. In Nokia Corp.

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v. Buca, Inc., for example, the court began its analysis with a presumption — absent in this

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case — that the plaintiff’s choice of forum is entitled to substantial deference. 2002 WL

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1461913 at *2 (July 2, 2002). The venue choice in that case was also not so explicitly driven
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by the location of the plaintiff’s counsel, as it is here. Finally, discovery had already

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commenced, and the court noted that it was conducted near the defendant’s preferred

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forum. These points undercut the significance of the court’s finding that the location of the

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accused products’ sale is a proper venue for an infringement action. In Vice v. Woodline,

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the court denied a motion to transfer an infringement action from California to Tennessee,

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where the accused products were developed, in part because the products were shipped

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and sold to California, but this point was made in the context of assessing California’s

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interest in the controversy, not the relationship between chosen venue and the plaintiff’s

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causes of action. 2011 WL 207936 at *6 (N.D. Cal. Jan. 21, 2011); see also Multimedia

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Patent Trust v. Tandberg, Inc., 2009 WL 3805302 at *5 (S.D. Cal. Nov. 12, 2009) (fact that

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defendant provided allegedly infringing technology to customers in California insufficient to

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establish California’s interest in the case). Like Nokia Corp. v. Buca, the court in Russell

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Corp. v. Miken Sports, LLC, another case on which Streetspace relies, incorporated into its

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analysis the presumption that the plaintiff’s choice of forum is accorded significant weight.

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2009 WL 249707 at *2 (N.D. Ohio Feb. 2, 2009). The court in Russell also found that no

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Sixth Circuit case law supported the adoption of a “center of gravity” test — which is similar

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to the Defendants’ argument here — but in fact at least one court in the Ninth Circuit has

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recognized that “the principal location of the legally operative facts” in a patent infringement

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action “is where the allegedly infringing product was designed, developed, and produced.”

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Arete Power, Inc. v. Beacon Power Corp., 2008 WL 508477 at *5 (N.D. Cal. Feb. 22, 2008).6

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So, the argument that the operative facts in an infringement action occur where the accused

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product is developed apparently has at least some traction in the Ninth Circuit. And to be

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accurate, the argument rejected in Russell Corp. was that a patent infringement case

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Streetspace tries to distinguish Arete Power in its opposition brief on the ground that
the defendant in that case never sold an accused product, whereas “the central issues in this
case have very much to do with how extensively Defendants’ targeted advertising products
and services have penetrated the market, how many products and services they have sold,
and how much in damages they owe for infringing Streetspace’s patent.” Be that as it may,
Arete Power relied on Neil Bros. for the above-quoted proposition, and in Neil Bros. the
accused products were sold in the original forum from which the case was transferred
pursuant to § 1404. Neil Bros., 425 F. Supp. 2d at 331.
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necessarily belongs wherever the center of gravity of the allegedly infringing conduct is.

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Defendants’ claim here is simply that, in assessing the chosen forum’s contacts with the

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causes of action (one of the many Jones factors) the site of an accused product’s

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development is more important than the site of its sale.

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The Court has also read and considered Pureterra Naturals, Inc. v. Cut-Heal Animal

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Care Products, on which Streetspace relies. 674 F. Supp. 2d 1294 (M.D. Fla. 2009). It is

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not a good case for Streetspace.

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corporation with its principal place of business in Florida that filed an infringement action in

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Florida — and the action targeted the defendant’s sale of allegedly infringing products to

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Florida distributors. Id. at 1298, 1300 (“In the instant case, the focus of the claim is the sale

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of infringing products to distributors in the Middle District of Florida.”) That case simply isn’t

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comparable to this one. Finally, Accentra v. Staples is distinguishable. 2008 WL 7400627

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(C.D. Cal. Feb. 27, 2008). That case was filed in the Central District of California by two

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plaintiffs, one of whom was a California corporation and a resident of the Central District.

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Id. at *4. California was also the defendant’s largest market in the United States, and

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indeed, the plaintiffs asserted claims under California’s Business and Professions Code. Id.

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The Court recognizes that, in all of the above cases, courts took into account, for the

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purposes of a motion to transfer venue, where allegedly infringing products entered the

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market — not just where they were developed and manufactured. But, as explained, all of

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the above cases are distinguishable from this one. In none of them did a court simply

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conclude that because an accused product is available in a particular judicial district, the

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manufacturer of that product can be sued for patent infringement there. Rather, in each

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case weightier reasons cut against transfer to the defendant’s home district. The fact that

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this is a patent infringement case, and that many of the technologies at issue were

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developed in the Northern District of California, weighs slightly in favor of transfer.

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VI.

