SimpleAir, Inc. v. Google Inc. et al
Filing
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ORDER AND OPINION - the Court hereby ORDERS that the claims pertaining to Microsoft and the Google Defendants be severed into separate causes of action. SimpleAir shall pay the filing fee for those cases within ten (10) days of this order issuing to avoid having the severed cause of action dismissed with prejudice. Further, the Court ORDERS the two (2) new cases to be CONSOLIDATED for all pretrial issues (except venue) with the lead case, 2:11-CV-416. The parties are instructed to file any future motions in the lead case until further Order of the Court. (SEVERED FROM CASE 2:11-CV-416). Signed by Judge Rodney Gilstrap on 8/9/2013. (ch, )
SimpleAir, Inc. v. Google Inc. et al
Doc. 1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
SIMPLEAIR, INC.,
Plaintiff,
v.
MICROSOFT CORP., et al.,
Defendants.
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§ CIVIL ACTION NO. 2:11-cv-416-JRG
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ORDER AND OPINION
I.
INTRODUCTION
Pending before the Court is Microsoft Corporation’s Motion to Transfer Venue (Dkt. No.
168), Microsoft Corporation’s Motion to Sever Plaintiff’s Claims Against Microsoft (Dkt. No.
170) and Defendants’ Motion to Sever and Transfer Severed Claims to the United States District
Court for the Northern District of California (Dkt. No. 172). Microsoft Corporation (“Microsoft”)
seeks to be severed from the other defendants in this case and then have its then severed claims
transferred to the Western District of Washington. Separately, the group of defendants including
Google, Inc. (“Google Defendants”)1 also seeks severance from the remaining defendants, and for
their then severed claims to be transferred to the Northern District of California. Defendants
Ericsson Inc. and Nokia Inc. do not join in these motions and have not otherwise moved the Court
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The Google Defendants are collectively Google Inc., Motorola Mobility LLC, Futurewei Technologies, Inc.,
Huawei Technologies Co., Ltd., HTC America, Inc., HTC Corporation, LG Electronics Mobilecomm U.S.A., Sony
Mobile Communications (USA) Inc.
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for a severance or transfer.
II.
BACKGROUND
SimpleAir filed suit on September 15, 2011, which was before the effective date of the
Leahy-Smith America Invents Act. SimpleAir alleges infringement of two patents, U.S. Patent
Nos. 6,021,433 (“the ’433 patent) and 7,035,914 (“the ’914 patent”), against sixteen separate
Defendants, which are informally structured into nine Defendant groups: Microsoft, Nokia,
Samsung, Sony Mobile, Ericsson, Huawei, Google, HTC, and LG. The accused technology relates
to wireless messaging and notification services.
There are four accused notification services in this case: (1) Microsoft’s Push Notification
services (MPNS) on Windows Phone smartphones, (2) Google’s Android Cloud to Device
Messaging (C2DM) service on Android smartphones and tablets, (3) Nokia Notification Services
on Symbian smartphones, and (4) Ericsson Mobile Push Service on Android smartphones and
J2ME (Java) smartphones. Additionally, SimpleAir accuses Motorola, Samsung, Sony Mobile,
Huawei, HTC, and LG of jointly infringing the asserted patents with Google because they each
manufacture Android phones and tablets that are used in conjunction with Google’s C2DM
service. SimpleAir further alleges that Samsung, Huawei, HTC, and LG manufacture Windows
Phones that are relevant to its allegations against Microsoft.2
III.
MICROSOFT AND GOOGLE DEFENDANTS’ MOTION TO SEVER
The Court first considers the two severance motions. Microsoft and the Google Defendants
contend that they were improperly joined in this lawsuit under In re EMC (In re EMC I), 677 F.3d
1351 (Fed. Cir. 2012) and Rule 20 because SimpleAir has accused four disparate products of
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Defendants contend that allegations of joint infringement between any mobile device company and Microsoft does
not appear in the initial pleadings or infringement contentions, and is being alleged now for the first time by
SimpleAir. However, the Court will presume these allegations to be proper for purposes of the joinder analysis.
