The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge
ORDER: (1) DENYING DEFENDANTS' MOTION TO TRANSFER [Doc. No. 13] (2) DENYING PLAINTIFF'S EX PARTE MOTION FOR LEAVE TO FILE A SURREPLY [Doc. No. 37]
Presently before the Court is Defendants RF Micro Devices, Inc. ("RFMD") and Motorola Mobility, Inc. ("Motorola") (collectively "Defendants")'s motion to transfer the action to the Middle District of North Carolina. [Doc. No. 13.] For the reasons below, the Court DENIES the motion.*fn1
This is a patent infringement action. On April 13, 2012, Plaintiff Peregrine Semiconductor Corporation ("Peregrine") filed the present action against RFMD and Motorola alleging infringement of U.S. Patent No. 7,910,993 (the "'993 Patent"), U.S. Patent No. 7,123,898 (the "'898 Patent"), U.S. Patent No. 7,460,852 (the "'852 Patent"), U.S. Patent No. 7,796,969 (the "'969 Patent"), and U.S. Patent No. 7,860,499 (the "'499 Patent") (collectively "the patents-in-suit"). [Doc. No. 1, Compl.] In the complaint, Peregrine accuses both integrated circuits, which are marketed and sold by RFMD, and devices that use those circuits, which are marketed and sold by Motorola, of infringing the patents-in-suit. [Id. ¶¶ 12, 18, 24, 30, 36.]
Peregrine is a Delaware corporation with its principal place of business in San Diego California. [Doc. No. 32-1, Declaration of Joel Keller ("Keller Decl.") ¶ 2.] Peregrine manufactures semiconductors and is the owner of the patents-in-suit. [Id. ¶ 4, 6.] Four of the inventors of the patents-in-suit--Jim Cable, Mark Burgener, Dylan Kelly, and George Imthurn--are Peregrine employees. [Id. ¶ 5.] The other remaining four inventors--Christopher Brindle, Michael Stuber, Clint Kemerling, and Robert Welstand--are not Peregrine employees but are located in the Southern District of California. [Id.]
RFMD is a North Carolina corporation with its principal place of business in Greensboro, North Carolina. [Doc. No. 13-2, Declaration of Eric Creviston ("Creviston Decl.") ¶ 4.] More than twenty of the RFMD engineers involved in the design, development, and testing of the accused circuits and the related documents are located in Greensboro. [Id. ¶¶ 9-10.] Substantially all of the RFMD employees who market and sell the accused circuits in the United States and the documents relating to marketing are located in Greensboro. [Id. ¶¶ 13-14.] Substantially all of the RFMD employees knowledgeable about financial data and documents relating to financial data are located in Greensboro. [Id. ¶¶ 15-16.] The accused circuits are manufactured primarily in Burlington, Vermont. [Id. ¶ 26.]
Motorola is a Delaware Corporation with its principal place of business in Libertyville, Illinois. [Doc. No. 13-3, Declaration of Robert Pluta ("Pluta Decl.") ¶ 4.] Motorola does not design, manufacture, or separately sell or offer for sale the accused circuits. [Id. ¶¶ 6-8.] Motorola purchases the accused circuits from RFMD for use in its smartphones. [Id. ¶ 5.] The Motorola engineers who communicate with RFMD regarding the acquisition and integration of the accused circuits in Motorola's smartphones are located in Lowell, Massachusetts. [Id. ¶ 9.] The Motorola employees and documents relevant to the sale and marketing of the accused smartphones are primarily located in Libertyville, Illinois. [Id. ¶ 10.]
I. Legal Standards for a Motion to Transfer
Under 28 U.S.C. § 1404, a district court "may transfer any civil action to any other district or division where it might have been brought" "for the convenience of parties and witnesses" and "in the interest of justice." 28 U.S.C. § 1404(a). This statute "is intended to place discretion in the district court to adjudicate motions for transfer according to an 'individualized, case-by-case consideration of convenience and fairness.'" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). Because a motion to transfer does not involve substantive issues of patent law, Defendants' motion is governed by regional circuit law. See In re TS Tech United States Corp., 551 F.3d 1315, 1319 (Fed. Cir. 2008); Storage Tech. Corp. v. Cisco Sys., Inc., 329 F.3d 823, 836 (Fed. Cir. 2003).
