Deep Green Wireless LLC v. Ooma, Inc.
MEMORANDUM ORDER re 19 MOTION Transfer Venue to the Northern District of California filed by Ooma, Inc... Signed by Magistrate Judge Roy S. Payne on 2/20/2017. (nkl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
DEEP GREEN WIRELESS LLC
Case No. 2:16-CV-0604-JRG-RSP
Before the Court is Defendant Ooma, Inc. (“Ooma”)’s Motion to Transfer Venue to The
Northern District of California Pursuant to 28 U.S.C. § 1404(a) (Dkt. No. 19) (“Ooma’s Motion
to Transfer”), to which Plaintiff Deep Green Wireless LLC (“Deep Green”) filed a Response in
Opposition to (Dkt. No. 24), Ooma filed a Reply to (Dkt. No. 26) and Deep Green filed a SurReply to (Dkt. No. 28). As set forth below, the Court GRANTS Ooma’s Motion to Transfer.
Deep Green is a “Delaware limited liability company.” (Dkt. No. 1 at 1, para. 1). Deep
Green has its office and principal place of business in Miami, Florida. Id.
Ooma is a corporation organized under the laws of the State of Delaware with its
headquarters and principal place of business at 1880 Embarcadero Rd., Palo Alto, California. (Dkt.
No. 19-1 at 2, para. 2). As of July 28, 2016, there were approximately 160 Ooma employees in the
State of California, with the vast majority located in the Palo Alto area. Id. at 2, para. 3.
28 U.S.C. § 1404(a) provides that “[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 or division
where it might have been brought.” 28 U.S.C. § 1404(a) (2006). The first inquiry when analyzing
a case’s eligibility for § 1404(a) transfer is “whether the judicial district to which transfer is sought
would have been a district in which the claim could have been filed.” In re Volkswagen AG, 371
F.3d 201, 203 (5th Cir. 2004) (“Volkswagen I”).
Once that threshold is met, courts analyze both public and private factors relating to the
convenience of parties and witnesses as well as the interests of particular venues in hearing the
case. See Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir. 1963); In re
Nintendo Co., Ltd., 589 F.3d 1194, 1198 (Fed. Cir. 2009); In re TS Tech USA Corp., 551 F.3d
1315, 1319 (Fed. Cir. 2009).
The private 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. Volkswagen I, 371 F.3d at 203; Nintendo, 589 F.3d at 1198; TS Tech, 551 F.3d at
1319. The public factors are: (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 or in the application of foreign law. Volkswagen I, 371 F.3d at 203; Nintendo, 589 F.3d at
1198; TS Tech, 551 F.3d at 1319.
The plaintiff’s choice of venue is not a factor in this analysis. In re Volkswagen of Am.,
Inc., 545 F.3d 304, 314-15 (5th Cir. 2008) (“Volkswagen II”). Rather, the plaintiff’s choice of
venue contributes to the defendant’s burden of proving that the transferee venue is “clearly more
convenient” than the transferor venue. Volkswagen II, 545 F.3d at 315; Nintendo, 589 F.3d at 1200;
TS Tech, 551 F.3d at 1319. Furthermore, though the private and public factors apply to most
transfer cases, “they are not necessarily exhaustive or exclusive,” and no single factor is
dispositive. Volkswagen II, 545 F.3d at 314-15. Timely motions to transfer venue should be
“should [be given] a top priority in the handling of [a case],” and “are to be decided based on ‘the
situation which existed when suit was instituted.’” In re Horseshoe Entm’t, 337 F.3d 429, 433
(5th Cir. 2003); In re EMC Corp., Dkt. No. 2013-M142, 2013 WL 324154 (Fed. Cir. Jan. 29, 2013)
(quoting Hoffman v. Blaski, 363 U.S. 335, 443 (1960)).
Ooma argues that Deep Green has not alleged that it has any connection with the State of
Texas, nor has it alleged that Ooma has any connection with Texas beyond Ooma’s products
potentially being sold in Texas. (Dkt. No. 19 at 1). Ooma also asserts that both the private interest
factors and the public interest factors compel transfer to the Northern District of California
pursuant to 28 U.S.C. §1404(a). Id. Ooma further contends that there are no factors – e.g., no
known relevant documents or witnesses located in Texas, the named inventor on the asserted patent
U.S. Patent No. RE42,714 (“the ’714 patent”) appears to have no ties to Texas and lives in
Massachusetts (Dkt. No. 24 at 1), and the fact that Deep Green, a Florida company, has no ties to
Texas – that actually favor venue in this District. Id. Therefore, Deep Green urges the Court to
transfer this case due to the “stark contrast in relevance, convenience, and fairness between” the
Eastern District of Texas and the Northern District of California. Id.
