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Kannar v. Alticor

April 9, 2009

DR. DAVID KANNAR, PLAINTIFF,
v.
ALTICOR, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Maxine M. Chesney United States District Judge

ORDER GRANTING PLAINTIFF'S MOTION TO TRANSFER; DENYING DEFENDANTS' MOTION TO TRANSFER

Before the Court are defendants' Motion to Transfer Venue to the United States District Court for the Western District of Michigan, filed January 30, 2009, and plaintiff's Opposition to Defendants' Motion/Cross-Motion to Transfer to the Central District of California, filed February 13, 2009. Having read and considered the papers filed in support of and in opposition to the motions, the Court deems the matters appropriate for decision thereon, hereby VACATES the hearing scheduled for April 10, 2009, and rules as follows.

BACKGROUND

Plaintiff alleges he is the owner of United States Patent Number 7,425,342 ("'342 patent"), entitled "Odourless Garlic Supplement Comprising an Enteric Coating and a Deodorising Layer." (See Compl. ¶ 12 & Ex. 1.) Plaintiff further alleges that defendants "have infringed and continue to infringe" the '342 patent by making, using, offering to sell in the United States, and/or importing into the United States "garlic supplements" covered by the '342 patent. (See id. ¶ 13.)

Defendants, by their motion, seek an order transferring the instant action to the Western District of Michigan, in which district each defendant maintains its principal place of business. In response, plaintiff requests that the action be retained in this district, but argues that if a transfer is deemed appropriate, such transfer should be to the Central District of California.

DISCUSSION

"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). As a threshold matter, the moving party must show that the transferee forum is one in which the action might have been brought. See Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960). The moving party must then demonstrate that a transfer of venue would promote the convenience of parties and witnesses and the interests of justice. See § 1404(a); Decker Coal Co. V. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

Here, the parties do not dispute that the action could have been brought in either the Western District of Michigan or the Central District of California. Defendants reside in the Western District of Michigan, maintain a manufacturing facility in the Central District of California, and sell the accused product in both districts. (See Mitchell Decl. ¶¶ 4, 5, 7, 8; Jenkins Decl. Ex. I); see also 28 U.S.C. § 1400(b) (providing "[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business").

"[I]n its determination whether transfer is appropriate in a particular case," a district court must "weigh multiple factors" in addition to the convenience of parties and witnesses. SeeJones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). Among the additional factors identified by the Ninth Circuit are:

(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.

See id. at 498-99. "[A]dministrative difficulties flowing from court congestion" may also be considered. See Decker Coal Co., 805 F.2d at 843.

A. Convenience of Witnesses

The convenience of witnesses "is often the most important factor considered by the court when deciding a motion to transfer for convenience." See Steelcase v. Haworth, 41 U.S.P.Q. 2d 1468, 1470 (C.D. Cal. 1996). "In balancing the convenience of the witnesses, primary consideration is given to third party, as opposed to employee witnesses," see Royal Queentex Enters. v. Sara Lee Corp., No. C-99-4787 MJJ, 2000 WL 246599, at *6 (N.D. Cal. Mar. 1, 2000); Brandon Apparel Group, Inc. v. Quitman Mfg. Co., 42 F. Supp. 2d 821, 834 (N.D. Ill. 1999), and the Court should consider "not only the number of witnesses located in the respective districts, but also the nature and quality of their testimony in relationship to the issues in the case," see Steelcase, 41 U.S.P.Q. 2d at 1470.

Here, each party has identified numerous witnesses whom it expects to call to testify at trial. Significantly, however, all of the witnesses identified by defendants are employees of defendants, whose convenience, as noted, does not receive "primary consideration." See Royal Queentex Enters., 2000 WL 246599, at *6. By contrast, plaintiff has pointed to eight non-party witnesses whom plaintiff plans to call to testify. Although defendants dispute the relevance of some of the testimony to be offered by such witnesses, the Court, as set forth below, finds the convenience of such witnesses weighs heavily in favor of transfer to the Central District of California.

1. Non-Party Witnesses

At the outset, the Court notes that two of the non-party witnesses identified by plaintiff, Ray Durrant ("Durrant") and David Leech ("Leech"), reside in Australia and would provide testimony concerning, among other things, the "conception and reduction to practice of the invention." (See Kannar Decl. ΒΆΒΆ 7, 9.) Defendants do not dispute that such testimony would be relevant. Both this district and the Central District of California would be ...


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