The plaintiff in Pureterra Naturals was a Florida

Costs of Litigating in the Two Forums

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The differences in the costs of litigation also weighs slightly in favor of transfer. Apart

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from the location of its counsel, which is not entitled to much, if any, weight, there is no
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appreciable difference between the cost of litigating in the Southern and Northern District of

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California as far as Streetspace is concerned.7 It is a Malaysian company and has no

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witnesses or relevant materials in the Southern District. From the perspective of the

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Defendants, though, there is an appreciable difference in cost. Four are based in the

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Northern District — Google, AdMob, Apple, and Quattro — and one, Millennial Media, has

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an office there; the Northern District is plainly the more cost-effective venue for them. The

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remaining Defendants — Nokia, Navteq, and Jumptap — likely face equal costs in litigating

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in the Southern and Northern Districts.8

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VII.

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Availability of Witnesses
The next Jones factor is the convenience of non-party witnesses, or else the

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availability of compulsory process to compel the attendance of those who are unwilling.

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This is often the most important factor in deciding whether to transfer a case. Getz v. Boeing

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Co., 547 F. Supp. 2d 1080, 1083 (N.D. Cal. 2008). Non-party witnesses are entitled to more

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consideration than party witnesses because the presence of the latter at trial may be

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compelled. See Multimedia Patent Trust at *4 (noting that “courts frequently state that the

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convenience of third party witnesses is more important than that of party witnesses”); Kina

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v. United Air Lines, Inc., 2008 WL 5071045 at *6 (N.D. Cal. Dec. 1, 2008) (convenience of

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non-party witnesses, rather than that of employee witnesses, is the more important factor);

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Accentra at *5 (“The court accords less weight to the inconvenience of party witnesses, as

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they can be compelled to testify regardless of the forum in which the lawsuit is ultimately

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litigated.”) To be clear, none of these cases suggest that the convenience of party witnesses

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is completely irrelevant; rather, they allow for consideration that is discounted. See Getz,

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Streetspace suggests that “[i]f this case were transferred to the Northern District,
Streetspace;s counsel would have to establish a temporary office for trial there at exorbitant
cost.” (Opp’n Br. at 12.) But the Court has already found that the location of counsel is not
entitled to much consideration. See n. 3, supra.
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Jumptap does have two employees in the Northern District of California, but there
is no indication that they are relevant actors in this case and that their testimony will be
required. Indeed, Jumptap doesn’t suggest that the Northern District of California will be
more convenient, but that the Southern District “is not more convenient” than the Northern
District. (Jumptap Decl. ¶ 10.) This leaves open the possibility that the two Districts are
equally convenient and costly for Jumptap.
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547 F. Supp. 2d at 1084 (“The Court, however, discounts any inconvenience to the parties’

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employees, whom the parties can compel to testify.”). Finally, a party’s argument that

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litigating in a particular venue will prove inconvenient for its witnesses cannot be speculative;

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that party “is obligated to clearly specify the key witnesses to be called and make at least a

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generalized statement of what their testimony would have included.” Fireman’s Fund Ins.

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Co. v. Nat’l Bank for Cooperatives, 1993 WL 341274 at *4 (N.D. Cal. Aug. 27, 1993). See

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also Kina at *6 (“In establishing inconvenience to witnesses, the moving party must name

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the witnesses, state their location, and explain their testimony and its relevance.”).

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Google and Admob submit, credibly, that all of their party witnesses are in Mountain

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View, California, in the Northern District. (Google and Admob Decl. ¶¶ 4–7.) Apple and

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Quattro submit the same; all of their party witnesses are in the Northern District. (Apple and

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Quattro Decl. ¶¶ 7–9.) It is relatively unproblematic that Google, Admob, Apple, and Quattro

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do not name names and proffer the subject of their testimony, the general requirement that

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they do so notwithstanding, because their representation is that all of their potential

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witnesses are in the Northern District. In other words, to the extent these Defendants will

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call anyone to testify about the design, development, and marketing of their accused

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products, and they certainly will, these individuals will almost certainly reside in the Northern

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District.9 As for the other Defendants — Nokia, Navteq, Millennial Media, and Jumptap —

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they apparently have no likely party witnesses in the Northern or Southern Districts of

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California, and so, from the perspective of employees’ availability to testify, have no

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Streetspace goes to some trouble to argue that Apple is being disingenuous here
because it has filed patent infringement cases in Delaware and supported the transfer of a
patent case from the Eastern District of Virginia to the Southern District of California. That
is not relevant. Section 1404(a) “is intended to place discretion in the district court to
adjudicate motions for transfer according to an individualized, case-by-case consideration
of convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)
(emphasis added). And on closer examination, the cases Streetspace cites are
distinguishable. For example, in Apple v. High Tech Computer Corp., 2011 WL 143909 (D.
Del. 2011), Apple filed an infringement action in Delaware — and the court there refused to
transfer it to California — because four related cases involving common issues of law and
fact were pending in Delaware. No such circumstance is present in this case. Id. at *3
(“Although the court denied Apple’s motion to consolidate due to the magnitude of the cases
and the limited commonalities among them, the court notes that some common issues of law
and fact exist among this case and the four other smart phone infringement actions pending
before this court.”).
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preference between the two Districts.10 This is equally true of Streetspace; it identifies no

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party witnesses in the Southern District of California. Thus, from the perspective of party

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witnesses — and the Court is mindful that they are less integral to the analysis than non-

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party witnesses — the Northern District of California is the more convenient venue.

