Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 1 of 21 PageID 380
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`IN THE UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`FORT MYERS DIVISION
`
`
`HERBERT E. TOWNSEND,
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`
`Plaintiff,
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` Civil Action No. 2:17-cv-62-UA-MRM
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` Magistrate Judge Mac R. McCoy
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`
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`v.
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`
`BROOKS SPORTS, INC.
`
`
` Defendant.
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`
`
`PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS OR
`TRANSFER FOR IMPROPER VENUE OR, IN THE ALTERNATIVE, TO TRANSFER
`PURSUANT TO 28 U.S.C. §1404(a)
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 2 of 21 PageID 381
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` TABLE OF CONTENTS
`
`
`I. 
`II. 
`
`III. 
`
`IV. 
`
`
`
`B. 
`
`INTRODUCTION .................................................................................................................... 1 
`BROOKS’ MOTION TO DISMISS OR TRANSFER FOR IMPROPER
`VENUE SHOULD BE DENIED ............................................................................................. 2 
`A. 
`Venue for a Patent Infringement Action ..................................................................3 
`1.  Where a Defendant “Resides” .....................................................................3 
`2.  Where a Defendant Has a “Regular and Established Place
`of Business” .................................................................................................3 
`The Record Here Shows at Least a Prima facie Case that Venue Is
`Proper in this District Under the Second Basis of 28 U.S.C.
`§1400(b) ...................................................................................................................4 
`1. 
`Brooks Physical Presence in this District. ...................................................5 
`2. 
`Brooks’ Representations as to Presence in this District. ..............................6 
`3. 
`Benefits Brooks Receives from its Presence in this District. .......................6 
`4. 
`Targeted Interactions with this District. .......................................................7 
`BROOKS’ MOTION TO TRANSFER PURSUANT TO 28 U.S.C.
`§1404(a) SHOULD BE DENIED ............................................................................................ 7 
`Plaintiff’s Choice of
`this Forum Is Entitled
`to a Strong
`A. 
`Presumption that it Should Not Be Disturbed. .........................................................8 
`The Locus of Operative Facts Does Not Strongly Favor Transfer ..........................9 
`Convenience of the Witnesses Does Not Strongly Favor Transfer .......................10 
`Location of Documents Does Not Strongly Favor Transfer ..................................11 
`Convenience of the Parties Does Not Strongly Favor Transfer .............................12 
`Availability of Process to Compel the Attendance of Unwilling
`Witnesses Does Not Strongly Favor Transfer .......................................................12 
`Trial Efficiency and the Interests of Justice Do Not Strongly Favor
`Transfer ..................................................................................................................13 
`Relative Means of the Parties Strongly Disfavors Transfer ...................................13 
`H. 
`CONCLUSION ...................................................................................................................... 15 
`
`
`
`B. 
`C. 
`D. 
`E. 
`F. 
`
`G. 
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`

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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 3 of 21 PageID 382
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`TABLE OF AUTHORITIES
`
`
`Cases 
`Blacksmith Invs., LLC. v. Cives Steel Co.,
`228 F.R.D. 66 (D. Mass. January 27, 2005) ............................................................................... 2
`
`Brandywine Communs. Techs., LLC v. Cisco Sys., Inc.,
`No. 6:11-cv-1843-Orl-36DAB,
`2012 U.S. Dist. LEXIS 68317 at *19 (M.D. Fla. March 26, 2012) .......................................... 10
`
`Carter v. Sec’y . Dept. of Homeland Sec.,
`No. 6:08-cv-48-ORL-31KRS,
`2008 WL 1805486 (M.D. Fla. April 18, 2008) ........................................................................... 2
`
`Delong Equipment Co. v. Washington Mills Abrasive Co.,
`840 F.2d 843 (11th Cir. 1988) ..................................................................................................... 2
`
`Dudash v. Varnell Struck & Assocs.,
`No. C 04-2478 MHP,
`2004 U.S. Dist. LEXIS 24872at *10 (N.D. Cal. November 16, 2004) ....................................... 2
`
`In re Barnes & Noble,
`743 F.3d 1381 (Fed. Cir. 2014) .................................................................................................. 8
`
`In re Cordis,
`769 F.2d 733 (Fed. Cir. 1985) ................................................................................................ 1, 4
`
`Myers v. American Dental Asso.,
`695 F.2d 716 (3rd Cir. 1982) ....................................................................................................... 2
`
`Nat'l Trust Ins. Co. v. Pa. Nat'l Mut. Cas. Ins. Co.,
`223. F.Supp. 1236 (M.D. Fl. 2016) ..................................................................................... 11, 12