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infringement:
•
Microsoft’s MPNS
•
Google’s Android C2DM
•
Nokia’s Notifications API; and,
•
Ericsson’s Mobile Push API, DroidPush API, and Mobile Java Push.
Microsoft contends that SimpleAir alleges separate and distinct infringement contentions
against it that are not related to claims against any other defendant because SimpleAir’s
infringement contentions make no mention of Microsoft in connection with any other defendant.
The Google Defendants concede that SimpleAir sets forth contentions relating to Google’s
Android C2DM service and presents alternative joint infringement theories directed against
Motorola, Samsung, Sony Mobile, Huawei, HTC, and LG. However, no theory of infringement is
asserted between the Google Defendants and any of the other defendants. Both Microsoft and the
Google Defendants also argue that the four accused products were independently developed by
unrelated companies.
SimpleAir responds by analyzing various limitations of claim 1 of the ’914 patent;
purportedly, to show that the claims are being asserted against each of the four accused products in
the same manner. As examples of evidentiary overlap between the defendants, SimpleAir points to
(i) evidence that the same application providers, such as CNN, Facebook, etc., transmit data to the
“central broadcast servers,” (ii) the same software within the carrier networks (e.g. AT&T) and the
ISP networks (e.g. Comcast) constitute the “information gateway” and “transmission gateway,
(iii) the same Android smartphones and tablets (and their components) meet the “receivers” and
“computing devices” limitations for both the Google Defendants and Ericsson, and (iv) the same
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data channels provided by the application providers satisfy the “data channels” limitation for both
Microsoft and the Google Defendants.
In the In re EMC I opinion, the Federal Circuit clarified the test for joinder by holding that
“[c]laims against independent defendants (i.e., situations in which the defendants are not acting in
concert) cannot be joined under Rule 20’s transaction-or-occurrence test unless the facts
underlying the claim of infringement asserted against each defendant share an aggregate of
operative facts.” 677 F.3d at 1359. In addition, “joinder is not appropriate where different products
or processes are involved.” Id. “Unless there is an actual link between the facts underlying each
claim of infringement, independently developed products using differently sourced parts are not
part of the same transaction, even if they are otherwise coincidentally identical.” Id. Under Rule
20, joinder is proper where: (1) the claims against the defendants arise out of the “same
transaction, occurrence, or series of transactions or occurrences,” and (2) there is a “question of
law or fact common to all defendants.” Id. at 1356. The parties do not appear to dispute that there is
at least one common question of law between the defendants. Therefore, the Court’s obligation is
to determine whether the claims share an aggregate of operative facts.
Here, SimpleAir affirms it accuses four notification services provided by four independent
companies:
•
The MPNS is used to process and transmit notification data to applications on the
Windows Phone smartphones;
•
The C2DM service is used to process and transmit notification data to applications
on the Android smartphones and tablets;
•
The Nokia Notifications Service is used to process and transmit notification data
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to applications on the Symbian smartphones; and
•
The Ericsson mobile Push Service is used to process and transmit notification data
to applications on Android smartphones and J2ME (Java) smartphones.
(See Dkt. No. 285 at 5 and 8.) SimpleAir bases satisfaction of the joinder requirement on
the general contention that “Defendants’ accused notifications are very similar with respect to how
they are alleged to infringe”; therefore, there is a substantial evidentiary overlap in the facts giving
rise to the cause of action against each defendant to satisfy the same transaction-or-occurrence test.
(See Dkt. No. 285-1, Eichman Decl. ¶ 2.)
