Sandvik Intellectual Property AB v. Kennametal Inc.

Filing 41

ORDER granting 24 Motion to Change Venue and this action is hereby TRANSFERRED to the United States District Court for the Western District of Pennsylvania, Pittsburgh Division; terminating 35 Memorandum and Recommendations. Signed by District Judge Martin Reidinger on 5/12/10. (siw)

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION C IV IL CASE NO. 1:09cv163

S AN D V IK INTELLECTUAL PROPERTY AB, ) ) P l a i n t if f , ) ) vs . ) ) K E N N AM E TAL , INC., ) ) D e fen d a n t. ) )

ORDER

TH IS MATTER is before the Court on the Defendants' Motion to T ra n s fe r Venue [Doc. 24]. P u rs u a n t to 28 U.S.C. § 636(b) and the Standing Orders of Designation o f this Court, United States Magistrate Judge Dennis L. Howell was d e s ig n a te d to consider this Motion and to submit recommendations for its d is p o s itio n . On November 5, 2009, the Magistrate Judge filed a

M e m o ra n d u m and Recommendation in which he recommended granting the m o tio n to transfer venue to the United States District Court for the Western D is tric t of Pennsylvania. [Doc. 35]. The Plaintiff filed timely objections to that re c o m m e n d a tio n . [Doc. 36].
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P R O C E D U R AL HISTORY T h e Plaintiff Sandvik Intellectual Property AB (Sandvik) initiated this a c tio n for patent infringement on April 27, 2009. [Doc. 1]. In the Complaint, th e Plaintiff acknowledges it is a Swedish corporation having its principal p la c e of business in Sweden. [Id., at 1]. Kennametal Inc. (Kennametal) is a lle g e d to be a Pennsylvania corporation with its principal place of business in Latrobe, Pennsylvania. [Id.]. At issue are two patents assigned to the P la in tiff for a method of coating and a coated cutting tool. [Id., at 2]. K e n n a m e ta l is alleged to have sold products which infringe the patents. [Id.]. K e n n a m e ta l promptly moved to dismiss, arguing that the Complaint fa ile d to identify the allegedly infringing products or to explain in what manner th e y infringe. [Doc. 15]. Sandvik both responded to the motion and filed an A m e n d e d Complaint in which it cured the defects of which Kennametal had c o m p la in e d .1 [Doc. 19; Doc. 20]. As a result, the Magistrate Judge denied the m o tio n to dismiss as moot. [Doc. 21]. Approximately one month later,

K e n n a m e ta l filed this motion to transfer venue.

Because Kennametal had not yet filed an answer, the Plaintiff could amend its complaint without leave. Galustian v. Peter, F.3d , 2010 WL 155456 (4th Cir. 2010) (because a motion to dismiss is not a responsive pleading, plaintiff may amend the complaint as a matter of course without leave pursuant to Fed.R.Civ.P. 15). 2

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S TAN D AR D OF REVIEW T h e first issue for resolution is the standard of review applied to the M a g is tra te Judge's recommended disposition of the motion to transfer venue. A lth o u g h the Plaintiff states that a motion to transfer venue is nondispositive, it nonetheless claims that the district court must conduct a de novo review and m a y receive additional evidence. [Doc. 36, at 1-2]. Indeed, as noted below, th e Plaintiff has submitted with the objections evidence which it did not p re s e n t to the Magistrate Judge. For the purposes of this motion, the Magistrate Judge was instructed by th e District Court to consider a motion to transfer venue as a dispositive m o tio n and to prepare a memorandum and recommendation as to disposition. T h u s , the District Court "shall make a de novo determination of those portions o f the report or specified proposed findings or recommendations to which o b je c tio n is made." 28 U.S.C. §636(b)(1)(C). The district judge may accept, re je c t, or modify the findings or recommendations and may, but is not required to , receive further evidence.2 Id. A party objecting to a Magistrate Judge's Memorandum and

In this Division, the Court does not encourage the submission of evidence to the District Court which was not presented to the Magistrate Judge. Such a practice seriously erodes judicial efficiency. 3

