Wednesday, July 3, 2013, 5:17 PM
By Kirk Watkins
Acceleron, LLC, a Delaware limited liability company claiming a principal place of business in Atlanta, filed suit against Dell Inc., headquartered in Round Rock, Texas, alleging infringement of Patent No. 6,948,021 (the “’021 patent”), which deals with a hot-swappable server module in a computer network. On June 12, 2013, Judge Timothy Batten, Sr. of the Northern District of Georgia denied Dell’s motion to transfer the case to the Western District of Texas.
Acceleron is the owner by assignment of the ‘021 patent and asserts that Dell makes and uses products infringing that patent. Dell moved to transfer the case to the Western District of Texas contending key witness convenience, document location, sources of proof there, and a greater local interest in the case mandated the move. Under 28 U.S.C. § 1404(a), for convenience of the parties, the court may transfer a case to any other district that the case might have been brought. Here, neither party denied the Western District of Texas was a proper venue.
The Court delineated nine relevant factors. (For more on these factors, see our previous post here). The Court found two factors weighing against transfer and only one factor that might lean in favor of Dell - the location of the documents. The Court pointed out that the 11th Circuit had yet to weigh on the significance of the location of documents in the new electronic world. The Southern District of Florida’s consideration of the issue was quoted with favor: “In a world with fax machines, copy machines, email, overnight shipping, and mobile phones that can scan and send documents, the physical location of documents is irrelevant.” 
The most important factor to the Court’s decision was the convenience of the witnesses. While Dell argued that the Western District of Texas was a more convenient forum for their witnesses, the Court disagreed for two reasons. First, Dell’s failure to specifically identify the testifying witnesses allowed the Court to conclude it was unaware if those witnesses still resided in Texas. Further, because Dell acknowledged the witnesses were its own employees, the Court accorded less deference. The Court presumed employees to be more willing to testify in another forum, due to their alignment with the employer.  Acceleron’s five identified nonparty witnesses residing in the Northern District of Georgia, two of which were the inventors of the ‘021 patent, outweighed Dell’s unidentified employee witnesses.
After finding that the convenience of the witnesses and the relative means of the parties weighed against transfer, the location of the documents only slightly weighed in favor of transfer, and all other factors remained neutral, the Northern District of Georgia denied Dell’s motion for transfer.
The author would like to thank Emily Scheible for her substantial contributions to the composition of this post.
 Microspherix LLC v. Biocompatibles, Inc., No. 9:11-cv-80813m 2012 WL 243764, at *3 (S.D. Fla. Jan. 25, 2012). Ramsey v. Fox News Network, LLC, 323 F. Supp. 2d 1352, 1356 (N.D. Ga. 2004).