While each of the four accused products may operate in a similar manner, the Court does
not find each claim of infringement to share an aggregate of operative facts adequate to meet Rule
20’s transaction-or-occurrence test. SimpleAir does not dispute that the four accused
instrumentalities are different products and are independently manufactured by four unrelated
companies. These defendants are, in fact, competitors in the smartphone marketplace. SimpleAir
never alleges the presence of a contractual relationship adequate to bind Microsoft, Google, Nokia
or Ericsson’s accused products, within the context of its infringement allegations. Furthermore,
SimpleAir makes no argument that the four accused products use commonly sourced components.
In light of In re EMC, the fact that all of the accused products employ similar but independent
notification services is insufficient to prevent severance.
On review of the evidence presented, it appears to the Court that SimpleAir’s arguments
may have been adequate to deny severance under the previous standard of “not dramatically
different.” In re EMC, 677 F.3d at 1359. However, the prior standard has been supplanted by the
Federal Circuit and replaced by the “aggregate of operative facts” and “actual link” standard now
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in place.
The Court does not find an actual link between the facts underlying each claim of
infringement against Microsoft and the Google Defendants. Rather, independently developed
products using differently sourced parts are alleged to infringe the same claims of the same
patents. Even assuming as valid SimpleAir’s joint infringement allegations against Samsung,
Huawei, HTC, and LG with both Google and Microsoft, that overlap in prospective evidence is not
sufficient to constitute an actual link between all the defendants in this case. Accordingly, the
Court finds that Microsoft’s MPNS and Google Defendants’ C2DM are not part of the same
transaction or occurrence.
IV.
MICROSOFT’S MOTION TO TRANSFER
Since Microsoft has shown that severance is proper, the Court next turns to whether the
severed action should be transferred to the Western District of Washington (WDWA). Under 28
U.S.C. § 1404 (a), “[f]or the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district court or division where it might
have been brought.” However, a motion to transfer venue should only be granted upon a showing
that the transferee venue is “clearly more convenient” than the venue chosen by the plaintiff. In
re Nintendo Co., 589 F.3d 1194, 1197 (Fed. Cir. 2009); In re Genentech, Inc., 566 F.3d 1388, 1342
(Fed. Cir. 2009); In re TS Tech USA Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008); In re
Volkswagen of America, Inc. (Volkswagen II), 545 F.3d 304, 315 (5th Cir. 2008).
The initial question in applying the provisions of § 1404(a) is whether the suit could have
originally been brought in the proposed transferee district. Volkswagen I, 371 F.3d at 203. If the
transferee district is a proper venue, then the court must weigh the relative public and private
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factors of the current venue against the transferee venue. Id. In making such a convenience
determination, the Court considers several private and public interest factors, none of which are
given dispositive weight. Id. The private interest factors include: “(1) the relative ease of access to
sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses;
(3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial
of a case easy, expeditious and inexpensive.” Nintendo, 589 F.3d at 1198; Genentech, 566 F.3d at
1342; TS Tech., 551 F.3d at 1319; Volkswagen II, 545 F.3d at 315. The public interest factors
include: “(1) the administrative difficulties flowing from court congestion; (2) the local interest in
having localized interests decided at home; (3) the familiarity of the forum with the law that will
govern the case; and (4) the avoidance of unnecessary problems of conflict of laws [in] the
application of foreign law.” Nintendo, 589 F.3d at 1198; Genentech, 566 F.3d at 1342; TS Tech.,
551 F.3d at 1319; Volkswagen II, 545 F.3d at 315.
SimpleAir has been a Texas corporation since 2009 with a principal place of business in
Plano, Texas, which is within the Eastern District of Texas (EDTX). (Dkt. No. 285-4, Payne Decl.
¶ 9.) Microsoft is a Washington corporation with its principal place of business in Redmond,
Washington. The Court finds there to be no dispute that this suit could have originally been
brought in the Western District of Washington. Accordingly, the Court next moves to consider the
public and private interest factors as outlined above.
a.
Private Interest Factors
i.