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R e c o m m e n d a tio n "must specifically identify the portions of the [Memorandum] a n d Recommendation to which objections are made and the basis for such o b je c tio n s ." Thomas v. Westinghouse Savannah River Co., 21 F.Supp.2d 5 5 1 , 560 (D.S.C. 1997), affirmed in part, dismissed in part on other grounds 1 6 2 F.3d 1155 (4 th Cir. 1998). "Frivolous, conclusive or general objections n e e d not be considered by the district court." Battle v. United States Parole C o m m is s io n , 834 F.2d 419, 421 (5th Cir.1987), overruled on other grounds D o u g la s s v. United Ervs. Auto. Ass'n, 79 F.3d 1415 (5 th Cir. 1996). A general objection, or one that merely restates the arguments p re vio u s ly presented is not sufficient to alert the court to alleged e rro rs on the part of the magistrate judge. An "objection" that d o e s nothing more than state a disagreement with a magistrate's s u g g e s te d resolution, or simply summarizes what has been p re s e n te d before, is not an "objection" as that term is used in this c o n te x t. S u n tr u s t Mortgage, Inc. v. Busby, 651 F.Supp.2d 472, 476 (W.D.N.C. 2009), q u o tin g Aldrich v. Bock, 327 F.Supp.2d 743, 747 (E.D.Mich. 2004). T o the extent that a party asserts claims in the objections which were n o t asserted in support of or in opposition to the motion, de novo review is not wa rra n te d . Price v. Dixon, 961 F.Supp. 894 (E.D.N.C. 1997)(claims cannot b e raised for the first time in objections to a memorandum and r e c o m m e n d a tio n ) ; W e lls v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir.

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1 9 9 7 )(b o ile rp la te objections will not avoid the consequences of failing to o b je c t altogether). This Court therefore does not conduct a de novo review o f those portions of the Memorandum and Recommendation to which nons p e c ific objections have been filed. Nor will it conduct a de novo review of is s u e s which were not raised before the Magistrate Judge. Section §1404(a) of Title 28 of the United States Code provides that a d is tric t court may transfer any civil action "to any other district ... where it m ig h t have been brought" "[f]or the convenience of parties and witnesses, in th e interest of justice[.]" Here, the parties have conceded that the action could h a ve been brought in the Western District of Pennsylvania.3 [Doc. 20, at 1; D o c . 25, at 4 n.4; Doc. 28, at 1-2; Doc. 36, at 2-3]. In determining whether a m o tio n to transfer pursuant to 28 U.S.C. §1404(a) should be granted in a p a te n t case, the Court applies the law of the appropriate regional circuit, wh ic h in this case is the Fourth Circuit.4 Storage Technology Corp. v. Cisco S ys te m s , Inc., 329 F.3d 823, 836 (Fed. Cir. 2003); Netalog, Inc. v. Tekkeon,

See, 28 U.S.C. §1400 ("Any civil action for patent infringement may be brought in the judicial district where the defendant resides[.]"). The parties also concede that Kennametal's headquarters are in Latrobe, Pennsylvania which is in the Western District of Pennsylvania; thus, the Defendant resides there. See, 28 U.S.C. §1391(c). The law of the Circuit obviously includes the rulings of the various district courts located within the Fourth Circuit. Thus, to the extent the Plaintiff claims the Magistrate Judge may not cite case law from district courts in Virginia, that objection is rejected. 5
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In c ., 2007 WL 534551 **5 (M.D.N.C. 2007) (citation omitted). In the Fourth Circuit, the party seeking transfer carries a heavy burden to establish that transfer is appropriate. Scholl v. Sagan RV Supercenter, L L C , 249 F.R.D. 230, 239 (W.D.N.C. 2008), citing Jim Crockett Promotions, In c . v. Action Media Group, Inc., 751 F.Supp. 93, 95 (W.D.N.C. 1990). There a re eleven factors that a court should consider when deciding whether to tr a n s fe r : 1. 2. 3. 4. T h e plaintiff's initial choice of forum; T h e residence of the parties; T h e relative ease of access of proof; T h e availability of compulsory process for attendance of witn e s s e s and the costs of obtaining attendance of willing w itn e s s e s ; T h e possibility of a view; T h e enforceability of a judgment, if obtained; T h e relative advantages and obstacles to a fair trial; O th e r practical problems that make a trial easy, expeditious, and in e x p e n s iv e ; T h e administrative difficulties of court congestion; T h e interest in having localized controversies settled at home and th e appropriateness in having the trial of a diversity case in a fo ru m that is at home with the state law that must govern the a c tio n ; and T h e avoidance of unnecessary problems with conflict laws.