In response, Ooma contends that Ooma’s Motion to Transfer should be denied because
Ooma has failed to establish that the Northern District of California is “clearly more convenient”
as required by the case law and 28 U.S.C. § 1404(a). (Dkt. No. 24 at 1, 2-3).
The Court will now turn to weighing the private and public interest factors in order to
ascertain whether transfer to the Northern District of California is warranted here.
Private Interest Factors
Relative Ease of Access to Sources of Proof
“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.” In re Genentech, Inc., 566 F.3d 1338, 1345 (Fed. Cir. 2009)
(citation omitted). This factor is still to be weighed, regardless of whether the documents are in
electronic form and can be easily transported. See Kroy IP Holdings, LLC v. Starbucks Corp., Inc.,
No. 2:13-cv-936-JRG, 2014 WL 5343168, at *2 (E.D. Tex. Sept. 30, 2014) (“Despite technological
advances in transportation of electronic documents, physical accessibility to sources of proof
continues to be weighed as a private interest factor…Indeed, the Federal Circuit has indicated that
access to an alleged infringer's proof is important to venue transfer analyses in patent infringement
cases.”). However, this factor may be accorded less weight if the documents are in, or can be
converted into easily-transportable electronic form. See Rembrandt Patent Innovations, LLC v.
Apple, Inc., No. 2:14-cv-0015-JRG, 2014 WL 3835421, at *2 (E.D. Tex. Aug. 1, 2014) (“[G]iven
the ease in the modern era of transferring electronic data from one place to another, this factor
weighs only slightly in [The Court]’s decision.”).
Ooma states that all physical documents and electronic records relating to the research and
development, design, testing, sales, advertising and marketing of their accused products are located
in Palo Alto. (Dkt. No. 19 at 3). Ooma also states that it does not operate any offices nor have any
physical facilities located in Texas, nor does it maintain any company documents in Texas. Id.
Ooma also keeps prototypes of the accused products – which Ooma asserts are certainly relevant
to this lawsuit – at its headquarters in the Northern District of California. (Dkt. No. 26 at 1). Ooma
also states that Deep Green has made no allegations that any documents or records that are relevant
to this case are located in Texas. (Dkt. No. 19 at 3).
In response, Deep Green states that Ooma focuses entirely on its own documents, ignoring
that relevant evidence will come from Deep Green and third parties as well. (Dkt. No. 24 at 4).
Deep Green asserts that its documents are located at the headquarters of its managing member
General Patent Corporation in Suffern, New York. Id. Deep Green also states that the documents
of the attorney who prosecuted the ’714 patent are believed to be located in Atlanta, Georgia. Id.
at 4-5. Because Suffern, New York (1,463 miles from Marshall and 2,908 miles from San
Francisco) and Atlanta, Georgia (635 miles from Marshall and 2,473 miles from San Francisco)
are “substantially closer” to this District than to the Northern District of California, Deep Green
argues that “Ooma is seeking to trade Deep Green’s convenience for its own convenience.” Id. at
5. Deep Green also argues that because Ooma’s documents can be readily converted to electronic
form, the weight given to this factor for transfer should be minimal. Id. Finally, Deep Green asserts
that Ooma’s physical prototypes, which are not the accused devices themselves and which are not
asserted to be prior art, are “extremely unlikely to play any role, let alone a significant role, in the
trial of this matter.” (Dkt. No. 28 at 2). Even if it would be necessary to transport the prototypes to
trial, the accused devices are small consumer devices that can be easily shipped to any location in
the United States (and Ooma regularly sells and ships accused devices to consumers in this
On balance, the Court finds that this factor weighs only slightly in favor of transfer.
Although courts look to the location of the accused infringer’s documents, and all of Ooma’s
documents are in Palo Alto, most of these documents appear to be in electronic form. The same
would apply to Deep Green’s documents in New York and Georgia. As to the location of
prototypes, any burden of transporting such evidence is mitigated by the likelihood that such
exhibits are small consumer devices.
