Rockstar Consortium US LP et al v. Google Inc

Filing 101

RESPONSE in Opposition re 98 Opposed MOTION to Expedite Briefing on Plaintiff's Motion for Leave to File a Supplemental Brief in Response to Google's Motion to Transfer, and, Google's Request, in the Alternative, to Stay Pending Resolution of Google's Transf er Motion filed by NetStar Technologies LLC, Rockstar Consortium US LP. (Attachments: # 1 Affidavit of Amanda K. Bonn in Support of Plaintiffs' Response in Opposition to Google Inc.'s Motion for Expedited Briefing Schedule, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4)(Bonn, Amanda)

Exhibit 3

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Document: 2

Page: 1

Filed: 09/25/2012

NO. 2012-

UNITED STATE COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

IN RE FUSION-IO, INC.

Petitioners

Petition for Writ of Mandamus to the United States District Court
for the Eastern District of Texas in Case No.2: 11-CV-00391-JRG
Judge Rodney Gilstrap

PETITION OF FUSION-IO, INC.
BAKER BOTTS L.L.P.
Scott Partridge
(Principal Attorney)
Michael Hawes
One Shell Plaza
910 Louisiana
Houston, Texas 77002
713.229.1750
713.229.7750 (Facsimile)
ATTORNEYS FOR
PETITIONERS
FUSION-IO, INC.

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Filed: 09/25/2012

CERTIFICATE OF INTEREST

Counsel for the PETITIONER, Fusion-io, Inc. certifies:
1.

The full name of every party or amicus represented by me are:
Fusion-io, Inc.

2.

The names of the real parties in interest represented by me are:
Fusion-io, Inc.

3.

All parent corporations and any publicly held companies that own 10 percent
or more of the stock of the parties represented by me are:
[none]

4.

The names of all law firms, partners or associates that appeared for the
parties represented by me in the trial court or expected to appear in this
court:
Baker Botts L.L.P., Scott Partridge, Michael Hawes, Bradley Bowling,
Stephen Baehl
Siebman Burg Phillips & Smith LLP, Michael Charles Smith

Date: September 24, 2012

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TABLE OF CONTENTS
CERTIFICATE OF INTEREST

i

STATEMENT OF RELIEF SOUGHT

1

STATEMENT OF ISSUES PRESENTED

2

STATEMENT OF THE FACTS

3

SUMMARY OF THE ARGUMENT

6

STATEMENT OF REASONS A WRIT SHOULD ISSUE

8

I.

STANDARD OF REVIEW

8

II.

Failure to Consider the Relevant Transfer Factors is a Clear Abuse of Discretion that

Produces a Patently Erroneous Result
III.

8

The Record Before the District Court Demonstrates that the District of Utah is Clearly

More Convenient and Fair

16

A.

The "Sources of Proof' Factor Weighs Heavily in Favor of Transfer

B.

The Availability of Compulsory Process to Secure the Attendance of Witnesses

16

Slightly Favors Transfer

21

C.

The Cost of Attendance for Willing Witnesses Strongly Favors Transfer

21

D.

No Practical Problems Arise in Connection with Transferring this Case

23

E.

The Interest in Having Localized Interests Decided at Home Strongly Favors Transfer
26

F.

The Court Congestions Factor Weighs in Favor of Transfer

28

G.

The Remaining Public Interest Factors are Neutral

28

CONCLUSION

30

11

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TABLE OF AUTHORITIES

Page(s)
CASES

A TEN Int'! CO. v. Emine Tech.,
261 F.R.D. 112 (E.D. Tex. June 25, 2009)

17, 27

Cheney v. Us. Dist. Ct.,
542 U.S. 367 (2004)

8

Hoover Group, Inc. v. Customer Metalcraft, Inc.,
84 F.3d 1408 (Fed. Cir. 1996)

25

In re Acer Am. Corp.,
626 F.3d 1252 (Fed. Cir. 2010)

13

In re EMC Corp.,
677 F.3d 1351 (Fed. Cir. 2012)

passim

In re Genentech, Inc.,
566 F.3d 1338 (Fed. Cir. 2009)

9,22

In re Hoffmann-La Roche Inc.,
587 F.3d 1333 (Fed. Cir. 2009)

9,27

In re Link_A_Media Devices Corp.,
662 F.3d 1221, 1223 (Fed. Cir. 2011)

9

In re Microsoft,
630 F.3d 1361 (Fed. Cir. 2010)

16, 19

In re Morgan Stanley,
2011-M962, 2011 WL 1338830 (Fed. Cir. April 6, 2011)
In re Nintendo Co., Ltd.,
589 F.3d 1194 (Fed. Cir. 2009)

24

passim

In re Pabst Licensing Digital Camera Patent Litigation,
528 F. Supp. 2d 1357 (J.P.M.L. 2007)
In re TS Tech USA Corp.,
551 F.3d 1315 (Fed. Cir. 2009)

.25
passim

In re Verizon,
635 F.3d 559 (Fed. Cir. March 23, 2011)

24

III

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In re Volkswagen AG
("Volkswagen 1'),371 F.3d 201 (5th Cir. 2004)
In re Volkswagen ofAm. Inc.
("Volkswagen 11'),545 F.3d 304 (5th Cir. 2008)

9, 22, 27

passim

In re Zimmer Holdings, Inc.,
609 F.3d 1378 (Fed. Cir. 2010)

19, 24

McDonnell Douglas Corp. v. Polin,
429 F.2d 30 (3rd Cir. 1970)

13, 14

Naschem Co., Ltd. v. Blackswamp Trading Co.,
No. 08-ev-730-SLC, 2009 WL 1307865 (W.D. Wise. May 8, 2009)

23

Norman IP Holdings, LLC v. Lexmark Int 'I, Inc.,
No. 6:11-CV-495, 2012 WL 3307942 (E.D. Tex. Aug. 10,2012)

.15

Summers v. State of Utah,
927 F.2d 1164 (10th Cir. 1991)

9

Telecom Tech. Servs., Inc. v. Rolm Co.,
No. CIV. A. 9:94 CV 145, 1995 WL 874441 (E.D. Tex. Feb. 24,1995)

