DietGoal Innovations LLC v. Wegmans Food Markets, Inc.
MEMORANDUM OPINION AND ORDER denying motion to transfer. Signed by District Judge Raymond A. Jackson on 11/19/13. (tbro)
IN THE UNITED STATES DISTRICT COU
FOR THE EASTERN DISTRICT OF VIRGIN!
DIETGOAL INNOVATIONS LLC,
...NORFQI K. VA
CIVIL ACTION NO. 2:13cvl54
WEGMANS FOOD MARKETS, INC.,
DIETGOAL INNOVATIONS LLC,
CIVIL ACTION NO. 2:13cv252
DIETGOAL INNOVATIONS LLC,
CIVIL ACTION NO. 2:13cv271
DIETGOAL INNOVATIONS LLC,
HEARST COMMUNICATIONS, INC.,
d/b/a SEVENTEEN MAGAZINE,
CIVIL ACTION NO. 2:13cv390
DIETGOAL INNOVATIONS LLC,
CIVIL ACTION NO. 2:13cv401
DUNKIN' BRANDS GROUP, INC.,
DIETGOAL INNOVATIONS LLC,
CIVIL ACTION NO. 2:13cv430
DOMINO'S PIZZA, INC.,
DIETGOAL INNOVATIONS LLC,
CIVIL ACTION NO. 2:13cv515
BRAVO MEDIA LLC,
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants Time, Inc. ("Time"), Meredith Corporation
("Meredith"), Hearst Communications, Inc. ("Hearst"), and Bravo Media LLC ("Bravo")'s
Motions to Transfer to the Southern District of New York. All four motions are fully briefed and
ripe for disposition. For the reasons stated below, Time, Meredith, Hearst, and Bravo's Motions
to Transfer are GRANTED, and it is ORDERED that these cases be transferred to the Southern
District of New York pursuant to 28 U.S.C. § 1404(a).
Also before the Court are Defendant Wegmans Food Markets, Inc.'s ("Wegmans")
Motion to Transfer to the Western District of New York, Defendant Dunkin' Brands Group,
Inc.'s ("Dunkin'") Motion to Transfer to the District of Massachusetts, and Defendant Domino's
Pizza, Inc.'s ("Domino's") Motion to Transfer to the Eastern District of Michigan. Those three
motions are also fully briefed and ripe for disposition. For the reasons stated herein, Wegmans,
Dunkin', and Domino's Motions to Transfer are DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff DietGoal Innovations LLC ("DietGoal") initially filed all of these cases in the
United States District Court for Eastern District of Texas. DietGoal named Dunkin' and
Wegmans as two of 26 defendants in a complaint filed on September 15,2011, which DietGoal
amended to add an additional seventeen defendants, including Hearst, on October 7, 2011, and
amended for a second time to add seven more defendants, including Domino's, on November 3,
2011. A Magistrate Judge granted those defendants' motions to sever the claims against them
into separate suits in August, 2012. DietGoal also filed individual complaints against Bravo,
Meredith, and Time on June 13,2012. All complaints alleged infringement of a single patent
held by DietGoal. According to the Motion to Transfer that DietGoal recently filed with the
United States Judicial Panel on Multidistrict Litigation, there are currently 24 pending suits
against 38 defendants in four different districts concerning the patent. ECF No. 1, MDL No.
Time, Meredith, Hearst, and Bravo filed motions to change venue to the Southern District
of New York, the same district that is the subject of the instant transfer motions. Wegmans also
moved to transfer to the Southern District of New York (although it now requests transfer to the
Western District of New York). Domino's and Dunkin' moved to transfer venue to the Eastern
District of Michigan and the District of Massachusetts, respectively, the same districts to which
they now seek transfer. Wegmans, Hearst, and Domino's filed their motions on January 13,
2012; Dunkin' filed its motion on August 7, 2012; Time filed its motion on August 8, 2012;
Meredith filed its motion on September 14, 2012; and Bravo filed its motion on September 17,
2012. They sought transfer pursuant to 28 U.S.C. § 1404(a), which allows the transfer of a case
to a more convenient venue: "For 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 or to any district or division to which all parties have consented."
