Ixi Mobile (R&D) Ltd. et al v. Apple, Inc.

Northern District of California, cand-4:2015-cv-03755

BRIEF re: 27 MOTION to Transfer Case Apple Inc.'s Notice of Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a). Omnibus Brief In Opposition to Motion to Transfer. Document filed by IXI IP,LLC, IXI Mobile (R&D) Ltd.

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4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IXI MOBILE (R&D), LTD., et al., Plaintiffs, No. 14-cv-4355 (RJS) -v- SAMSUNG ELECTRONICS CO., et al., Defendants. IXI MOBILE (R&D), LTD., et al., Plaintiffs, No. 14-cv-4428 (RJS) -v- BLACKBERRY, LTD., et al., Defendants. IXI MOBILE (R&D), LTD., et al., Plaintiffs, No. 14-cv-7954 (RJS) -v- APPLE INC., Defendant. PLAINTIFFS' IXI MOBILE (R&D), LTD. AND IXI IP, LLC'S OMNIBUS BRIEF IN OPPOSITION TO DEFENDANTS' MOTIONS TO TRANSFER 118066209_4 4 TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................. 1 II. BACKGROUND ................................................................................................................... 2 A. IXI Commenced This Action Against Samsung In New York......................................2 B. IXI Filed A Related Action Against BlackBerry In New York .....................................3 C. Samsung And BlackBerry Chose To Litigate In The New York Forum .......................3 D. IXI Filed A Related Action Against Apple In New York .............................................4 E. IXI, Samsung, BlackBerry And Apple Conducted Pretrial Proceedings.......................4 F. After Not Getting Its Preferred Schedule, Apple Advised That It Intended To Move To Transfer The Case To California....................................................................5 III. ARGUMENT ......................................................................................................................... 6 A. Standard For Transfer ....................................................................................................6 B. Defendants Have Failed To Show That The Relevant Factors Warrant Transfer ..........................................................................................................................7 1. Substantial Deference Should Be Accorded To IXI's Chosen Forum .................7 2. Defendants Have Failed To Meet Their Burden Of Showing That The Northern District Of California Is The Locus Of Operative Facts .....................11 3. Defendants Have Failed To Meet Their Burden Of Showing That The Convenience Of Witnesses/The Availability Of Process To Compel Attendance Of Unwilling Witnesses Favors Transfer ........................................14 4. Defendants Have Failed To Meet Their Burden Of Showing That Trial Efficiency And The Interest Of Justice Favor Transfer ......................................20 5. Defendants Have Failed To Meet Their Burden Of Showing That The Convenience Of The Parties Supports Transfer..................................................22 6. Defendants Have Failed To Meet Their Burden Of Showing That The Relative Means Of The Parties Supports Transfer .............................................23 7. Defendants Have Failed To Meet Their Burden Of Showing That The Location Of Relevant Documents And Access Of Proof Favors Transfer .........23 8. The Forum's Familiarity With The Governing Law Does Not Favor Transfer ...............................................................................................................24 IV. CONCLUSION .................................................................................................................... 24 i 118066209_4 4 TABLE OF AUTHORITIES PAGE(S) CASES Aerotel, Ltd. v. Sprint Corp., 100 F. Supp. 2d 189 (S.D.N.Y. 2000)...................................................................................... 21 Apple Inc. v. HTC Corp., 2011 WL 143909 (D. Del. Jan. 18, 2011) ................................................................................ 22 Atl. Recording Corp. v. BCD Music Grp., Inc., 2009 WL 1390848 (S.D.N.Y. May 7, 2009) ........................................................................... 15 Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690 (S.D.N.Y. 2009)................................................................................ 11, 15 Bayer Schera Pharma AG v. Sandoz, Inc., 2009 WL 440381 (S.D.N.Y. Feb. 18, 2009) .......................................................................... 6, 9 Broad. Data Retrieval Corp. v. Sirius Satellite Radio, Inc., 2006 WL 1582091 (C.D. Cal. June 6, 2006) ........................................................................... 10 Filmline (Cross–Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513 (2d Cir. 1989)....................................................................................................... 6 Ford Motor Co. v. Ryan, 182 F.2d 329 (2d Cir. 1950)....................................................................................................... 6 GPA Inc. v. Liggett Grp., Inc., 1994 WL 537017 (S.D.N.Y. Oct. 4, 1994) .............................................................................. 15 GPNE Corp. v. Amazon.com, Inc., 2012 WL 9503579 (D. Haw. Mar. 9, 2012)............................................................................. 22 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ................................................................................................................... 6 Hart v. Crab Addison, Inc., 2014 WL 2865899 (W.D.N.Y. June 24, 2014) .......................................................................... 6 In re Dell Inc., 2015 WL 303939 (Fed. Cir. Jan. 7, 2015) ............................................................................... 23 In re Microsoft Corp., 630 F.3d 1361 (Fed. Cir. 2011)................................................................................................ 10 Intell. Ventures I LLC v. Altera Corp., 842 F. Supp. 2d 744 (D. Del. 2012) ......................................................................................... 22 Iragorri v. United Tech. Corp., 274 F.3d 65 (2d Cir. 2001)................................................................................................. 7, 8, 9 Kiss My Face Corp. v. Bunting, 2003 WL 22244587 (S.D.N.Y. Sept. 30, 2003) ....................................................................... 15 i 118066209_4 4 Medien Patent Verwaltung AG v. Warner Bros. Entm't, Inc., 749 F. Supp.2d 188 (S.D.N.Y. 2010)......................................................................... 6, 8, 14, 15 Medisim Ltd. v. Bestmed LLC, 2010 WL 2697073 (S.D.N.Y. July 7, 2010) ..................................................................... passim Millennium, L.P. v. Hyland Software, Inc., 2003 WL 22928644 (S.D.N.Y. Dec. 10, 2003) ....................................................................... 24 Motorola, Inc. v. Research In Motion Ltd., 2008 WL 3925278 (D. Del. Aug. 26, 2008) ............................................................................ 23 N.Y. Marine and Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102 (2d Cir. 2010)....................................................................................................... 6 Orb Factory, Ltd. v. Design Sci. Toys, Ltd., 6 F. Supp. 2d 203 (S.D.N.Y. 1998).......................................................................................... 14 Pers. Audio, LLC v. Apple, Inc., 2010 WL 582540 (E.D. Tex. Feb. 11, 2010) ........................................................................... 22 Research in Motion Ltd. v. Visto Corp., 457 F. Supp. 2d 708 (N.D. Tex. 2006) .................................................................................... 23 Semiconductor Energy Lab. Co. v. Samsung Elecs. Co., 2009 WL 1615528 (W.D. Wis. June 9, 2009) ......................................................................... 