UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

0 0 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA THERMOLIFE INTERNATIONAL, LLC and VERTEX CLOSED JOINT STOCK COMPANY d/b/a VERTEX PHARMACEUTICAL COMPANY, Plaintiffs, v. VITAL PHARMACEUTICALS, INC.; Defendant. CV - RSWL (AGRx ORDER RE: DEFENDANT S MOTION TO TRANSFER PURSUANT TO U.S.C. 0(a [] Currently before the Court is Defendant Vital Pharmaceuticals, Inc. s ( Defendant Motion to Transfer Pursuant to U.S.C. 0(a filed June, 0 []. Plaintiffs ThermoLife International, LLC ( Thermolife and Vertex Closed Joint Stock Company d/b/a Vertex Pharmaceutical Company ( Vertex JS- (collectively, Plaintiffs filed their Opposition July, 0 [] and Defendant filed its Reply on July, 0 []. This matter was taken under submission

0 0 on July, 0 []. Having reviewed all papers and arguments submitted pertaining to this Motion, the Court NOW FINDS AND RULES AS FOLLOWS: The Court hereby GRANTS Defendant s Motion. I. BACKGROUND Plaintiff Thermolife is a limited liability company organized in Arizona, with a place of business in California. First Amended Complaint ( FAC. Plaintiff Thermolife is the exclusive licensee of United States Patent No.,0,0 (the 0 patent, titled Amides of Creatine, Method Of Their Preparation, And Remedy Possessing A Neuroprotective Activity. Id. at. The 0 patent is owned by Plaintiff Vertex, which is a corporation with an address in St. Petersburg, Russia. Id. at. Defendant is a corporation incorporated in Florida with its principal place of business in Florida. Id. at. Defendant does business as VPX. Id. at. Plaintiffs allege that Defendant makes, distributes, markets, and sells dietary supplement products that infringe on one or more claims of the 0 patent, which include products sold under the mtorc" and CREmTOR and Bang brand names (the Accused Products. Id. at. Plaintiffs allege that the Accused Products include ingredients that infringe one or more claims of the 0 patent. Id. at. These Plaintiffs do not allege where Plaintiff Thermolife s principal place of business is located.

0 0 ingredients include creatyl-l-leucine. Id. at. Plaintiffs allege that Defendant has made the following statements in its marketing: The all NEW mtorci PREWORKOUT Mtor IGNITOR features a novel scientific Patented breakthrough known as Creatyl-L-Leucine, aka Jack Owoc s mtorci Peptide, and VPX engineered these peptides. Id. at. Plaintiffs also assert that Defendant willfully infringed one or more claims of the 0 patent as Defendant has been on notice of its infringement since at least March, 0, but has refused to engage in discussions with Plaintiffs with respect to the patent. Id. at. Plaintiffs claim that Defendant continues to manufacture and sell the Accused Products. Id. As a result of Defendant s actions, Plaintiffs assert a single cause of action for infringement of the 0 patent against Defendant. Id. at -. Plaintiff Thermolife filed its Complaint on April, 0 []. In response to Defendant s Motion to Dismiss filed May, 0 [], Plaintiffs amended their Complaint to add Plaintiff Vertex []. Defendant filed its Answer on June, 0 []. II. LEGAL STANDARD B. Motion to Transfer Venue Pursuant to U.S.C. 0(a Under U.S.C. 0(a, [f]or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action

0 0 to any other district or division where it might have been brought. U.S.C. 0(a. Before a court may transfer venue under U.S.C. 0, it must find that: (i the action is one that might have been brought in the transferee court and (ii the convenience of the parties and the interest of justice favor the transfer. Colt Studio, Inc. v. Badpuppy Enter., F. Supp. d 0, (C.D. Cal. (citing Hatch v. Reliance Ins. Co., F.d 0, (th Cir.. Transfer under 0(a is discretionary. A.J. Indus. v. U.S. Dist. Court for Cent. Dist. Of Cal., 0 F.d, (th Cir.. The purpose of 0(a is to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense. Van Dusen v. Barrack, U.S., ( (quoting Cont l Grain Co. v. Barge FBL-, U.S., - (0. An action is one that might have been brought in the transferee court when (i the transferee court would have had subject matter jurisdiction at the time the action was filed; (ii defendants would have been subject to personal jurisdiction; and (iii venue would have been proper. E. & J. Gallo Winery v. F. & P. S.p.A., F. Supp., (E.D. Cal. (citing Hoffman v. Blaski, U.S., - (0. In determining whether the convenience of the parties and the interest of justice favor transfer, the