DietGoal opposed all of the motions, contending that the cases should remain in the Eastern
District of Texas. None of the parties suggested the Eastern Districtof Virginia as a possible
On January 15, 2013, the cases were referred or assigned to the Magistrate Judge who
eventually transferred them to the Eastern District ofVirginia. On February 26,2013, he ordered
DietGoal "to file a supplemental brief of no more than 2 pages ... that addresses whetherthis
patentinfringement action could have been brought in the Eastern District ofVirginia" in each of
the seven cases except for Wegmans. Defendants were also permitted to file responsive
1The parties in one case have reached a settlement, DietGoal Innovations LLC v. Scripps Network, LLC
d/b/aFood com, No. I:13cv465. The other case, in which no motion to transfer is pending, is DietGoal Innovations
LLCv. Sweetgreen, Inc., No. 2:13cv400.
supplemental briefs. While all parties agreed in these supplemental briefings that personal
jurisdiction was proper in the Eastern District of Virginia, all continued to maintain that the
original districts they argued for were the most convenient venues. Nonetheless, the Magistrate
Judge ordered all cases transferred to the Eastern District of Virginia: Wegmans on February 28,
2013, Time on March 25, 2013, Bravo on April 9, 2013, Meredith on April 15, 2013, Hearst on
June 20, 2013, Dunkin' on July 2, 2013, and Domino's on July 10, 2013. He relied primarily on
the inventor's location in Alexandria, Virginia, and the prosecuting attorney's location in
None of the defendants filed objections to the Magistrate Judge's order pursuant to
Federal Rule of Civil Procedure 72(a), which provides that for non-dispositive matters
adjudicated by a magistrate judge, "[a] party may serve and file objections to the order within 14
days." But all of the defendants filed new motions to transfer venue after their cases were
transferred to this district. Wegmans filed its motion on March 29, 2013; Time filed its motion
on April 29,2013; Bravo filed its motion on May 2,2013; Meredith filed its motion on May 20,
2013; Dunkin' filed its motion on July 30, 2013; Hearst filed its motion on August 2, 2013; and
Domino's filed its motion on August 20, 2013. DietGoal filed Oppositions to those motions on
April 12,2103, May 22, 2013, May 13, 2013, June 3,2013, August 13,2013, August 16,2103,
and September 3,2013, respectively. The Defendants also filed Replies to DietGoal's
A. Standard of Review
DietGoal's primary arguments in opposition to the Defendant's motions do not concern
the relative convenience of the venues suggested by the Defendants. Rather, DietGoal maintains
that the motions to transfer to that district are barred by Rule 72(a) of the Federal Rules of Civil
Procedure, because Defendants failed to timely object to the Magistrate Judge's Order, and by
the law of the case doctrine, which discourages the re-opening of matters previously decided in
the same case. The Court will address each argument in turn.
1. Rule 72(a)
Rule 72(a) of the Federal Rules of Civil Procedure provides:
Nondispositive Matters. When a pretrial matter not dispositive of a party's claim or
defense is referred to a magistrate judge to hear and decide, the magistrate judge must
promptly conduct the required proceedings and, when appropriate, issue a written order
stating the decision. A party may serve and file objections to the order within 14 days
after being served with a copy. A party may not assign as error a defect in the order not
timely objected to. The district judge in the case must consider timely objections and
modify or set aside any part of the order that is clearly erroneous or is contrary to law.
