Federal Circuit disposition — 2012-m115-5-1-12-1-pdf

# NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit

IN RE AMAZON.COM INC., AMAZON SERVICES
LLC, AND AMAZON WEB SERVICES LLC,
Petitioners.

Miscellaneous Docket No. 115

On Petition for Writ of Mandamus to the United States
District Court for the Eastern District of Texas in case no.
10-CV-671, Judge Leonard Davis.

ON PETITION

Before RADER, Chief Judge, LINN, and PROST, Circuit
Judges.

RADER, Chief Judge.

## ORDER

Petitioners Amazon.com Inc., Amazon Services LLC,
and Amazon Web Services LLC ("Amazon") seek a writ of
mandamus to direct the United States District Court for
the Eastern District of Texas to vacate its order denying
Amazon's motion to transfer venue, and to transfer the

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case to the United States District Court for the Western
District of Texas. Global Sessions LP and Global Sessions
Holding SRL ("Global Sessions") oppose. Amazon replies.

Global Sessions filed this patent infringement suit
against Amazon, Systemax, Inc., Circuitcity.com, Inc.,
Compusa.com, Inc., Profitcenter Software Inc., and Tiger-
direct, Inc., Orbitz Worldwide, LLC, Orbitz, Inc., Orbitz,
LLC, Trip Network, Inc. (d/b/a CheapTickets), Price-
line.com, Inc., Sabre Holdings Corporation, Sabre Inc.,
Travelocity.com L.P., Travelocity.com, Inc., CDW Corpo-
ration, and CDW LLC .*

In its order denying Amazon's motion to transfer, the
district court noted that none of the defendants are head-
quartered in the Western District of Texas and that the
defendants' documents and evidence are physically lo-
cated throughout the nation. Although the court noted
that some likely sources of proof are located at Global
Sessions' principal place of business in Austin, Texas, the
court explained that the patent prosecution documents
are likely located in Dallas, Texas and other defendants'
documents are likely located in Tulsa, Oklahoma and
Southlake, Texas, which are all closer to the Eastern
District of Texas.

The district court also recognized that the Western
District of Texas court's ability to subpoena potential
witnesses favored transfer because the parties had identi-
fied a number of material third-party witnesses who
resided in the Western District or within 100 miles of that
court. However, because at least four witnesses with
knowledge about the valuation, acquisition, and assign-
ment of the patents worked within 100 miles of the East-

Amazon's co-defendants have all filed briefs of
non-opposition to or support of Amazon's petition.

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ern District of Texas court, the court noted that it would
have absolute subpoena power over those witnesses. The
court further noted that although transfer would make it
more convenient for the witnesses identified in the West-
ern District, transfer would merely shift the inconven-
ience of travel for a number of witnesses who resided
closer to the Eastern District. Ultimately, after consider-
ing all of the relevant factors, the district court concluded
that Amazon had not met its burden of demonstrating
that the Western District of Texas was clearly more
convenient than the Eastern District of Texas for trial of
the case, and denied the transfer motion.

Mandamus is an extraordinary remedy, available "to
correct a clear abuse of discretion or usurpation of judicial
power." In re Nintendo Co., 589 F.3d 1194, 1197 (Fed.
Cir. 2009). As the petition does not involve substantive
issues of patent law, the law of the regional circuit ap-
plies, here the Fifth Circuit. Id.

Amazon relies on this court's decision in In re Genen-
tech, Inc., 566 F.3d 1338 (Fed. Cir. 2009), arguing that, as
in this case, the district court in Genentech weighed
against transfer the fact that sources of proof maintained
outside the district were nonetheless closer to the Eastern
District of Texas. In that case, the district court denied
transfer to the Northern District of California, a venue
where eight of the nine alleged infringing products had
been developed, tested, and produced, and where a sub-
stantial number of sources of proof were located and
witnesses resided, despite the fact that no parties or
witnesses resided in the Eastern District of Texas. Id. at
1345. In denying transfer, the district court explained
that some documents located abroad and on the East
Coast would have to be transported over a shorter dis-
tance to the Eastern District of Texas than if they were to
be transported to the transferee venue. Id. Because those

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documents would need to be transported a significant
distance no matter where the case was tried, and it was
patently erroneous to allow that basis to prevent transfer
to the far more convenient venue, this court granted
mandamus. See id. at 1348 ("[T]here is simply no rational
argument that, in light of the witnesses, parties, evidence,
compulsory attendance and local interest, the clearly
more convenient venue is not the Northern District of
California.").

In this case, by contrast, no defendant is headquar-
tered in the transferee venue. In that respect, this case
differs significantly from Genentech because transfer here
would not result in trial of the case where the alleged
infringing products were developed and where a signifi-
cant amount of the defendants' sources of proof are main-
tained. Although the district court relied on the fact that
some of the defendants' likely documentary evidence is
located in Dallas, Texas, Southlake, Texas, and in Okla-
homa, which are all outside, but closer to, the Eastern
District of Texas, this court discerns no clear abuse of
discretion in the district court's finding that the relative
ease of access to sources of proof does not favor transfer.

Amazon also argues that the handful of third-party
witnesses Global Sessions identified as located in the
Eastern District have only a speculative connection to the
case. According to Amazon, the availability of compulsory
process to secure attendance of non-party witnesses
should therefore weigh "strongly" in favor of transfer, not
"slightly" as the district court found. This type of asserted
error is ordinarily not mandamus-worthy, particularly in
light of the fact that at the transfer stage, affidavits or
other detailed information about a witness's relevance
and potential testimony are not required. See In re Volks-
wagen of Am., Inc., 545 F.3d 304, 317 n.12. (5th Cir. 2008)
(en banc).

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This court is also not persuaded by Amazon's argu-
ments regarding the district court's severance and judicial
economy analysis. It is true that if transfer were clearly
appropriate, severance would not be required given it is
undisputed the Western District of Texas has personal
jurisdiction over all defendants. Nonetheless, because
Amazon has not made a compelling showing that the
Western District is a clearly more convenient venue, even
discounting the district court's concerns about severance,
this court cannot say that the district court's decision
amounted to a clear abuse of discretion.

Accordingly,

IT IS ORDERED THAT:

The petition for a writ of mandamus is denied.

FOR THE COURT

MAY 0 1 2012

/s/ Jan Horbaly

Date

Jan Horbaly Clerk

cc: J. David Hadden, Esq.
Benjamin T. Horton, Esq.
Michael A. Nicodema, Esq.
Steven J. Pollinger, Esq.
Neil J. McNabnay, Esq.
John Martin Jackson, Esq.
Clerk, United States District Court for the Eastern
District of Texas

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 0 1 2012
JAN HORBALY
CLERK

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