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

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

LETTER addressed to Judge Richard J. Sullivan from Thomas S. Biemer, Esquire dated December 18, 2014 re: Response to the Pre-Motion Letter from Apple Inc. dated 12-15-14. Document filed by IXI IP,LLC, IXI Mobile (R&D) Ltd.

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DIRECT DIAL NUMBER: Thomas S. Biemer (215) 575-7025 tbiemer@dilworthlaw.com December 18, 2014 Honorable Richard J. Sullivan Courtroom: 905 Thurgood Marshall United States Courthouse 40 Foley Square New York, NY 10007 Re: IXI Mobile (R&D) Ltd. et al. v. Apple Inc., No. 14-cv-7954-RJS Dear Judge Sullivan: We write on behalf of Plaintiffs IXI Mobile (R&D) Ltd. ("IXI Mobile") and IXI IP LLC ("IXI IP" and, together with IXI Mobile, "IXI") in response to the pre-motion letter that Apple, Inc. ("Apple") submitted on December 15, 2014. Apple faces a significant burden to rebut the strong presumption in favor of IXI's choice of forum. As explained below, it cannot do so, in large part because issues of judicial efficiency weigh heavily in favor of resolving this case here. As a threshold matter, Apple concedes that venue is proper here. Thus, it seeks transfer solely because it thinks that the Northern District of California is a more convenient forum for it. Under those circumstances, "the party requesting transfer carries the 'burden of making out a strong case for transfer.'" Medien Patent Verwaltung AG v. Warner Bros. Entertainment, Inc., 749 F. Supp.2d 188, 190 (S.D.N.Y. 2010) ("Medien") (quoting N.Y. Marine and Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 114 (2d Cir. 2010)).1 Courts generally consider nine factors in determining whether a party has carried that burden: (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 interest of justice, based on the totality of circumstances." Tomita Tech. USA, LLC v. Nintendo Co., Ltd., 818 F. Supp.2d 770, 772 (S.D.N.Y. 2011). Judicial efficiency favors resolution of these cases in a single forum. The "Supreme Court has held that the interest-of-justice factor encompasses the private and public economy of 1 Although this is a patent case, the law of the Second Circuit governs this Court's determination of whether transfer is appropriate. See Speedfit LLC v. Woodway USA, Inc., -- F. Supp.3d --, No. 13-cv-1276, 2014 WL 5093161, at *7 (E.D.N.Y. Oct. 10, 2014). 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY Honorable Richard J. Sullivan December 18, 2014 Page 2 avoiding multiple cases on the same issue." See Bayer Schera Pharma AG v. Sandoz, Inc., Nos. 08-cv-03710(PGG), 08-cv-8112(PGG), 2009 WL 440381, at *3 (S.D.N.Y. Feb. 18, 2009) (citations omitted). The public interest factors include the avoidance of the potential for inconsistent judgments and the promotion of judicial economy. See id. at * 4 (quote omitted). As the Court is aware, IXI has filed three related cases alleging infringement of the same four patents. IXI filed the first of those cases against several Samsung entities, including one Samsung entity that is a New York corporation. Given Samsung's substantial presence in New York, IXI's case against the Samsung defendants will likely remain in this Court regardless of the outcome of Apple's proposed motion. As a result, the interest of justice weighs very heavily against any possible transfer, for at least two reasons. First, any transfer to the Northern District of California would cause duplicative litigation and waste judicial resources. Witnesses would have to appear for depositions multiple times in different proceedings. IXI would also have to make extra court appearances, because status conferences, hearings, and other court proceedings would effectively double. The Court should strive to avoid such duplication. Indeed, the Second Circuit has explained that there is a "strong policy favoring the litigation of related claims in the same tribunal in order that pretrial discovery can be conducted more efficiently, duplicitous litigation can be avoided, thereby saving time and expense for both parties and witnesses, and inconsistent results can be avoided." Wyndham Assocs. v. Bintliff, 398 F.2d 614, 619 (2d Cir. 1968). This principle applies with extra force in patent litigation because such litigation, "particularly involving high-technology patents, is notoriously difficult," and maintaining all cases before a single tribunal "may aid in preserving scarce judicial resources." Bayer Schera Pharma, 2009 WL 440381, at *4. As a result, courts "consistently recognize" that the need to avoid duplicative litigation "is a strong factor to be weighed with regard to judicial economy, and may be determinative." Id. at * 3. Second, any transfer raises the prospect of inconsistent rulings. For example, if two different courts