Under that Rule, a Magistrate Judge's ruling on a "nondispositive matter" must be objected to
within fourteen days. Further, the district court must set it aside to the extent it is clearly
erroneous. See also 28 U.S.C. §636(b)(l)(A) ("A [district]judge ... may reconsider any pretrial
matter ... where it has been shown that the magistrate judge's order is clearly erroneous or
contrary to law."). The United States Court of Appeals for the Fourth Circuit has yet to address
whether venue transfer motions are considered "nondispositive," in which case they would be
governed by the Rule just cited, or "dispositive," in which case they would be subject to a less
deferential standard of review pursuant to Rule 72(b). Bennett v. CSXTransp., Inc., 2010 WL
4646250, at *2 (D.S.C. Sept. 30, 2010). But none of the defendants here argue that a venue
transfer motion is dispositive, and the Court agrees with the district courts that routinely treat
such motions as nondispositive. E.g., Hitachi Cable Am., Inc. v. Wines, 1986 WL 2135 at *2
(D.N.J. Feb. 14, 1986) ("[A]n order transferring venue ... affects only the forum for the action,
rather than its disposition ....").
DietGoal contends that because Defendants did not object to the Magistrate Judge's
transfer orders within fourteen days as required by Rule 72(a), their renewed transfer motions
cannot be considered. Defendants respond that they should not be subject to the Rule at all
because any objection would have been futile, and because the Magistrate Judge decided a
different issue than the one currently presented—namely, the relative convenience of the Eastern
District ofVirginia rather than of the venues now proposed by the defendants. Neither argument
is persuasive. Defendants cite no authority to support their argument that there is an unwritten
exception to the requirement to object under Rule 72(a) when a party believes that it would be
futile to do so. Even if there were such an exception, Defendants have not adequately explained
why an objection to the Magistrate Judge's choice of venue would have been in vain. They also
fail to point to any precedent supporting their contention that they were not required to object
because the Magistrate Judge selected a venue that neither party had requested. Rule 72(a)
simply requires parties to object to "matters" decided by the Magistrate Judge, and there is no
apparent reason why the Rule should be read to exclude a matter raised and briefed by the parties
but resolved in a different way than proposed by either party. In any event, the Magistrate Judge
did considerthe relative convenience of the venues proposed by the defendants, concludingthat
"the Eastern District ofVirginia is a clearly more convenient venue that has superior connections
to this case as compared to either venue proposed by the parties." DietGoal Innovations LLC v.
Meredith Corp., No. 2:12cv332, ECF No. 63 (E.D. Tex. Apr. 15, 2013).
Defendants' motions are replete with reasons why the Magistrate Judge decided the
matter of venue incorrectly, and why he should have transferred the cases to the venue the parties
originally requested (or, in the case of Wegmans, to the venue they now request). In other
words, defendants ask the Court to re-address the same issue decided by the Magistrate Judge.
Accordingly, the Court will construe the Defendants' motions as untimely objections to the
Magistrate Judge's orders to transfer venue, and therefore subject to Rule 72(a). See, e.g., J.C
Posey Estate ex rel. Posey v. Centennial Health Care Properties Corp., 78 F. Supp. 2d 554, 556
&n.6(N.D. Miss. 1999).
Nonetheless, that Defendants' motions are in effect untimely objections does not mean
that the matter is at an end. DietGoal is correct that the failure to timely object results in waiver,
as the Rule provides that "[a] party may not assign as error a defect in the order not timely
objected to." See, e.g., Giganti v. Gen-XStrategies, Inc., 222 F.R.D. 299, 304 n. 8 (E.D. Va.
2004). See also Farmer v. McBride, 177 F. App'x 327, 331 (4th Cir. 2006). But that does not
mean that the Court is without power to reconsider the issue and to set it aside to the extent it is
clearly erroneous. Although district courts frequently decline to address matters that were not
timely objected to, the Court is not aware of any authority holding that a district court is without
power to address an untimely objection. To the contrary, the Seventh Circuit has concluded that
"the district judge remains the final authority in the case, and he may reconsider sua sponte any
matter determined by a magistrate judge
Thus, although the district judge must make an
independent determination of a magistrate judge's order upon objection, he is not precluded from
reviewing a magistrate judge's order to which a party did not object." Schur v. L.A. Weight Loss
Ctrs., Inc., 577 F.3d 752, 760-61 (7th Cir. 2009). Similarly, the Tenth Circuit has observed that
"a party's failure to seek timely review does not strip a district court of its power to revisit the
issue." Allen v. Sybase, Inc., 468 F.3d 642, 658 (10th Cir. 2006).