`
`Proven Winners N. Am., LLC v. Cascade Greenhouse,
`No. 2:06-cv-428-FTM-29DNF,
`2007 WL 1655387 (M.D. Fla. June 6, 2007) ........................................................................ 9, 10
`
`Ratheon Co. v. Cray, Inc.,
`No. 2:15-CV-01554-JRG, 2017 WL 2813896 (E.D. Tex. June 29, 2017) ................................. 4
`
`Reliastar Life Ins. Co. v. Damon,
`No: 2:16-cv-304-FtM-29CM,
`2016 U.S. Dist. LEXIS 106886 at *4 (M.D. Fla. August 12, 2016) ........................................... 8
`
`Response Reward Sys., L.C. v. Meijer, Inc.,
`189 F.Supp. 2d 1332 (M.D. Fla. 2002) ..................................................................................... 14
`
`
`
`ii
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 4 of 21 PageID 383
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`Robinson v. Giarmarco & Bill, P.C.,
`74 F.3d 253 (11th Cir. 1996) ....................................................................................................... 8
`
`Steinberg v. Luedtke Trucking, Inc.,
`No: 2:16-cv-452-FtM-99MRM,
`2016 U.S. Dist. LEXIS 135234 at *4 (M.D. Fla. September 30, 2016) ..................................... 2
`
`Stewart Org., Inc. v. Ricoh Corp.,
`487 U.S. 22 (1988) ...................................................................................................................... 7
`
`TC Heartland LLC v. Kraft Foods Grp. Brands LLC,
`137 S.Ct. 1514 (2017) ............................................................................................................. 3, 4
`
`VE Holdings Corp. v. Johnson Gas Appliance Co.,
`917 F.2d 1574 (Fed. Cir. 1990 ................................................................................................ 3, 4
`
`Statutes 
`28 U.S.C. §1295(a)(1) ..................................................................................................................... 3
`
`28 U.S.C. §1391(c) ......................................................................................................................... 3
`
`28 U.S.C. §1400(b) ................................................................................................................. 1, 3, 4
`
`28 U.S.C. §1404(a) ................................................................................................................. 1, 7, 8
`
`35 U.S.C. §271(a) ........................................................................................................................... 1
`
`Rules 
`8(a) Fed. R. Civ. P. ......................................................................................................................... 2
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`
`
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`
`iii
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 5 of 21 PageID 384
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`I.
`
`INTRODUCTION
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`Plaintiff, Mr. Herbert Townsend, is a materials scientist and a runner who competes in
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`races in Florida and whose primary residence has been in this district since 2008. Declaration of
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`Herbert E. Townsend (“Townsend Decl.” attached as Exhibit A) at ¶¶2, 3, 6, 7. Mr. Townsend
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`brought this action for patent infringement accusing Defendant, Brooks Sports, Inc. (“Brooks”),
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`of infringing Mr. Townsend’s U.S. Patent No. 7,490,416 (“‘416 patent”) by making, using,
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`offering for sale and selling running shoes that infringe that patent throughout the United States
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`including specifically in this district. 35 U.S.C. §271(a), Dkt. 1 (“Complaint”) at ¶¶ 3, 6. Brooks
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`now asks that this action be dismissed or transferred because venue is not proper in this district,
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`or in the alternative, that this action be transferred to Seattle, Washington, the location of
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`Brooks’ headquarters. Dkt. 38 (“Brooks’ Motion”) at 1. Both requests should be denied.
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`Brooks argues that venue is improper here because it does not have a “regular and
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`established place of business” in this district within the meaning of the patent venue statute, 28
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`U.S.C. §1400(b) because it has no physical facilities in this district. Brooks’ Motion at 12 – 15.
`
`However,
`
`in determining whether a corporate defendant has a regular and established place
`of business in a district, the appropriate inquiry is whether the corporate defendant
`does its business in that district through a permanent and continuous presence
`there and not as Cordis argues, whether it has a fixed physical presence in the
`sense of a formal office or store.
`
`In re Cordis, 769 F.2d 733, 737 (Fed. Cir. 1985). Brooks’ admissions and statements here
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`establish a prima facie showing that Brooks has a permanent and continuous presence in this
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`district and therefore has a “regular and established place of business” here.