Therefore, the fact that there are both physical documents, records and prototypes, in
addition to electronic documents in Palo Alto weighs only slightly in favor of transfer to the
Northern District of California.
Availability of Compulsory Process to Secure the Attendance of Witnesses
‘This factor will weigh heavily in favor of transfer when more third-party witnesses reside
within the transferee venue than reside in the transferor venue.” In re Apple, Inc., 581 Fed. Appx.
886, 889 (Fed. Cir. 2014), citing Genentech, 566 F.3d at 1345.
Ooma asserts that all of its employees who have relevant knowledge of, experience with,
or decision-making authority relating to the sales, marketing, advertising and promotion of the
accused Ooma products in the United States are located at Ooma’s headquarters in Palo Alto. (Dkt.
No. 19 at 3). In addition, Ooma states that all of its employees with relevant knowledge of technical
issues relating to the accused Ooma products that will be a part of this litigation and subject to
discovery – including research and development, design and testing – are located in Palo Alto or
in the surrounding communities. Id. Ooma has also identified six (6) party witnesses who are
currently Ooma employees resident in Ooma’s Palo Alto headquarters that make all sales,
advertising, promotional, marketing and financial decisions pertaining to the accused Ooma
products. Id. at 3-4. Ooma has further identified seven (7) non-party witnesses who were primarily
responsible for the initial development of the accused Ooma products and are no longer Ooma
employees or were independent contractors. Id.
In response, Deep Green argues that Ooma fails to identify any unwilling third party
witnesses with actual, rather than potential relevant knowledge located in the Northern District
of California. (Dkt. No. 24 at 6). Deep Green contends that despite the seven non-party witnesses
mentioned above, Ooma has not identified any third party witnesses who allegedly would be
unwilling to attend trial in this District if requested; that is, compulsory process is not likely for
them, and as a result, their probative value in the analysis related to compulsory process is thus
limited. Id. at 6-7. Deep Green further argues that there is also simply no evidence that these seven
identified former employees are likely to be called as non-party witnesses at trial in this action
because Ooma lists them as individuals “who potentially have knowledge” relating to various
aspects of Ooma’s business. Id. at 7. Thus, this does not mean that these seven non-party witnesses
have knowledge that is relevant to this action, have relevant knowledge that is not in the possession
of a present Ooma employee or duplicative of an Ooma party witness, or are likely to be called as
witnesses. Id. Deep Green additionally asserts that to the extent that any third party witness
testimony is needed, both this Court and the Northern District of California may command any
such third party witnesses to attend and be subject to being deposed, with the parties allowed to
present such deposition testimony at trial in lieu of live testimony. Id. at 7-8.
Deep Green has also identified at least three party witnesses based in Tyngsboro,
Massachusetts (Philip M. DeLaine, Jr., inventor of the ’714 patent) and Suffern, New York
(Alexander Poltorak and Kathlene Ingham), and a single third party witness based in Atlanta,
Georgia: Mr. Alton Hornsby III, the attorney who prosecuted the application for the ’714 patent,
and who, as Deep Green declares, “is a third party to these proceedings, will be a source of
evidence in this case and will need to be called as a witness at trial.” Id. at 2.
On balance, the Court finds that this factor weighs in favor of transfer. Ooma has identified
seven non-party witnesses who were responsible for the initial development of the accused Ooma
products whereas Deep Green has only identified one non-party witness, the patent attorney who
prosecuted the ‘714 patent, who is also not subject to the subpoena power of this Court – therefore,
he has no bearing on the weighing of this factor. Although Deep Green raises the issue that Ooma’s
seven identified non-party witnesses may be “willing” witnesses that are outside the purview of
compulsory process, the Court finds that their presence is still relevant to the weighing of this
factor and does not alter the analysis under Federal Rule of Civil Procedure 45.
In addition, the Court does not find persuasive Deep Green’s arguments suggesting that the
relevant knowledge of Ooma’s seven non-party witnesses is speculative or duplicative of
testimony of current Ooma employees. Ooma’s seven non-party witnesses had primary
responsibility for the initial development of the accused products, and likely possess unique
knowledge or information regarding the accused products. In fact, Ooma has filed a declaration to
this effect, explaining why these third party witnesses have such unique or special knowledge,
which distinguishes this case from Deep Green’s cited case of Kroy IP, where no declarations were
offered asserting that former employees had non-duplicative testimony. (Dkt. No. 26 at 2).