0 0 court should consider certain factors, including: ( the location where the relevant agreements were negotiated and executed, ( the state that is most familiar with the governing law, ( the plaintiff s choice of forum, ( the respective parties contacts with the forum, ( the contacts relating to the plaintiff s cause of action in the chosen forum, ( the differences in the costs of litigation in the two forums, ( the availability of compulsory process to compel attendance of unwilling non-party witnesses, and ( the ease of access to sources of proof. Jones v. GNC Franchising, Inc., F.d, - (th Cir. 000; see also Sec. Investor Prot. Corp. v. Vigman, F.d 0, (th Cir.. The burden is on the moving party to demonstrate that the balance of these factors favors the transfer. Commodity Futures Trading Comm n v. Savage, F.d 0, (th Cir. ; Pfeiffer v. Himax Techs., Inc., 0 F. Supp. d, (C.D. Cal. 00; Florens Container v. Cho Yang Shipping, F. Supp. d 0, 0 (N.D. Cal. 00. A transfer of venue is not appropriate unless the factors enumerated strongly favor venue elsewhere. Pac. Car & Foundry v. Pence, 0 F.d, (th Cir.. The defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff s choice of forum. Decker

0 0 Coal v. Commonwealth Edison, 0 F.d, (th Cir.. III. DISCUSSION A. Request for Judicial Notice As an initial matter, Defendant requests that this Court take judicial notice of numerous documents. All of this evidence is also presented by way of the Declaration of Marc. J. Kesten. Compare Def. s RJN Exs. A-K with Kesten Decl. Exs. A-K. As evidence may be considered by a court in ruling on a motion to transfer under U.S.C. 0 (see Getz v. Boeing Co., F. Supp. d 00, 0 (N.D. Cal. 00; Bryant v. Oxxford Exppress, Inc., F. Supp. d 0, 0 (C.D. Cal. 000; cf. N.Y. Marine and Gen. Ins. Co. v. Lafarge N. Am., Inc., F.d 0, - (d Cir. 00 (approving use of the clear and convincing These documents are: ( an article entitled Thermolife named third biggest Patent Troll of 0, ( a study titled Lex Machina 0 Patent Litigation Year in Review, ( an article entitled Patent trolls strike supplements, ( a Pacer search performed of all cases filed by and against Plaintiff Thermolife in United States federal court, ( a redacted copy of the agreement, Exclusive Patent License Agreement between Plaintiff Vertex and Plaintiff Thermolife, dated March, 0, ( a printout from the Arizona Corporation Commission dated May, 0, ( a printout from the California Secretary of State s website showing that Plaintiff Thermolife is an Arizona limited liability company in good standing with the State of California, ( documents obtained from <www.uspto.gov>, ( a printout obtained from the Maricopa County Property Assessor s Office s web site showing Ronald Kramer owns a house in Phoenix, Arizona, (0 a Motion to Controvert Grounds of Issuance of Search Warrant at E. Brookwood Ct., Phoenix, Arizona Ronald Kramer filed in Arizona state court, and ( page of a Complaint Ronald Kramer filed in 0 against Defendant. Def. s Request for Judicial Notice ( RJN Exs. A-K.

