Federal Judiciary

j2 II Leaves Spacedock

By Michael C. Smith

j2 Global Communications Inc v. Protus IP Solutions Inc (6-08-cv-00211) (E.D. Tex. Feb. 20, 2009)
Judge: John Love
Well, it may not be as extensive as the refit the starship Enterprise is set to undergo before its return to the big screen in May, but Judge Love still had some work to do on his venue opinion in the j2 Global Communications case before he could send it out of spacedock, certified as VW Tech-compliant. (Do you ever get the feeling I'm looking forward to seeing this movie?)
On December 23, 2008, Judge Love denied the motions to transfer venue filed by Defendants in this case - the first venue order in a patent case out of the Eastern District since In re Volkswagen IIc, and the only one before In re TS Tech came out.  I know this will come as a shock, but on January 8, 2009, the defendants filed Motions for Reconsideration in light of In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008).  So j2 went up on blocks in the judge's front yard (proverbially speaking) for an inspection to see if it had any parts that didn't pass inspection post-TS Tech.
Judge Love went through the standards for motions for reconsideration and for motions to transfer venue, and rejected the defendants' claims on several points, including that his prior finding that the "sources of proof" factor was neutral.  He pointed out that no specific documents had been identified, and that in any event, the locations identified were nationwide, so that no location would be any more convenient than Texas. With respect to parties, Judge Love stayed with his prior finding that this factor was neutral, concluding that "[n]one of these cases presently before the Court involve parties localized in one general geographic area. Unlike TS Tech, there are no venues which would be convenient for both parties in any of these cases."  With respect to nonparty witnesses, the defendants had now identified prior art witnesses in eighteen states and provinces and five nations (seven counting the US and Canada).  Accordingly, Judge Love noted that while transfer to California might be slightly more convenient for the parties, it would be no more convenient for this globe-encompassing mass of nonparty witnesses identified by the defendants, so overall this factor was neutral.
In closing, Judge Love concluded that only one factor weighed slightly in favor of transfer in these cases?the potential need for compulsory process to secure the testimony of four witnesses. But he noted that the defendants had not shown that these four witnesses are of critical importance, or even that their testimony is more important than the witness that this Court would have subpoena power over.  "As more fully explained in this Court?s December 23 Order," he concluded, "this is not a situation where the transferee district has had extensive involvement with the patents and products at issue. Nor are these cases where all of the parties and witnesses are localized in one general geographic area. Compare Network-1 Sec. Solutions, Inc., 433 F. Supp. 2d at 800 (denying transfer where witnesses were located all over the world); with Odom, 2009 WL 279968 at *4 (granting transfer where all of the witnesses were localized in one general geographic area). Based on this analysis, the Court finds that Defendants have failed to show that transfer to the Central District of California would be clearly more convenient for the parties and witnesses. See Volkswagen II, 545 F.3d at 315."

Full post as published by Eastern District of Texas Federal Court Practice on February 24, 2009 (boomark / email).