Therefore, the Court finds that this factor weighs in favor of transfer.
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., 566 F.3d 1338, 1342 (Fed. Cir. 2009). While the Court must
consider the convenience of both the party and non-party witnesses, it is the convenience of nonparty witnesses that is the more important factor and is accorded greater weight in a transfer of
venue analysis. Diamond Grading Techs. v. Am. Gem Soc’y, No. 2:14-cv-1161-JRG-RSP, 2016
WL 1271568 (E.D. Tex. Mar. 31, 2016); Saint Lawrence Comm. LLC v. LG Elecs., Inc., No. 2:14cv-1055-JRG, 2015 WL 7854738 (E.D. Tex. Mar. 20, 2014); see also 15 Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3851 (3d ed. 2012). The inconvenience to
witnesses increases with the additional distance to be traveled, including additional travel time
with overnight stays, an increased probability of meal and lodging expenses, and time away from
their regular employment. Portal Technologies LLC v. Yahoo! Inc., No. 2:11-cv-440-JRG, 2012
WL 3242205, at *4 (quoting Volkswagen I, 371 F.3d at 205). “A district court should [also] assess
the relevance and materiality of the information the witness may provide.” Genentech, 566 at 1343;
see also ThinkTank One Research, LLC v. Energizer Holdings, Inc., No. M-15-0389, 2015 WL
4116888, at *2 (E.D. Tex. July 7, 2015). However, even though there is no requirement that the
movant identify “key witnesses,” or show “that the potential witness has more than relevant and
material information,” the movant must still provide enough information to allow the Court to
make the required assessment. Genentech at 1343-44.
As mentioned previously, Ooma identifies seven non-party witnesses likely to have unique
knowledge relevant to the accused products in this case while Deep Green identifies only one nonparty witness, Mr. Hornsby, the attorney who prosecuted the ’714 patent.
In response, Deep Green identifies material witnesses located in Suffern, New York
(employees that work at its managing member General Patent Corporation), Atlanta, Georgia (Mr.
Hornsby, who prosecuted the asserted ’714 patent), and Tyngsboro, Massachusetts (Mr. DeLaine,
Jr., the named inventor of the ’714 patent), and argues that “all of these locations are substantially
closer to this District than to the Northern District of California.” (Dkt. No. 24 at 8). Thus, Deep
Green accuses Ooma of “seeking again to trade the convenience of Deep Green’s witnesses for the
convenience of its own” and states that because Mr. Hornsby is the only true third-party witness
in this case and based in Atlanta (which is “substantially closer” to this District than to the Northern
District of California), this factor weighs against transfer. Id. at 9.
On balance, the Court finds that this factor weighs in favor of transfer. For the same
reasoning as discussed above, the hardship exacted on Ooma’s seven non-party witnesses having
to travel from Palo Alto to Marshall outweighs the inconvenience that Deep Green’s single nonparty witness (Mr. Hornsby) experiences when traveling from Atlanta to the Northern District of
California. Even if the Court adopts Deep Green’s argument that all seven of Ooma’s non-party
witnesses do not have relevant, non-duplicative knowledge and should not be figured into the
weighing of this factor, or adopts Ooma’s argument that Mr. Hornsby “is not likely to testify at
trial” and “highly unlikely” to be called as a witness, Ooma has still identified six party witnesses
that will incur more hardship in traveling from Palo Alto to Marshall versus Deep Green’s three
identified party witnesses that must travel from Tyngsboro, Massachusetts and Suffern, New York
to the Northern District of California.
All Other Practical Problems that Make Trial of a Case Easy, Expeditious,
Ooma implies that this factor is neutral as to transfer by stating that (i) “this District and
the Northern District of California are equally adept at handling patent infringement lawsuits,” (ii)
both “districts use similar patent-specific case management plans designed to increase litigation
efficiency and reduce litigation delay and expense” and (iii) neither “court has more familiarity
with the asserted ’714 patent than the other.” (Dkt. No. 19 at 11).