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There is also a very slight convenience gain to non-party witnesses that weighs in

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favor of transfer. Streetspace identifies no such witnesses in the Southern District of

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California, but Defendants do identify a record store, a pub, and two restaurants in the

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Northern District from whom they may seek testimony relevant to a “prior public use”

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defense. These parties may be within the Court’s subpoena power, Fed. R. Civ. P.

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45(c)(3)(A)(ii), but subpoenaing them to testify in the Southern District may pose problems

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if they will “incur substantial expense.” Fed. R. Civ. P. 45(c)(3)(B)(iii). Streetspace is right

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that videotaped depositions may stand in for the live testimony of witnesses who are beyond

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the Court’s subpoena power, and this undercuts slightly the potential inconvenience to

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Defendants’ non-party witnesses, especially considering that these witnesses do not appear

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to be essential to the Defendants’ case. Still, however, on balance the convenience of

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witnesses, both party and non-party, weighs in favor of transfer.

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VIII.

Access to Sources of Proof

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Defendants argue that none of the sources of proof relevant to this action are located

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in the Southern District of California, while all relevant Google, Admob, Apple, and Quattro

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documents are in the Northern District. That is likely true, and Streetspace does not dispute

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that fact. But today, this factor is less relevant to the § 1404(a) analysis considering the

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manner in which modern technology allows for the electronic transmission of documents.

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See Multimedia Patent Trust at *5. The location of the sources of proof may weigh in favor

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of transfer, but only negligibly in a case like this.

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//

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Again, while Nokia does have a large research facility in San Diego, Streetspace
has not alleged any facts to tie this facility to the accused technologies or legal issues in this
case. At best, it alleges that Nokia makes U.S.-specific products in San Diego, but it doesn’t
allege that those products are the same ones being accused of infringement. (Opp’n Br. at
14.) In fact, Defendants suggest that Nokia’s accused product — Nokia Maps — is not
developed in San Diego. (Reply Br. at 9.)
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IX.

Other Considerations

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The factors discussed above are so-called private factors relevant to the § 1404(a)

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inquiry; they concern only the parties. A court weighing transfer should also consider the

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following public factors: “administrative difficulties from court congestion; the ‘local interest

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in having localized controversies decided at home’; the interest in having the trial of a

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diversity case in a forum that is at home with the law that must govern the action; the

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avoidance of unnecessary problems in conflict of laws, or in the application of foreign law;

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and the unfairness of burdening citizens in an unrelated forum with jury duty.” Piper Aircraft

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Co., 454 U.S. 235, 241 (1981) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947)).

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Most of these factors are neutral here. For example, there are no conflicts of law to

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be avoided, and there is no local interest in this lawsuit in either the Southern or Northern

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District of California that supports its trial in one district over the other. Streetspace observes

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that the civil docket of the Southern District is far less congested than that of the Northern

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District, but that ignores the fact that the Southern District is a border district and has one

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of the busiest criminal dockets in the country. Also, the Lemley article presented by

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Defendants figures that the average time it takes a patent case to reach trial in the two

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districts is very similar — 2.92 years in the Northern District and 2.48 years in the Southern

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District.

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The only factor the Court finds may cut in favor of either party is the interest in trying

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a case in a forum “at home with the law” — and that cuts in favor of the Defendants. The

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Court will not go so far as to suggest that all technology patent disputes belong in the

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Northern District of California, but that is where Silicon Valley is, and Silicon Valley is where

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the chief Defendants are and where much of the smart phone and mobile technologies in

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this country are developed. It is the national if not global headquarters of the industry in

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which the parties in this case are players. Thus, the Court finds that the public interest

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slightly favors transfer to the Northern District of California.

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X.

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Conclusion
Streetspace is a foreign corporation and, aside from the largely irrelevant location of

its counsel, has no weighty reason for filing this lawsuit in the Southern District of California
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rather than the Northern District (or any other federal district). Both districts are equally

2

convenient for the company. On the other hand, more than half of the Defendants are

3

located in or have offices in the Northern District of California, many of the accused products

4

at issue in this lawsuit were developed there, and many of the potential witnesses in this

5

case reside there. For the foregoing reasons, the Court GRANTS the Defendants’ motion

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to transfer this case to the Northern District of California.

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IT IS SO ORDERED.
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DATED: September 12, 2011
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HONORABLE LARRY ALAN BURNS
United States District Judge

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