22

Two-Way Media LLC v. AT & T Inc.,
636 F. Supp. 2d 527 (S.D. Tex. 2009)

18

Williams v. United States,
359 F.2d 67 (5th Cir. 1966)

18

STATUTES

28 U.S.C. § 125

17

28 U.S.C. § 1391(e)

25

28 U.S.C. § 1400(b)

25

28 U.S.C. § 1404(a)

passim

28 U.S.C. § 1407

6, 12,25

35 U.S.C. § 299

13

OTHER AUTHORITIES

FED. R. EVID. 201(e)

18

Rule 20

3

IV

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STATEMENT OF RELIEF SOUGHT
Fusion-io, Inc. respectfully requests that the Court grant this petition for a
writ of mandamus, vacate the September 17, 2012 order of the United States
District Court for the Eastern District of Texas denying in part Fusion-io's motion
to sever and transfer,l and remand with instructions to transfer it to the United
States District Court for the District of Utah.

Ex. 1, Order, Solid State Storage Solutions, Inc. v. STEC, Inc., 2:11-CV-391,
Dkt. No. 226 (E.D. Tex. Sept. 17,2012).
1

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STATEMENT OF ISSUES PRESENTED
Whether the District Court erred in failing to consider any of the factors
relevant to a change of venue under 28 U.S.C. § 1404(a) in denying Fusion-io,
Inc.' s request to transfer, where:
(1)

Fusion-io filed its Motion to Sever and Transfer on January 4, 2012,
requesting that" [0]nce severed from the other parties in this case, the
litigation between Fusion-io and S4 should be transferred to the
District of Utah";

(2)

over nine months later, the District Court severed the claims against
Fusion-io from the claims against the other defendants, but
immediately consolidated the severed cases, denied Fusion-io's
request to transfer without explanation or analysis, and added to the
delay in transferring the case to a clearly more convenient venue by
suggesting that Fusion-io re-file the exact same motion to transfer that
had been pending for over nine months; and

(3)

the opening claim construction brief is due in November of this year,
and the parties have already begun discovery into the merits of the
claims, prejudicing Fusion-io and undermining the purpose of
§ 1404(a).

2

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STATEMENT OF THE FACTS

On September 7, 2011, Plaintiff Solid State Storage Solutions, Inc. ("S4")
filed this patent infringement suit in the Eastern District of Texas against nine
unrelated defendants, each developing and producing their own distinct products in
areas far from the Eastern District of Texas. S4 joined the unrelated defendants in
a single suit based solely on independent acts of alleged infringement of twelve
different patents directed generally toward nonvolatile memory storage devices.
On January 4, 2012-before Fusion-io even answered S4's Original
Complaint and five months before the pretrial conference-Fusion-io filed a
motion to sever the unique infringement allegations against its proprietary SSD
memory devices and transfer that severed litigation to the District of Utah, where
Fusion-io's corporate headquarters is located and where the vast majority of the
documents and witnesses can be found. 2 Other defendants filed similar motions
requesting severance and transfer to clearly more convenient venues.
Over nine months later, the District Court issued an order granting severance
on the basis that each of the defendants are "separate companies that independently
developed distinct products at issue, and thus, their joinder under Rule 20, as
clarified by the Federal Circuit in In re EMC, is improper." Ex. 1 at 2.

2

Ex. 2, Fusion-io's Motion to Sever and Transfer, Solid State Storage
Solutions, Inc. v. STEC, Inc., 2:11-CV-391, Dkt. No. 57 (E.D. Tex. January 4,
2012).
3

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However, instead of considering the merits of transfer, the District Court
immediately consolidated all of the severed cases "as to all pretrial issues" and
stated that it would determine later "whether the cases will be tried jointly or
separately," suggesting the illusory nature of the parties' severance. Id.
Without any analysis or explanation, the District Court denied Fusion-io's
fully-briefed and pending request to transfer and suggested that Fusion-io "re-file"
the exact same motion "should the movant determine that such is still appropriate
after this order." Id. The District Court's order makes no attempt to address any
of the § 1404(a) factors and ignores that Fusion-io sought severance for the
primary purpose of facilitating a transfer to a substantially more convenient venue.
The relief requested by Fusion-io's Motion to Sever and Transfer could not be
clearer: "Once severed from the other parties in this case, the litigation between
Fusion-io and S4 should be transferred to the District of Utah." Ex. 2 at 10.
At the time of the Court's order, Fusion-io's request to transfer had been
pending for over nine months, and the parties had previously conducted limited
discovery on the venue issue in order to fully and comprehensively brief the matter
for the Court. Nothing has changed that would justify the need to re-file the exact
same briefing, reopen and repeat the exact same response process, and further
delay transferring the litigation to the clearly more convenient venue.

Indeed,

given the fact that claim construction briefing is scheduled to begin in November

4

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and the claim construction hearing is scheduled for January,3 any further delay
risks prejudicing the rights ofFusion-io and thwarting the purpose of § 1404(a).
The District of Utah is the clearly more convenient forum for litigating S4' s
severed claims against Fusion-io. The most relevant documents and witnesses are
located at Fusion-io's corporate headquarters in Salt Lake City. The District of
Utah is also far more convenient for all other known sources of proof-the patent
inventors and original assignees are located in Japan, and any Fusion-io employees
with relevant knowledge not located in Salt Lake City are located in either San
Jose, California, or Superior, Colorado. The only connection between this litigation
and the Eastern District of Texas is S4's office in Marshall, Texas, which is not
entitled to weight in the transfer analysis because it was established in advance of
litigation merely to manipulate venue.
Fusion-io's motion also pointed out that any judicial economy could be
preserved post-transfer by employing multidistrict litigation procedures for
common issues such as claim construction. In fact, the issues consolidated for
multidistrict litigation would be addressed in a forum convenient for all parties, as
determined by the Judicial Panel on Multidistrict Litigation rather than a single
judge sitting in the Eastern District of Texas, which is not convenient to any of the
relevant witnesses or documents.
3

Ex. 3, Docket Control Order, Solid State Storage Solutions, Inc. v. STEC,
Inc., 2:11-CV-391, Dkt. No. 187 (E.D. Tex. June 15,2012).
5

