UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

E.DIGITAL CORPORATION,

Plaintiff,

v.

ARCSOFT, INC. d/b/a CLOSELI and

SIMPLICAM,

Defendant.

Case No.: 15-cv-56-BEN (DHB)

ORDER:

(1) DENYING PLAINTIFF'S

MOTION FOR RECUSAL

(2) DENYING PLAINTIFF'S

MOTION TO TRANSFER VENUE

18 Before this Court is a Motion to Transfer Venue, filed by Plaintiff e.Digital

19 Corporation. (Docket No. 33.) For the reasons stated below, the Motion is DENIED.

20 BACKGROUND

21 On January 12,2015, Plaintiff brought this patent infringement action against

22 Defendant ArcSoft, Inc. (Docket No.1.) Plaintiff alleges that Defendant's simplicam

23 branded wireless camera systems infringe upon five of Plaintiff s patents entitled,

24 "System and Method for Managing Mobile Communications." (Compl. ~~ 10, 14-18.)

25 On May 6, 2015, Plaintiff filed a motion to transfer venue to the Northern District

26 of California. (Docket No. 19.) The motion was later withdrawn by way ofajoint

27 agreement between the parties. (Docket No. 30.) On July 1,2015, Plaintiff filed the

28 instant and renewed motion to transfer venue. (Docket No. 33.) Defendant filed an

1

15-cv-56·BEN (DHB)

Case 3:15-cv-00056-BEN-DHB Document 38 Filed 09/02/15 Page 1 of 6

1 Opposition. (Docket No. 34.)

2 LEGAL STANDARD

3 "For the convenience of the parties and witnesses, in the interest of justice, a

4 district may transfer any civil action to any other district or division where it might have

5 been brought or to any district or division to which all parties have consented." 28

6 U.S.C. § 1404(a). In considering whether to transfer venue, courts consider a number of

7 factors, such as: (1) the plaintiffs choice offorum, (2) convenience to the parties, (3)

8 convenience to the witnesses, (4) ease of access to the evidence, (5) familiarity of each

9 forum with the applicable law, (6) the feasibility of consolidation with and relationship to

10 other claims, (7) any local interest in the controversy, and (8) the relative court

11 congestion and time of trial in each forum. Saleh v. Titan Corp., 361 F. Supp. 2d 1152,

12 1156 (S.D. Cal. 2005) (citing Jones v. GNC Franchising, Inc., 211 F.3d 495,498-99 (9th

13 Cir. 2000».

14 The moving party bears the burden of showing that transfer is appropriate.

15 Commodity Futures Trading Comm 'n v. Savage, 611 F .2d 270, 279 (9th Cir. 1979). The

16 decision to transfer venue is within the court's broad discretion. Jones, 211 F.3d at 498.'

17

18 J.

19

DISCUSSION

Plaintifrs Motion for Recusal

In support of its Motion to Transfer, Plaintiff quickly argues that this Court should

20 recuse from this case because defense counsel, Olga May, once clerked for this Court.

21 A federal judge must recuse himself when a party to the proceeding has filed "a

22 timely and sufficient affidavit that the judge before whom the matter is pending has a

23

24

25 'Defendant asks this Court to apply the following rule: Where a plaintiff moves to

transfer venue, "he must show that there has been a change of circumstances since the

26 suit was filed that warrants transfer." Cox v. Ashcroft, No. CV-F-05-149, 2008 WL

27 802314, at * 1 (B.D. Cal. Mar. 25, 2008). Although the Ninth Circuit has neither adopted

nor rejected this rule, the Court need not apply it in this case where the traditional transfer

28 analysis does not support transfer.

1 personal bias or prejudice either against him or in favor of any adverse party." 28 U.S.C.

