Judge Amy Totenberg granted the motion brought by Noction, Inc. (“Noction”) to transfer the patent infringement action brought by Internap Corporation (“Internap”) to the Northern District of California.

The action was based on alleged infringement of one network routing technology patent owned by Internap and potential infringement of a second patent.  Both plaintiff and defendant are Delaware corporations with offices in the Northern District of California (the location of defendant’s principal place of business).  Internap’s principal place of business is in the Northern District of Georgia.

Judge Totenberg considered the nine factors set forth in Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005), reprinted below:

(1)  The convenience of the witnesses;  (2)  the location of relevant documents and the relative ease of access to sources of proof;  (3)  the convenience of the parties; (4)  the locus of operative facts;  (5)  the availability of process to compel the attendance of unwilling witnesses;  (6)  the relative means of the parties;  (7)  a forum’s familiarity with the governing law;  (8)  the weight accorded a plaintiff’s choice of forum; and  (9) trial efficiency and the interests of justice, based on the totality of circumstances.

Judge Totenberg went on to note two ancillary rules of application: considerable discretion is afforded the trial judge and the choice of forum should not be disturbed unless the factors clearly outweighs the plaintiff’s choice of forum.

Judge Totenberg then did an analysis of each of the nine factors, detailing the pertinence of each factor to her decision and noting variations in consideration for each factor.  Her exercise is informative to other future litigants facing the prospect of bringing or defending a transfer motion.

For example, the Court noted that the convenience of witnesses is a most important factor and that the focus should be on key witnesses (party witnesses, customers, experts).  In considering those witnesses, non-party witnesses are less subject to compulsion or motivation and are, therefore, more appropriately focused on by the Court.  Evidence on the last location of non-party inventors and potential prior art witnesses led the Court to find this factor favored granting the motion.

With regard to the location of documents, the Court noted that the largely electronic nature of the likely documents to be relevant to the proceeding diminished the importance of this factor, but the fact that usually the alleged infringer’s documents are the most important to the case gave a slight preference to the Northern District of California.

On the convenience of the parties factor, the Court noted that the Internap office in California was not a real factor as the company employees likely to be involved in the action were located in the Georgia office.  The Court ruled this factor was merely neutral[1] as would shift the inconvenience from the Defendant to the Plaintiff.

With regard to locus of operating facts, the Court noted that research and development of the accused product took place in the Northern District of California, which is also the location of headquarters for a number of users of the product – thus making it the “center of gravity.”  See, e.g., In re Mayfonk, Inc., 554 F. App’x 943, 944 (Fed. Cir. 2014).  The fact that nationwide infringement included Georgia does not give rise to a preference for Georgia as a forum.

When examining the plaintiff’s choice of forum factor, the Court noted that this is somewhat muted by the weight of the locus of operative facts being outside that chosen forum.  This bleed-over of one factor into another was also noted in consideration of the final factor “trial efficiency and the interests of justice.”  Noting that neither party had cited concerns relating to delay, administrative difficulties, or prejudice, the Court evaluated factors that could make a case less expensive and faster (evidence access, witness availability, witness costs, and jury view possibilities) and found those factors favored transfer.

The considerable discretion afforded trial judges in ruling on motions to transfer allows Courts that are so inclined to hold on to cases that could be readily transferred.  Judge Totenberg showed no inclination to aggressively exercise this discretion noting that “there is no strong local interest in adjudicating this matter in the Northern District of Georgia.”  While this decision could encourage other defendants residing outside of Georgia to seek transfer of cases, it is also confirmatory of the equal access to justice afforded litigants in the Northern District of Georgia.

The Order was issued in Internap Corporation v. Noction, Inc., No. 1:14-cv-03872, in the U.S. District Court for the Northern District of Georgia, Atlanta Division, on June 29, 2015, by U.S. District Judge Amy Totenberg [Dkt. 30].

_{[1] However, when combined with the deference to the Plaintiff’s choice of forum, this factor could be argued to favor Plaintiff Internap.}