Relative Ease of Access to Sources of Proof
Despite technological advances in transportation of electronic documents, physical
accessibility to sources of proof continues to be a valid private interest factor. See Volkswagen II,
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545 F.3d at 316; TS Tech, 551 F.3d at 1321. Indeed, the Federal Circuit has indicated that access to
an alleged infringer’s proof is important to venue transfer analyses in patent infringement cases.
See Genentech, 566 F.3d at 1345 (“In patent infringement cases, the bulk of the relevant evidence
usually comes from the accused infringer. Consequently, the place where the defendant’s
documents are kept weighs in favor of transfer to that location.”).
Microsoft states that the vast majority of its relevant documents and electronic files
concerning the design and development of the MPNS are located in WDWA. (See Dkt. No. 168-6,
Kuhn Decl.) The design and development of the accused MPNS took place in or around Redmond,
Washington. (Id.) Also, it’s not aware of any documents relevant to Microsoft’s design and
development of the MPNS that are maintained in EDTX. (Id.) On the other hand, SimpleAir stores
relevant documentation and evidence within EDTX in its office in Plano, Texas. (Dkt. No. 285-4,
Payne Decl. ¶ 8.) Such documents relate to the development of the asserted patents and the
AirMedia Live Services (the commercial service that the inventions originated from), original
prosecution and ownership documents, and physical units of the AirMedia Internet Antenna and
software. (Id.)
Microsoft urges the Court to disregard the presence of SimpleAir’s documents in EDTX as
part of the transfer analysis because the documents were moved to EDTX in anticipation of
litigation. (Dkt. No. 168 at 7.) From Microsoft’s recount of SimpleAir’s history of first
incorporating in California in 2004 and then in Texas in 2009, it essentially asks this Court to
conclude that SimpleAir was organized and structured in this District specifically to avail itself of
the judicial system within EDTX and that its presence here is “recent, ephemeral, and an artifact of
litigation.” In re Zimmer Holdings, Inc., 609 F.3d 1378, 1381 (Fed. Cir. 2010). The Federal Circuit
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has found that an entity is ephemeral if it does not have (1) employees in the transferor forum; (2)
principals that reside in the transferor forum; or (3) research and development-type activities in the
transferor forum. Novelpoint Learning LLC v. Leapfrog Enterprises, Inc., No. 6:10-cv-229-JDL,
2010 WL 5068146, at *4 (E.D. Tex. Dec. 6, 2010) (citing In re Zimmer, 609 F.3d at 1381).
Additionally, “[t]his is certainly true where the formation of the entity could be characterized as
recent.” Here, the President of SimpleAir and lead inventor on the asserted patents, John Payne,
states that he uses the Plano office to conduct business relating to SimpleAir. (Dkt. No. 285-4,
Payne Decl. ¶ 10). Such business includes meetings with patent prosecution counsel and litigation
counsel. (Id.) Additionally, SimpleAir has been a Texas corporation for approximately five years.
Its formation cannot be fairly characterized as recent or ephemeral and Microsoft has not met its
burden to show that SimpleAir was incorporated in EDTX only to manipulate venue.
Returning to the § 1404(a) analysis, the Court finds that SimpleAir has shown that
significant sources of proof exist within EDTX at least as relates to the Plaintiff. Additionally,
sources of proof relating to Microsoft also exist in Texas since the accused MPNS product utilizes
servers in data centers located in San Antonio, Texas. (Dkt. No. 292 at 2.) On balance, the Court
finds this factor is neutral.
ii.
Availability of Compulsory Process
The second private interest factor is the availability of compulsory process to secure the
attendance of non-party witnesses. A venue that has “absolute subpoena power for both deposition
and trial” is favored over one that does not. Volkswagen II, 545 F.3d at 316. Rule 45 of the
Federal Rules of Civil Procedure limits the court’s subpoena power by protecting non-party
witnesses who work or reside more than 100 miles from the courthouse. Id. Based on its invalidity
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contentions, Microsoft has identified five individuals with potentially relevant knowledge about
prior art who are believed to reside within Washington and are subject to WDWA’s absolute
subpoena power. (Dkt. No. 168 at 8.) Microsoft also points out that Jeffrey Wang, a named
inventor of both asserted patents, lives in Bellevue, Washington and is also subject to WDWA’s
absolute subpoena power.