0 0 evidence standard in ruling on a motion to transfer venue; Decker Coal, 0 F.d at, this Court need not take judicial notice of admissible evidence presented via the Kesten Declaration. Plaintiffs do not object to any of Defendant s evidence. Because Defendant presents the same evidence via affidavit and because Plaintiffs do not object to that evidence, the Court deems Defendant s RJN MOOT and declines to rule on its request. B. Defendant s Motion to Transfer District courts use a two-step analysis to determine whether a transfer is proper. The threshold question under Section 0(a requires the court to determine whether the case could have been brought in the forum to which the transfer is sought. Roling v. E*Trade Sec., LLC, F. Supp. d, (N.D. Cal. 00 (citing U.S.C. 0(a; Hatch, F.d at. If venue would be appropriate in the wouldbe transferee court, then the court must make an individualized, case-by-case consideration of convenience and fairness. Id. (quoting Jones, F.d at. Defendant seeks to transfer this Action from the Central District of California ( CACD to the Southern District of Florida ( SD Fla.. Mot. :-.. Whether the Action Could Have Been Brought in the SD Fla. As a threshold inquiry, this Court must first

0 0 determine if this Action could have originally been brought in the SD Fla. U.S.C. 0(a. In other words, the Court must find whether the SD Fla. would have had subject matter jurisdiction at the time the Action was filed, Defendant would have been subject to personal jurisdiction there, and venue would have been proper. E. & J. Gallo Winery, F. Supp. at. Here, the SD Fla. would have had subject matter jurisdiction at the time the Action was filed, as Plaintiffs Complaint alleges patent infringement. U.S.C.,. Defendant is subject to personal jurisdiction in Florida because its principal place of business is located there. FAC ; Owoc Decl.. Finally, venue would have been proper in the SD Fla. under U.S.C. 00(b, which provides that patent infringement actions 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 has a regular and established place of business. Defendant has its principal place of business in the SD Fla., meaning that it resides there for venue purposes. U.S.C. (c(. The Court finds that this Action could have originally been brought in the SD Fla. As such, the Court turns to whether considerations of convenience and fairness warrant transfer. See Park v. Dole Fresh Vegetables, Inc., F. Supp. d 0, 0 (N.D. Cal. 0 (quoting Stewart Org., Inc. v. Ricoh Corp.,

0 0 U.S., (.. Whether Convenience and Fairness Warrant a Transfer to the SD Fla. Pursuant to Section 0(a, a court should consider: ( the convenience of the parties, ( the convenience of the witnesses, and ( the interest of justice. Park, F. Supp. d at 0 (citing U.S.C. 0(a. Courts may also consider other factors, including: ( the location where the relevant agreements were negotiated and executed, ( the state that is most familiar with the governing law, ( the plaintiff s choice of forum, ( the respective parties contacts with the forum, ( the contacts relating to the plaintiff s cause of action in the chosen forum, ( the differences in the costs of litigation in the two forums, ( the availability of compulsory process to compel attendance of unwilling non-party witnesses, and ( the ease of access to sources of proof. Jones, F.d at -. a. Convenience of the Parties Defendant argues that the convenience of the parties weighs in favor of transfer. Specifically, Defendant claims that it will be inconvenienced because it is based in and operates its business entirely from the SD Fla. Owoc Decl.. Defendant asserts that

0 0 its sole connection with the CACD is that it sells its supplements through a network of distributors in California. Id. at. Defendant also avers that the SD Fla. is a more convenient forum for Plaintiff Vertex as St. Petersburg, Russia is closer to Florida than it is to California. Mot. :-. Plaintiffs argue that transferring this case would only shift the burden from Defendant to Plaintiffs. Opp n :-. Plaintiffs also claim that their choice of forum is to be accorded substantial deference. Id. at :-. Regardless of where this Action is litigated, at least two of the three Parties will be inconvenienced because Plaintiff Thermolife is an Arizona limited liability company with a place of business in California, Plaintiff Vertex is a Russian corporation, and Defendant is a Florida corporation with its principal place of business in Florida. FAC,, ; Owoc Decl. ; Kesten Decl., ; Kramer Decl.. In these instances, this factor is at best neutral because transfer would merely shift the cost of litigation from one party to another. Amini Innovation Corp. v. JS Imps., Inc., F. Supp. d 0, 0 (C.D. Cal. 00. While a plaintiff s choice of venue is generally accorded deference, (Allstar Mktg. Grp., LLC v. Your Store Online, LLC, F. Supp. d 0, (C.D. Cal. 00, this deference is weakened in certain 0

