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Verint Systems Inc. v. Envision Telephony, Inc.

United States District Court, Western District of Washington, Seattle

February 23, 2015

VERINT SYSTEMS INC., et al., Plaintiffs,


Marsha J. Pechman, United States District Judge.

THIS MATTER comes before the Court on Plaintiffs Verint Systems Inc. and Verint Americas Inc.’s ("Plaintiffs") motion for retransfer of venue back to the U.S. District Court for the Northern District of Georgia ("NDGA"). (Dkt. No. 65.) Having reviewed Plaintiffs’ motion and the related record, the Court DENIES Plaintiffs’ motion for retransfer of venue with prejudice.


Plaintiffs sued Defendant for patent infringement, filing their case in the NDGA where Verint Americas is located. (Dkt. No. 1 at 1–2.) Verint Systems is the parent company of Verint Americas, located in New York, (id. at 1), and Defendant is a Washington corporation, located in Seattle. (Dkt. No. 67 at 5.) Defendant moved the NDGA to transfer venue to this District for convenience pursuant to 28 U.S.C. § 1404(a). (Dkt. No. 10.) After the parties briefed the NDGA on the matter-including a response, reply, and surreply-the NDGA granted the motion to transfer to the Western District of Washington. (Dkt. No. 52.)

Plaintiffs then petitioned the Federal Circuit for a Writ of Mandamus, seeking to vacate the NDGA’s transfer order. (Dkt. No. 65-1.) The Federal Circuit denied mandamus because "it is ordinarily the proper course for the party to ask the district court that currently maintains jurisdiction to retransfer the case to the transferor court." (Id. at 2.) Because this Court currently has jurisdiction, Plaintiffs move the Court to retransfer the case back to the NDGA. (Dkt. No. 66-1.)


I. Motion for Retransfer

A. Legal Standard

By moving to retransfer the case, Plaintiffs ask the Court to revisit an issue that a sister court already decided. The law of the case doctrine suggests “when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). The doctrine promotes finality and judicial efficiency by not reopening settled issues. Id. "[T]he policies apply with even greater force to transfer decisions than to decisions of substantive law" because the transferee court could send litigants in a vicious cycle of litigation over venue. Id. While the court has the power to revisit an issue, it is a discretionary power that should only be used if "(1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial." Old Pers. v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002). By arguing that a sister court clearly erred, the movant must show, not that the ruling "was wrong, but that it was clearly wrong." Leslie Salt Co. v. United States, 55 F.3d 1388, 1393 (9th Cir. 1995). Therefore, if the transferee court finds that the transferor court’s ruling is plausible-regardless of whether the transferee court agrees-there has been no clear error. See id. at 1394.

Under 28 U.S.C. § 1404(a), district courts have broad discretion to transfer cases. A district court may transfer any civil action "to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). The statute is intended to give district courts discretion to adjudicate motions for transfer by providing "individualized, case-by-case consideration of convenience and fairness." Van Dusen v. Barrack, 376 U.S. 612, 622 (1964). In the Eleventh Circuit, a court facing a motion to transfer may consider and weigh nine factors:

(1) [T]he convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances.

Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005). On appeal, the reviewing court uses an abuse of discretion standard, affording substantial deference to the district court’s ruling. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981).

B. Plaintiffs’ Motion for Retransfer

In light of the law of the case doctrine and the extensive briefing in front of the NDGA, Plaintiffs fail to persuade the Court that it should revisit the transfer of venue issue.

Plaintiffs’ core contention is that the NDGA committed clear error because its transfer order lacks any analysis of the nine factors under 28 U.S.C. § 1404(a). (See Dkt. No. 66-1 at 2.) By not providing its analysis, Plaintiffs claim the NDGA ignored significant facts that weighed in favor of the case continuing in the NDGA. (Id. at 10.) Plaintiffs argue the NDGA exceeded the limits on its discretion by granting the motion to transfer and, thereby, clearly erred. (Id. at 10– 11.) Further, Plaintiffs contend the NDGA’s ruling that the § 1404(a) factors "all weigh in favor of the transfer" is inconsistent with the record, which reflects several factors that definitively came out neutral. (Id. at 3.) The NDGA compounded its error, Plaintiffs argue, by failing to rule on a motion for leave to file a second surreply that would have allegedly presented new evidence of customers’ infringing activity in Georgia. (Id. at 11.) Because the NDGA did not consider this new evidence that was critical to the transfer factors, Plaintiffs contend it would be manifestly unjust to deny retransfer. (Id. at 22.)