On the other hand, SimpleAir identifies Samsung, Futurewei, and Nokia,3 who all have
locations within or close to EDTX, as possessing evidence relevant to the claims and defenses
between SimpleAir and Microsoft. (Dkt. No. 285-1, Eichman Decl. ¶ 8.) Third parties AT&T
Mobility, Verizon Wireless, and Metro PCS are alleged to have information concerning the servers
in their data networks that may be relevant to SimpleAir’s infringement allegations. (Id.) Their
relevant offices are located in Plano, Texas and Dallas, Texas. (Id.) In addition, the prosecuting
attorneys of the asserted patents, Chris Rourk and John M. Cone, are both based in Dallas, Texas.
(Id.) SimpleAir has also specifically identified and named former employees of AirMedia,
numerous technical witnesses with knowledge of prior art (some identified by Defendants), and
other relevant third parties who are subject to the absolute subpoena power of EDTX or, if outside
such subpoena power, are otherwise located in the State of Texas. (Id. at ¶ 9.)
SimpleAir has identified numerous non-party witnesses that are within the absolute
subpoena power of EDTX for depositions, and more within the subpoena power of EDTX for trial.
Certainly, there may be many more relevant third parties outside of both Texas and Washington.
However, based upon the evidence presented, Microsoft has not shown that WDWA is comparable
to Texas in this regard. On balance, the Court finds that the availability of compulsory process
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Once Microsoft is severed out from Cause No. 2:11-416, Samsung, Futurewei and Nokia will become third parties to
the Microsoft action.
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factor weighs against transfer.
iii.
Cost of Attendance for Willing Witnesses
The third private interest factor is the cost of attendance for willing witnesses. “The
convenience of the witnesses is probably the single most important factor in a transfer analysis.”
In re Genentech, Inc., 556 F.3d at 1342. The Court in Volkswagen I explained:
[T]he factor of inconvenience to witnesses increases in direct relationship to
the additional distance to be traveled. Additional distance means additional travel
time; additional travel time increases the probability for meal and lodging
expenses; and additional travel time with overnight stays increases the time which
these fact witnesses must be away from their regular employment.
371 F.3d at 205. Although the court must consider the convenience of both the party and
non-party witnesses, “it is the convenience of non-party witnesses…that is the more important
factor and is accorded greater weight in a transfer of venue analysis.” Mohamed v. Mazda Motor
Corp., 90 F.Supp.2d 757, 775 (E.D. Tex. 2000); see also id. at 204 (requiring courts to
“contemplate consideration of the parties and witnesses”); Fujitsu Ltd. v. Tellabs, Inc., 639 F.
Supp. 2d 761, 765-66 (E.D. Tex. 2009).
The non-party witnesses identified by SimpleAir and Microsoft in the Court’s discussion
of the second factor show that they are spread across the entire country, including some in
Washington and many in Texas. Regarding party witnesses, Microsoft identified five technical
employees with knowledge of the design and development of aspects of the MPNS who work in its
Redmond, Washington office: Scott Bragg, Abolade Gbadegesin, Reid Kuhn, Dan McBride, and
Sameer Tejani. (Dkt. No. 168 at 9.) Additionally, Microsoft identified, and SimpleAir does not
dispute, four current or former officers and/or directors of SimpleAir who reside in Southern
California: John Payne, Tim von Kaenel, Seth Weisberg, and Michael Mirel. (Id. at 9-10.) For the
Plaintiff’s witnesses, the distance between their locations in Southern California and the Marshall
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courthouse is on average 1,595 miles compared to the distance to the Seattle courthouse, which is
on average 1,168 miles. Despite the extra distance of 427 miles, John Payne, the current President
of SimpleAir, attests that he considers EDTX to be more convenient because he frequently travels
to the Dallas area for other business meetings. (Dkt. No. 285-4, Payne Decl. at ¶ 12.) In contrast, he
rarely travels to Seattle for any purpose. (Id.) As a result, this is a situation where the plaintiff
claims one location is more convenient and the defendant urges another location is more
convenient. On balance and taking into account the widespread and disparate locations of the
non-party witnesses, the Court finds this factor to be neutral.