23 Tomita Tech. USA, LLC v. Nintendo Co., Ltd., 818 F. Supp.2d 770 (S.D.N.Y. 2011)................................................................................ passim TouchTunes Music Corp. v. Rowe Int'l Corp., 676 F. Supp.2d 169 (S.D.N.Y. 2009)................................................................................. 11, 24 Virginia Innovation Sciences, Inc. v. Samsung Electronics Co., 928 F. Supp. 2d 863 (E.D. Va. 2013) ...................................................................................... 23 Wi-LAN USA, Inc. v. Apple Inc., 2013 WL 1343535 (S.D. Fla. Apr. 2, 2013) ............................................................................ 22 STATUTORY AUTHORITIES 28 U.S.C. § 1404(a) .................................................................................................................. 7, 14 ii 118066209_4 4 I. INTRODUCTION New York and Israeli companies brought patent infringement claims against New York and South Korean companies (i.e., Samsung) in New York, where it is undeniable that a substantial amount of sales of the infringing devices occur. Plaintiffs chose this forum for legitimate reasons of cost and convenience, including that their only United States office is located in New York City, their Israeli corporate representatives prefer New York as their regular business destination, the primary United States-based defendant is a New York company, and plaintiffs' counsel has a New York office. Plaintiffs subsequently brought an action asserting the exact same patents against Canadian and Texas companies (i.e., BlackBerry). Given the overlap of issues and the desire to avoid duplicative and potentially inconsistent litigation, plaintiffs also filed this second action in New York. For months, neither Samsung nor BlackBerry objected to this forum or otherwise claimed that it was inconvenient. To the contrary, both engaged in pretrial proceedings and preliminary discovery. In fact, both sets of defendants filed counterclaims in their respective actions, clearly indicating their desire to conduct the cases in this district. Several months later, plaintiffs filed a third action against another global company (i.e., Apple) based on the same patents. Given the obvious efficiency of litigating the patents in one forum, the claims were filed in New York. After joining the litigation, Apple sought a case management schedule with elongated deadlines. Shortly after not obtaining the case management schedule it requested, Apple filed a motion to transfer to its home forum, the Northern District of California. The other two sets of defendants – who previously had no issue with litigating in New York – have now switched course and joined in the motion. Defendants have failed to meet their heavy burden of showing that California, rather than New York, is the more convenient forum for the parties. Nor have defendants demonstrated that 118066209_4 4 plaintiffs chose New York for any improper tactical reasons. In fact, because plaintiffs' reasons for choosing this forum were directly related to cost and convenience, substantial deference should be provided to that choice. As for the other transfer factors, it is clear that defendants have failed to meet their burden. For instance, defendants cannot establish that California is the locus of operative fact or that the availability of witnesses or the interests of justice favor transfer. Indeed, the majority of the inventors of the Patents-in-Suit – including those located in Israel – have indicated that they would be willing to travel to New York if called at trial. Consequently, defendants' motions should be denied. II. BACKGROUND Plaintiffs IXI Mobile (R&D) Ltd. ("IXI Mobile") and IXI IP, LLC ("IXI IP") (collectively "IXI") brought these related actions against Samsung, BlackBerry and Apple seeking to enforce the same patents involving technology for improving communications and network services in cellular phones and other related devices. Each of the defendants manufactures and sells infringing devices on a global basis (including in the New York forum).1 A. IXI Commenced This Action Against Samsung In New York IXI Mobile is an Israeli company that developed the Patents-in-Suit between 2000 and 2005. [Declaration of Zion Hadad ("Hadad Dec.") at ¶¶ 1-2.] IXI IP purchased the Patents-in- Suit and licensed them to IXI Mobile. [Id. at ¶ 4.] Contrary to Apple's claims, IXI IP – a New York company – has its principal offices in the Chrysler Building in New York City at 405 Lexington Avenue. [Declaration of Steve Pedersen ("Pedersen Dec.") at ¶ 1.] IXI IP utilizes its office to conduct meetings and other business in New York City. [Id.] 1 Examples of the infringing devices include lines of the popular Samsung Galaxy, the BlackBerry Torch and the Apple iPhone. 2 118066209_4 4 On June 17, 2014, IXI filed this infringement action against Samsung Electronics Co., Ltd., a South Korean company with its primary place of business in Seoul, Korea, and Samsung Electronics America, Inc., a New York company with its headquarters in Ridgefield Park, New Jersey (collectively "Samsung").2 [Declaration of James Botello ("Botello Dec.") at ¶ 3; Samsung Answer, Affirmative Defenses, and Counterclaims at ¶ 5.] Consequently, as originally postured, this case was commenced by IXI – whose only United States presence is in New York – against the Samsung defendants – whose only United States entity is a New York company that sells infringing devices in New York. B. IXI Filed A Related Action Against BlackBerry In New York On June 18, 2014, IXI filed a second action involving the same patents against BlackBerry Limited and BlackBerry Corporation (collectively "BlackBerry") ― Canadian and Delaware companies with headquarters in Ontario, Canada, and Irving, Texas. [Declaration of Frank Geng ("Geng Dec.") at ¶¶ 2-3.] As the cases involved the same subject matter, and for similar reasons of cost and convenience, IXI chose to file the BlackBerry action in the same New York forum. [Hadad Dec. at ¶ 7; Pedersen Dec. at ¶ 5.] Indeed, IXI filed the BlackBerry action as "related" to the Samsung action, and the Clerk designated it as such for pretrial purposes. C. Samsung And BlackBerry Chose To Litigate In The New York Forum Pursuant to an agreed-upon extension of time to respond, the Samsung and BlackBerry defendants filed answers on September 26, 2014. Neither contested venue. Moreover, both Samsung and BlackBerry filed counterclaims against IXI (seeking a declaration of patent invalidity and non-infringement), indicating their desire to litigate in New York. 2 The remaining Samsung defendant – Samsung Telecommunications America – was recently acquired by Samsung Electronics America, Inc. through merger and no longer exists. [Botello Dec. at ¶ 5.] 