As the Advisory Committee Notes to Rule 72 observe, the governing statute fails to set
forth any "specific procedures or timetables for raising objections to the magistrate's ruling on
nondispositive matters." Waiver rules are designed to preserve judicial economy, to prevent a
litigant from "sandbagging" the court, Thomas v. Arn, 474 U.S. 140,147-48 (1985), and to
prevent unfair prejudiceto the litigants. Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020,1035
(9th Cir. 2003). In light of those concerns, there is little reason to hold Defendants to their
waiver where no action has been taken in the cases since their transfer to this district, and where
DietGoal continues to litigate the issue of the proper forum for these suits before a Multidistrict
Litigation Panel. Accordingly, the Court will review the Magistrate Judge's transfer orders
under Rule 72(a)'s clear error standard. Under that deferential standard, the Court may not
reverse "simply because it would have decided the case differently. Rather, a reviewing court
must ask whether... it is left with the definite and firm conviction that a mistake has been
committed." UnitedStates v. Wooden, 693 F.3d 440, 451 (4th Cir. 2012) (quotation and
2. Law of the Case
Construing Defendants' motions as untimely objections to the Magistrate Judge's orders
disposes of DietGoal's further contention that the law of the case doctrine precludes further
review of the motions. That doctrine "restricts a court to legal decisions it has made on the same
issues in the same case," MacDonaldv. Moose, 710 F.3d 154,161 n. 10 (4th Cir. 2013). When
the doctrine applies, it must be followed in subsequent proceedings in the same case unless,
among other exceptions, "the prior decision was clearly erroneous and would work manifest
injustice." Sejman v. Warner-Lambert Co., Inc., 845 F.2d 66, 69 (4th Cir. 1988). It is "neither
absolute nor inflexible; it is a rule of discretion rather than a jurisdictional requirement." Walker
v. S. W.LF.T. SCRL, 517 F. Supp. 2d 801, 807-08 (E.D. Va. 2007).
But "the law of the case doctrine does not prevent a district judge from implicitly
reconsidering a magistrate judge's earlier ruling in the same case." Lettieri v. Equant Inc., 478
F.3d 640, 652 (4th Cir. 2007). See also In re Air Crash at Belle Harbor, New York on November
12,2001,2003 WL 124677 (S.D.N.Y. Jan. 15, 2003). If a magistrate judge's order became law
of the case in district court, then the precedents discussed above providing for the district court's
review of a magistrate's order—even one untimely objected to—would have little reason to exist
or be applied. Therefore, although the Court is "mindful of the Supreme Court's dicta in
Christianson v. Colt Industries Operating Corp., 486 U.S. 800 (1988)," Am. Canoe Ass'n v.
Murphy Farms, Inc., 326 F.3d 505, 516 (4th Cir. 2003), that "transferee courts that feel entirely
free to revisit transfer decisions of a coordinate court threaten to send litigants into a vicious
circle of litigation," Christianson, 486 U.S. at 816, the Court declines to conclude that the
Magistrate Judge's transfer orders constitute law of the case.
1. Motions to transfer to the Southern District of New York
The Magistrate Judge transferred the Meredith, Time, Bravo, and Hearst cases to this
district under 28 U.S.C. § 1404(a), which provides:
For the convenience of parties and witnesses, in the interest ofjustice, a district court
may transfer any civil action to any other district or division where it might have been
brought or to any district or division to which all parties have consented.
As he noted, the parties do not dispute that the threshold requirement of a district where the case
might have been brought is satisfied as to the Eastern District of Texas, the Eastern District of
Virginia, and the Southern District of New York. DietGoal Innovations LLC v. Time, Inc., No.