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SUMMARY OF THE ARGUMENT

Mandamus is warranted to correct the District Court's patently erroneous
denial of transfer. Although the District Court severed the actions in light of the
Federal Circuit's opinion in In re EMC Corp., 677 F.3d 1351 (Fed. Cir. 2012), the
District Court committed clear error by immediately consolidating all of the
severed actions indefinitely and then denying the fully-briefed and pending
motions to transfer without any explanation or analysis. The District Court's
consolidation of the severed actions without any evaluation of the pending transfer
requests thwarts the purposes of both 28 U.S.C. § 1404(a), which provides for
transfer to a clearly more convenient forum, and 28 U.S.C. § 1407, which
authorizes the Judicial Panel on Multidistrict Litigation to consolidate cases that
otherwise should be pending in different venues.
Despite this Court's clear opinion to the contrary in EMC, the District
Court's order sets the plainly erroneous precedent that a plaintiff may force
litigation to proceed in an inconvenient venue simply by suing enough distinct
defendants in that venue and then, after the required severance, requesting the
court to immediately consolidate those severed actions and delay considering any
motions to transfer until a later stage in the case. To be clear, Fusion-io does not
dispute that the District Court has discretion to consolidate cases. Rather, this
Court's opinion in EMC makes clear that the District Court has this discretion only

6

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"where venue is proper." EMC, 677 F.3d at 1360.
The District Court's failure to consider any of the merits of the transfer
motions before indefinitely consolidating the severed actions undermines the
holding of EMC and effectively allows the District Court to substitute its judgment
for the judgment of the Judicial Panel on Multidistrict Litigation (JPML).
Congress specifically created the multidistrict litigation procedures to address the
issues created when similar litigations are pending in different districts. A district
court may not ignore the availability of those procedures by denying meritorious
transfer requests and may not usurp the role of the JPML by consolidating cases
that otherwise should be pending in clearly more convenient forums.

7

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STATEMENT OF REASONS A WRIT SHOULD ISSUE
I.

STANDARD OF REVIEW
"The writ of mandamus is available in extraordinary situations to correct a

clear abuse of discretion or usurpation of judicial power." In re TS Tech USA

Corp., 551 F.3d 1315,1318 (Fed. Cir. 2009). A "clear" abuse of discretion exists
where the court below reached a "patently erroneous result." Id. (quotations and
citations omitted). A petitioner must show that its right to issuance of the writ is
"clear and indisputable," id. (quotations and citations omitted), and that it has "no
other adequate means to attain the relief he desires-a condition designed to ensure
that the writ will not be used as a substitute for the regular appeals process." In re

Volkswagen of Am. Inc. ("Volkswagen 11'), 545 F.3d 304, 311 (5th Cir. 2008)
(quoting Cheney v. Us. Dist. Ct., 542 U.S. 367, 380-81 (2004)). Finally, the
"issuing court, in the exercise of its discretion, must be satisfied that the writ is
appropriate under the circumstances." Id. (quoting Cheney, 542 U.S. at 380-81).

II.

Failure to Consider the Relevant Transfer Factors is a Clear Abuse of
Discretion that Produces a Patently Erroneous Result
Courts must consider eight factors when assessing a motion to transfer. 4 Just

The private interest factors are: (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,
including judicial economy. In re Volkswagen ofAm. Inc., 545 F.3d 304,315 (5th
Cir. 2008) ("Volkswagen 11'). The public interest factors are: (1) administrative
difficulties flowing from court congestion; (2) the local interest in having localized

4

8

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as a failure to accord proper weight to varIOUS transfer factors can lead to a
"patently erroneous" result,5 so too does a failure even to consider the transfer
factors. Under the law of the Fifth Circuit, in deciding the propriety of a district
court's ruling on a motion to transfer, one of the questions the court asks is: "Did
the district court consider the relevant factors incident to ruling upon a motion to
transfer." See, e.g., In re Volkswagen AG ("Volkswagen 1'), 371 F.3d 201, 203
(5th Cir. 2004).6 Here, the District Court failed to consider any of the transfer
factors in its summary denial ofFusion-io's motion to transfer.
The mere fact that the District Court suggested that Fusion-io could later
"re-file" the exact same motion to transfer if "still appropriate" does not change the
fact that the District Court's denial of Fusion-io's request for transfer is a patently
erroneous result that leaves Fusion-io with no other means to avoid litigating the
merits of the case in an inconvenient venue. As this Court observed in In re

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 conflicts of
laws in the application of foreign law. Id.
5
See, e.g., In reNintendo Co., Ltd., 589 F.3d 1194 (Fed. Cir. 2009); In re
Hoffmann-La Roche Inc., 587 F.3d 1333 (Fed. Cir. 2009); In re Genentech, Inc.,
566 F.3d 1338 (Fed. Cir. 2009); In re TS Tech USA Corp., 551 F.3d 1315 (Fed.
Cir.2008).
6
Accord In re Link_A_Media Devices Corp., 662 F.3d 1221, 1223 (Fed. Cir.
2011) (noting that the Third Circuit's standard for mandamus requires "the
petitioner to establish that the district court's decision amounted to a failure to
meaningfully consider the merits of the transfer motion"); Summers v. State of
Utah, 927 F.2d 1164, 1168 (10th Cir. 1991) ("In failing to exercise its discretion,
the district court perforce abused it.").
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Nintendo, 589 F.3d 1194 (Fed. Cir. 2009), the petitioner in that case "had already
presented facts showing entitlement to a transfer" and was "not required to wait for
the district court's decision on the motion for reconsideration because the district
court clearly abused its discretion when deciding the original motion." Nintendo,
589 F.3d at 1200. Moreover, in In re TS Tech USA Corp., 551 F.3d 1315 (Fed.
Cir. 2008), this Court aptly reasoned that "if reconsideration should always be
sought, we might be unable to entertain a mandamus petition even where there is a
clear usurpation ofjudicial power." TS Tech, 551 F.3d at 1322.
The present case is analogous to the situations in Nintendo and TS Tech.
Fusion-io filed its Motion to Sever and Transfer over nine months ago and
explained in detail how each of the eight transfer factors weighed in favor of
transfer. Moreover, the parties engaged in limited discovery on the venue issue so
that the District Court would be fully and comprehensively briefed on the matter.
The relief requested by Fusion-io could not have been clearer: "Once severed from
the other parties in this case, the litigation between Fusion-io and S4 should be
transferred to the District of Utah." Ex. 2 at 10. Even S4 recognized that Fusionio "explicitly [made] its motion for transfer contingent on the Court's granting of
their motion for severance." Ex. 4, S4's Response, Solid State Storage Solutions,