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`Brooks also asks that, in the event that its motion to dismiss or transfer based on
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`improper venue is denied, this court transfer this case pursuant to 28 U.S.C. §1404(a) to Brooks’
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`home in Seattle, Washington. Brooks has not shown that considerations favoring transfer clearly
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 6 of 21 PageID 385
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`outweigh the deference to which Mr. Townsend’s choice of his home forum is entitled. This
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`request also, should be denied.
`
`II.
`
`BROOKS’ MOTION TO DISMISS OR TRANSFER FOR IMPROPER VENUE
`SHOULD BE DENIED
`
`Brooks first argues that Plaintiff has the burden to plead facts sufficient to show that
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`venue is proper in this district. Motion at 10. Brooks is wrong. Brooks cites, Carter v. Sec’y .
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`Dept. of Homeland Sec., No. 6:08-cv-48-ORL-31KRS, 2008 WL 1805486 (M.D. Fla. April 18,
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`2008), as supporting this assertion. It doesn’t. That decision, on a motion to dismiss for
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`improper venue, states that it is the Plaintiff’s burden to show that venue is proper. That Plaintiff
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`must, on a motion to dismiss for improper venue, show that venue is proper has been well
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`established. See e.g. Steinberg v. Luedtke Trucking, Inc., No: 2:16-cv-452-FtM-99MRM, 2016
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`U.S. Dist. LEXIS 135234 at *4 (M.D. Fla. September 30, 2016). And certainly pleaded facts are
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`considered in deciding a motion to dismiss for improper venue. Id. Nevertheless, Plaintiff has
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`no burden to plead venue at all, much less to plead facts supporting venue. Courts that have
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`specifically considered whether venue must be pleaded have concluded, consistent with Rule
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`8(a) Fed. R. Civ. P., that a plaintiff has no such burden. Myers v. American Dental Asso., 695
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`F.2d 716, 724 (3rd Cir. 1982); Blacksmith Invs., LLC. v. Cives Steel Co., 228 F.R.D. 66, 70 (D.
`
`Mass. January 27, 2005); Dudash v. Varnell Struck & Assocs., No. C 04-2478 MHP, 2004 U.S.
`
`Dist. LEXIS 24872at *10 – 11 (N.D. Cal. November 16, 2004).
`
`On this motion, because there has been no evidentiary hearing, Mr. Townsend must show
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`a prima facie case that venue is proper. Delong Equipment Co. v. Washington Mills Abrasive
`
`Co., 840 F.2d 843, 845 (11th Cir. 1988). All plausible inferences must be evaluated in favor of
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`the plaintiff. Steinberg v. Luedtke Trucking, Inc., No: 2:16-cv-452-FtM-99MRM, 2016 U.S.
`
`Dist. LEXIS 135234 at *4 (M.D. Fla. September 30, 2016).
`
`
`
`2
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 7 of 21 PageID 386
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`A.
`
`Venue for a Patent Infringement Action
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`The venue statute provides two distinct bases for venue for a patent infringement action:
`
`Any 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.
`28 U.S.C. §1400(b).
`
`1. Where a Defendant “Resides”
`
`In 1990, the United States Court of Appeals for the Federal Circuit1 held that the first
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`basis, that a defendant resides in the judicial district, was to be interpreted in view of the general
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`venue statute, 28 U.S.C. §1391(c), making venue proper in a district in which the defendant was
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`subject to personal jurisdiction for the action. VE Holdings Corp. v. Johnson Gas Appliance Co.,
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`917 F.2d 1574, 1584 (Fed. Cir. 1990. That decision controlled patent venue decisions when the
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`complaint in this action was filed on February 1, 2017.
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`On May 22, 2017, the Supreme Court, in TC Heartland LLC v. Kraft Foods Grp. Brands
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`LLC, 137 S.Ct. 1514 (2017), overruled VE Holdings. The Court rejected the Federal Circuit’s
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`reasoning and held that for purposes of 28 U.S.C. §1400(b), a domestic corporation resides only
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`in its State of incorporation. Id. at 1521.