Determining whether an action should be transferred pursuant to § 1404(a) is a two-step process in which the burden of proof is on the defendant. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). The district court must first determine whether the action "might have been brought" in the transferee court, and then the court must determine whether the "convenience of the parties and witnesses in the interest of justice" favor transfer. Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985). The second determination requires the district court "to weigh multiple factors." Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). The factors may include: (1) the plaintiff's choice of forum; (2) the contacts relating to the plaintiff's cause of action in the chosen forum; (3) the respective parties' contacts with the forum; (4) the availability of compulsory process to compel attendance of unwilling non-party witnesses; (5) the differences in the costs of litigation in the two forums; (6) the ease of access to sources of proof; (7) the location where the relevant agreements were negotiated and executed; (8) the state that is most familiar with the governing law; (9) the feasibility of consolidation with a pending case in the transferee forum; (10) the speed to trial in two forums; (11) the local interest in having localized controversies decided at home; and (12) the unfairness of burdening citizens in an unrelated forum with jury duty. See id. at 498-99; Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).
The "[w]eighing of factors for and against transfer involves subtle considerations and is best left to the discretion of the trial judge." Sparling v. Hoffman Constr. Co., Inc., 864 F.2d 635, 639 (9th Cir. 1988) (quotation marks omitted). Therefore, the decision of whether to transfer an action under § 1404(a) is reviewed for abuse of discretion. Id.
II. Whether the Action Could Have Been Brought In The Middle District of North Carolina Defendants argue that Peregrine's action could have been brought in the Middle District of North Carolina. [Doc. No. 13-1 at 8-9.] The phrase where an action "could have been brought" is interpreted to mean that the proposed transferee court would have subject matter jurisdiction, proper venue, and personal jurisdiction. See A. J. Industries, Inc. v. U.S. District Court for Central Dist. of Cal., 503 F.2d 384, 386-88 (9th Cir. 1974); Shapiro v. Bonanza Hotel Co., 185 F.2d 777, 779-81 (9th Cir. 1950).
A. Subject Matter Jurisdiction
Under 28 U.S.C. § 1338(a), district courts have subject matter jurisdiction over claims for patent infringement. AstraZeneca Pharms. LP v. Apotex Corp., 669 F.3d 1370, 1377 (Fed. Cir. 2012) ("The district courts have original jurisdiction over any civil action arising under any Act of Congress relating to patents."). Therefore, a district court in the Middle District of North Carolina would have subject matter jurisdiction over Peregrine's action.
B. Venue and Personal Jurisdiction over Defendants
Venue in a patent infringement action is proper in any judicial district "where the defendant resides or where the defendant has committed acts of infringement and has a regular and established place of business." 28 U.S.C. § 1400(b). For venue purposes, the residence of a corporate defendant is governed by 28 U.S.C. § 1391(c), which provides that the defendant shall be determined to reside in any judicial district where the defendant is subject to personal jurisdiction. See Hoover Group v. Custom Metalcraft, 84 F.3d 1408, 1410 (Fed. Cir. 1996); Timeline, Inc. v. Proclarity Corp., 2006 U.S. Dist. LEXIS 50056, at *15 (W.D. Wash. Jul. 20, 2006).
Federal Circuit law governs the determination of personal jurisdiction in an action for patent infringement. Avocent Huntsville Corp. v. Aten Int'l Co., 552 F.3d 1324, 1328 (Fed. Cir. 2008). To establish specific jurisdiction, a plaintiff must demonstrate that the defendant has "purposefully directed" his activities at residents of the forum, and the litigation results from alleged injuries that arise out of or relate to those activities. Id. at 1330. Thus, in an ordinary patent infringement suit, "for purposes of specific jurisdiction, the jurisdictional inquiry is relatively easily discerned from the nature and extent of the commercialization of the accused products or services by the defendant in the forum." Id. at 1332.
Defendants argue that the Middle District of North Carolina would have specific personal jurisdiction over both Defendants because they have conducted business, sold accused products, and employed personnel in that district. [Doc. No. 13-1 at 8-9.] In addition, Defendants states that they are subject to service of process in that district. [Id. at 9.] Peregrine does not appear to dispute these facts or contest that the Middle District of North Carolina would have specific personal jurisdiction over the Defendants. [See generally Doc. No. 32.] Therefore, Defendants ...