Inc. v. STEC, Inc., 2:11-CV-391, Dkt. No. 125 at 9 (E.D. Tex. March 16,2012).
As in Nintendo, Fusion-io has already presented facts showing entitlement to

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a transfer and the District Court had ample opportunity to consider the merits of
that request. The District Court clearly abused its discretion when deciding the
motion to transfer, and under this Court's logic in Nintendo, Fusion-io should not
be required to either wait for the District Court's decision on a motion for
reconsideration7 or undertake the even more time-consuming task of re-filing the

exact same motion that the District Court denied with an invitation to resubmit for
the Court to newly consider. This is particularly so where, as here, the District
Court's suggestion to re-file the exact same motion and revisit the exact same
response process would compound the already significant delay incurred and
render this Court unable to correct a clear usurpation of judicial power prior to the
upcoming claim construction proceedings.
As this Court held in Nintendo, the "no other means" requirement "does not
impose an insurmountable rule that the petitioner exhaust every possible avenue of
relief before seeking mandamus relief."

Id.

Instead, the purpose of the

requirement "is to ensure that the writ will not be used as a substitute for the
regular appeals process." Id. at 1200-01. Under Fifth Circuit law, a party seeking
mandamus for a denial of transfer meets the "no other means" requirement because
interlocutory review of a transfer order is unavailable, and appellate review from

7

Although not required, Fusion-io has requested the District Court to
reconsider its denial of Fusion-io' s transfer request by applying the requisite eightfactor analysis. See Ex. 5, Fusion-io's Motion to Reconsider.
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an adverse final judgment would be inadequate. See TS Tech, 551 F.3d at 1322.
Moreover, the District Court's refusal to consider Fusion-io's fully-briefed
transfer motion, combined with its decision to consolidate actions that were
properly severed under this Court's holding in EMC, compounds the patently
erroneous nature of the Court's order.

Accordingly, this case is even more

appropriate for the issuance of a writ of mandamus than the typical petition that
arises merely from a district court's improper weighing of the transfer factors.
The District Court has effectively usurped the authority of the Judicial Panel
on Multidistrict Litigation (JPML). As recognized by this Court in EMC, § 1407
authorizes the JPML to assess consolidation-including the proper venue for
consolidation-when distinct suits would otherwise be pending in multiple
districts. The District Court's decision to consolidate the severed actions without
evaluating the transfer motions thwarts the purpose of § 1407 and undermines this
Court's holding in EMC. Although a district court has discretion to consolidate
cases, EMC makes clear that the courts have this discretion only "where venue is
proper." EMC, 677 F.3d at 1360. This presumes that the district court has already
evaluated the merits of any motions to transfer and has concluded that the proper
venue under § 1404(a) is that judicial district. In contrast, when transfer under
§ 1404(a) is required, the proper authority for assessing pre-trial consolidation is
the JPML, as clearly provided for by Congress in § 1407.

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Mandamus is appropriate because the District Court's order sets the plainly
erroneous precedent that a plaintiff may force litigation to proceed in an
inconvenient venue simply by suing enough distinct defendants in that venue and
then, after the required severance, requesting the court immediately to consolidate
those severed actions and delay ruling on any motions to transfer until a later stage
in the case. Such an approach would enable plaintiffs to ignore the plain directives
pertinent to joinder and venue selection in patent cases. See, e.g., 35 U.S.C. § 299;

In re EMC, 677 F.3d 1351; In re Acer Am. Corp., 626 F.3d 1252, 1254-56 (Fed.
Cir. 2010).

This contradicts the Fifth Circuit's directive to courts to "prevent

plaintiffs from abusing their privilege ... by subjecting defendants to venues that
are inconvenient." Volkswagen II, 545 F.3d at 313.
Additionally, Mandamus is appropriate because the Court's summary denial
of a motion to transfer and its subsequent suggestion to re-file the exact same

briefing improperly amounts to "a failure to decide the transfer issue until a later
stage of the case." See McDonnell Douglas Corp. v. Polin, 429 F.2d 30, 31 (3rd
Cir. 1970). In McDonnell Douglas, the district court postponed any decision on
the pending transfer motion until after all matters of discovery were completed.
The Third Circuit, on a petition for writ of mandamus, held that it was "not proper
to postpone consideration of the application for transfer under § 1404(a) until
discovery on the merits is completed, since it is irrelevant to the determination of

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the preliminary question of transfer." McDonnell Douglas, 429 F.2d at 30-3l.

In the present case, the claim construction briefing process is scheduled to
begin in November of 2012 and the claim construction hearing is scheduled to take
place in January of2013. The District Court's suggestion that Fusion-io re-file the

exact same motion that had been properly pending for over nine months would
undermine the entire purpose of § 1404(a). Fusion-io moved to transfer venue in
January of 2012-almost two weeks before it even answered S4's Complaint and
five months before the District Court even held a pre-trial conference. However,
re-filing the transfer motion would reopen a time-consuming briefing period and
invite the District Court to spend additional time revisiting the issue-the same
issue that had been fully briefed since January.
The resulting delay creates the unavoidable risk that the transfer issue will
not even be decided until after the District Court has expended the effort of reading
through the parties' claim construction briefs and familiarizing itself with the
twelve asserted patents. The entire reason that Fusion-io filed its Motion to Sever
and Transfer at the absolute earliest conceivable date was both to spare the District
Court the burden of investing considerable effort in familiarizing itself with the
technology and to eliminate the risk that such familiarity could trump the
convenience to the parties and witnesses of litigating in a judicial district that was
closer and more accessible than the Eastern District of Texas.