`
`2. Where a Defendant Has a “Regular and Established Place of
`Business”
`
`Before the Federal Circuit’s VE Holdings decision that the 1988 amendments to the
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`venue statute rendered the first basis for venue duplicative of personal jurisdiction, the Federal
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`Circuit construed the requirement of the statute’s second basis for venue that the defendant have
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`a “regular and established place of business”:
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`1 This court has exclusive jurisdiction over appeals from patent actions. 28 U.S.C. §1295(a)(1).
`
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`
`3
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 8 of 21 PageID 387
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`in determining whether a corporate defendant has a regular and established place
`of business in a district, the appropriate inquiry is whether the corporate defendant
`does its business in that district through a permanent and continuous presence
`there and not as Cordis argues, whether it has a fixed physical presence in the
`sense of a formal office or store.
`
`In re Cordis, 769 F.2d 733, 737 (Fed. Cir. 1985). While In re Cordis clearly rejected a fixed
`
`physical presence as a requirement for a “regular and established place of business,” there are
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`few decisions prior to VE Holdings to look to for establishing the requirements for the
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`“permanent and continuous presence.”
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`Since the TC Heartland decision, the most extensive consideration of the requirement for
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`a “permanent and continuous presence” is Ratheon Co. v. Cray, Inc., No. 2:15-CV-01554-JRG,
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`2017 WL 2813896 (E.D. Tex. June 29, 2017). In Raytheon, Judge Gilstrap surveyed decisions
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`that considered whether a defendant had a “regular and established place of business.” He set
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`out four factors, none of which is essential or dispositive, to be considered in making that
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`determination:
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`Physical presence in the forum including the presence of employees; Id. at *11-12
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`Defendant’s representations as to its presence; Id. at *12
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`Benefits defendant receives from its presence; Id. at *13
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`Interactions the defendant targets at the district. Id.
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`B.
`
`The Record Here Shows at Least a Prima facie Case that Venue Is Proper in
`this District Under the Second Basis of 28 U.S.C. §1400(b)
`
`There are two requirements for venue under the second basis set out by §1400(b): that the
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`defendant has committed acts of infringement in the forum; and that the defendant has a regular
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`and established place of business in the forum. Here, Brooks does not dispute that it has
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`committed acts that are accused of infringement in this district. Rather, Brooks argues that it
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`does not have a regular and established place of business in this district. The record here, which
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`4
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 9 of 21 PageID 388
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`consists only of the evidence that Brooks has submitted and the pleadings, considered in the
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`framework suggested by Judge Gilstrap establishes that Brooks has a permanent and continuous
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`presence in this district.
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`1.
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`Brooks Physical Presence in this District.
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`This factor includes the physical presence of employees in the district. Raytheon, 2017
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`WL 2813896 at *12. Brooks states that it has two employees who work in this district. Dkt. 38-
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`1 (“Wilhelm Dec.”) at ¶ 5. One is an information technology employee who works at his home
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`in Tampa and leaves his home pursuant to his employment by Brooks only once a calendar
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`quarter. Id. at ¶6. As admitted by Brooks, he is continuously and permanently in this district
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`except four times per year. The other employee lives in Lutz, Florida2 and is referred to by
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`Brooks as a “guru.” Id. at ¶7. Brooks’ guru operates in Florida to promote and support sales of
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`Brooks products. Id. Brooks admits that its guru is active in this district. Brooks states that her
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`activity is “throughout Florida (except the panhandle).” Id. Brooks does not say that she is ever
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`anyplace else. Brooks’ description of the guru’s activity is materially incomplete because
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`Brooks neither discloses the guru’s specific activity nor how long she has represented Brooks in
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`this district. Nevertheless, Brooks’ statements provide a prima facie evidence that its “guru”
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`employee is permanently and continuously in Florida.
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`Brooks also states that it is represented in this district by two sales representatives who
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`solicit sales of Brooks products here. Wilhelm Dec. at ¶ 10. One sales representative lives in
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`this district near Tampa. Id. Both are paid by commission on sales. Id. Brooks identifies the
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`territory within which these representatives collectively operate as covering the entire state of
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`2 Defendant’s counsel has informed Plaintiff’s counsel that the Declaration Statement that the
`location is Lusk an error. The location is Lutz, Florida.
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`5
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 10 of 21 PageID 389
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`Florida. Id. Brooks does not say that there is ever a time that either is not representing Brooks in
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`Florida. Here too, Brooks’ description is materially incomplete for not disclosing either the
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`amount of sales in this district by either of these representatives or how long they have been
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`acting here on behalf of Brooks. Nevertheless, Brooks’ statements provide a prima facie
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`evidence that Brooks’ sales representatives are permanently and continuously in Florida.