2:12-cv-337, ECF No. 61, at 3 (E.D. Tex. March 25, 2013). Therefore, the sole question is
whether it was clear error to find that transfer to the Eastern District of Virginia was warranted
"[f|or the convenience of parties and witnesses" and "in the interest ofjustice." As "[t]he party
seeking transfer," the Defendants "bea[r] the burden of proving that the circumstances ofthe
case are strongly in favor of transfer." Heinz Kettler GMBH & Co. v. Razor USA, LLC, 750 F.
Supp. 2d 660,667 (E.D. Va. 2010) (quotation omitted). A decision to transfer is one "committed
to the sound discretion of the district court." Id.
The Court will first consider "the convenience of parties and witnesses," which courts
often group under the heading of "private factors." As indicated by the plain language of the
statute, one relevant factor is the convenience of the parties, and that factor weighs heavily in
favor of the Southern District of New York. First, all of the parties reside there. Although
DietGoal initially asserted in its complaints that it is a Texas LLC "based" in Texas, e.g.,
DietGoal Innovations LLC v. Arby's Restaurant Group, Inc., et al, No. 2:1 lcv418, ECF No. 1, U
1 (E.D. Tex. Sept. 15,2011), it has since made clear that its principal place of business is in New
York City. In a filing in another case concerning the same patent pending in the Eastern District
of Texas, DietGoal asserted that "the undisputed fact is that DietGoal's operations are directed,
controlled, and coordinated by [its two managing members] from their residences in New York
City" and that "DietGoal's principal place of business is located in New York City." For that
reason, it asserted that "any deposition of DietGoal should occur in New York City." DietGoal
Innovations LLC v. Tyson Foods, Inc., No. 2:12-cv-338, ECF No. 67 (E.D. Tex. Apr. 17, 2013).
All four defendants reside in the Southern District of New York as well. Time's principal
place of business is in New York City, and its documents and witnesses are located there. Time
Mem. in Supp. of Mot. to Dismiss 11. Hearst's principal place of business is also in the
Southern District of New York. Hearst Mem. in Supp. of Mot. to Dismiss. "Meredith's
publishing and website business is based in the Southern District ofNew York, including the two
managers with ultimate responsibility for the accused websites." Meredith Mem. in Supp. of
Mot. to Dismiss 9. And Bravo's principal place of business is also in the Southern District of
New York, where it "manages the operation, marketing, and financial performance" of the
accused website. Bravo Mem. in Supp. of Mot. to Dismiss 8.
The location of the defendants is particularly relevant in these cases because in a patent
infringement case, the preferred forum is frequently "the center of the accused activity."
Acterna, LLC v. Adtech, Inc., 129 F. Supp. 2d 936, 939 (E.D. Va. 2001) (quotation omitted). See
also, e.g., Amini Innovation Corp. v. Bank & Estate Liquidators, Inc., 512 F. Supp. 2d 1039,
1044 (S.D. Tex. 2007) ("In a patent infringement action, the preferred forum is that which is the
center of gravity of the accused activity." (quotation omitted)); Samsung SDI Co., Ltd. v.
Matsushita Elec. Indus. Co., 524 F. Supp. 2d 628, 632 (W.D. Penn. 2006) (same); LG Elecs.,
Inc. v. First Int'l Computer, Inc., 138 F. Supp. 2d 574, 590 (D.N.J. 2001) ("The district court
ought to be as close as possible to the area of the infringing device and the hub of activity
centered around its production.").
That consideration is closely linked with another factor that weighs heavily in the
analysis of the private factors: the convenience of the witnesses. See In re Genentech, Inc., 566
F.3d 1388,1342 (Fed. Cir. 2009) ("The convenience of the witnesses is probably the single most
important factor in a transfer analysis." (quoting Neil Bros. Ltd. v. World Wide Lines, Inc., 425 F.