In response, Deep Green asserts that there “are practical problems that make trial easier,
more expeditious and less expensive in this District than in the Northern District of California”
and as such, argues that “this factor weighs against transfer.” (Dkt. No. 24 at 9). Specifically, Deep
Green points to the presence of consolidated cases in this District where the asserted ’714 patent
is also at issue, and contends that this Court is already somewhat familiar with the ’714 patent
because Deep Green previously filed three suits in this District relating to the ’714 patent –thus,
this Court should handle all cases relating to the ’714 patent instead of splitting the cases between
two different courts. Id. at 9-10. However, Ooma counters by stating that this argument is
“specious” because all of the cases filed by Deep Green here have settled prior to the P.R. 4-1
disclosures and have not afforded the Court any opportunity to become familiar with the asserted
’714 patent. (Dkt. No. 26 at 5).
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On balance, the Court finds that this factor weighs against transfer. The Court agrees with
Ooma’s assertion that both courts are equally adept in handling patent infringement lawsuits and
also adhere to similar patent-specific case management plans as well as local patent rules.
However, the presence of the claims against Uniden weighs against transfer, but given the
dismissal of those claims, it does not weigh heavily enough to overcome the factors favoring
Public Interest Factors
Administrative Difficulties Flowing From Court Congestion
The “speed with which a case can come to trial and be resolved” may be a factor in the
transfer analysis. Genentech, 566 F.3d at 1347. A proposed transferee court’s “less congested
docket” and “[ability] to resolve this dispute more quickly” is also a factor to be considered. In re
Hoffman-La Roche, 587 F.3d 1333, 1336 (Fed. Cir. 2009). However, this factor is the “most
speculative,” and in situations where “several relevant factors weigh in favor of [or against]
transfer and others are neutral, the speed of the transferee district court should not alone outweigh
all of those other factors.” In re Genentech, 566 F.3d at 1347.
Ooma asserts that this factor is neutral as to transfer and “any difference in court congestion
or the time to trial is especially insignificant here,” since Deep Green “does not practice the patent
and therefore [Deep Green] is not in need of a quick resolution of this case because its position in
the market is threatened.” In re WMS Gaming, Inc., 564 Fed. Appx. 579, 581 (Fed. Cir. 2014).
Thus, Ooma states that this factor is the “most speculative” and “should not alone outweigh [the
other] factors” in this case that greatly weigh in favor of transfer. Genentech, 566 F.3d at 1347.
On balance, the Court finds that this factor is neutral as to transfer, for similar reasons as
outlined above for the fourth private interest factor.
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Local Interest in Having Localized Interests Decided at Home
This factor considers the interest of the locality of the chosen venue in having the case
resolved there. Volkswagen I, 371 F.3d at 205-06. When significant connections exist between a
venue and the events that gave rise to the suit, this factor weighs in favor of that venue. In re
Hoffman-La Roche Inc., 587 F.3d 1333, 1338 (Fed. Cir. 2009).
Ooma argues that the Northern District of California has a substantial connection to and
interest in the adjudication of this case, and also serves as the “center of gravity” where the accused
infringing activity occurred. (Dkt. No. 19 at 11-12); See Aten Int’l Co. Ltd v. Emine Tech. Co.,
Ltd., 261 F.R.D. 112, 126 (E.D. Tex. June 25, 2009) (“Since California is clearly the ‘center of
gravity’ with respect to the witnesses and parties to this case, this [local interest] factor weighs in
favor of transfer.”); see also Paragon Indus., L.P. v. Denver Glass Mach., Inc., No. 3-07CV2183M, 2008 WL 3890495, at *3 (N.D. Tex. Aug. 22, 2008) (“The preferred forum is that which is the
center of gravity of the accused activity…a district court should consider the location of the
product’s development, testing, research, and production” in determining local interest). Ooma
also contends that this District has no local interest in this lawsuit, because Deep Green has not
alleged any meaningful connections between the facts of this lawsuit and here, there are no
witnesses, documents, records, actions (other than potential sales), or facilities of either party in
this District, and the Fifth Circuit has stated “[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. (Dkt. No. 19 at 12). Ooma also asserts that the fact its accused products are sold in this
District is of no moment because their products are sold nationwide. Id. See In re Toa Techs., Inc.,
543 Fed. Appx. 1006, 1009-10 (Fed. Cir. 2013) (nationwide sales of an accused product, including
in this District, do not negate a transferee forums’ “significant interest in trying this case in a venue
in which the accused product was designed”); Hoffman-La Roche, 587 F.3d at 1338.