3 118066209_4 4 During September 2014, IXI, Samsung and BlackBerry had numerous discussions regarding a proposed case management schedule, which was submitted to the Court on September 30, 2014. Over the next several weeks, IXI served written discovery upon Samsung and BlackBerry; Samsung served written discovery upon IXI; and IXI, Samsung and BlackBerry exchanged Initial Disclosures. BlackBerry served written discovery in January, 2015. Each of these parties drafted their discovery requests in accordance with the Southern District of New York Local Rules. At no point did Samsung or BlackBerry object to litigation in New York. To the contrary, their actions indicated an intent to keep the cases here. [Declaration of John. J. Higson ("Higson Dec.") at ¶ 6.] D. IXI Filed A Related Action Against Apple In New York On October 2, 2014, IXI filed their complaint against Apple, asserting the same patents as against Samsung and BlackBerry. IXI chose the New York forum given that the three cases involve the exact same patents and the substantial overlap between issues and technology in all the cases. [See generally Hadad Dec. at ¶ 7; Pedersen Dec. at ¶ 5.] As with the BlackBerry case, IXI filed the Apple case as "related" to the Samsung and BlackBerry cases. E. IXI, Samsung, BlackBerry And Apple Conducted Pretrial Proceedings The parties have engaged in a significant amount of pretrial procedure between case inception in June, 2014 to present that would be impacted by a mid-stream transfer to California. Among other things, the parties:  Conducted an Initial Conference with the Court (October 2014);  Engaged in lengthy discussions regarding a proposed revised case management schedule (October – November 2014);  Exchanged Initial Disclosures (October 2014 – January 2015); 4 118066209_4 4  Served and responded to extensive Interrogatories, Document Requests and Requests for Admission (October 2014 – present);  Conducted various meet and confers regarding respective written discovery deficiencies (December 2014 – present);  Extensively negotiated a proposed protective order (November 2014 – present); and  Closed the pleading process (November 2014). Moreover, on January 20, 2015, IXI served its disclosure of Asserted Claims and Infringement Contentions upon defendants. At the initial request of Samsung (and approved by the Court), IXI conformed the contentions consistent with the general format established in the patent rules for the Eastern District of Texas. Defendants' respective Invalidity Contentions are due March 6, 2015. [Higson Dec. at ¶ 13.] Prior to December 2014, no defendant attempted to move the cases from New York. F. After Not Getting Its Preferred Schedule, Apple Advised That It Intended To Move To Transfer The Case To California The parties engaged in discussions regarding a revised proposed case management order in October and November, 2014. When IXI and Apple could not agree on some particular deadline extensions – IXI believed that the extensions should be shorter and Apple believed they should be longer (generally, 90 days) – IXI and Apple submitted their disagreement to the Court. On December 2, 2014, the Court did not agree with Apple and, instead, ordered a general 30-day extension. Shortly thereafter, on December 15, 2014, Apple advised that it intended to file a motion to transfer the case because the Northern District of California was allegedly a more convenient forum for Apple than New York. BlackBerry followed suit and suddenly claimed that New York was an inconvenient forum. Later, at the Court's request, Samsung filed a letter advising that, while it did not intend to file a motion, it now was not opposed to transfer. 5 118066209_4 4 III. ARGUMENT A. Standard For Transfer Before addressing the factors relevant to transfer, there are two important points to consider. First, the party requesting transfer must demonstrate by "clear and convincing evidence" that transfer is appropriate. See N.Y. Marine and Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 113 (2d Cir. 2010). That party carries a heavy burden to make out a strong case for transfer. Id. at 113-14 (citing Filmline (Cross–Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989)); Medien Patent Verwaltung AG v. Warner Bros. Entm't, Inc., 749 F. Supp.2d 188, 190 (S.D.N.Y. 2010). This means that "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) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). Bald assertions and unsupported allegations of inconvenience are insufficient to meet the burden. Rather, the moving party must submit evidence, including affidavits or declarations, demonstrating why the transferee forum is more convenient. Hart v. Crab Addison, Inc., 2014 WL 2865899, *3 (W.D.N.Y. June 24, 2014) (quotations omitted). Second, and critically, it is important to recognize that this matter includes the same four patents being asserted against three separate sets of defendants. The "Supreme Court has held that the interest-of-justice factor encompasses the private and public economy of avoiding multiple cases on the same issue." See Bayer Schera Pharma AG v. Sandoz, Inc., 2009 WL 440381, *3-4 (S.D.N.Y. Feb. 18, 2009) (maintaining patent cases before a single tribunal is significant to avoid duplication and potentially inconsistent results) (citations omitted). Here, all the parties agree that it makes sense to litigate in the same forum. For instance, coordinating these cases in one forum avoids witnesses having to appear for depositions multiple times in different proceedings, inconsistent claim constructions and potentially inconsistent judgments. 6 118066209_4 4 The question then is not whether California is the most convenient forum for IXI's claims against Apple. Rather, the question is whether transfer is appropriate considering all of the parties' interests in the litigation. B. Defendants Have Failed To Show That The Relevant Factors Warrant Transfer 28 U.S.C. § 1404(a) permits a district court to transfer civil actions "[f]or the convenience of parties and witnesses" and "in the interest of justice" to "any other district or division where it might have been brought." Courts generally consider nine factors in determining whether a party has carried that burden: (1) the plaintiff's choice of forum; (2) the locus of the operative facts; (3) the convenience of witnesses; (4) the availability of process to compel the attendance of unwilling witnesses; (5) trial efficiency and the interest of justice, based on the totality of circumstances; (6) the convenience of the parties; (7) the relative means of the parties; (8) the location of relevant documents and relative ease of access to sources of proof; and (9) the forum's familiarity with the governing law. Tomita Tech. USA, LLC v. Nintendo Co., Ltd., 818 F. Supp.2d 770, 772 (S.D.N.Y. 2011) (citations omitted). When those factors are reviewed with the proper lens as described above, it is clear that defendants have failed to meet their burden. 1. Substantial Deference Should Be Accorded To IXI's Chosen Forum A court should not disturb a plaintiff's choice of forum unless the balance of the factors weighs strongly in favor of transfer. See Medisim Ltd. v. Bestmed LLC, 2010 WL 2697073, *2 (S.D.N.Y. July 7, 2010). As the Second Circuit has observed, the more it appears that a domestic or foreign plaintiff's choice of forum has been dictated by reasons that the law recognizes as valid, the "greater the deference" that will be given to the plaintiff's forum choice. See Iragorri v. United Tech. Corp., 274 F.3d 65, 71-72 (2d Cir. 2001). Courts routinely recognize 7 118066209_4 4 convenience of travel from a foreign destination, the location of preferred counsel, the location of a trusted business partner and a defendant's amenability to suit in the forum district as legitimate reasons for forum selection. See Medien, 749 F. Supp.2d at 191; Tomita Tech., 818 F. Supp.2d at 772. In contrast, the more it appears that the plaintiff's choice of forum was motivated by tactical reasons – such as consideration of favorable local laws or generosity of juries – the less deference the plaintiff's choice commands. Iragorri, 274 F.3d at 72. IXI chose to litigate in New York for legitimate reasons, all of which militate against transfer. First, IXI selected a forum where IXI IP – which owns the Patents-in-Suit – is a resident. IXI IP is a New York company with a principal office in New York City.3 That alone should afford considerable deference to IXI's selected forum. Iragorri, 274 F.3d at 72 (holding that plaintiff's residence relative to chosen forum entitled to deference). Second, IXI IP, which is responsible for overseeing the litigation, is the trusted business partner of IXI Mobile. [Hadad Dec. at ¶ 5; Pedersen Dec. at ¶ 3.] IXI clearly has a legitimate interest in litigating where its partner with responsibility to oversee the litigation resides. See Tomita Tech., 818 F. Supp.2d at 773 (noting that foreign entity "would surely have a legitimate interest in litigating in a forum where it could rely upon the assistance of a trusted business partner"). Third, IXI filed first against the Samsung defendants, of which the only United States-based defendant is a New York company. IXI then filed its cases against BlackBerry and Apple to avoid having to litigate on multiple fronts and for judicial efficiency. All of the defendants agree that litigating these related 3 Apple ignores the fact that IXI IP has its offices in New York City and instead attempts to give the impression that IXI IP is located elsewhere or not at all. The fact is, however, that IXI IP has its office in New York City, where it regularly conducts business. [Pedersen Dec. at ¶ 1.] 