0 0 circumstances, such as when the operative facts have not occurred within the forum and the forum has no interest in the parties or subject matter (Pac. Car & Foundry, 0 F.d at ; Costco Wholesale Corp. v. Liberty Mut. Ins. Co., F. Supp. d, (S.D. Cal. 00 (quoting Lou v. Belzberg, F.d 0, (th Cir. ; Saleh v. Titan Corp., F. Supp. d, (S.D. Cal. 00 (less deference is given to plaintiff s choice of forum where the action has little connection with the chosen forum. In patent infringement cases, courts have given less weight to the plaintiff s chosen forum and instead focused on the center of gravity of the accused activity in ruling on motions to transfer. See Amazon.com v. Cendant Corp., 0 F. Supp. d, 0 (W.D. Wash. 00 (quoting Ricoh Co., Ltd. v. Honeywell, Inc., F. Supp., n. (D.N.J.. Plaintiff Thermolife does not reside in the CACD because its principal place of business remains located in Arizona. U.S.C. (c( ( For all venue Plaintiff Thermolife inconsistently describes its operations. Plaintiffs Opposition states that ThermoLife s headquarters and the majority of ThermoLife s management and operations are located within [the CACD]. Opp n :-. In contrast, the Kramer Declaration states that ThermoLife was originally founded in Phoenix, Arizona and its corporate headquarters remain in Phoenix today. Kramer Decl., Ex.. Plaintiffs provide, however, that most of Plaintiff Thermolife s operations have moved to California. See id. at -. Still, it is not clear whether Plaintiff Thermolife s executive and administrative functions are performed in the CACD or whether the CACD contains a substantial predominance of Plaintiff Thermolife s corporate operations sufficient to establish the

0 0 purposes - an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside,... if a plaintiff, only in the judicial district in which it maintains its principal place of business (emphasis added. As such, Plaintiffs choice of forum is given less weight. Allstar Mktg. Grp., F. Supp. d at (citing GTE Wireless, Inc. v. Qualcomm, Inc., F. Supp. d, (E.D. Va.. In this case, the convenience of the parties weighs in favor of transfer. Plaintiffs are not seeking to litigate in their home forum, at least two parties will be inconvenienced wherever this case is litigated, and Defendant has shown that it will not be inconvenienced if this matter is litigated in the SD Fla. b. Convenience of the Witnesses The convenience of witnesses is often the most important factor in determining whether a transfer pursuant to 0 is appropriate. Amini Innovation Corp., F. Supp. d at. Because party and employee witnesses may be compelled to testify regardless of forum, courts accord less weight to their inconvenience. Allstar Mktg. Grp., F. Supp. d at ; see also Hawkins v. Gerber Prods. Co., F. CACD as its principal place of business. Indus. Tectonics, Inc. v. Aero Alloy, F.d 00, 0- (th Cir. 0. Plaintiffs evidence is equivocal, providing only that Plaintiff Thermolife has made improvements to the Venice, California location. Kramer Decl. -, Ex..

0 0 Supp. d 0, ( primary consideration is given to third party witnesses as opposed to employee witnesses. The movant is obligated to clearly specify the key witnesses to be called and make at least a generalized statement of what their testimony would have included. Amini Innovation Corp., F. Supp. d at (quoting Fireman s Fund Ins. Co. v. Nat l Bank for Cooperatives, No. C - BAC, WL, at * (N.D. Cal. Aug., ; E. & J. Gallo Winery, F. Supp. at -. Defendant specifically identifies numerous key witnesses, the subject matter of their testimony, and their locations. Kesten Decl.. Eight of the witnesses are located in Florida, one in New York, and four in Russia. Id. These witnesses will testify regarding many topics, including non-infringement, sales and damages, research and development of the Accused Products, and on the prosecution and patenting of the 0 patent. Id. Plaintiffs, in contrast, do not specifically identify any witnesses. Plaintiffs do provide that Plaintiff Thermolife s employees with knowledge of the 0 patent are located in the CACD but do not specify their names or the nature of their testimony. Kramer Decl.. Defendant clearly identifies numerous witnesses with relevant testimony. All of Defendant s witnesses will be inconvenienced if required to litigate in the