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By filing the transfer motion before it even answered 84' s complaint-and
by seeking a writ of mandamus from the Federal Circuit immediately after the
District Court's denial of that motion-Fusion-io has done everything in its power
to "actively and promptly pursue its motion to transfer venue before the district
court invested considerable time and attention on discovery and completing claim
construction." See In re VTech Commc'ns, Inc., Misc. No. 909,2010 WL 46332,
at *2 (Fed. Cir. Jan. 6, 2010). Given the District Court's denial of Fusion-io's
transfer motion and its inexplicable suggestion that Fusion-io re-file the exact same
brief, the writ of mandamus is necessary in order to preserve the purpose of
§ 1404(a) and prevent both the Fifth Circuit's and this Court's clear and extensive
transfer jurisprudence from becoming a nullity.
Mandamus is even more appropriate in this case because of the similar
approach taken by another district court in the wake of this Court's EMC decision.
See Volkswagen II, 545 F.3d at 319 (finding mandamus appropriate because "writs

of mandamus are supervisory in nature and are particularly appropriate when the
issues also have an importance beyond the immediate case").

In another case

pending in the Eastern District of Texas, Judge Davis expressly declined to address
the merits of pending transfer requests until after claim construction. Norman IP
Holdings, LLC v. Lexmark Int'!, Inc., No. 6:11-CV-495, 2012 WL 3307942, at *4

(E.D. Tex. Aug. 10, 2012) (holding that "in the event that transfer is appropriate,

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the Court shall retain the case through the Markman phase of the proceedings").
This approach of declining to consider the merits of a transfer motion until
after a later stage in the case similarly undermines both this Court's decision in
EMC and the purpose of § 1404(a). Moreover, allowing district courts to postpone

considering properly filed and long-pending motions to transfer could effectively
render this Court "unable to entertain a mandamus petition even where there is a
clear usurpation ofjudicial power." See TS Tech, 551 F.3d at 1322.
As set out below, the record before the District Court already "plainly shows
that the United States District Court for the [District of Utah] is clearly more
convenient and fair for trial," thereby justifying the issuance of a writ of
mandamus directing transfer to the District of Utah. See In re Microsoft, 630 F3d
1361, 1362 (Fed. Cir. 2010).
III.

The Record Before the District Court Demonstrates that the District of
Utah is Clearly More Convenient and Fair
The relevant transfer factors that the District Court improperly failed to

weigh demonstrate that the District of Utah is the clearly more convenient forum
for S4's litigation against Fusion-io.
A.

The "Sources of Proof" Factor Weighs Heavily in Favor of
Transfer

S4's allegations concern Fusion-io's "SSD products."
Complaint at

~~

See Ex. 6, S4

75-77. Fusion-io's past and present products were designed and

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engineered at its headquarters in Salt Lake City, Utah, 8 and documents related to
those products' design and configuration are located in that office. 9 See Ex. 2-A,
Strasser Decl.

~

6.

Similarly, Fusion-io's most important party witnesses-the

people who know the most about the design, engineering and manufacture of the
accused products-are also based in the Salt Lake City area.

See id.

~

6.

Additionally, Fusion-io's marketing and financial operations are conducted at both
its Salt Lake City headquarters and its San Jose, California office, so most of the
relevant marketing and financial sources of proof are in Salt Lake City with the
balance in San Jose. See id.

~

9.

Without question, the critical evidence related to the asserted patents is
closer to Utah than to Marshall.

First, the relevant employees and documents

related to Fusion-io's marketing and financial operations that are not located at the
Salt Lake City headquarters are in Fusion-io's offices in San Jose, California,
where Fusion-io handles marketing and financial activities jointly with the Salt
Lake City office. See id.

~

9. Second, although Fusion-io's design and engineering

8

The District of Utah is composed of two divisions, the Northern and Central,
both of which hold court at Salt Lake City, Utah. 28 U.S.C. § 125. Fusion-io's
headquarters are located at 2855 E. Cottonwood Pkwy., Salt Lake City, Utah
84121, which is within Salt Lake County, which is in the Central Division.
9
Technology may help the parties "transport" certain evidence to the trial
venue, but the distance between the two districts is quite substantial; transporting
electronic data to the District of Utah is still vastly more convenient than
transporting it to the Eastern District of Texas. See ATEN Int'l Co. v. Emine Tech.,
261 F.R.D. 112, 123-24 (E.D. Tex. June 25, 2009) (Davis, J.) (finding physical
proximity to trial venue applicable for electronic evidence).
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of future products not presently at issue in this case now take place in multiple
offices, Salt Lake City remains the primary location for its design and engineering
activity. To the extent that some of that activity recently began to take place in its
offices in San Jose, California, and in Superior, Colorado, see id.

~

6, documents

and employees related to such future products are located in the Salt Lake City,
California, and Colorado offices.

San Jose, California is approximately 1,090

miles closer to Salt Lake City than to Marshall, and Superior, Colorado is
approximately 470 miles closer to Salt Lake City than to Marshall. 10 Third, all of
the named inventors of all patents in suit are Japanese, as is the original assignee of
five of the patents in suit, 11 Hitachi Ltd. Likewise, the original assignee of two
other patents in suit,12 Renesas Technology Corp., is located in Japan. 13 Tokyo,
Japan (the likely departure point for international travel and delivery of documents)