8 118066209_4 4 matters in the same forum is necessary for judicial economy.4 See Bayer, 2009 WL 440381 at *3 (holding that there is substantial interest in avoiding litigation of multiple cases in different venues on same issue). Fourth, IXI's chosen counsel has offices in New York and the principal attorneys working on the matter are located in Philadelphia, PA. [Higson Dec. at ¶ 1.]; see Iragorri, 274 F.3d at 72 (explaining that "availability of appropriate legal assistance" is a legitimate reason for choosing a forum, to which Court may defer). Fifth, IXI considered this forum's Pilot Program governing complex patent matters, which is designed to result greater efficiency. [Higson Dec. at ¶ 3.] Sixth, it is far more timely and convenient for IXI's Israeli representatives to participate in litigation in New York than it would be in the Northern District of California. While there are direct flights from Tel Aviv to New York, there do not appear to by any available direct flights from Tel Aviv to San Francisco (or other locales in the Northern District of California).5 [Hadad Dec. at ¶ 6]; see Medisim, 2010 WL 2697073 at *2 (convenience of New York, rather than Colorado, for Israeli witnesses was legitimate reason for plaintiff's choice of forum). All of these reasons are legitimate and establish this forum as a proper venue. On the other hand defendants cannot show that IXI chose this forum for tactical reasons.6 The mere fact that IXI IP – the owner of the Patents-in-Suit – has recently established a New York presence is not improper and does not undermine the plaintiff's choice of forum. To the 4 For instance, Apple emphasized the importance of litigating related patent cases in the same forum when it opposed the defendant's motion to transfer a matter from the District of Delaware to the Northern District of California. [See Apple Inc. v. High Tech Computer Corp., et al., D. Del., No. 10-544-GMS, Dkt. No. 14 ("Apple Opposition in HTC Action") at 8-10, attached to Higson Dec. as Exhibit 1.] 5 In addition, Apple will likely seek to have the case heard in the district court location in San Jose, California, which is even less accessible than San Francisco. 6 For instance, as discussed, IXI agreed to generally conform its infringement contentions to the rules of the Eastern District of Texas. 9 118066209_4 4 contrary, in cases such as Tomita Tech., courts have held that where many of the events occurred abroad and the defendant was a large multinational corporation (like Samsung, BlackBerry and Apple), there was good reason to defer to the plaintiff's choice of this forum so that the plaintiff could receive the assistance of its chosen United States partner. 818 F. Supp.2d at 772-73. Apple cites to cases from outside this jurisdiction in an attempt to undermine the deference that should be afforded to IXI IP's status as a New York company suing in its home forum for legitimate reasons. These cases are easily distinguishable. For instance, in Broadcast Data, a California court did not afford deference to the plaintiffs' choice of forum because it determined that the recent incorporation of the patent licensee was part of an "elaborate scheme to forum shop." Broad. Data Retrieval Corp. v. Sirius Satellite Radio, Inc., 2006 WL 1582091, *3 (C.D. Cal. June 6, 2006). There, Acacia moved to dismiss a complaint filed in New York, arguing that no actual controversy existed. Id. One week after the New York court granted the motion to dismiss, Acacia formed a new entity, BDRC, which promptly sued Sirius in California based on the same facts and issues that Acacia had previously argued did not constitute an actual controversy in New York. Id. at *3. The California court determined that this procedural wrangling was nothing more than an attempt to forum shop. Id. Here, no such circumstances exist.7 In short, IXI filed against all defendants in this district for legitimate reasons related to cost and convenience, including the fact that it is the patent owner's home forum, its desire to avoid litigating in multiple different courts about the same patents, the availability of its chosen counsel and the relative ease of travel from Israel as compared with the Northern District of 7 Similarly, in In re Microsoft Corp., the court determined that the plaintiff had attempted to "manipulate" venue. In re Microsoft Corp., 630 F.3d 1361, 1365 (Fed. Cir. 2011). Again, no such manipulation exists here. 10 118066209_4 4 California. IXI's forum choice, therefore, should be afforded substantial deference. 2. Defendants Have Failed To Meet Their Burden Of Showing That The Northern District Of California Is The Locus Of Operative Facts In patent infringement cases, the locus of operative facts is where the allegedly infringing product was designed, developed and produced. Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 697 (S.D.N.Y. 2009). When an infringement action includes multiple loci of operative facts, this factor is neutral and does not provide a basis for transfer. See, e.g., id.; Medisim, 2010 WL 2697073 at *3; TouchTunes Music Corp. v. Rowe Int'l Corp., 676 F. Supp.2d 169, 173 (S.D.N.Y. 2009). Apple asserts that "all" the operative facts occurred in the Northern District of California or Israel. Apple is wrong. The Samsung defendants are Korean and New York companies with principal offices in Seoul, South Korea and Ridgefield Park, New Jersey – obviously, none of these locations has a relationship with Northern California.8 Samsung acknowledges that the majority of technical development regarding the infringing Samsung devices takes place in South Korea or Texas. [Samsung Memorandum of Law at 2.] Moreover, as with Apple, substantially all of the production of the infringing Samsung products occurs in South Korea or other overseas locations. [Samsung Elecs. Co., Ltd, Half Year Report (January 1, 2014-June 30, 2014) at 27- 30, attached to Higson Dec. as Exhibit 3.] To somehow bolster California as a proper venue, Samsung states that Google, Inc. and Microsoft – located in California and Washington – supply operating systems for infringing Samsung devices. [Samsung Memorandum of Law at 2.] In the papers submitted by Samsung, 8 In its transfer papers, Samsung asserts that Samsung Research America – a non-party to this case – conducts research and development in Mountain View, California. [Botello Dec. at ¶ 6.] Samsung does not identify any specific operations or personnel in this location or how that activity would be relevant to this case or the Patents-in-Suit. 11 118066209_4 4 Google is identified as a "global" company with operations all over the world,9 while Microsoft states that it has operations and research and development facilities all over the world (in other parts of the United States, as well as Canada, China, Denmark, Estonia, Finland, India, Ireland, Israel, Norway, Sweden, Taiwan