5. 6. 7. 8. 9. 10.

11. Id .

Because the statute provides no guidance as to the weight given e a c h of the factors listed above, a court's decision "necessarily m u s t turn on the particular facts of each case." Ultimately, "the tria l court must consider all relevant factors to determine whether
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o r not on balance the litigation would more conveniently proceed a n d the interests of justice be better served by transfer to a d iffe r e n t forum." Byerson v. Equifax Information Services, LLC, 467 F.Supp.2d 627, 632 (E .D .V a . 2006), quoting 15 W r ig h t, Miller & Cooper, Federal Practice and P ro c e d u re , §3847 (2005). FACTS RELATED TO MOTION TO TRANSFER S a n d vik is an intellectual property holding company incorporated and h a vin g its principal place of business in Sweden. [Doc. 20, at 1, 2]. William T is d a ll (Tisdall), who is employed by Sandvik Inc., a company different from th e Plaintiff, has testified in his declaration submitted by the Plaintiff that S a n d vik , Inc. is a subsidiary of Sandvik AB. [Doc. 28-1, at 2]. Tisdall works in New Jersey, not in North Carolina or Pennsylvania. [28-1]. Although the P la in tiff (Sandvik Intellectual Property, AB) alleges in its brief opposing tra n s fe r that it is owned by Sandvik AB, it has not placed anything in the re c o rd showing that relationship. [Doc. 28, at 6; Doc. 28-1, at 2]. Sandvik, Inc. has a plant in Westminster, South Carolina where coated c u ttin g inserts are manufactured. [Id.]. In his affidavit, Tisdall stated that "[i]t is [his] understanding that at least some of these coated cutting inserts are c o ve re d by the patents in this litigation." [Id.]. Nothing more specific as to the

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n u m b e rs of products covered by the patents is offered. U .S . Patent No. 5,487,625 (the `625 Patent) is a product patent p e rta in in g to a cutting tool which is coated with single-phase alpha-alumina h a vin g certain dimension and texture characteristics making it suitable for c u ttin g metals at high temperatures. [Doc. 20-2]. U.S. Patent No. 5,654,035 (th e `035 Patent) is a method patent pertaining to the method of coating the c u ttin g tool with single-phase alpha-alumina. [Doc. 20-3]. The Plaintiff alleged in its Amended Complaint that the following K e n n a m e ta l products infringe its patents: KC9110, KC9310, KC9315, K C 9 3 2 0 , KC9325, KC5515. [Doc. 20]. Kennametal acknowledges through the a ffid a vit of Mark Greenfield (Greenfield) that it manufactures products K C 9 1 1 0 , KC9315, KC9320, KC9325, and TN5515 but states that it does not m a n u fa c tu r e KC5515 or KC9310. [Doc. 27, at 1-2]. It is undisputed that part o f the process for manufacturing these products includes coating the cutting to o ls . Greenfield, who is the Director of Global Materials Technology, stated th a t "over 99% of the products at issue that were manufactured in the United S ta te s were coated" at the Kennametal manufacturing facility in Orwell, Ohio. [Id ., at 2]. The only other location in the United States at which coating occurs is in Johnson City, Tennessee, which therefore performs less than 1% of the