Supp. 2d 325, 329 (EDNY 2006)). Because the alleged infringers are all based in the Southern
District ofNew York, most of the witnesses and documents likely to be relevant in a patent
infringement action are also located there. DietGoal accuses Time of infringing DietGoal's
patent through the operation of a website with a "computerized meal planning interface." Time
identifies several employees with technical, marketing, or financial information regarding that
website, all of whom are based in New York City. Time also identifies a number of former
employees who initially developed the accused website, who all work in New York City. Time
Mem. in Supp. of Mot. to Dismiss. DietGoal similarly alleges that Meredith infringed its patent
through an Internet computerized meal planning interface. Meredith asserts that "the two
managers with ultimate responsibility for the accused websites" are based in the Southern
District of New York. Other employee witnesses are in Vermont and Seattle, and at least two of
them frequently travel to Meredith's New York office as part of their job responsibilities.
Finally, most of the relevant documents are located in New York, Vermont, and Seattle.
Meredith Mem. in Supp. of Mot. to Dismiss 9.
The analysis is much the same for the other two defendants. DietGoal's claim against
Hearst centers on another computerized meal planning interface on one of its websites. Hearst
states that "all... witnesses and documents relevant to the development, operation, marketing,
and financial performance of the 'meal maker' tool (including a former employee [who
contributed to the technological development of the tool] who is now a non-party witness are
located in the Southern District of New York." Hearst Mem. in Supp. of Mot. to Dismiss 7.
Finally, "all Bravo witnesses and documents relevant to the development, operation, marketing,
and financial performance of the accused Bravo website at issue in the suit are located in the
Southern District of New York." This includes the third party developer of the relevant website.
Bravo Mem. in Supp. of Mot. to Dismiss 8-9.
Despite the presence of both parties and a substantial number of witnesses and documents
pertaining to the alleged infringing websites in the Southern District of New York, the
Magistrate Judge gave overwhelming weight in its transfer analysis to two of DietGoal's
witnesses. Dr. Oliver Alabaster is the inventor of the asserted patent, and the founder and chief
executive officer of the third party entity that practices the asserted patent, and he lives in
Alexandria, Virginia, which is within the Eastern District of Virginia (although nearly 200 miles
from Norfolk, Virginia). But the Magistrate Judge did not consider (at least explicitly) Dr.
Alabaster's "agreement that New York courts would have exclusive jurisdiction over issues
arising out [of] his patent license to DietGoal" and that Dr. Alabaster "consented] to New
York." Dietgoal Opp'n to Time Inc. Mot. to Transfer 10-11. While it is true that such an
agreement does not necessarily mean that it would be more convenient for him to travel to New
York City, his agreement to the venue for litigation against DietGoal does indicate that the
Southern District of New York is not as inconvenient for him as it might initially seem based
purely on his residence. The Magistrate Judge also gave weight to the residence of the patent
prosecution attorney in Maryland, but he "does not have any documents to produce regarding
this case," id, althoughthe Court acknowledges that any requirement to testify would likely be
more convenient for him in the Eastern District of Virginia.
Two other convenience factors the Magistrate Judge considered merit brief mention.
First, after transferring the initial case to this district, the Magistrate Judge then noted in later
transfer orders that other DietGoal cases were pending in the district and none were pending in
the Southern Districtof New York, presumably a factor that weighs in favor ofjudicial economy
and DietGoal's convenience. (This consideration is also often considered a "public factor." See
Charles A. Wright & Arthur R. Miller, et al.,\5 Fed. Prac. & Proc. Juris. § 3854 (3d ed.).) But
four defendants have asked for transfer to the Southern District of New York, so if the Court
grantstheir transfer motions, there would be multiple cases pending there. Further, as noted
above, there are already multiple DietGoal cases pending in several different districts. Second,
the Magistrate Judge gave no independent weight to the plaintiffs choice of forum, a factor that
courts have "held in varying degrees of esteem." Charles A. Wright & Arthur R. Miller, et al,
15 Fed. Prac. & Proc. Juris. § 3848 (3d ed.). Even if the Court were to accord DietGoal's choice
of the Eastern District of Texas some weight, it is the only factor so far that weighs iti favor of
that venue—and DietGoal does not here request transfer back to that district.