and the United Kingdom). [Google Inc., 2013 Form 10-K at 3; Microsoft Corporation, 2014 Form 10-K at 10.] Google and Microsoft only add to the number of additional loci of operative facts. As for the BlackBerry defendants, they are headquartered in Waterloo, Ontario and Irving, Texas.10 [Geng Dec. at ¶¶ 2-3.] It is also clear that, like Apple and Samsung, much – if not all – of BlackBerry's actual production of their allegedly infringing devices occurs in Canada or overseas. [BlackBerry Limited, 2014 Form 40-F ("BlackBerry 40-F") at 23-25, attached to Higson Dec. as Exhibit 4.] While BlackBerry claims that it has business operations in Canada and Texas, as well as California, it gives no indication what those precise operations are, how they relate to the case or make venue in California any more convenient than any of the other potential loci.11 [BlackBerry Memorandum of Law at 2.] Even if Apple was the only defendant, it still would not be able to establish that California is the sole locus of operative facts. While Apple's headquarters are based in Northern 9 In fact, Google frequently litigates outside of the Northern District of California, such as in the District of Delaware. [See Apple Opposition in HTC Action at 17.] Additionally, with respect to the Android system, Google engineers are located in various locations including Massachusetts, Texas, and Japan. [Id. at 17-18.] 10 In its transfer papers, BlackBerry also claims that management, research and development and marketing personnel (as well as "offices and executives") are in Canada, Texas and California. [Geng Dec. at ¶ 4.] BlackBerry – like Samsung – does not identify any specific operations or personnel in any of these locations or how this location has any bearing to this case or the Patents-in-Suit. 11 As discussed infra, BlackBerry routinely moves to transfer patent cases to federal district courts in Texas, undermining its present argument that its operations and witnesses are predominantly located in California. 12 118066209_4 4 California, it does not necessarily follow that Apple designed the accused products there. Indeed, Apple admits in its briefing that it operates two facilities in New York City. But even assuming the infringing products were designed in California, it cannot be disputed that all – or nearly all – development and actual production of the allegedly infringing products occurs overseas. For instance, Apple's most recently filed 10-K explains that "[s]ubstantially all of the Company's manufacturing is performed in whole or in part by a few outsourcing partners located primarily in Asia." [Apple, Inc., 2014 Form 10-K ("Apple 10-K") at 12, attached to Higson Dec. as Exhibit 2.] By Apple's own admission, there are multiple loci of operative facts related to Apple. In addition, it is significant that all defendants are large, multi-national companies that not only have extensive sales of the infringing products in the United States, but in the New York City market. Apple sold 74 million iPhones in the most recent quarter and netted $18 billion in profits. [Apple Reports Record First Quarter Results, Apple Press Info ("Apple Press Info"), attached to Higson Dec. as Exhibit 5.] Apple claims that its retail presence in New York is no different than any other jurisdiction. [Apple Memorandum of Law at 4.] Apple, however, runs five retail "Apple Stores" in New York City, including its flagship store in Midtown Manhattan. [Vicky Ward, The Untold Story of How the Apple Store Cube Landed in Midtown, New York Magazine (Sept. 28, 2014), attached to Higson Dec. as Exhibit 6.] Apple has recently stated that these retail stores – including its flagship store in Manhattan – are integral to its success. [Apple 10-K at 5.] It is also undeniable that Samsung and BlackBerry have a substantial sales presence in this forum as well. In other words, New York is clearly a market with which all defendants are familiar and have a substantial base of operations. 13 118066209_4 4 It is noteworthy that much of the development of the technology at issue by IXI occurred in Israel. Medien, 749 F. Supp.2d at 191 (finding that Germany was locus of operative fact where patent-in-suit was designed, developed, and produced there and denying transfer motion). In summary, Apple's characterization of the dispute as "between a foreign plaintiff and a California defendant" is incorrect. These cases involve many loci of operative facts including, New York, Israel, South Korea, Canada, Texas, California and New Jersey, all of which weighs against transfer. As the district court in Medien observed: That California is not the sole locus of operative facts weakens the case for transferring venue there. Indeed, this case's transatlantic fact pattern further contributes to the convenience of adjudicating the dispute in New York. 749 F. Supp.2d at 192. Indeed, in circumstances where multiple loci exists, courts defer to a plaintiff's choice of forum or find this factor to be neutral. Id. 3. Defendants Have Failed To Meet Their Burden Of Showing That The Convenience Of Witnesses/The Availability Of Process To Compel Attendance Of Unwilling Witnesses Favors Transfer Defendants cannot meet their burden of showing that the Northern District of California is more convenient for witnesses or that any witnesses are unwilling to travel to the Southern District of New York for trial. The convenience of both party and nonparty witnesses is a significant factor in any transfer analysis. "When a party seeks the transfer on account of the convenience of witnesses under § 1404(a), he must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover." Medien, 749 F. Supp.2d at 191 (quotation omitted); Medisim, 2010 WL 2697073 at *2. "Vague generalizations and failure to clearly specify the key witnesses to be called, along with a statement concerning the nature of their testimony, are an insufficient basis upon which to grant a change of venue under § 1404(a)." Orb Factory, Ltd. v. Design Sci. Toys, Ltd., 6 F. Supp. 2d 203, 208-09 (S.D.N.Y. 14 118066209_4 4 1998). Moreover, "employees of the parties will, as a practical matter, be available in any venue by virtue of the employment relationship." Medien, 749 F. Supp.2d at 191 (quotation omitted). In this regard, a party is not likely to suffer any unusual expense or inconvenience in transporting their own employees to New York City from another jurisdiction. Id. Most importantly, when a defendant does not present evidence that potential witnesses are unwilling to appear in the forum court, courts routinely find the "availability of process to compel unwilling witnesses" factor to be neutral. For instance, in Kiss My Face Corp. v. Bunting, 2003 WL 22244587, *4 (S.D.N.Y. Sept. 30, 2003), the defendant stated that its out-of- state witnesses would not be subject to process in New York but did not provide the court with any affidavits stating that the witnesses would not appear voluntarily. Id. Because the defendant produced no evidence that the potential witnesses would be unwilling to travel, the court found that the defendant failed to meet its burden of showing that this factor weighed in favor of transfer. Id. (citing GPA Inc. v. Liggett Grp., Inc., 1994 WL 537017, *2 (S.D.N.Y. Oct. 4, 1994)); see also Atl. Recording Corp., 603 F. Supp. 2d at 697 ("[Defendant] does not argue, however, that these witnesses would be unwilling to testify at trial in this District, and therefore this factor is neutral in the Court's analysis."); Atl. Recording Corp. v. BCD Music Grp., Inc., 2009 WL 1390848, *6 (S.D.N.Y. May 7, 2009). a. The Balance Of Party Witnesses Weighs Against Transfer IXI, Samsung, BlackBerry and Apple have identified various party witnesses likely to have knowledge of the facts and circumstances of these cases. IXI