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c o a tin g of these products manufactured in the United States. [Id.]. K e n n a m e ta l has not provided any information about whether the allegedly in frin g in g products are also manufactured outside of the United States; and, if so, in what percentage compared to total product output. It is undisputed th a t Kennametal has its corporate headquarters in Latrobe, Pennsylvania and th a t its research and development, in-house legal department and corporate o ffic e rs work there. The Plaintiff, in its objections, stated that "a majority of the products at is s u e were manufactured not in the United States, but overseas." [Doc. 36, at 3 ]. Attached to the objections are exhibits, purportedly packaging labels, wh ic h were not placed before the Magistrate Judge. [Doc. 36-1, Doc. 36-2]. T h e Plaintiff asserts that "[o]f the six [allegedly infringing] products identified in the Amended Complaint, three purchased by [the Plaintiff] for testing were m a n u fa c tu re d in China and one was manufactured in Germany." [Doc. 36, at 4 -5 ]. A review of the packaging labels actually shows that of the four products p u rc h a s e d , only three of them are identified as allegedly infringing products. [D o c . 36-1; Doc. 36-2]. A fourth is identified as product KCP05 which is not a product alleged to infringe the patents. [Doc. 36-1]. Of the three products wh ic h allegedly infringe, none were shipped into the State of North Carolina;

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a ll three were shipped into the State of New Jersey. [Doc. 36-1; Doc. 36-2]. T h e fact that these particular products were labeled as products of other c o u n trie s does not show the percentage of all allegedly infringing products m a n u fa c tu re d by Kennametal outside of the United States. In his affidavit opposing transfer, Tisdall stated that in February 2009 h e purchased four infringing Kennametal products from a seller located in B e lm o n t, North Carolina. [Doc. 28-1]. A review of the packing slip attached to the affidavit shows that only three such allegedly infringing products were p u rc h a s e d . [Doc. 28-1, at 4]. The fourth Kennametal product is identified as K C 9 1 2 5 which has not been alleged to be an infringing product. [Id.]. Two o th e r products are identified as "Widia AONT10T308 MH TN5515." [Id., at 45 ]. There is nothing to support a finding that these two products were

m a n u fa c tu re d by Kennametal and sold in North Carolina, particularly in light o f their identification as "Widia" products and there being no evidence before th e Court that there is any connection between Kennametal and such "Widia" p r o d u c ts . K e n n a m e ta l submitted in support of its motion an affidavit from G re e n fie ld in which he stated that "Sales [of the allegedly infringing products] to customers located in the Western District of North Carolina accounted for

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a b o u t 2% of U.S. sales of the products at issue (in dollars) over the last five fis c a l years." [Doc. 27, at 2]. Based on this statistic, the Plaintiff argues that N o rth Carolina "is the home of demonstrable infringement activities." [Doc. 28, a t 2]. Neither the Plaintiff nor Kennametal has a presence in the Western D is tric t of North Carolina beyond a few sales representatives who may reside h e re and work out of their homes. [Doc. 20, Doc. 25, at 4]. The Plaintiff's c o rp o ra te headquarters are in Sweden while the Defendant's are in Latrobe, P e n n s ylva n ia . Seven of the witnesses identified by Kennametal work in the L a tro b e , Pennsylvania headquarters and two others work in the Ohio m a n u fa c tu rin g plant. [Doc. 27, at 3]. Two others are former Kennametal e m p lo ye e s who live in Greenburg, Pennsylvania. [Id.]. One of these

in d ivid u a ls was an intellectual property attorney who was actively involved in c o rr e s p o n d e n c e and meetings with the Plaintiff about the patents at issue in th is litigation. [Id.]. The other individual managed the coatings technology d e p a rtm e n t. [Id.]. Greenfield stated in his affidavit that the documents

re le va n t to the lawsuit are located in the Latrobe headquarters, including r e s e a r c h and development, manufacturing, and sales. [Id.]. Moreover,

e xe m p la rs of the products at issue as well as the equipment used to

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m a n u fa c tu re them are also in Latrobe. [Id.]. T h e Plaintiff has provided no specific evidence concerning the location o f witnesses, documents, exemplars or employees. It argues that the

W e s te rn District of North Carolina is "conveniently located" between the South C a ro lin a and Tennessee production facilities of the parties. [Doc. 28, at 2]. It has not identified witnesses and/or employees working at its South Carolina p la n t who are essential to the litigation. Nor has it addressed the existence o f exemplars of its products and their location, if any. According to the