10

San Jose, California is approximately 760 miles from Salt Lake City,
compared to approximately 1,850 from Marshall.
Superior, Colorado is
approximately 530 miles from Salt Lake City, compared to approximately 1,000
from Marshall. See Two-Way Media LLC v. A T & T Inc., 636 F. Supp. 2d 527,
536 n.6 (S.D. Tex. 2009) ("This Court has discretion to take judicial notice of
matters of geography, including distances between cities." (citing FED. R. EVID.
201(c); Williams v. United States, 359 F.2d 67 (5th Cir. 1966))).
11
U.S. Patent Nos. 6,341,085, 6,347,051, 6,370,059,6,567,334 and 6,701,471.
12
U.S. Patent Nos. 7,064,995 and 7,234,087.
13
Renesas Technology Corp. was acquired by Renesas Electronics
Corporation in April 2010; Renesas Electronics Corporation is located in Japan.
See Bloomberg Businessweek, Renesas Technology Corp., Company Overview,
available
at
http://investing.businessweek.com/research/stocks/private/snapshot.asp?privcapld=
4959935 (Dec. 7,2011).
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is approximately 5,500 miles from Salt Lake City, compared to approximately
6,500 miles from Marshall.
Although S4 opposed transfer on the basis that its principal place of business
is located in the Eastern District of Texas, offices established in anticipation of
litigation (and documents transferred there) in order to manipulate venue are
irrelevant to the transfer analysis. See In re Microsoft Corp., 630 F.3d 1361, 136465 (Fed. Cir. 2010) (rejecting argument that weight be given to principal place of
business where the office "staffed no employees, were recent, ephemeral, and a
construct for litigation and appeared to exist for no other purpose than to
manipulate venue") (citing In re Zimmer Holdings, Inc., 609 F.3d 1378, 1381 (Fed.
Cir.2010». S4 is a non-practicing entity that only established its limited "business
operations" in the Eastern District of Texas in order to manipulate venue: having
been formed on May 5, 2007 as a Madison, Wisconsin Limited Liability Company,
it subsequently registered as a Texas corporation with a new listed principal place
of business in Marshall, Texas, effective October 1, 2009 14 and filed its suit against
Fusion-io on September 7, 2011. 15 Despite the state of incorporation and the listed
"principal place of business," S4 appears to conduct no operations in Texas, nor to
staff any employees in Texas. The corporation's initial board of directors was
composed of two members living in Milpitas, California and two members living
14
15

See Ex. 2-B, Certificate of Conversion, at 1.
See Ex. 6, S4 Complaint.
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in Tokyo, Japan. 16 With no other ties to or business activities in the Eastern
District of Texas, S4's sole office was plainly established in anticipation of
litigation and is an attempt to manipulate venue entitled to no weight.
Furthermore, although Fusion-io employs 11 people in Texas, 10 of these
employees work from their homes to sell Fusion-io products and/or service
customers based in Texas.

See Ex. 2-A, Strasser Dec!.

~

10.

They were not

involved in the design, engineering and manufacture of Fusion-io's products, and
they are not responsible for its marketing and sales strategies, or its financial
performance with respect to its products. See id. While these employees may have
some relevant sales and marketing documents, the employees all use Fusion-io's
central servers located in Utah, and such documents are duplicative of those
located in Utah. See id. The existence of a few duplicative documents in Texas,
which mayor may not be relevant, does not tip the scales against transfer. The
eleventh Texas employee, William Hutsell, was hired as a Product Management
Director in connection with future products on October 24, 2011. See id.

~

11. He

currently works from his home in Houston, Texas, but had no involvement in the
16

See Ex. 2-B, Certificate of Conversion, at 5-6. S4' s most recent public
filing, its December 12, 2010 Public Information Report, lists only the
corporation's Marshall, Texas address for its four directors and CEO; however,
three of the four directors are the same people identified in S4' s Certificate of
Conversion as having Tokyo, Japan and Milpitas, California addresses (Kentaro
Fukuda, Hironori Seki, and E. Earle Thompson). See Ex. 2-C, Public Information
Report. There is no indication of the place of residence of the CEO and other,
newly added, director.
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design, engineering or manufacturing of any past or present Fusion-io products
now at issue in this case. He is therefore irrelevant to this transfer analysis.
Given that the majority of evidence is in Utah, and the relative proximity of
other relevant evidence, this factor weighs heavily in favor of transfer.
B.

The Availability of Compulsory Process to Secure the Attendance
of Witnesses Slightly Favors Transfer

The ability to use compulsory process to secure the attendance of non-party
witnesses weighs more heavily in favor of transfer when more of those witnesses
reside in the transferee venue. Volkswagen II, 545 F.3d at 316. The known nonparty witnesses in this case-the patent inventors and prosecution counsel-do not
reside within either the Eastern District of Texas or the District of Utah. To the
extent additional non-party witnesses are uncovered as litigation progresses,
however, it is more likely that they will reside within the compulsory process range
of the District of Utah than of the Eastern District of Texas. For example, former
employees of Fusion-io's headquarters are more likely to reside in the Salt Lake
City area than in the Eastern District of Texas. Accordingly, this factor weighs
slightly in favor of transfer.
C.

The Cost of Attendance for Willing Witnesses Strongly Favors
Transfer

The "convenience of parties and witnesses" is an important-perhaps the
single most important-factor in the transfer analysis. Genentech, 566 F3d at

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1343. This Court has held time and again that, "in a case featuring most witnesses
and evidence closer to the transferee venue with few or no convenience factors
favoring the venue chosen by the plaintiff, the trial court should grant a motion to
transfer." In re Nintendo Co., 589 F.3d at 1198.
This factor weighs heavily in favor of transfer because Utah is the more

convenient forum for every known witness. As already discussed with respect to
the sources of proof factor, Fusion-io's key witnesses with knowledge of the
accused products, marketing information, and financial data are located in Salt
Lake City, Utah. Transfer to Utah therefore eliminates roughly 1,400 miles of
travel to Marshall for those witnesses. "When the distance between an existing
venue for trial of a matter and a proposed venue under § 1404(a) is more than 100
miles, the factor of inconvenience to witnesses increases in direct relationship to
the additional distance to be traveled." Volkswagen I, 371 F.3d at 205. The other
potentially relevant witnesses in this case-the employees at Fusion-io's offices in
California and Colorado, and the patents' named inventors and original assignees
in Japan I7-are closer to Utah than Marshall. I8 And not only are those witnesses

17

Although S4 or its predecessor limited liability company is listed as the
original assignee on five of the patents in suit (U.S. Patent Nos. 7,327,624,
7,366,016,7,616,485,7,721,165 and 7,746,697), as discussed above, its location is
not relevant to this analysis.
18
The prosecuting law firms of the patents in suit, Antonelli, Terry, Stout &
Kraus, LLP and Mattingly, Stanger, Malur & Brundidge, P.C., are located in
Arlington, VA and Alexandria, VA, respectively.
While Marshall is
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substantially geographically closer to Salt Lake city, but also their cost and time of
travel is significantly lower due to the comparative ease of air travel to Salt Lake
City.19 Likewise, Salt Lake City is more accessible by international travel than is
Marshall, further making it more convenient for the Japanese inventors and
..
ongmaI '
assIgnees note d ab ove. 20

D.