2 § 144. The affidavit must be made within ten days "before the beginning of the term at

3 which the proceeding is to be heard, or good cause shall be shown for failure to file it

4 within such time." !d. A legally sufficient affidavit must also "state facts and the reasons

5 for the belief that bias or prejudice exists .... " Id.; United States v. Sib la, 624 F .2d 864,

6 868 (9th Cir. 1980). "Section 144 expressly conditions relief upon the filing of a timely

7 and legally sufficient affidavit." Sibla, 624 F.2d at 867.

8 A federal judge is required to "disqualify himself in any proceeding in which his

9 impartiality might reasonably be questioned." 28 U.S.C. § 455(a). A judge must also

10 disqualify himself ifhe has a personal bias or prejudice against a party. 28 U.S.C. §

11 455(b)(I). Sections 144 and 455 require recusal "only if the bias or prejudice is directed

12 against a party and stems from an extrajudicial source." Sibla, 624 F.2d at 867 (citations

13 omitted).

14 First, Plaintiffs motion under section 144 is untimely. Plaintiff initiated this case

15 in January 2015, yet failed to raise any issue ofrecusal until its first motion to transfer

16 was filed five months later. Also, Plaintiff provides no reason for the delay.

17 Second, Plaintiff fails to state any adequate basis that this Court's impartiality

18 might reasonably be questioned. "[J]udges ... are presumed to be impartial and to

19 discharge their ethical duties faithfully so as to avoid the appearance of impropriety."

20 First Interstate Banko! Ariz., N.A. v. Murphy, Weir & Butler, 210 F.3d 983,988 (9th Cir.

21 2000). The fact that Ms. May clerked for this Court, and that her clerkship ended in

22 2008, without more is insufficient to establish any personal bias. Accordingly, Plaintiffs

23 Motion for Recusal is DENIED.

24 II. Plaintiff's Motion to Transfer

25 Plaintiff asks this Court to transfer this case to the Northern District of California

26 because it is a more convenient forum. As neither party disputes that this action could

27 have been brought in the Northern District, the Court need only consider the convenience

28 factors.

3

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Case 3:15-cv-00056-BEN-DHB Document 38 Filed 09/02/15 Page 3 of 6

1 1. Plaintiffs Choice of Forum

2 A plaintiffs choice offorum is generally afforded deference; however, such

3 deference is diminished where the plaintiff is not a resident of the chosen forum and the

4 conduct giving rise to the claim occurred elsewhere. Decker Coal Co. v. Commonwealth

5 Edison Co., 805 F .2d 834, 843 (9th Cir. 1985); Park v. Dole Fresh Vegetables, Inc., 964

6 F. Supp. 2d 1088, 1094-95 (N.D. Cal. 2013).

7 Here, Plaintiff is not a resident ofthe Northern District. Rather, Plaintiff "is

8 headquartered and has its principal place of business in this district, engages in business

9 in this district, and has been harmed by Defendant's conduct, business transactions and

10 sales in this district." (Compl. '\13.) In addition, Defendant's alleged conduct is not tied

11 to a particular district. Plaintiff alleges that Defendant manufactures and sells infringing

12 products throughout California. (Compl. '\1'\14-5.) Thus, Plaintiffs new choice offorum

13 is entitled to little deference and will be weighed against the remaining factors. See

14 Decker Coal Co., 805 F.2d at 843; Rovert Bosch Healthcare Sys., Inc. v. Cardiocom,

15 LLC, No. C-14-1575, 2014 WL 2702894, at *5 (N.D. Cal. June 13,2014).

16 2. Convenience of Parties and Witnesses

17 "The relative convenience to the witnesses is often recognized as the most

18 important factor to be considered in ruling on a motion under § 1404(a)." State Street

19 Capital Corp. v. Dente, 855 F. Supp. 192, 197 (S.D. Tex. 1994); see also L.A. Mem'l

20 Coliseum Comm 'n v. Nat 'I Football League, 89 F.R.D. 497, 501 (C.D. Cal. 1981). "To

21 show inconvenience to witnesses, the moving party should state the witnesses' identities,

22 locations, and content and relevance of their testimony." Meyer Mfg. Co. v. Telebrands

23 Corp., No. CIV s-11-3153, 2012 WL 1189765, at *6 (E.D. Cal. Apr. 9, 2012)(citation

24 omitted).