P la in tiff, the existence of hard copies of documents is irrelevant to venue b e c a u s e all such documents may be retrieved electronically. D I S C U S S IO N O b je c tio n s to the Magistrate Judge's Factual Findings. T h e Plaintiff claims the Magistrate Judge erroneously found as fact that 9 9 % of all of the infringing products are manufactured in Ohio and that the s a le s of infringing products in North Carolina are insignificant. These factual e rro rs , it urges, led to the erroneous conclusion that the Plaintiff's choice of fo ru m is to be given neutral treatment. A c c o rd in g to the Plaintiff, the Magistrate misinterpreted Greenfield's s ta te m e n t about the percentage of products manufactured in Ohio "to mean

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th a t `99 percent of [all of] the allegedly infringing products are manufactured in Ohio.'" [Doc. 36, at 3]. "In actuality, [the Plaintiff claims], a majority of the p ro d u c ts at issue were manufactured not in the United States, but overseas." [Id .]. Contrary to the Plaintiff's objection, the Magistrate Judge actually made th e following factual finding: "[O]ver 99% of the products at issue that were m a n u fa c tu re d in the United States were coated at Orwell." [Doc. 35, at 3] (e m p h a s is provided). The Plaintiff ignores this clause. Instead, Plaintiff cites to later comments b y the Magistrate Judge to support its position that he misunderstood G re e n fie ld 's affidavit to mean that 99% of all the products are manufactured in the Ohio facility. [Doc. 36, at 5]. Those later comments, however, merely m a k e a shorthand reference to the Magistrate Judge's earlier finding that 99% o f the products manufactured in the United States are produced in Ohio. [Doc. 3 5 , at 8, 12]. The Court therefore rejects the Plaintiff's argument that the M a g is tra te Judge erred in this factual finding. M o re o ve r, as noted above, the Plaintiff's evidence in support of its c o n te n tio n that most of Kennametal's products are manufactured outside of th e United States is not persuasive. The Plaintiff claimed that it purchased in frin g in g products manufactured in China and Germany; however, its proof

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s h o ws such purchases were limited to three products. This does not show the p e rc e n ta g e of all allegedly infringing products manufactured by Kennametal o u ts id e of the United States. Additionally, of the three allegedly infringing p ro d u c ts purportedly manufactured overseas, none were shipped into the S ta te of North Carolina; all three were shipped into New Jersey. [Doc. 36-1; D o c . 36-2]. See, Koh v. Microtek Intern., Inc., 250 F.Supp.2d 627, 631-636 ( E .D .V a . 2003) (noting in patent case that purported infringer directed its p ro d u c t into the United States through the state to which movant sought tra n s fe r, not the state where action was brought, and discounting plaintiff's in itia l choice of forum based on low sales). Even if the Plaintiff's statement were supported by the evidence and m o s t of the Kennametal products are manufactured overseas, such would not s u p p o rt venue in North Carolina. "Any civil action for patent infringement may b e brought in the judicial district ... where the defendant has committed acts o f infringement and has a regular and established place of business." 28 U .S .C . §1400(b). The parties concede that neither has a presence in North C a r o lin a beyond the possibility that "a few" sales representatives who work fro m home may live here. Of the products manufactured in the United States, h o w e v e r , 99% of them are manufactured in Ohio. None of the products are

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m a n u fa c tu re d in North Carolina. In fact, Kennametal, which is not a North C a ro lin a resident, does not have a "regular and established place of business" in North Carolina even if it is assumed that some acts of infringement o c c u rre d here. Ion Beam Applications S.A. v. Titan Corp., 156 F.Supp.2d 5 5 2 , 563 (E.D.Va. 2000) ("where the plaintiff's choice of forum is a place wh e re neither the plaintiff nor the defendant resides and where few or none o f the events giving rise to the cause of action accrued, that plaintiff's choice lo s e s its [ ] status in the court's consideration."). V e n u e in this District is also not supported by the less than 1% of the p u rp o rte d ly infringing products that are manufactured in Tennessee. Id.