No Practical Problems Arise in Connection with Transferring this
Case

approximately 800 miles closer to both than is Salt Lake City, this arguably makes
for less relative convenience for at most two relevant witnesses as compared to the
numerous others in this case. However, according to travel website Kayak.com,
the actual travel time for these witnesses from Washington, D.C. airports to
Marshall and to Salt Lake City is approximately the same due to the relative ease
of travel to Salt Lake City: flights from Washington, D.C. to Marshall require 1
stop and take approximately 5 hours, while flights to Salt Lake City are non-stop
and take approximately 5 hours. Cf Telecom Tech. Servs., Inc. v. Rolm Co., No.
CIV. A. 9:94 CV 145, 1995 WL 874441, at *2 (E.D. Tex. Feb. 24, 1995) ("Also,
the Court takes judicial notice that Lufkin, Texas, wherein the trial would be held
were it to occur in this district, has no airport servicing major airlines, whereas it is
well known that Atlanta is a major transportation hub of the Southeast.").
19
According to travel website Kayak.com: For the Alviso and San Jose,
California witnesses, there are non-stop flights from San Jose, California to Salt
Lake City that take approximately 2 hours; by comparison, flights to airports
within 70 miles of Marshall require 1 stop and take at least approximately 6 hours.
Similarly, non-stop flights from Denver, Colorado (27 miles from Superior) to Salt
Lake City take roughly 1.5 hours, while flights to Marshall require 1 stop and take
5 hours.
20
Again as per Kayak.com, flights from Tokyo to Salt Lake City require 1 stop
and take approximately 13.5 hours, while flights to airports near Marshall require 2
stops and take 20 hours. Cf Naschem Co., Ltd. v. Blackswamp Trading Co., No.
08-cv-730-SLC, 2009 WL 1307865, at *3 (W.D. Wisc. May 8, 2009) ("Because
plaintiffs are citizens of Korea, both Wisconsin and Illinois are inconvenient for
them. If anything, Illinois would be slightly less so because of more direct
international access to Chicago.").
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No practical problems arise in connection with transferring this case to the
District of Utah, which further weighs in favor of transfer. Fusion-io did not delay
in seeking transfer; at the time of the filing of its original Motion to Sever and
Transfer, no discovery had occurred in the case, and the scheduling conference had
not been set. Furthermore, the District Court appropriately severed the claims
against Fusion-io from S4's claims against other defendants, and the Court has yet
to hold any hearings or to consider any motions on the merits of S4' s case.
To the extent S4 has argued that the judicial efficiency of holding a common
claim construction in the Eastern District of Texas overrides all other transfer
considerations, that position is legally mistaken. As an initial matter, this Court
has repeatedly stated that judicial efficiency is not an overriding factor and has
ordered transfer where, as here, the other factors weighed toward the transferee
venue. See In re Morgan Stanley, 2011-M962, 2011 WL 1338830, at *2 (Fed. Cir.
April 6, 2011) ("This court twice recently considered and rejected arguments that
the preservation of judicial economy should preclude transfer to a far more
convenient venue.") (citing Zimmer Holdings, 609 F.3d at 1382, and In re Verizon,
635 F.3d 559 (Fed. Cir. March 23, 2011».
Moreover, even if some pre-trial consolidation across the now severed cases
is preferable, such consolidation is appropriately accomplished via the multidistrict
litigation procedures described in 28 U.S.C. § 1407 where, as here, S4 did not

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bring its claims against Fusion-io in the appropriate forum. See In re EMC Corp.,
677 F.3d 1351, 1360 (Fed. Cir. 2012) (noting that a district court may consolidate
cases "where venue is proper" and noting that common issues "of claim
construction and patent invalidity may also be adjudicated together through the
multidistrict litigation procedures of 28 U.S.C. § 1407"); Volkswagen II, 545 F.3d
at 313 ("The underlying premise of § 1404(a) is that courts should prevent
plaintiffs from abusing their privilege under § 1391 by subjecting defendants to
venues that are inconvenient under the terms of § 1404(a).,,).21 In other words, the
JPML, not a single district court, is the appropriate agency to assess pre-trial
consolidation when distinct suits against multiple different parties should properly
have been filed in multiple districts.
Moreover, as a practical matter, multidistrict litigation procedures will
promote judicial efficiency by facilitating pretrial consolidation in a forum that is
convenient for all parties, as determined by the Judicial Panel on Multidistrict
Litigation-as opposed to going forward in an inconvenient forum, such as the
Eastern District of Texas, which has no ties to the parties or evidence. See In re

Pabst Licensing Digital Camera Patent Litigation, 528 F. Supp. 2d 1357, 1357
21

The Fifth Circuit's observation in Volkswagen II was made in the context of
§ 1391 (c), and accordingly applies equally in the context of venue in patent cases
with corporate defendants. Compare 28 U.S.C. § 1400(b); see also Hoover Group,
Inc. v. Customer Metalcraft, Inc., 84 F.3d 1408, 1410 (Fed. Cir. 1996) ("[F]or
venue purposes the residence of corporate defendants in patent infringement
actions is governed by 28 U.S.C. § 1391(c).").
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(J.P.M.L. 2007) (ordering transfer for pre-trial consolidation to "a transferee forum
on the east coast such as the District of District of Columbia[, which] provides a
geographically convenient forum, inasmuch as several of the alleged infringers
operate their businesses from this region").

In fact, in In re Halftone Color

Separations Patent Litigation, the panel consolidated a patent infringement suit in
the Central District of California, despite the first-filed action being brought in the
Eastern District of Texas, explaining that
in this docket, the Eastern District of Texas has no
special connection to either the parties or the litigation's
subject matter. This patent litigation could well have
been filed in any of a number of jurisdictions.
Furthermore, current docket conditions in the Eastern
District of Texas counsel against assignment of this MDL
to that district where other appropriate districts are
available to handle the litigation.
547 F. Supp. 2d 1383, 1385 (lP.M.L. 2008) (citations omitted). Thus, even if
pretrial considerations such as claim construction make it desirable for litigation
between S4 and all defendants to proceed in a single forum, as this Court has
already recognized, multidistrict litigation procedures will provide a far more
efficient result than retention of all defendants in the Eastern District of Texas.
E.