has identified Steve Pedersen, IXI IP's principal, as a party witness. Mr. Pedersen is located in New York City, which clearly is the most convenient forum for him. [Pedersen Dec. at ¶ 1.] Apple attempts to minimize Mr. Pedersen's testimony, but the fact is that he is the primary party witness for IXI IP – the owner of 15 118066209_4 4 the Patents-in-Suit – and his inconvenience of traveling to California as opposed to the chosen New York forum weighs against transfer. Apple identifies IXI Mobile witnesses Zion Hadad and Israel Koffman, both of whom reside in Israel. Traveling to New York from Israel is more convenient than traveling from New York to Northern California. For instance, there do not appear to be any direct flights from Tel Aviv to San Francisco, and the cost of flying further cross-country is significant. [Hadad Dec. at ¶ 6.] Moreover, primary IXI Mobile personnel regularly travel to New York City to meet regarding this case and to conduct business generally. [Id.] Further, with the potential time zone change caused by a move to California, the ability for parties and counsel to communicate with IXI Mobile in Israel during normal working hours is in jeopardy. [Id.] While some of the same concerns certainly arise with the cases in New York, transfer to San Francisco would virtually wipe out any overlap in business hours to communicate with IXI Mobile. [Id.] While Apple would have the Court believe that traveling from Israel to California is virtually no different than traveling from Israel to New York, that is simply not the case. Defendants also generally state that they have party witnesses, which they represent can be made available through counsel. Apple identifies seven witnesses who it claims are in California and can testify regarding the design, development and marketing of the infringing products. [Declaration of John William Van Dyke ("Van Dyke Dec.") at ¶ 12.] Somehow, Apple suggests that traveling from San Francisco to New York would be inconvenient for these witnesses while traveling from Tel Aviv to San Francisco would not be inconvenient for the IXI Mobile witnesses.12 Samsung and BlackBerry do not specifically identify any of their own 12 To avoid any inconvenience, IXI would agree to travel to California to depose Apple witnesses – or other reasonable locations for Samsung and BlackBerry party witnesses – during the discovery phase of the cases. 16 118066209_4 4 witnesses or their locations.13 In any event, the identified party witnesses do not favor transfer to Northern California. Indeed, given the obvious convenience of traveling from Israel to New York, rather than from Israel to California, the party witness factor should weigh in favor of keeping the case here. b. The Balance Of Non-Party Witnesses Weighs Against Transfer The parties also identify various third-party witnesses likely to have knowledge of the facts and circumstances of these cases. All of them include the six named inventors on the Patents-in-Suit – Amit Haller, Hans Reisgies, Amir Glick, Avraham Itzhak, Peter Fornell and Ziv Haparnas. Of these six individuals, three (Haller, Reisgies and Fornell) reside in the Northern California area. [Higson Dec. at ¶ 17.] One (Haparnas) resides in Seattle, Washington.14 The remaining two (Glick and Itzhak) reside in Israel. [Declaration of Amir Glick ("Glick Dec.") at ¶ 1, attached to Higson Dec. as Exhibit 11; Declaration of Avraham Itzhak ("Itzhak Dec.") at ¶ 1, attached to Higson Dec. as Exhibit 12.] Apple claims that the residence of three of the six inventors in the Northern District alone mandates transfer because they are not subject to process for trial in the Southern District of New York. [Apple Memorandum of Law at 4.] Apple ignores the fact that all of the United States-based inventors can be compelled by subpoena to testify at deposition and that testimony may be used at trial if the witness is unavailable. Moreover, Apple makes no attempt to show that any of these inventors would be unwilling to appear in New York. 13 In its Initial Disclosures, BlackBerry listed witnesses who are located at its headquarters in Canada. [Higson Dec. at ¶ 19.] 14 Apple claims that Mr. Haparnas resides in California. Based on IXI's counsel's recent communications with Mr. Haparnas, he is located in the Seattle, Washington area and outside the subpoena power of the Northern District of California. [Higson Dec. at ¶ 18.] 17 118066209_4 4 Apple's failure to show that these witnesses would be unwilling to travel to New York should come as no surprise, as IXI has been working with the named inventors, and the majority of them are willing to travel to New York for trial. Amit Haller – the inventor on three of the four Patents-in-Suit – has agreed to appear in New York if called at trial. [Declaration of Amit Haller ("Haller Dec.") at ¶ 3, attached to Higson Dec. as Exhibit 14.] In addition, the sole inventor of United States Patent No. 7,426,398 ("the '398 Patent"), Hans Reisgies, has agreed to make himself available in New York. [Declaration of Hans Reisgies ("Reisgies Dec.") at ¶ 3, attached to Higson Dec. as Exhibit 13.] Finally, two of the three inventors who could not be compelled to appear in either New York or California (or even would be subject to a subpoena for deposition given their residence in Israel) – Amir Glick and Avraham Itzhak – have also agreed to come to New York. [Glick Dec. at ¶ 3; Itzhak Dec. at ¶ 3.] Given the Israeli witnesses' willingness to come to New York for trial, New York actually is the only venue where the parties could present testimonial evidence from all of the inventors, whether it be video deposition or live testimony. This completely undermines Apple's argument that California is a more convenient forum for third-party witnesses. In addition, IXI believes that cellular operators will be important witnesses for several aspects of IXI's case. IXI will seek to show that consumers used the infringing features of defendants' products in order to demonstrate that defendants induced infringement of the Patents-in-Suit. IXI will show that there was substantial demand for the features covered by the Patents-in-Suit ― one of the secondary considerations of non-obviousness. It will also seek evidence of the amount consumers paid to access the infringing features as evidence of consumer demand and damages. Defendants have stated in discovery that they have no information about 18 118066209_4 4 consumers' use of these features.15 [Apple's and BlackBerry's Responses and Objections to Plaintiffs' First Set of Requests for Admission, attached to Higson Dec. as Exhibits 7, 8.] Thus, IXI may have to obtain this information from the carriers. There are four major wireless carriers in the United States. Of those, the biggest, Verizon Communications, Inc. ("Verizon"), is based in New York. [Higson Dec. at ¶ 20.] The other three are in Texas, Kansas and Washington and are therefore irrelevant to this convenience analysis. Verizon's presence here provides a strong anchor to this forum, counterbalances defendants' hypotheses about third-parties such as Google and weighs heavily against transfer. Samsung and BlackBerry's joinder papers do not change this result. They attempt to support Apple's motion by claiming that the operating systems in infringing devices are supplied by Google and Microsoft and that perhaps some witnesses from these companies could provide testimony. Samsung, however, does not identify any actual individuals or the scope of their purported testimony. Samsung cannot claim that these unidentified, hypothetical witnesses are even located in the Northern District of California. Rather, with respect to Google, Samsung merely states that such unspecified witnesses are "likely" in Mountain View, California. [Samsung Memorandum of Law