A lth o u g h the Plaintiff claims the presence of its own manufacturing plant in S o u th Carolina makes North Carolina a convenient forum, Tisdall stated m e re ly that it was his "understanding that at least some of these coated c u ttin g inserts" made in South Carolina are covered by the patents. [Doc. 281 , at 1] (emphasis provided). Ultimately, the weight given to plaintiff's choice of venue varies w ith the significance of the contacts between the venue chosen b y plaintiff and the underlying contacts. Thus, if there is little c o n n e c tio n between the claims and this judicial district, that would m itig a te against a plaintiff's chosen forum and weigh in favor of tra n s fe r to a venue with more substantial contacts. K o h , 250 F.Supp.2d at 635 (citations and quotations omitted). Since the
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m a n u fa c tu rin g is only near this District, but not in this District, the Plaintiff is le ft to argue that venue is proper here only based upon sales of purportedly in frin g in g products. The Plaintiff, however, also claims the Magistrate Judge erroneously c o n c lu d e d that significant infringing acts did not occur in North Carolina. As n o te d above, the Plaintiff's evidence is that two months prior to filing this la ws u it, it purchased three allegedly infringing products from a North Carolina d is tr ib u to r . Such a purchase, quite conceivably made in anticipation of

litig a tio n , does not show that a substantial portion of infringing conduct re fe re n c e d during the time period of the amended complaint occurred in North C a ro lin a . Gebr. Brasseler GmbH & Co. KG v. Abrasive Technology, Inc., 2 0 0 9 WL 874513 **2 (E.D.Va. 2009) ("The mere fact that customers in V irg in ia may have purchased rotary dental instruments from GBL or Abrasive is an insufficient connection to justify retaining a case arising out of the a lle g e d misuse of a trademark on products distributed by an Ohio company.") (c ita tio n s omitted); Koh, 250 F.Supp.2d at 635-36. Indeed, as noted by the M a g is tra te Judge, this purchase was from a distributor located in the Charlotte D ivis io n of the Western District of North Carolina, not the Asheville Division. T h e Plaintiff nonetheless argues that Greenfield's affidavit shows

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s ig n ific a n t infringing conduct within North Carolina. This is based on his s ta te m e n t that 2% of the sales in the United States of the infringing products o c c u rre d in this District. Reasoning that there are 94 judicial districts in the U n ite d States, the Plaintiff argues this shows almost twice as many sales of in frin g in g products occurred in this District than would be expected. The C o u rt finds this conclusion unsupported by statistical data showing industrial d e n s ity and demand for this particular product within the districts selected by th e Plaintiff as the database. "Federal courts are not solicitous of plaintiff's c la im in g `substantial weight' for their forum choice where the connection with th e forum is limited to sales activity without more." Acterna, L.L.C. v. Adtech, In c ., 129 F.Supp.2d 936, 938-39 (E.D.Va. 2001). As to these two objections, the Court does not find that the Magistrate J u d g e made erroneous factual findings or that his legal conclusions based th e re o n are wrong. This Court concurs in the Magistrate Judge's conclusion th a t the Plaintiff's initial choice of forum is neutral in deciding whether to tra n s fe r venue whereas the residence of the parties weighs in favor of tr a n s fe r . The Plaintiff next argues that when considering the relative ease of a c c e s s of proof as well as the cost of attendance of witnesses, the Magistrate

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J u d g e erroneously concluded it would be easier for witnesses to travel from S we d e n to Pittsburgh, Pennsylvania than to Asheville, North Carolina b e c a u s e the former is an international airport. In support of this, the Plaintiff c la im s there is not a direct flight from Sweden to either airport. The

M a g is tra te Judge, however, made no conclusions about this point, but noted th a t connections are more easily made from an international airport (such as P itts b u r g h ) to a foreign destination, than from an airport that is not an in te rn a tio n a l airport (such as Asheville). [Doc. 35, at 9]. Plaintiff does not c o n te s t this point. T h e Plaintiff also cites evidence submitted by Kennametal showing that th e cost of a flight from Sweden to Pittsburgh is only slightly less than a flight fro m Sweden to Asheville. [Doc. 26-4; Doc. 26-5]. Thus, it claims, there is no p ro o f that litigation of the action here would be more expensive and b u rd e n s o m e for both sides. To the contrary, the Plaintiff claims that if the c a s e remains in Asheville, the Plaintiff's employees who must fly from Sweden wo u ld be able "to engage in their regular work at the nearby South Carolina fa c ility or elsewhere in the United States." [Doc. 36, at 6]. The Plaintiff has not identified witnesses and employees who would be re q u ire d to travel from Sweden and has not disclosed the nature of their

