Opinion
06 Civ. 5026 (JSR).
July 26, 2006
MEMORANDUM ORDER
Defendant Netgear, Inc., a company organized under Delaware law with its principal place of business in Santa Clara, California, moved to transfer this patent action brought by plaintiff SercoNet, Ltd., a foreign corporation with its principal place of business in Israel, to the Northern District of California, pursuant to 28 U.S.C. § 1404(a). By summary order dated July 19, 2006, the Court granted the motion. This Memorandum Order gives the reasons for that ruling and directs the Clerk to transfer the case.
Section 1404(a) empowers a district court to transfer any civil action to any other federal district court where it might have been brought "[f]or the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). The parties do not dispute that this case could have been brought in the Northern District of California. Thus, it lies within the Court's discretion to determine whether, considering the individual circumstances of this case, the convenience of the parties and "the interest of justice" warrant transfer. See, e.g., In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992).
In determining whether to transfer, courts typically consider at least nine factors: "(1) the convenience of witnesses; (2) the location of relevant documents and relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the forum's familiarity with the governing law; (8) the weight accorded the plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of circumstances." Amersham Pharmacia Biotech v. Perkin-Elmer Corp., 11 F. Supp. 2d 729, 730 (S.D.N.Y. 1998). The factors need not be accorded equal weight, and other factors may be considered. Id. Here, however, nearly all the factors point toward transfer — for this case has much to do with the Northern District of California and almost nothing to do with the Southern District of New York.
The first two factors, i.e., the "convenience of witnesses" and the "location of relevant documents and relative ease of access to sources of proof," are somewhat tied to the fourth factor, i.e., the "locus of the operative facts." Here, the Northern District of California is the locus of many of the operatives facts because Netgear manages the development of the allegedly infringing devices from its home base in Santa Clara, California and its office in Taiwan. See Declaration of Albert Liu dated June 23, 2006 ("Liu Decl.") ¶ 5. As a result, most of the witnesses, documents, and sources of proof concerning the alleged infringement will be found in the Northern District of California. Id. ¶¶ 6-9. Conversely, plaintiff has not identified any relevant witnesses or documents located in the Southern District of New York. Indeed, the only apparent connections between this litigation and the Southern District of New York are the fact that SercoNet uses a New York bank for its American financial operations and occasionally conducts business meetings here, and that Netgear has sold some of its products here. Neither of these incidentals are material to the instant analysis.
As to the third factor, i.e., the convenience of the parties, the Northern District of California will clearly be a more convenient forum for defendant, and because plaintiff is a foreign corporation with no office in New York the Northern District of California will be, at worst, only marginally less convenient for plaintiff.
That plaintiff's officers may sometimes travel to New York for business meetings is immaterial because there is no guarantee any hearings in this matter will coincide with these trips. Likewise, that the trip from Israel to California may be somewhat longer or more expensive than the trip to New York is of limited materiality. Cf., e.g., Bionx Implants, Inc. v. Biomet, Inc., No. 99 Civ 740 (WHP), 1999 U.S. Dist. LEXIS 8031, *10 (S.D.N.Y. May 27, 1999).
The fifth factor, i.e., the availability of process to compel the availability of unwilling witnesses, also tips in favor of transfer: defendant has identified some relevant witnesses who are outside the subpoena power of this Court, but who are not beyond the subpoena power of the Court in the Northern District of California (although it should be noted that the defendant has not provided evidence that any of these witnesses would be unwilling to testify here).
As to the sixth factor, i.e., the parties' relative means, while defendant is doubtless much wealthier than plaintiff, plaintiff has pointed to no reason, other than potential delay, why litigation in the Northern District of California would be significantly more expensive than litigation in the Southern District of New York, and delay here should be minimal because there has not yet been any discovery or other substantial proceedings in this action. For that reason, the ninth factor, involving "trial efficiency," is also neutral here.
In addition to modest additional travel costs, plaintiff argues that it would have to retain new local counsel, but such costs must be minimal, as plaintiff's primary counsel is located in Atlanta and is likely to be admitted pro hac vice in the Northern District of California as he was here.
Plaintiff argues that it will take considerably longer to litigate this action in the Northern District of California, but average caseload statistics for the two forums reveal that the average litigation time in the Southern District of New York is only slightly less than in the Northern District of California. It is true that this particular judge usually places cases like this on a track that will bring them to trial in 6 months or so, but variations in individual judges' practices doubtless exist in the Northern District of California as well.
The seventh factor, i.e., the forums' respective familiarity with the governing law, is of no significance in the context of this case because both courts are equally capable of hearing this patent action grounded in federal law.
In the end, there is only one factor that cuts against transfer, to wit, the eighth factor, i.e., "the weight accorded the plaintiff's choice of forum." This factor is often accorded special weight: "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir. 1950). However, where the plaintiff itself has its principal base elsewhere (here, in Israel), less weight is accorded this factor.See, e.g., Herbert v. Elec. Arts, Inc., 325 F. Supp. 2d 282, 291 (S.D.N.Y. 2004). In any event, where, as here, the other factors all favor transfer and the connection between the case and the Southern District of New York is virtually nonexistent, plaintiff's choice of forum is insufficient to prevent transfer.
Accordingly, for the foregoing reasons, the Court reconfirms its order of July 19, 2006 granting defendant's motion to transfer and hereby directs the Clerk of the Court to transfer this case to the Northern District of California.
SO ORDERED.