iv.
Other Practical Problems
Microsoft submits that there are no other practical problems to prevent transfer while
SimpleAir contends that there are. Practical problems include those that are rationally based on
judicial economy. Eolas Tech., Inc. v. Adobe Sys., Inc., 2010 WL 3835762, at *6 (denying a
request to sever defendants), aff’d In re Google, Inc., 412 Fed. Appx. 295 (Fed. Cir. 2011); see
also Volkswagen II, 566 F.3d 1349, 1351 (Fed. Cir. 2009) (quoting Continental Grain Co. v. The
FBL-585, 364 U.S. 19, 26 (1960) (“[T]he existence of multiple lawsuits involving the same issues
is a paramount consideration when determining whether a transfer is in the interest of justice …
[T]o permit a situation in which two cases involving precisely the same issues are simultaneously
pending in different District Court leads to the wastefulness of time, energy and money that § 1404
was designed to prevent.”)).
As severance is granted here, as previously discussed, for both Microsoft and the Google
Defendants, this case will consequently be split into three parallel co-pending actions involving
the same asserted patents and allegations of infringement. This Court will clearly be responsible
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for what remains of this case because Nokia and Ericsson have not moved for a severance or
transfer. To transfer the Microsoft Action to WDWA, and Google Defendants to NDCA while
keeping the Nokia and Ericsson case in EDTX would unavoidably risk duplicative proceedings
involving the same or similar issues between three different district courts and give rise to the
inherent danger of potentially inconsistent rulings and constructions. Due to such real and practical
dangers, the Court finds that the traditional notions of judicial economy lead the Court to find that
the “Other Practical Problems” factor weighs against transfer in this case.
b.
Public Interest Factors
Having addressed the private interest factors in the § 1404(a) transfer analysis, the Court
now turns to the public interest factors. The only two factors the parties dispute are court
congestion and local interest. The parties concede that the other factors are neutral.
i.
Court Congestion
In its § 1404(a) analysis, the court may consider how quickly a case will come to trial and
be resolved. Genentech, 566 F.3d at 1347. This factor is the “most speculative,” however, and in
situations where “several relevant factors weigh in favor of transfer and others are neutral, the
speed of the transferee district court should not alone outweigh all of the other factors.” Id.
Microsoft argues that WDWA is less congested because it has fewer total civil cases and fewer
patent cases compared to EDTX. However, this case was filed in September 2011 and trial in
EDTX is only five months away. Even if transfer was granted immediately when this motion first
became ripe for consideration in December 2012, a trial set in WDWA would most likely be much
later than the present trial date of January 2014. Accordingly, on balance, the Court finds that this
factor weighs against transfer.
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ii.
Local Interest
The Court must also consider local interest in the litigation, because “[j]ury duty is a
burden that ought not to be imposed upon the people of a community which has no relation to the
litigation.” Volkswagen I, 371 F.3d at 206 (5th Cir. 2004). Interests that “could apply virtually to
any judicial district or division in the United States,” such as the nationwide sale of infringing
products, are disregarded in favor of particularized local interests. Volkswagen II, 545 F.3d at 318;
In re TS Tech, 551 F.3d at 1321.