0 0 CACD and many, particularly Defendant s employee witnesses, will be better served by a transfer to the SD Fla. Even if Defendant s employees inconvenience may be accorded less weight (Allstar Mktg. Grp., F. Supp. d at ; STX, Inc. v. Trik Stik, Inc., 0 F. Supp., (N.D. Cal., that does not mean that their convenience is given no weight. Here, Plaintiffs do not identify any non-party witnesses who would be inconvenienced by a transfer to the SD Fla. and do not controvert Defendant s assertions that the SD Fla. will be more convenient for the non-party witnesses based in Russia and New York. Mot. :-, :-. The Court thus finds that the convenience of the witnesses weighs in favor of transfer. c. Other Convenience Factors In assessing the ease of access to proof, courts look at the location of records and documents. Bohara v. Backus Hosp. Med. Benefit Plan, 0 F. Supp. d, (C.D. Cal. 00; DeFazio v. Hollister Emp. Share Ownership Trust, 0 F. Supp. d 0, 0 (E.D. Cal. 00 (citing Jones, F.d at. The moving party must show the location and importance of the documents in question. Id. While modern technology has made it relatively easy to move records from one venue to another, courts may still consider whether moving records would cause hardship to a business. DeFazio, 0 F. Supp. d at 0. Courts have found that because the bulk of the relevant evidence

0 0 usually comes from the accused infringer in patent infringement cases, the place where the defendant s documents are kept weighs in favor of transfer to that location. In re Genentech, F.d, (Fed. Cir. 00 (quoting Neil Bros. Ltd. v. World Wide Lines, Inc., F. Supp. d, 0 (E.D.N.Y. 00. Here, Defendant identifies numerous documents relevant to this Action and to its non-infringement case. See Owoc Decl. -. These include technical, scientific, marketing, and sales documents relating to the allegedly infringing products. Id. Moreover, Defendant claims that these records and documents are substantial in size, meaning that they would likely be difficult to transport. Id. at. Plaintiffs, on the other hand, simply state that all their documents and records relating to the 0 patent are located in the CACD. Kramer Decl.. They do not, however, specify what those documents are or how they are important. The Court finds that this factor weighs in favor of transfer. Because this is a patent infringement case, this factor generally weighs in favor of transfer to the Defendant s location. Genentech, F.d at. Defendant also provides that the relevant documents and records are substantial. Owoc Decl.. Plaintiffs, on the other hand, do not show how access to their evidence would cause inconvenience if they were required to litigate in the SD Fla., particularly as

0 0 they do not identify what those documents are. Both the CACD and the SD Fla. are equally capable of applying federal patent law. Cf. Allstar Mktg. Grp., F. Supp. d at. The familiarity with the governing law factor is thus neutral. Finally, the Parties argue that administrative considerations militate in favor or against transfer. See Mot. :-; Opp n :-. The Court has found that the other factors either weigh in favor of transfer or are neutral. Thus, because courts should not transfer a case on the basis of docket congestion after determining the balance of the other factors weighs against transfer, the Court declines to address the Parties arguments on this point. Liberty Mut. Ins. Co., F. Supp. d at (citing Ellis v. Costco Wholesale Corp., F. Supp. d 0, (N.D. Cal. 00; Home Indem. Co. v. Stimson Lumber Co., F. Supp. d 0, 0 (D. Or. 00. IV. CONCLUSION Because this Action could have originally been brought in the SD Fla. and because all the convenience factors either weigh in favor of transfer or are neutral, the Court GRANTS Defendant s Motion and TRANSFERS this Action to the SD Fla. IT IS SO ORDERED. DATED: August, 0 HONORABLE RONALD S.W. LEW Senior U.S. District Judge