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In response, Deep Green contends that Ooma’s assertion that the Northern District of
California has a connection to this case because Ooma is based there and directs activities related
to the accused products from there amounts to little more than an argument that the Northern
District of California jury pool would be biased in its favor, an argument that this Court has
routinely rejected in past decisions. (Dkt. No. 24 at 11). Thus, Deep Green argues that this factor
should be viewed as neutral in the transfer analysis because in a patent case, when the accused
products are sold nationwide – as they are here – the alleged injury does not create a substantial
local interest in any particular district. See TS Tech, 551 F.3d at 1321. Deep Green cites previous
instances when this Court rejected similar arguments that a case should be transferred to a forum
alleged to have a greater local interest. 1
Ooma replies by stating that Deep Green stretches this Court’s ruling in the Rembrandt
case into a proposition that the Federal Circuit rejected. See TS Tech, 551 F.3d at 1321. Moreover,
Ooma asserts that Deep Green has not provided any evidence that a jury pool in the Northern
District of California would be biased in favor of Ooma because the local interest factor has
nothing to do with the potential inclinations of the jury pool.
“For example, in Rembrandt, this Court rejected a defendant’s similar arguments that the Northern District
of California “ha[d] a particular local interest in protecting intellectual property rights that stem from
research and development in Silicon Valley,” finding that “[a] predisposition toward one party, independent
of the merits of the case, cannot be the kind of ‘local interest’ cognized by the Federal Courts, and …
giv[ing] this consideration no weight in its analysis.” [2014 WL 3835421, at *3]. Similarly, in Phoenix, this
Court rejected another defendant’s arguments that the Eastern District of Michigan “had a local interest in
[the] case due to [the defendant]’s ‘prominence in the Detroit community and its recognized role as a leader
in the Detroit-based U.S. automotive industry,’” finding that the argument was “staked upon a connection
not to the events that gave rise to this suit as suggested by In re Volkswagen II, but rather a connection of
some residents of the Eastern District of Michigan, financial or otherwise, to [the defendant] itself.” 2015
WL 1431906, at *5. The Court found that “this raise[d] troubling fairness implications and afford[ed] it
little weight.” (Dkt. No. 24 at 12-13).
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As the Fifth Circuit held in Volkswagen I, the “local interest in having localized interests
decided at home weighs heavily in favor of” the district where the events at issue in the case
occurred. 371 F.3d at 206. In this case, Ooma alleges that the accused acts primarily occurred in
the Northern District of California. (Dkt. No. 26 at 5). Ooma also points out that the Supreme
Court has held that “[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.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 50809 (1947). Ooma asserts that Deep Green has alleged no relation between this case and the Eastern
District of Texas, nor is there any local interest in trying the dispute between Deep Green and
Ooma in this District. (Dkt. No. 26 at 5). Thus, Ooma argues that this factor favors transfer.
On balance, the Court finds that this factor weighs slightly in favor of transfer. The fact
that the “center of gravity” of accused infringing activity occurred in the Northern District of
California (which is also where the relevant witnesses are, and also where relevant research,
development, testing, marketing and production pertaining to the accused products occurs) is given
slightly more weight than how just the allegedly infringing accused products are sold in the Eastern
District of Texas. However, the weight given to this factor is less when compared to the other
factors. Therefore, this factor only weighs slightly in favor as to transfer.
Familiarity of the Forum With the Law that Will Govern the Case
Both parties agree that this factor is neutral as to transfer. (Dkt. No. 19 at 13; Dkt. No. 24
at 11, 13; Dkt. No. 28 at 5). The Court also agrees that this factor is neutral as to transfer.
Avoidance of Unnecessary Problems of Conflict of Laws or in the
Application of Foreign Law
Both parties also agree that this factor is neutral as to transfer. (Dkt. No. 19 at 13; Dkt. No.
24 at 11, 13-14; Dkt. No. 28 at 5). The Court also agrees that this factor is neutral as to transfer.
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Considering the foregoing, the Court finds that Ooma has shown that the Northern District
of California is a clearly more convenient forum for this action. As a result, the Court hereby
GRANTS Ooma’s Motion to Transfer (Dkt. No. 19). Therefore, the Clerk of Court is directed to
TRANSFER this case to the United States District Court for the Northern District of California.
SIGNED this 3rd day of January, 2012.
SIGNED this 20th day of February, 2017.
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE
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