at 2.] Yet in another case, Apple explicitly contradicted Samsung's present argument. Specifically, in arguing against a transfer to Northern California in a case that involved Google's Android operating system, Apple contended that Android engineers were located in locations such as Massachusetts, Texas and Japan. [Apple Opposition in HTC Action at 17-18.] Moreover, while Samsung does not identify any actual Microsoft employees, Samsung acknowledges that Microsoft's research and development facilities are 15 Samsung's Responses and Objections to Plaintiffs' First Set of Requests for Admission are substantively the same. However, because Samsung marked their responses as confidential, plaintiffs have not attached them here. 19 118066209_4 4 located in Redmond, Washington – outside the Northern District of California. [Samsung Memorandum of Law at 2.] Nor does Samsung submit evidence indicating that these unidentified witnesses are unwilling to travel to New York. Samsung has not come close to meeting its burden. All BlackBerry can say on this issue is that some of the chips incorporated in its devices are manufactured by Broadcom Corporation ("Broadcom"), a company based in Irvine, California. [BlackBerry Memorandum of Law at 2.] BlackBerry identifies two individuals who it claims BlackBerry "primarily interacts" with on these chips. [Id.] BlackBerry does not identify where these individuals are located (other than generally in California), the scope of their testimony or that they are unwilling to travel to New York. Indeed, Broadcom is headquartered in Irvine, which is in the Central District of California, not the Northern District. The convenience of witness factor weighs heavily against transfer. 4. Defendants Have Failed To Meet Their Burden Of Showing That Trial Efficiency And The Interest Of Justice Favor Transfer Defendants claim that transfer would be of minimal inconvenience because this case is in its "infancy." That is incorrect. Indeed, the parties' conduct to date establishes that the cases should remain in New York. IXI filed the complaints, and defendants have filed answers and counterclaims. Apple argued in a different case that such conduct weighs against transfer. [See Apple Opposition in HTC Action at 8 (asserting that a party's filing of a counterclaim strongly indicates its desire to "use the forum" for its own objectives and that party "should not be able to object simultaneously to the inconvenience of that forum for purposes of defending a claim by that same party") (quotations omitted).] Apple simply ignores its previous argument. 20 118066209_4 4 The parties also appeared for an initial status conference, negotiated several proposed case management orders, exchanged initial disclosures and served and responded to various written discovery, adhering to the local rules for the Southern District of New York. Further, a case schedule has been entered for well over two months, and IXI has served detailed infringement contentions consistent with an agreed-upon format that defendants proposed, following certain rules from the Eastern District of Texas. [Higson Dec. at ¶ 13.] Transferring the case to California would undermine much of the procedural accomplishments to date and inevitably delay trial. See Tomita Tech., 818 F. Supp. 2d at 774 (noting that "motions to transfer venue, if granted, inevitably delay the proceedings"). Defendants are cherry-picking their desired procedures from each forum: Southern District of New York for the protective order, disclosures and written discovery; Eastern District of Texas for infringement and invalidity contentions; and Northern District of California for a jury and trial judge. It is defendants that are forum shopping. Moreover, New York has an interest in rendering a judgment relating to Samsung, which is organized under New York law, and against all defendants, as they distribute infringing products in New York. Again, transfer would not serve that interest. It is not in the interest of justice to delay these proceedings – where, as here, no substantial countervailing purpose will be served. See id. In addition to the unfairness of defendants' late request to transfer, another interest of justice factor weighs against transfer – IXI has no contacts and likely would not be subject to personal jurisdiction in California. See Aerotel, Ltd. v. Sprint Corp., 100 F. Supp. 2d 189, 198 (S.D.N.Y. 2000) (holding interests of justice factor militated against transfer where transferee forum likely did not have personal jurisdiction over plaintiff). Here, it would be inherently 21 118066209_4 4 unfair to transfer the case to California, in which neither IXI entity has a presence – as opposed to keeping it in New York where IXI IP is located. Because defendants have failed to meet their burden, this factor weighs against transfer. 5. Defendants Have Failed To Meet Their Burden Of Showing That The Convenience Of The Parties Supports Transfer Defendants – huge global companies with footprints around the world – cannot reasonably identify any meaningful burden from litigating in New York, particularly given their substantial means, their counsel's presence in New York and the large volume of business that they do in this district. It is unfathomable to suggest that flying a few witnesses to New York for trial would be an inconvenience for any of them. Indeed, given the diverse locations of potential witnesses in these cases, travel will be required anywhere the case is tried. Having the cases remain in New York imposes no greater burden on these defendants than conducting a trial in California or, for that matter, anywhere in the United States. This is particularly true of Samsung Electronics America, Inc., which is incorporated in New York and cannot argue that it is "'inconvenient' to defend its actions in the forum in which [it] has freely chosen to create itself." Intell. Ventures I LLC v. Altera Corp., 842 F. Supp. 2d 744, 756 (D. Del. 2012). Furthermore, these defendants routinely litigate patent cases in federal courts across the nation and frequently transfer to districts other than the Northern District of California. See, e.g., Wi-LAN USA, Inc. v. Apple Inc., 2013 WL 1343535 (S.D. Fla. Apr. 2, 2013) (Apple seeking transfer to Southern District of California); Apple Inc. v. HTC Corp., 2011 WL 143909 (D. Del. Jan. 18, 2011) (Apple opposing transfer to Northern District of California); Pers. Audio, LLC v. Apple, Inc., 2010 WL 582540 (E.D. Tex. Feb. 11, 2010) (Apple seeking transfer to District of Massachusetts); GPNE Corp. v. Amazon.com, Inc., 2012 WL 9503579 (D. Haw. Mar. 9, 2012) (BlackBerry seeking transfer to Northern District of Texas); Motorola, Inc. v. Research In 22 118066209_4 4 Motion Ltd., 2008 WL 3925278 (D. Del. Aug. 26, 2008) (BlackBerry seeking transfer to Northern District of Texas); Research in Motion Ltd. v. Visto Corp., 457 F. Supp. 2d 708 (N.D. Tex. 2006) (BlackBerry seeking transfer to Eastern District of Texas); In re Dell Inc., 2015 WL 303939 (Fed. Cir. Jan. 7, 2015) (Samsung seeking transfer to Western District of Washington); Virginia Innovation Sciences, Inc. v. Samsung Electronics Co., 928 F. Supp. 2d 863 (E.D. Va. 2013) (Samsung seeking transfer to District of New Jersey); Semiconductor Energy Lab. Co. v. Samsung Elecs. Co., 2009 WL 1615528 (W.D. Wis. June 9, 2009) (Samsung seeking transfer to Eastern District of Virginia). In contrast, IXI has compelling reasons to litigate in New York. The convenience of the parties weighs against transfer. 