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"re g u la r work" which could be performed at the South Carolina manufacturing p la n t. "The party asserting witness inconvenience has the burden to proffer, b y affidavit or otherwise, sufficient details respecting the witnesses and their p o te n tia l testimony to enable the court to assess the materiality of evidence a n d the degree of inconvenience." Koh, 250 F.Supp.2d at 636. Moreover, the P la in tiff stated that these employees could work "elsewhere in the United S ta te s ," a factor which does not weigh in favor of a venue close to South C a r o lin a . W itn e s s convenience is often dispositive in transfer decisions. B u t the influence of this factor cannot be assessed in the absence o f reliable information identifying the witnesses involved and s p e c ific a lly describing their testimony. This type of particularized in fo rm a tio n ... is necessary to enable the court to ascertain how m u c h weight to give a claim of inconvenience. Inconvenience to a witness whose testimony is cumulative is not entitled to great w e ig h t. By contrast, greater weight should be accorded in c o n ve n ie n c e to witnesses whose testimony is central to a claim a n d whose credibility is also likely to be an important issue. B o a rd of Trustees, Sheet Metal Workers Nat. Fund v. Baylor Heating & Air C o n d itio n in g , Inc., 702 F.Supp.1253, 1258 (E.D.Va. 1988). L ik e most of the Plaintiff's objections, these two are based on s p e c u la tio n and conjecture. The Court rejects the objections and agrees with th e Magistrate Judge that the relative ease of access of proof and the costs o f obtaining the attendance of witnesses weigh in favor of transfer.
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O b je c tio n s to the Magistrate Judge's Weighing of the Controlling F a c to rs . A lth o u g h most of these assignments of error have been addressed a b o ve , the Court will briefly address the objections. It is noted, however, that th e Plaintiff's objections amount to little more than disagreement with the M a g is tra te Judge's recommendations and reiterate arguments already made. F irs t, the Plaintiff claims the Magistrate Judge erred in concluding the P la in tiff's choice of forum was neutral. To the extent this objection is based o n the Plaintiff's claim of factual error, it has been addressed and rejected. The Plaintiff claims that its selection of venue was "significantly in flu e n c e d " by its proximity to the South Carolina and Tennessee m a n u fa c tu rin g plants 5 and the subpoena power this Court has over the e m p lo ye e s at those plants. However, "the witnesses will be predominantly e m p lo ye e s of the companies, thus compulsory process appears not to be an is s u e ." Nutrition & Fitness, Inc. v. Blue Stuff, Inc., 264 F.Supp.2d 357, 363 n.2 (W .D .N .C . 2003). Moreover, as noted above, the Plaintiff has not identified

The Court has already concluded that such proximity does not weigh in favor of the chosen venue because there has been no showing that anything other than "at least some" of the covered products are made in South Carolina and less than 1% of the allegedly infringing products are made in Tennessee. 20

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th e employees or described their testimony.6 Baylor Heating, 702 F.Supp. at 1 2 5 8 . "The party asserting witness inconvenience" has the burden to show s u ffic ie n t details to allow the Court to assess the importance of the in c o n ve n ie n c e . Koh, 250 F.Supp.2d at 638. That has not been done. N e xt, the Plaintiff complains that the Magistrate Judge relied on cases fro m Virginia district courts instead of this District. The Magistrate correctly c ite d cases involving patents for the legal concepts applied to motions to tra n s fe r venue. "In patent infringement suits, `[a]s a general rule, the preferred fo ru m is that which is the center of the accused activity.' The center of a c c u s e d activity will most often be where the offending device is produced." A c te rn a , L.L.C. v. Adtech, Inc., 129 F.Supp.2d at 939 (citations omitted). In th is case, the "offending device" is produced en masse in Ohio. The Western D is tric t of Pennsylvania is closer to the "center of the accused activity" in Ohio th a n is the Western District of North Carolina. Moreover, when "a plaintiff c h o o s e s a foreign forum and the cause of action bears little or no relation to th a t forum, the plaintiff's chosen venue is not entitled to ... substantial weight." H u n te r Engineering Co. v. ACCU Industries, Inc., 245 F.Supp.2d 761, 775