25 Plaintiff argues that the Northern District is a more convenient forum because that

26 is where the Defendant resides, and Plaintiff assumes "most likely" that is where the

27 witnesses are located. (Mot. 8.) However, Defendant indicates that the majority of

28 relevant witnesses are located in Hangzhou, China. Notably, the lead development and

1 product manager for the allegedly infringing products is also located in China. That

2 being the case, Defendant contends that, because the witnesses would already be required

3 to travel to California, the Northern District is no more convenient than this District.

4 Thus, this factor weighs neither for nor against transfer.

5 3. Ease of Access to the Evidence

6 "In patent infringement cases, the bulk of the relevant evidence usually comes

7 from the accused infringer. Consequently, the place where the defendant's documents

8 are kept weighs in favor of transfer to that location." In re Genentech, Inc., 566 F.3d

9 1338, 1345 (Fed. Cir. 2009).

10 Defendant states that the allegedly infringing products are manufactured in China

11 by a third-party vendor. Evidence related to hardware and manufacturing, then, would

12 also be located there. In addition, the proprietary source code, the development

13 documents, and many of the design documents are located in Hangzhou. Thus,

14 Defendant contends, a transfer to the Northern District would not be any more convenient

15 than the current venue. This Court agrees. This factor weighs against transfer.

16 4. Feasibility of Consolidation

17 Plaintiff argues that there are two related cases, Dropcam and Oco, proceeding in

18 the Northern District, and this case should join them there. In chronological order,

19 Plaintiff initially filed Dropcam in this District, however the case was subsequently

20 transferred to the Northern District. Second, after Dropcam had already been transferred

21 out, Plaintiff filed the instant case in this District. Third, Plaintiff decided to file Oco in

22 the Northern District.

23 Although Plaintiff asks that this case be considered along with the others in the

24 Northern District, the Court is not inclined to transfer the case in the absence of other

25 factors supporting such a transfer. This is not the situation where Plaintiff made a

26 mistake in filing the case in this District. See Erami v. JPMorgan Chase Bank, Nat.

27 Ass 'n, No. 15-cv-727, 2015 WL 3545728, at *1 (B.D. Cal. June 4, 2015). Plaintiff had

the option of filing this case in the Northern District, yet consciously choseto bring its

claim here-even after knowing Dropcam would be heard in the Northern District. To

guard against the dangers of forum shopping, this factor weighs against transfer.

Remaining Factors

The remaining factors, local interest, familiarity of each forum with the law, and

court congestion, are neutral. First, Plaintiff is located in this District while the

Defendant is located in the Northern District. As such, each forum has a similar local

interest in adjudicating the instant patent infringement case. See In re Hoffman-La

Roche, Inc., 587 F.3d 1333, 1336 (Fed. Cir. 2009). Second, because the governing law of

a patent case is federal patent law, both districts are equally situated to decide the legal

issues in the present action. In re TS Tech USA Corp., 551 F.3d at 1320. Additionally,

both districts are part of the Patent Pilot Program, making them very familiar with cases

concerning patent infringement. Third, court congestion and time to trial differ

marginally. Thus, these final three factors neither weigh for nor against transfer.

Conclusion

After evaluating the various factors, the Court determines that a transfer would be

inappropriate in this case. Plaintiff premised its argument on the idea that transfer to the

Northern District would be more convenient for Defendant. However, Defendant

responded to the contrary. Plaintifffailed to show any inconvenience if the case were to

remain in this District; thus, Plaintiff failed to meet its burden and the record is

insufficient to support a transfer. Accordingly, the Motion to Transfer is DENIED.

CONCLUSION

Plaintiffs Motion for Recusal is DENIED and Plaintiffs Motion to Transfer is

DENIED.

IT IS SO ORDERED.

Dated: September 3, 2015

HOll. gel'T. Benitez

United States Distlict Judge