6. Defendants Have Failed To Meet Their Burden Of Showing That The Relative Means Of The Parties Supports Transfer Apple, the first company to ever exceed $700 billion in market capitalization, just announced quarterly profits ($18 billion) higher than any company in history and has over $155 billion in cash on hand. [Apple Press Info; Apple 10-K at 24.] Samsung, in the most recent quarter, had earnings of $4.9 billion (5.35 Trillion KRW). [Samsung Elecs., Earnings Release (Q4 2014) at 1, attached to Higson Dec. as Exhibit 9.] Although BlackBerry has had recent financial struggles, it does not make New York any less convenient than California. Stated simply, defendants' financial resources dwarf IXI, and moving the cases across the country from IXI's United States base and counsel, would significantly prejudice IXI. 7. Defendants Have Failed To Meet Their Burden Of Showing That The Location Of Relevant Documents And Access Of Proof Favors Transfer Ironically, Apple, a company that touts its iCloud service as a remote document-sharing solution, claims that the location of its documents in California favors transfer. [Apple Memorandum of Law at 9-10; Apple Website, "iCloud," attached to Higson Dec. as Exhibit 10.] 23 118066209_4 4 However, the location of documents does not weigh heavily in transfer considerations. See Tomita Tech., 818 F. Supp. 2d at 772 (location of documents did not weigh in favor of transfer because defendant would surely scan the documents onto a computer and produce them "with the click of a mouse"); TouchTunes, 676 F. Supp. 2d at 174 (in today's society, "the location of the documents is not a significant factor in the convenience analysis"). Further, Apple does not identify particular documents or why they cannot simply be sent electronically. Importantly, Apple forgets that there are three other parties in the case. IXI's documents are in New York and Israel; Samsung claims that its documents are in South Korea (or Texas); and BlackBerry does not identify the location of its documents.16 [Pedersen Dec. at ¶ 6; Hadad Dec. at ¶ 8; Botello Dec. at ¶ 11.] The case Apple cites observed that while documents could be transported electronically, the fact that all of them were in Ohio favored transfer. Millennium, L.P. v. Hyland Software, Inc., 2003 WL 22928644, *4 (S.D.N.Y. Dec. 10, 2003). Here, the parties have documents in New York, Israel, South Korea, Canada, Texas and California at least. This factor weighs against transfer. 8. The Forum's Familiarity With The Governing Law Does Not Favor Transfer "Patent law is federal law and any district court may handle a patent case with equal skill." Medisim, 2010 WL 2697073, at *3. This factor does not favor transfer. IV. CONCLUSION Defendants have not presented evidence sufficient to satisfy their significant burden of proving the Northern District of California is a more convenient forum than the Southern District of New York. The first two parties in this action have no ties to California. Samsung, a New 16 Apple – without any basis – suggests that IXI Mobile recently shipped documents from its California location to New York. There is no factual support for this assertion. [See Hadad Dec. at ¶ 8.] 24 118066209_4 4 York company that is headquartered in New Jersey, has no ties to California. Similarly, BlackBerry, a Canadian company that frequently litigates in Texas, has no ties to California. In fact, none of these parties raised any concern over venue until after Apple was added to the case. That is because Apple, the last party added to this action, is the only party with any connection to California. The Court should not allow Apple to disturb plaintiffs' choice of venue by moving this action out of New York to its home state, California. Because plaintiffs chose to litigate in New York for the legitimate reasons of cost and convenience, plaintiffs' choice of forum should be accorded substantial deference, and the Court should deny defendants' request to transfer. /s/ Thomas S. Biemer Dated: February 17, 2015 Attorney for Plaintiffs IXI MOBILE (R&D) Ltd. and IXI IP, LLC 25 118066209_4 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK IXI MOBILE (R&D), LTD., et al., Plaintiffs, No. 14-cv-4355 (RJS) -v- SAMSUNG ELECTRONICS CO., et al., Defendants. IXI MOBILE (R&D), LTD., et al., Plaintiffs, No. 14-cv-4428 (RJS) -v- BLACKBERRY, LTD., et al., Defendants. IXI MOBILE (R&D), LTD., et al., Plaintiffs, No. 14-cv-7954 (RJS) -v- APPLE INC., Defendant. CERTIFICATION OF SERVICE I, Thomas S. Biemer, Esquire, do hereby certify that Plaintiff IXI's Omnibus Brief in Opposition to Defendants' Motions to Transfer were served on the date set forth below to all counsel of record as noted on the attached Service Lists of Counsel. 118066209_4 4 /s/ Thomas S. Biemer Dated: February 17, 2015 Thomas S. Biemer, Esquire Dilworth Paxson LLP 1500 Market Street, Suite 3500(E) Philadelphia, PA 19102 Email: tbiemer@dilworthlaw.com Attorney for Plaintiffs IXI MOBILE (R&D) Ltd. and IXI IP, LLC 2 118066209_4 4 1:14-cv-07954-RJS IXI Mobile (R&D) Ltd. et al v. Apple, Inc. Richard J. Sullivan, presiding Date filed: 10/02/2014 Date of last filing: 01/05/2015 Attorneys Gregory Todd Chuebon Simpson Thacher & Bartlett LLP (NY) 425 Lexington Avenue New York, NY 10017 (212)-455-3353 Apple, Inc. representing (212)-455-2502 (fax) (Defendant) gchuebon@stblaw.com Assigned: 10/22/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED Harrison J. Frahn, IV Simpson Thacher & Bartlett LLP (CA) 2475 Hanover Street Palo Alto, CA 94304 Apple, Inc. representing (650)-251-5065 (Defendant) hfrahn@stblaw.com Assigned: 11/10/2014 LEAD ATTORNEY Patrick E. King Simpson, Thacher & Barlett, L.L.P. 3330 Hillview Avenue Palo Alto, CA 94304 Apple, Inc. representing (650) 251-5000 (Defendant) pking@stblaw.com Assigned: 11/10/2014 ATTORNEY TO BE NOTICED 3 118066209_4 4 1:14-cv-04355-RJS IXI Mobile (R&D) Ltd. et al v. Samsung Electronics Co., Ltd. et al Richard J. Sullivan, presiding Date filed: 06/17/2014 Date of last filing: 02/03/2015 Attorneys Gregory Steven Arovas Todd M. Friedman James E. Marina James Henry McConnell Samsung Electronics America, Inc. Kirkland & Ellis LLP (NYC) (Defendant) 601 Lexington Avenue Samsung Electronics Co., Ltd. New York, NY 10022 representing (Defendant) (212) 446-4800 x4766 Samsung Telecommunications America, (212) 446-4900 (fax) LLC greg.arovas@kirkland.com (Defendant) Assigned: 10/09/2014 ATTORNEY TO BE NOTICED David Rokach Kirkland & Ellis LLP (IL) Samsung Electronics America, Inc. 300 North LaSalle Street (Defendant Chicago, IL 60654 Samsung Electronics Co., Ltd. (312)-862-3169 representing (Defendant)) (312)-862-2200 (fax) Samsung Telecommunications America, david.rokach@kirkland.com LLC Assigned: 11/03/2014 (Defendant) ATTORNEY TO BE NOTICED 4 118066209_4 4 1:14-cv-04428-RJS IXI Mobile (R&D) Ltd. et al v. BlackBerry Limited et al Richard J. Sullivan, presiding Date filed: 06/18/2014 Date of last filing: 02/03/2015 Attorneys Marshall Beil McGuireWoods LLP (NYC) BlackBerry Corporation 1345 Avenue of the Americas (Counter Claimant 7th Floor BlackBerry Corporation New York, NY 10105 (Defendant)) representing 212-548-7004 BlackBerry Limited 212-715-2319 (fax) (Counter Claimant) mbeil@mcguirewoods.com BlackBerry Limited Assigned: 09/10/2014 (Defendant) ATTORNEY TO BE NOTICED Jason W. Cook BlackBerry Corporation McGuirewoods LLP (Counter Claimant) 2000 Mckinney Avenue, Suite 1400 BlackBerry Corporation Dallas, TX 75201 (Defendant) (214) 932-6418 representing BlackBerry Limited jcook@mcguirewoods.com (Counter Claimant) Assigned: 09/30/2014 BlackBerry Limited LEAD ATTORNEY (Defendant) ATTORNEY TO BE NOTICED Brian Charles Riopelle Derek H. Swanson McGuireWoods LLP (Richmond) BlackBerry Corporation One James Center (Counter Claimant 901 East Cary Street BlackBerry Corporation Richmond, VA 23219 (Defendant)) (804) 775-1084 representing BlackBerry Limited (804) 698-2150 (fax) (Counter Claimant) briopelle@mcguirewoods.com BlackBerry Limited Assigned: 09/30/2014 (Defendant) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED 5 118066209_4