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In re Barnes & Noble, Inc.

United States Court of Appeals, Federal Circuit

February 27, 2014

IN RE BARNES & NOBLE, INC., Petitioner

On Petition for Writ of Mandamus to the United States District Court for the Western District of Tennessee in No. 12-CV-2823, Chief Judge Jon Phipps McCalla.

JAMES S. BLACKBURN, Arnold & Porter, LLP of Los Angeles, California, for petitioner.

ROBERT E. FREITAS, Freitas Tseng & Kaufman LLP, of Redwood City, California, for respondent B.E. Technology, L.L.C. With him on the response was CRAIG R. KAUFMAN.

Before NEWMAN, PROST, and REYNA, Circuit Judges. OPINION filed by Circuit Judge REYNA. Dissenting opinion filed by Circuit Judge NEWMAN.

Page 1382

ON PETITION

Reyna, Circuit Judge.

ORDER

Barnes & Noble, Inc. (" Barnes & Noble" ) seeks a writ of mandamus directing the United States District Court for the Western District of Tennessee to vacate its July 12, 2013 order denying Barnes & Noble's motion to transfer the case to the District Court for the Northern District of California and remand with instructions to transfer the case. B.E. Technology, LLC (" B.E." ) opposes. Barnes & Noble replies.

In September 2012, B.E. filed this suit in the Western District of Tennessee against Barnes & Noble, alleging that Barnes & Noble's Nook® devices infringe one of B.E.'s patents. B.E.'s Chief Executive Officer, Martin Hoyle (" Hoyle" ), is the founder of the company, and the named inventor on the asserted patent-in-suit. Hoyle has lived in the Western District of Tennessee since 2006, and he has run the company from there since 2008. Barnes & Noble is incorporated in Delaware and headquartered in New York, but it has an office in Palo Alto, California, where most of its activities related to the Nook® take place.

Barnes & Noble moved to transfer the case pursuant to 28 U.S.C. § 1404(a). That statute provides that a district court may transfer a case " for the convenience of parties and witnesses, in the interest of justice." Barnes & Noble argued that only Hoyle is located in the Western District of Tennessee, whereas many of the relevant Barnes & Noble witnesses reside in California. Barnes & Noble also argued that California is where all of its relevant evidence is located. In addition, Barnes & Noble argued that many third party witnesses with knowledge about potential prior art are closer to the transferee venue.

The district court denied the motion, agreeing with B.E. that the case should remain in Tennessee. The court acknowledged that party and non-party witnesses reside in California. However, because transfer would clearly impose the burden of travel and time away from home for any witness in Tennessee, the court found that the convenience of witness factor did not weigh in favor of transfer. The court further

Page 1383

found fault with Barnes & Noble for not addressing how many of its employees would be unavailable to testify in Tennessee or why deposition testimony would not suffice in lieu of live testimony if the witnesses were unwilling to travel for trial.

In weighing the other relevant considerations, the district court found Barnes & Noble had not demonstrated the need to transfer the case to the Northern District of California. As to the parties, the court found both parties had demonstrated the possibility that business could be disrupted in one of the fora. Lastly, the court found that neither trial ...


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