Microsoft argues that it has a strong interest in having this dispute settled in WDWA
because (i) it employs numerous employees in the Puget Sound area, (ii) relevant evidence is
located in Redmond, Washington, and (iii) SimpleAir’s connections to EDTX are inspired by
litigation. (Dkt. No. 168 at 12-13.) SimpleAir responds that it has been a Texas corporation and a
member of the local community in this district for several years. (Dkt. No. 285, at 23-4.)
Additionally, the original commercialization of the asserted patents by AirMedia took place in
Plano, Texas, which is within this District. (Id.) However, SimpleAir concedes that WDWA has a
substantial local interest in this case due to Microsoft’s significant presence in the Redmond,
Washington. (Id. at 23.) On balance, this factor weighs in favor of transfer.
c.
Conclusion
On weighing the evidence, one factor weighs in favor of transfer to WDWA, three factors
weigh against transfer, and four are neutral. The balance of the private and public factors
demonstrates that the Microsoft has fallen short of meeting its burden to show that transfer is
clearly more convenient.
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V.
GOOGLE DEFENDANTS’ MOTION TO TRANSFER
Based upon much the same arguments advanced by Microsoft, the Google Defendants
move to transfer their severed case to the Northern District of California (NDCA). However, the
Google Defendants include Futurewei Technologies, Inc., who is headquartered in Plano, Texas
(within EDTX); Huawei Technologies Co., headquartered in China; Sony Mobile, headquartered
in Atlanta, Georgia; HTC America, headquartered in Bellevue, Washington; HTC Corporation,
headquartered in Taiwan; LG Electronics Mobilecomm, headquartered in San Diego, California;
Motorola Mobility, headquartered in Libertyville, Illinois; Samsung Electronics America,
headquartered in Ridgefield Park, New Jersey; and Samsung Telecommunications America,
headquartered in Richardson, Texas. (See generally Dkt. No. 172, Exhibits 1-7.) Their sources of
proof and relevant witnesses are likewise scattered across the country and the globe. (Id.) In fact,
with the exception of Google itself, all of the other moving defendants are located elsewhere
within the country (outside NDCA) or overseas. Futurewei Technologies, Inc. is located within
EDTX and Samsung Telecommunications is located either within, or very close to (if not adjacent
to) this district. None of the moving defendants are actually headquartered in NDCA except for
Google. Therefore, the facts surrounding the Google Defendants’ motion to transfer are
significantly less persuasive to the Court in conducting the § 1404(a) analysis than the facts
Microsoft set forth.
Accordingly, based on the same reasoning as discussed in Microsoft’s transfer motion
above, the Court finds that transfer of the Google Defendants to NDCA is not clearly more
convenient.
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VI.
CONCLUSION
The Court GRANTS Microsoft’s Motion to Sever Plaintiff’s Claims Against Microsoft
(Dkt. No. 170) and GRANTS-IN-PART Defendants’ Motion to Sever and Transfer Severed
Claims to the United States District Court for the Northern District of California (Dkt. No. 172)
as to the matter of severance. Accordingly, the Court hereby ORDERS that the claims pertaining
to Microsoft and the Google Defendants be severed into separate causes of action. SimpleAir shall
pay the filing fee for those cases within ten (10) days of this order issuing to avoid having the
severed cause of action dismissed with prejudice.
Further, the Court ORDERS the two (2) new cases to be CONSOLIDATED for all
pretrial issues (except venue) with the lead case, 2:11-CV-416. The parties are instructed to file
any future motions in the lead case until further Order of the Court. The docket control,
.
discovery, and protective orders entered in the lead case will govern the consolidated action,
including the claims pertaining to Microsoft and the Google Defendants.
For the reasons discussed above, the Court DENIES Microsoft’s Motion to Transfer
Venue to the Western District of Washington (Dkt. No. 168) and DENIES-IN-PART Defendants’
Motion to Sever and Transfer Severed Claims to the United States District Court for the Northern
District of California (Dkt. No. 172), being specifically denied as to the transfer issue.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 9th day of August, 2013.
____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE
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