were to conduct claim construction proceedings, it would raise the possibility of inconsistent interpretations of the patents themselves. That potential for inconsistent judgments "weighs heavily" in favor of keeping all of these cases in this Court. See id. at * 4. Notably, Apple does not address the inefficiencies of its proposed transfer. In addition, none of the cases on which it relies involves multiple cases against multiple defendants about the same patents – a vital distinction that renders those decisions largely inapplicable. Given that Apple is subject to venue in this District, it makes no sense to transfer the case against it out of this District and impose upon another court to conduct parallel proceedings. The Court should defer to Plaintiffs' reasonable choice to pursue litigation in this District. In general, 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, No. 10-cv- 2463-SAS, 2010 WL 2697073, at * 2 (S.D.N.Y. July 7, 2010). Indeed, a court should defer even to a foreign plaintiff's choice of forum as long as the choice of forum "'has been dictated by reasons that the law recognizes as valid.'" Medien, 749 F. Supp.2d at 191 (quoting Iragorri v. United Techs. Corp., 274 F.3d 65, 71-72 (2d Cir. 2001) (en banc)). Courts recognize as legitimate reasons convenience of travel from a foreign destination, the location of preferred 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY Honorable Richard J. Sullivan December 18, 2014 Page 3 counsel, and a defendant's amenability to suit in the form district. See Medien, 749 F. Supp.2d at 191; Tomita Tech., 818 F. Supp.2d at 772. IXI filed suit in this District for several legitimate reasons. First, IXI's first-filed suit against the Samsung defendants features New York entities on both sides. IXI then filed its cases against Blackberry and Apple in this Court to avoid having litigate on multiple fronts. IXI's desire for judicial efficiency is reasonable and legitimate. Second, throughout its history, IXI Mobile entered into licenses for software that incorporated the technology at issue in this case, and it often included New York choice-of-law provisions in those licenses. Thus, IXI has a long history of relying on New York for its dispute resolution. Third, it is far more convenient for IXI's Israeli personnel to participate in litigation in New York than it would be in California. 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). Fourth, IXI's preferred counsel has offices in Philadelphia and New York, but not in California or on the West Coast more generally. In its letter, Apple suggests that Plaintiffs' connections to New York are "contrived." Yet Apple points to no evidence that IXI chose this forum to gain a tactical advantage, and there is no such evidence. Indeed, the mere fact that a foreign company has established a New York presence for assistance with the enforcement of a patent is not improper and does not undermine a plaintiff's choice of forum. See Tomita Tech., 818 F. Supp.2d at 772-73. The same is true here, and the Court should defer to IXI's chosen forum. Moreover, in Tomita, Judge Rakoff held that where many of the events occurred abroad and the defendant was a large multinational corporation, 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 American partner. Id. So here too. The other factors that Apple identifies do not justify a transfer. Apple points to several other factors to try to justify its request for transfer, but none of them supports Apple's position. First, it does not matter where Apple maintains its documents. 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 Music Corp. v. Rowe Int'l Corp., 676 F. Supp. 2d 169, 174 (S.D.N.Y. 2009) (in today's society, "the location of the documents is not a significant factor in the convenience analysis"). In any event, IXI maintains documents in this District. Second, Apple's letter incorrectly suggests that the only locus of operative facts is in the Northern District of California. In fact, much of IXI's development of the technology at issue took place in Israel. See Medien, 749 F. Supp.2d at 191-92 ("That California is not the sole locus of operative facts weakens the case for transferring venue there."). Third, Apple cannot identify any meaningful burden from litigating here, particularly given its substantial means, its counsel's substantial presence in New York, and the obviously large volume of business that Apple does in this District. Respectfully, /s/ Thomas S. Biemer 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY Honorable Richard J. Sullivan December 18, 2014 Page 4 cc: All parties of record via ECF 1500 Market Street · Suite 3500E · Philadelphia, PA 19102-2101 · 215-575-7000 · fax 215-575-7200 Cherry Hill NJ · Harrisburg, PA · Red Bank. NJ · Washington, DC · Wilmington, DE · New York, NY