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`2.
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`Brooks’ Representations as to Presence in this District.
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`The complaint alleges that Brooks is registered with the Florida Department of State and
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`that Brooks does significant business in this state. Dkt. 1 at ¶ 5. Brooks admits that it is
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`registered with the Florida Department of State. Dkt. 26 at ¶ 5. To at least this extent, Brooks
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`has represented that it is present in Florida. Brooks offers no explanation for this registration,
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`and offers no argument that this registration is not a representation that Brooks has a permanent
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`and continuous presence in Florida.
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`Brooks argues that registration is insufficient to subject a defendant to venue. Motion at
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`11 – 12. That is irrelevant. The representation of that registration is one of the facts to be
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`considered here to determine whether Brooks does business in this district by a permanent and
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`continuous presence.
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`3.
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`Benefits Brooks Receives from its Presence in this District.
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`This factor emphasizes the incompleteness of the record presented by Brooks. While
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`Brooks acknowledges that it is registered in the State of Florida, that it has two sales
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`representatives in Florida, and it has a “guru’ whose geographic range extends over most of
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`Florida, Brooks offers no information as to the value that the permanent and continuous presence
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`of these people provide Brooks. Plaintiff lacks evidence as to the benefits Brooks receives from
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`their presence in this district. Venue should not be found to be improper in this district,
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`6
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`

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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 11 of 21 PageID 390
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`plaintiff’s choice, because Brooks has withheld relevant information about its business here that
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`is not available to Plaintiff.
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`4.
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`Targeted Interactions with this District.
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`While Brooks’ IT employee doesn’t seem to represent a decision by Brooks to target this
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`district, Brooks offers no suggestion whatsoever that its sales representatives and its guru’s
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`activity do not represent activity that is targeted at this district. Brooks’ statements make clear
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`that they are in Florida specifically to target customers, both retail stores and ultimate consumers,
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`in Florida. Wilhelm Dec. at ¶¶ 7, 10. This targeting factor emphasizes the permanence and
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`continuity of Brooks’ presence in this district.
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`Brooks’ statements create at least a prima facie case that Brooks has a “regular and
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`established place of business” in this district and that venue is proper here. Brooks’ motion to
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`dismiss or transfer because venue is not proper in this district should be denied.
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`III. BROOKS’ MOTION TO TRANSFER PURSUANT TO 28 U.S.C. §1404(a)
`SHOULD BE DENIED
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`Brooks also asks this court, pursuant to 28 U.S.C. §1404(a), to transfer this case to its
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`home in Seattle. That statute provides that “[f]or the convenience of parties and witnesses, in the
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`interest of justice, a district court may transfer any civil action to any other district or division
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`where it might have been brought or to any district or division to which all parties have
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`consented.”
`
`Section 1404(a) 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." A motion to transfer under §1404(a) thus calls on
`the district court to weigh in the balance a number of case-specific factors.
`
`Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376
`
`U.S. 612 (1964), citations omitted).
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`
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`7
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`

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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 12 of 21 PageID 391
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`The Court of Appeals for the Federal Circuit reviews decisions on motions under 28
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`U.S.C. §1404(a) under the law of the regional circuit. In re Barnes & Noble, 743 F.3d 1381,
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`1383 (Fed. Cir. 2014). In the Eleventh Circuit, a plaintiff’s choice of forum is not disturbed on a
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`motion under 28 U.S.C. §1404(a) “unless it is clearly outweighed by other considerations.”
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`Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996) (quoting Howell v.
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`Tanner, 650 F.2d 610 (5th Cir. Unit B 1981)). Brooks has the burden of showing that the forum
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`to which it seeks transfer is more convenient and that transfer is appropriate. Reliastar Life Ins.
`
`Co. v. Damon, No: 2:16-cv-304-FtM-29CM, 2016 U.S. Dist. LEXIS 106886 at *4 (M.D. Fla.
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`August 12, 2016). Brooks attempts to meet that burden by showing that transfer is favored by
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`the factors considered in making that decision. In sum, Brooks’ argument is that Mr.