The Interest in Having Localized Interests Decided at Home
Strongly Favors Transfer

As the Fifth Circuit has recognized, "[j]ury duty is a burden that ought not to
be imposed upon the people of a community which has no relation to the

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litigation." Volkswagen I, 371 F.3d at 206. This transfer analysis considers "the
'factual connection' that a case has with both the transferee and transferor venues."

ATEN Int'l, 261 F.R.D. at 125.

"Generally, local interests that 'could apply

virtually to any judicial district or division in the United States' are disregarded in
favor of particularized local interests." Id. at 125-26. This Court, applying Fifth
Circuit law, has instructed that if the accused product is sold nationwide but many
of the witnesses and evidence are located in the transferee venue, this factor favors
transfer. See In re TS Tech USA Corp., 551 F.3d 1315, 1321 (Fed. Cir. 2008)
(transferring case where "there is no relevant connection between the actions
giving rise to this case and the Eastern District of Texas except that certain
vehicles containing TS Tech's [accused] headrest assembly have been sold in the
venue," and where the maj ority of the identified witnesses, evidence, and events
were located in the transferee forum or its neighboring state).
As explained above, the District of Utah is home to Fusion-io's
headquarters, and the vast maj ority of witnesses and evidence regarding the
accused products are located in Utah. The District of Utah therefore has a strong
local interest in this case. See In re Hoffmann-La Roche, 587 F.3d 1333, 1336
(Fed. Cir. 2009) (the "local interest ... remains strong because the cause of action
calls into question the work and reputation of several individuals residing in or
near [the transferee] district and who presumably conduct business in that

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community").
By contrast, other than S4' s "principal place of business" in Marshall,
Texas-entitled to no weight because it was established in anticipation of litigation
to manipulate venue-no party or known witness resides in the Eastern District of
Texas. While it is true that Fusion-io has customers in the Eastern District of
Texas, this Court and "[t]he Fifth Circuit ha[ve] unequivocally rejected the
argument that citizens of the venue chosen by the plaintiff have a 'substantial
interest' in adjudicating a case locally because some allegedly infringing products
found their way into the Texas market." Nintendo, 589 F.3d at 1198 (quoting
Volkswagen 11,545 F.3d at 317-18 and TS Tech, 551 F.3d at 1321).

F.

The Court Congestions Factor Weighs in Favor of Transfer

This litigation is likely to be resolved more quickly in the District of Utah.
The District of Utah is faster to disposition than the Eastern District of Texas (8.0
months as compared to 9.6 months in the Eastern District of Texas) and is faster to
trial (22.5 months compared to 24.2 months in the Eastern District of Texas ),z2
Accordingly, this factor also weighs in favor of transfer.
G.

The Remaining Public Interest Factors are Neutral

22

See Administrative Office of the United States Courts, Judicial Business
2010,
Table
C-5,
available
at
http://www.uscourts.gov/uscourts/Statistics/JudiciaIBusiness/201 0/appendices/C05
Sepl0.pdf (Dec. 6, 2011). And even if the pace of litigation were slower in the
District of Utah, that would not justify denial of the motion to transfer.
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The remaining public-interest factors-the familiarity of the forum with the
law and the avoidance of unnecessary problems or conflicts of laws or in the
application of foreign law-are neutral. The Eastern District of Texas and the
District of Utah are equally capable of applying patent law. See TS Tech, 551 F.3d
at 1320 (concluding that because patent claims are governed by federal law, all
district courts are capable of applying patent law to infringement claims).
Additionally, no issues regarding conflicts of law or application of foreign law
exist that affect whether this case should be transferred.

In short, this is "a case featuring most witnesses and evidence closer to the
transferee venue with few or no convenience factors favoring the venue chosen by
the plaintiff, [and accordingly] the trial court should grant a motion to transfer."
Nintendo, 589 F.3d at 1198.

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CONCLUSION

Fusion-io respectfully requests that the Court grant this petition for a writ of
mandamus, vacate the September 17, 2012, order of the United States District
Court for the Eastern District of Texas denying in part Petitioner's motion to sever
and transfer, and remand with instructions to transfer it to the United States District
Court for the District of Utah.
Respectfully submitted,
BAKER BOTTS L.L.P.

Scott artridge
(Prin Ipal Attorney)
___~~~.~ ,~~aellIawes
One Shell Plaza
910 Louisiana
lIouston, Texas 77002
713.229.1750
713.229.7750 (Facsimile)
Attorneys for Petitioners
Fusion-io, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on the 24th day of September 2012, a true and accurate
copy of the foregoing was served by Federal Express on:
Honorable Rodney Gilstrap
Sam B. Hall, Jr. Federal Bldg & U.S. Courthouse
100 East Houston Street
Marshall, TX 75670
David Sochia
McKool Smith
300 Crescent Court, Suite 1500
Dallas, TX 75201
Samuel Franklin Baxter
McKool Smith
104 East Houston S1., Suite 300
Marshall, TX 75670
David M. Stein
Akin Gump Straus Hauer & Feld LLP
633 West Fifth Street, Suite 5000
Los Angeles, CA 90071
Brian K. Erickson
DLA Piper US LLP
401 Congress Ave, Suite 2500
Austin, TX 78701-3799
Maureen F. Browne
Covington & Burling
1201 Pennsylvania Ave, NW
Washington, DC 20004

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Albert Berton Deaver, Jr.
Sutton McAughan Deaver PLLC
3 Riverway, Suite 900
Houston, TX 77056
Jonathan Short
McCarter & English
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102-4056
John V. Picone, III
Hopkins & Carley
P.O. Box 1469
70 S. First Street
San Jose, CA 95113
D. Scott Hemingway
Hemingway & Hansen LLP
1717 Main Street, Suite 2500
Dallas, TX 75201

32

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