The statute also requires consideration of "the interest ofjustice," which couits often term
"the public factors." It "encompasses public interest factors aimed at systemic integrity and
fairness," such as "docket congestion, interest in having local controversies decided at home,
knowledge of applicable law, unfairness in burdening forum citizens with jury duty, and interest
in avoiding unnecessary conflicts of law." Jaffe v. LSI Corp., 874 F. Supp. 2d 499,5 05 (E.D.
Va. 2012) (quotations omitted). The only factor that the Magistrate Judge considered weighty in
that analysis was the interest in having local controversies decided at home. In the Bravo and
Time cases, the Magistrate Judge found that this factor weighed in favor of both the Eastern
District ofVirginia and the Southern District of New York, in light of the inventor's presence in
Virginia but DietGoal's and the defendants' presence in New York. Inexplicably, in the
Meredith and Hearst cases, he focused exclusively on "a strong localized interest" in the case in
the Eastern District of Virginia as the situs of the inventive activity and practicing entity, and
concluded that the factor weighed only in favor of the Eastern District of Virginia. Ihe Court
disagrees that the presence of the inventor in the Eastern District of Virginia is a sufficiently
strong localized interest to warrant transfer of the Meredith and Hearst cases to this district.
Instead, the Court agrees with the Magistrate Judge's order in the Bravo and Time cases, and
finds that the interest in localized controversies weighs in favor of both the EasternEpistrict of
Virginia and the Southern District of New York.
The only other interest ofjustice factor for which the parties present evidence! is docket
congestion, a factor the Magistrate Judge did not consider. DietGoal attached an exhibit showing
that the time from filing to disposition in civil cases is significantly longer in the Southern
District ofNew York than in the Eastern District of Virginia. E.g., DietGoal Opp. to Meredith
Mot. to Transfer, Ex. E. While the Court finds that this factor does weigh in favor of the Eastern
District of Virginia, it gives the factor less weight than the considerations previously discussed.
See PragmatusAV, LLC v. Facebook, Inc., 769 F. Supp. 2d 991, 997 (E.D. Va. 2011) (discussing
the court's legitimate concern with "being swamped with patent infringement cases" given its
reputation as the "rocket docket").
In sum, although the inventor of the asserted patent does appear to be the mo&t important
of DietGoal's witnesses, it was clear error to find that that consideration alone, especially in light
of his consent to litigation in New York, outweighs the presence of DietGoal, the Defendants,
and almost all of the Defendants' witnesses in the Southern District of New York. For that
reason, Time, Meredith, Bravo, and Hearst's Motions to Transfer are GRANTED ard it is
ORDERED that these cases be transferred to the Southern District of New York.
2. Motions to Transfer to the Western District of New York, the District of
Massachusetts, and the Eastern District of Michigan
In the Eastern District of Texas, Wegmans sought transfer to the Southern District of
New York, Dunkin' requested transfer to the District of Massachusetts, and Domino s moved to
transfer to the Eastern District of Michigan. Dunkin' and Domino's now seek transfer to those
same districts, but Wegmans seeks transfer to a new district, the Western District of New York,
Because Wegmans seeks transfer to a different district than it originally argued for transfer to
before the Magistrate Judge, the Court finds that Wegmans has waived its ability to pbject to the
Magistrate Judge's decision on the basis that the case should have been transferred to the
Western District of New York. Nonetheless, because the Court ultimately concluded that all
motions should be denied, the Court will still address the merits of Wegmans currenf transfer
As with the motions to transfer to the Southern District of New York, there is no dispute
that the cases could have been brought in the districts where the defendants now seek transfer.
The sole question concerns the relative convenience of the districts for witnesses and parties and
the "interest ofjustice" under § 1404(a). Unlike the motions to transfer to the Southern District
of New York, where the convenience of the parties weighed overwhelmingly in favor of one
district, here the defendants and DietGoal reside in different districts. While DietGoal's
principal place of business is, by its own admission, in the Southern District of New York,
Dunkin' is headquartered in Massachusetts, Domino's resides in Ann Arbor, Michigan, and
Wegmans is headquartered in Rochester, New York. The convenience of the parties therefore
weighs in favor of both the Defendants' home districts and the Southern District of New York.