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`Townsend’s choice of this forum is due no deference, Seattle is more convenient for Brooks, and
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`even that the relative means of Mr. Townsend, a retired individual, and Brooks, an international
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`business with annual sales in excess of $500 million that is wholly owned by Berkshire
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`Hathaway, favors burdening Mr. Townsend rather than Brooks. Brooks arguments must fail.
`
`A.
`
`Plaintiff’s Choice of this Forum Is Entitled to a Strong Presumption that it
`Should Not Be Disturbed.
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`This district is Mr. Townsend’s chosen forum, and has been his primary residence since
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`2008. Complaint, Townsend Decl. at ¶ 2. As discussed in section II above, Defendant Brooks
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`has a permanent and continuous presence in this district at least by employees and sales agents.
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`This district is alleged to be a location in which Brooks has engaged in acts that are accused of
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`infringing Mr. Townsend’s ‘416 patent. Complaint at ¶6. Brooks does not dispute here that it
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`has engaged in acts that are accused of infringement in this district. Nevertheless, Brooks seeks
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`to meet its heavy burden to show that Mr. Townsend’s choice of this forum is clearly outweighed
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`by other factors by arguing that Mr. Townsend’s choice is a “neutral factor.” Motion at 23 – 24.
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`8
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 13 of 21 PageID 392
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`Brooks cites Proven Winners N. Am., LLC v. Cascade Greenhouse, No. 2:06-cv-428-
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`FTM-29DNF, 2007 WL 1655387 (M.D. Fla. June 6, 2007) for the proposition that a plaintiff’s
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`choice is afforded less weight if the majority of the operative events occurred elsewhere. Motion
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`at 23. But in Proven Winners, there was no assertion that the defendant engaged in infringing
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`activities in the forum chosen by the plaintiff or that the defendant had any connection to the
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`chosen forum. Id. at *2. That is not the case here. Proven Winners does not hold that patent
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`infringement actions should be transferred to the defendant’s home forum simply because that is
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`the location that is most convenient for the defendant or is the place at which the defendant
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`originated infringing activity that occurred in the plaintiff’s chosen forum.
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`Brooks cites other decisions for the proposition that a plaintiff’s choice of forum is
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`entitled to less consideration where facts underlying the cause of action did not occur in the
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`forum. Motion at 24. That is irrelevant here because Brooks is alleged to have committed acts
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`of infringement in this district, and Brooks does not dispute that it has engaged in the accused
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`activity here.
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`Finally, Brooks suggests that Mr. Townsend’s activity years ago in Pennsylvania
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`somehow diminishes his choice of this forum. Brooks even hints, without any evidence to
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`support the assertion, that this district is not Mr. Townsend’s home forum. Motion at 24. As Mr.
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`Townsend directly states, this district is his primary residence and has been since 2008.
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`Townsend Decl. at ¶2. Mr. Townsend’s choice of this district, his home forum, is entitled to the
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`strong presumption against transfer. Proven Winners, 2007 WL 1655387 at *1.
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`B.
`
`The Locus of Operative Facts Does Not Strongly Favor Transfer
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`Brooks argues that its favored district is the locus of operative facts in this matter because
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`“[t]he accused products were designed and developed in Washington.” Motion at 20. But the
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`9
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 14 of 21 PageID 393
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`declaration that Brooks cites as supporting that statement does not support it. Brooks’
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`declaration contradicts that assertion.
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`This patent infringement action specifically concerns a material that is part of the accused
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`Brooks shoes. Complaint at ¶¶10 – 15. Brooks’ declaration states clearly that material was
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`created in China, not Seattle. Wilhelm Dec. at ¶13. Seattle is not the locus of activity underlying
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`the accused product that Brooks argues it to be.
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`Brooks cites a trademark infringement case for the proposition that the locus of operative
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`facts in an intellectual property case is “where the allegedly infringing product was designed,
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`developed and produced,” and cites Proven Winners for the proposition that “a district court
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`ought to be as close as possible to the milieu of the infringing device and the hub of activity
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`centered around its production.” Motion at 20. However, Seattle is not the center of production
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`of the accused running shoes. The accused running shoes are produced in China, not in Seattle.
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`Wilhelm Dec. at ¶13.
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`Seattle may be the location of more activity related to Brooks infringement than is this
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`district but it is not the locus of operative facts. When activity underlying the accused product is
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`dispersed, this factor does not strongly favor transfer. See Brandywine Communs. Techs., LLC v.