i. Clear Error

Plaintiffs fail to show the NDGA committed clear error. Revisiting law of the case is discretionary and, when combined with a challenged ruling that is already highly discretionary, Plaintiffs have a large hurdle to overcome. While it is clear that both parties have legitimate arguments for the various convenience factors, the NDGA already considered these arguments in the parties’ extensive briefing. (See Dkt. No. 10, 14, 16, 20.) It is true the NDGA does not analyze the factors in its transfer order, but this alone does not evidence clear error when the NDGA granted numerous motions for supplemental briefing, considered the motion’s briefing for nearly five months, and applied the correct law. See Hatch v. Reliance Ins. Co., 758 F.2d 409, 413 (9th Cir. 1985) (explaining that the doctrine should "bar reconsideration of these matters unless there is some indication that appellants were not afforded a full and fair opportunity to litigate these matters before the transferor court").

Moreover, it is not this Court’s role to review the § 1404(a) factors de novo; rather, the Court can only look for clear error, which affords even greater deference to the NDGA than abuse of discretion standard. Plaintiffs exaggerate the transfer order’s conclusion as not being supported by the record. (Dkt. No. 66-1 at 3.) In fact, the record reflects substantial briefing of the convenience factors, with legitimate arguments on both sides. The NDGA heard these arguments, presented the legal standard in its order, and exercised its discretion. Because this Court, as a transferee court, must exhibit heightened restraint when asked to revisit transfer decisions, Christianson, 486 U.S. at 816, Plaintiffs must present more than the same arguments already made in front of the transferor court to merit reversal of the original decision.

Further, Plaintiffs fail to show any instances where a transferee court retransferred a case based solely on the convenience factors analysis; instead, the cited cases either hinge on the transferor court applying the wrong law or the transferee court lacking personal jurisdiction. See, e.g., MLP Tech., Inc. v. LifeMed ID, Inc., No. 13-02524, 2014 WL 1028398, at *3 (E.D. Cal. Mar. 14, 2014) (finding clear error and manifest injustice when transferor court applied the wrong law, which erroneously concluded that it lacked personal jurisdiction); Pac. Coast Marine Windshields v. Malibu Boats, No. 11-01594, 2011 WL 6046308, at *6 (E.D. Cal. Dec. 5, 2011) (finding clear error when transferor court erroneously concluded that transferee court would have personal jurisdiction over all the defendants). Here, the NDGA applied the correct law, the NDGA’s decision did not rest on personal jurisdiction, and personal jurisdiction is not at issue in this Court.

ii. Manifest Injustice

Plaintiffs’ arguments that a manifest injustice will result are overstated. First, the NDGA’s failure to consider Plaintiffs’ "new evidence" does not create a manifest injustice. Plaintiffs claim they uncovered new evidence of Defendant’s customers in Georgia using the alleged infringing product or service. (Dkt. No. 66-1 at 22–23.) But Defendant already admitted to the NDGA that it had two customers in Georgia. (Dkt. No. 67 at 22–23.) While the parties contest whether these customers used the product or service within the scope of the asserted Plaintiffs’ patents, this does not change the § 1404(a) analysis because the NDGA still considered the location of all the potential witnesses.

Second, Plaintiffs overstate manifest injustice when arguing the NDGA’s decision will prevent Verint Americas "from ever litigating a patent infringement case in its home forum unless the defendant happens to be headquartered in Georgia." (Dkt. No. 68 at 3.) This overstates the NDGA’s ruling because a § 1404(a) decision rests on a court’s discretionary balance of the nine factors, based on a case-by-case consideration. See Van Dusen, 376 U.S. at 622. The NDGA’s ruling neither speaks to future patent litigation nor future § 1404(a) analyses.


Because the NDGA’s ruling is law of the case and Plaintiffs do not provide evidence of clear error and manifest injustice in the NDGA’s ruling, the Court DENIES Plaintiffs’ motion with prejudice.

The clerk is ordered to provide copies of this order to all counsel.

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