As to the convenience of the witnesses, DietGoal's most relevant witness lives in
Alexandria, Virginia, but, as discussed above, he "consented to the jurisdiction of New York
County courts in connection with any dispute regarding his sale of his patent to Die .Goal."
DietGoal Opp. to Wegmans Mot. to Transfer, at 11. DietGoal's other witnesses, who seem
likely to have little relevant information, reside in New York City and Maryland. E.g., DietGoal
Innovations LLC v. Domino's Pizza, Inc., No. 2:12cv561, ECF No. 55 (E.D. Tex. July 10,2013).
Dunkin's "employees involved in the design, development, operation and maintenance of the
accused system" are located in Massachusetts. DietGoal Innovations LLC v. Dunkin' Brands
Group, Inc., No. 2:12cv566, ECF No. 50, at 3-4 (E.D. Tex. July 2, 2013). Domino's "employees
involved in the design, development, operation, and maintenance of the accused systems are
located in Ann Arbor, [Michigan]." DietGoal Innovations LLC v. Domino's Pizza, Inc., No.
2:12cv561, ECF No. 55, at 3 (E.D. Tex. July 10, 2013). Finally, the employees responsible for
Wegmans' accused website are located in Rochester, New York, as is the studio hired to build
the website. DietGoal Innovations LLC v. Wegmans Food Markets, Inc., No. 2:12cv562, ECF
No. 43 (E.D. Tex. Feb. 28, 2013). The convenience of the witnesses is therefore split between
the Defendants' home districts and the Eastern District of Virginia.
Finally, as with the other motions to transfer, Plaintiffs initial choice of venue was the
Eastern District of Texas, the only factor that weighs in favor of that venue. As to the
consideration of splitting multiple similar cases across different districts, this factor \ weighs
slightly in favor of keeping the cases in the Eastern District ofVirginia. The defend* nt in one of
the DietGoal cases in this district has not filed a motion to transfer, see n. 1, supra, and if these
three motions to transfer were granted, each would be the only such case in its respective district.
The Court will turn finally to the interest ofjustice factor. As to the interest in deciding
local disputes at home and not overburdening local juries with cases to which they have little
connection, the Court finds that this factor is split between Defendants' home districts,
DietGoal's principal place of business in the Southern District of New York, and the situs ofthe
inventive activity in the Eastern District of Virginia. DietGoal presents no court congestion
information as to the Western District of New York, but it has shown that the Distric; of
Massachusetts and the Eastern District of Michigan have a somewhat lengthier filing to
disposition and filing to trial time frame in civil cases than the Eastern District of Virginia.
DietGoal Opp. to Dunkin' Mot. to Transfer, Ex. C; DietGoal Opp. to Domino's Mot to Transfer,
Ex. B. This consideration therefore points to keeping those two cases in the Eastern District of
Virginia, although the Court gives this factor little weight for the reasons discussed above.
Were this Court to confront these motions de novo, it might very well be incl ined to
conclude that transfer is appropriate in light of the concentration in Defendants' home districts of
witnesses pertaining to the infringement. But the relevant considerations as a whole do not so
strongly point towards transfer as to render the Magistrate Judge's Order clearly erroneous. For
that reasons, Defendant Wegmans, Domino's, and Dunkin's Motions to Transfer are
Because the Magistrate Judge's orders to transfer the Hearst, Meredith, Time
cases to the Eastern District of Virginia was clear error, those Defendants' Motions to
are GRANTED, and it is ORDERED that the cases are transferred to the Southern District of
New York. The Clerk shall transfer those case files to the Clerk for the Southern District of New
York. Defendants Dunkin', Domino's, and Wegmans' Motions to Transfer are DENIED.
The Court DIRECTS the Clerk to send a copy of this Order to the parties.
IT IS SO ORDERED.
United States Distnct Judge
November /9, 2013
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