Likewise, the Plaintiff has not identified non-party witnesses, with the possible exception of the seller of the products in North Carolina. The Magistrate Judge noted that the deposition of this person may be taken and used at trial. The Plaintiff did not object to that finding. 21

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(E .D .V a . 2002). Thus, even if deference to the Plaintiff's initial choice of forum is shown, ultimately the factors weigh against a North Carolina venue. T h e Plaintiff next attacks the Magistrate's conclusion that the possibility o f a jury view favors transfer. The Magistrate Judge actually noted that he wa s "certain" the Plaintiff will seek to view the Defendant's Ohio m a n u fa c tu rin g plant. [Doc. 35, at 14]. He also correctly noted how unlikely it wo u ld be for a trial court to allow the jury to view two different manufacturing p la n ts . Noting that the Ohio plant is where most of the allegedly infringing p ro d u c ts are made, the Magistrate found that the possibility of view favored tr a n s fe r . From this, the Plaintiff extrapolates that transferring the case dictates th a t no jury view will be allowed. The Court finds this conclusion erroneous. T h e possibility of a jury view favors transfer but, as the Magistrate noted, not s i g n ific a n tly. It is more likely that the parties will use videos and exemplars th a n seek or obtain a trip for the jury from Pennsylvania to Ohio. Finally, the Plaintiff argues the Magistrate erred by concluding that "the in te re s t in having localized controversies settled at home favors transfer." [D o c . 36, at 13]. This factor, it claims, should be neutral because a patent d is p u te "is not a localized controversy. It is a national (if not international)

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c o n tr o v e r s y between two companies that manufacture products that are m a n u fa c tu re d in multiple locations and sold to purchasers across the United S ta te s ." [Doc. 36, at 13]. The Magistrate Judge aptly noted the lack of connection between this D is tric t and the controversy at hand. He also pointed out the confusion the a ve ra g e juror would have when faced with a patent case involving a Swedish p la in tiff, a Pennsylvania defendant, plants in Ohio, Tennessee and South C a ro lin a and no connection to North Carolina except a handful of sales. This c o n c lu s io n is correct; the mere sale of allegedly infringing products in the o rig in a l forum does not provide that forum with a substantial interest in having th e case decided locally because the sale of those products could occur a n ywh e re in the United States, or even abroad. In re TS Tech USA Corp., 5 5 1 F.3d 1315, 1321 (Fed.Cir. 2008). Indeed, the Plaintiff makes this same p o in t. See, e.g., TriStrata Technology, Inc. v. Emulgen Laboratories, Inc., 537 F .S u p p .2 d 635, 643 (D.Del. 2008) ("There is no strong local interest in litig a tin g this action in Illinois because patent issues do not give rise to a local c o n tro ve rs y or implicate local interests."); Heil Co. v. Curotto Can Co., 2004 W L 725737 **3 (N.D.Ill. 2004) ("Illinois does not have a strong interest in a d ju d ic a tin g a case between two companies neither of which is located in this

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S ta te [.]" ) . T h e Court has reviewed the Memorandum and Recommendation and h a s considered de novo specific objections raised thereto. Considering and w e ig h in g the factors announced in Jim Crockett Promotions, supra., the Court fin d s this case should be transferred to the United States District Court for the W e s te rn District of Pennsylvania. ORDER IT IS, THEREFORE, ORDERED that the Defendants' Motion to Transfer V e n u e [Doc. 24] is hereby GRANTED and this action is hereby TR AN S F E R R E D to the United States District Court for the Western District of P e n n s ylva n ia , Pittsburgh Division.
Signed: May 12, 2010

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