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`Cisco Sys., Inc., No. 6:11-cv-1843-Orl-36DAB, 2012 U.S. Dist. LEXIS 68317 at *19-20 (M.D.
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`Fla. March 26, 2012). This factor does not strongly favor transfer.
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`C.
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`Convenience of the Witnesses Does Not Strongly Favor Transfer
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`Brooks argues that the convenience of witnesses favors transfer of this action to Seattle.
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`Brooks Motion at 16 – 18. Brooks identifies witnesses who are its employees as potential
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`witnesses who are located in Seattle and in China. As to the China employees, Brooks admits
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`that travel will be required, but asserts that travel to Seattle is more convenient than travel to
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`10
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 15 of 21 PageID 394
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`Florida. Brooks Motion at 17. Brooks does not identify the number of employees in either
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`location. Brooks also identifies third parties who appear to be former employees and patent
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`prosecutors as witnesses. Brooks relies solely on the number of these people and their location
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`to argue that witness convenience favors transfer. Brooks does not identify witnesses’ specific
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`relevance to this case or any reason that travel offers any obstacle to them. Brooks also
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`complains that extensive travel could be really inconvenient for Brooks. Id.
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`As to Mr. Townsend, Brooks asserts that he travels anyway and argues that travel
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`between Florida and New Jersey is comparable to travel to Seattle.. Brooks Motion at 18. While
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`Mr. Townsend does still travel, he has not traveled to the west coast in the last two years and he
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`has reduced to consulting practice to avoid travel. Townsend Decl. at ¶7.
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`Brooks has not shown the number of witnesses it believes it will rely on, and has not
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`shown what burden travel would impose on those witnesses or Brooks. “[I]n the case of
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`employee witnesses, ‘their convenience is entitled to less weight because [the parties] will be
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`able to compel their testimony at trial.’" Nat'l Trust Ins. Co. v. Pa. Nat'l Mut. Cas. Ins. Co., 223.
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`F.Supp. 1236, 1243 (M.D. Fl. 2016) (quoting Trinity Christian Ctr. of Santa Ana, Inc. v. New
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`Frontier Media, Inc., 761 F. Supp. 2d 1322, 1327 (M.D. Fla. 2010)). Brooks has not shown that
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`this factor strongly favors transfer, if it favors transfer at all.
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`D.
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`Location of Documents Does Not Strongly Favor Transfer
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`Brooks states that documents that it keeps in Seattle are relevant to this action. Brooks
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`Motion at 18 – 19. Brooks also speculates that third parties may also have relevant documents.
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`Id. at 19. Brooks does not identify the form of the documents, electronic, paper, or other, and
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`offers no estimate of the volume of such documents. Electronic documents make this factor not
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`11
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`Case 2:17-cv-00062-UA-MRM Document 40 Filed 07/21/17 Page 16 of 21 PageID 395
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`signification. Florida courts do not heavily weight this factor based on electronic document.
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`Nat'l Trust Ins. Co. v. Pa. Nat'l Mut. Cas. Ins. Co., ) 223. F.Supp. 1236, 1243-44 (M.D. Fl. 2016)
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`While documents may be located in Washington and elsewhere, Brooks has failed to
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`show that producing them in Florida imposes any particular difficulty. Wilhelm Dec. at ¶ 12.
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`This factor therefore does not favor transfer. Nat'l Trust Ins. Co. v. Pa. Nat'l Mut. Cas. Ins. Co.,
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`223. F.Supp. 1236, 1244 (M.D. Fl. 2016).
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`E.
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`Convenience of the Parties Does Not Strongly Favor Transfer
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`Brooks argues that convenience of the parties favors transfer based on the same
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`arguments that it made for convenience of the witnesses. Because the witnesses are largely
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`Brooks’ employees, their convenience and Brooks’ convenience are the same. And again, Mr.
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`Townsend’s inconvenience is not significant. Brooks Motion at 10 -11. And further, Brooks
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`again argues that this district is not Mr. Townsend’s home. Id. at 11. All those arguments
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`should be rejected for the reasons set out in response to them in sections III.A and III.C above.
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`Brooks has not shown that this factor strongly favors transfer.
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`F.
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`Availability of Process to Compel the Attendance of Unwilling Witnesses
`Does Not Strongly Favor Transfer
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`Brooks argues that the 100 mile limit of subpoenas issued from the court in Seattle favors
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`transfer. Brooks Motion at 21. The unwilling witnesse