United States District Court, E.D. Virginia, Norfolk Division
MARK S. DAVIS, District Judge.
These five patent infringement cases, all filed by the same plaintiff against different defendants, were initially assigned to four different judges within this district. However, as such cases all involve similar allegations and common patents, the four cases assigned to other judges of this Court were reassigned to the undersigned judge (to whom the first case was assigned) for the purposes of economy, consistency, and fairness. Now pending before the Court are motions in each case seeking transfer to the Northern District of California. For the reasons set forth below, the Court takes such motions under advisement and ORDERS additional briefing on these pending motions.
In short, plaintiff Global Touch Solutions, LLC ("Plaintiff" or "GTS") filed a separate complaint in each of the above referenced actions against: (1) Toshiba Corporation ("Toshiba") and its subsidiary Toshiba American Information Systems, Inc. ("TAIS"); (2) Vizio, Inc. ("Vizio"); (3) Apple, Inc. ("Apple"); (4) Motorola Mobility LLC ("Motorola"); and (5) Microsoft Corporation ("Microsoft") and its subsidiary Nokia Inc. ("Nokia"). Although the number and identity of the patents asserted in the different actions vary, four of the five cases have at least five patents in common. As indicated above, the defendant(s) in each case has filed a motion seeking transfer of venue to the Northern District of California. Additionally, in the first-filed Toshiba action, the defendants from the other four actions sought leave to file an amicus curiae brief arguing that all five actions should be transferred to the Northern District of California. Plaintiff GTS opposes transfer in each of the five cases, arguing in two cases that the case could not have been filed in the proposed transferee district, and arguing in all cases that the defendant(s) fails to demonstrate that the relevant convenience and justice factors warrant transfer.
Title 28 of the United States Code, Section 1404, establishes that "[f]or 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 or to any district or division to which all parties have consented." 28 U.S.C. § 1404(a). Although listed as the second clause in § 1404(a), the threshold question when addressing a motion to transfer venue is "whether the proposed transferee court is one in which the action originally may have been brought." BHP Int'l Inv., Inc. v. OnLine Exch., Inc., 105 F.Supp.2d 493, 498 (E.D. Va. 2000). "In order to demonstrate that an action might have been brought in a proposed transferee district, a movant must establish that both venue and jurisdiction with respect to each defendant is proper in the transferee district." Koh v. Microtek Int'l, Inc., 250 F.Supp.2d 627, 630 (E.D. Va. 2003) (emphasis added).
To determine whether a patent case could have been brought in another forum, the Court begins with the venue statute that is specifically applicable to patent cases. See 28 U.S.C. § 1400(b). Such statute provides that venue in a patent infringement lawsuit is proper 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." Id . (emphasis added). As to corporate defendants, the residency clause of § 1400(b) is satisfied if the accused corporation "was subject to personal jurisdiction in the district [in question] at the time the action was commenced." VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1584 (Fed. Cir. 1990) (citing 28 U.S.C. § 1391(c) & 1400(b)). Accordingly, if a court has personal jurisdiction over an alleged infringer corporation, both jurisdiction and venue are proper in that Court. See LG Electronics Inc. v. Advance Creative Computer Corp., 131 F.Supp.2d 804, 810 (E.D. Va. 2001) (indicating in a patent case that "[i]n essence... the tests for venue and personal jurisdiction are interchangeable for corporations").
Here, all defendants in the five related cases seek transfer to California, and "California's long-arm statute allows courts to exercise personal jurisdiction over defendants to the extent permitted by the Due Process Clause of the United States Constitution." Harris Rutsky & Co. Ins. Services, Inc. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003) (citing Cal. Code Civ. Pro. § 410.10). Therefore, to determine whether the pending cases could have been filed in the Northern District of California, it appears that this Court "need only determine whether [that Court's exercise of] personal jurisdiction... would meet the requirements of due process." Id . (additional citations omitted).
1. Apple Action, Microsoft Action, & Motorola/Nokia Action
The parties' briefing demonstrates that there is no dispute that the Apple, Microsoft, and Motorola/Nokia cases could have been filed in the Northern District of California at the time this action was commenced. As the basis for jurisdiction/venue in the Northern District of California is unchallenged in these three actions, no further analysis on this issue is necessary.
2. Vizio Action
It is undisputed that Vizio is headquartered in the Central District of California and could have been sued there. However, GTS asserts that Vizio both failed to formally move for transfer to the Northern District of California and failed to demonstrate that it was subject to suit in that district. This Court agrees with GTS that Vizio's position on transfer is somewhat unclear when Vizio's motion to transfer is considered in isolation. However, in light of the related nature of these five cases and Vizio's amicus argument in the earlier-filed Toshiba action, the Court will permit limited additional briefing on this issue in order to afford both Vizio and GTS the opportunity to present the facts and law necessary for this Court to render a decision. Vizio is therefore afforded the opportunity to clarify through supplemental briefing, to include any necessary supporting exhibits, the facts and law relevant to its informal request for transfer to the Northern District of California. GTS will then be afforded the opportunity to respond to Vizio's supplemental filing.
3. Toshiba Action
Similar to the somewhat ambiguous nature of Vizio's transfer request, there appears to be some ambiguity as to the parties' positions as to whether, and on what alleged basis, the Toshiba action could have been filed in the Northern District of California. Toshiba and TAIS advanced a joint, and somewhat conclusory, affidavit that purportedly supports personal jurisdiction and venue in that court. Although GTS plainly disputes whether Toshiba, a Japanese corporation, could have been sued in the Northern District of California, it is unclear whether GTS truly disputes whether TAIS could have been sued in that court. Notably, while GTS does assert that TAIS's briefing fails to adequately analyze TAIS' s contacts with the Northern District of California, GTS then acknowledges that TAIS's affidavit does establish that allegedly infringing sales occurred in that district, and GTS appears to acknowledge that it is relying on the same type of allegedly infringing sales activity in this district to support filing the instant suit against TAIS here. In light of the lack of clarity in Toshiba's and ...