MEMORANDUM OPINION AND ORDER
Body Science, LLC (“Body Science” or “Plaintiff’), brings this patent infringement action pursuant to 35 U.S.C. § 1, et seq. against Boston Scientific Corporation (“Boston Scientific”), LifeWatch Services, Inc. (“LifeWatch”), Philips Electronics North America Corporation, doing business as Philips Healthcare (“Philips”), Polar Electro, Inc. (“Polar”), and A & D Engineering, Inc. (“A & D”) (collectively, “Defendants”). (R. 30, Am. Compl.) Presently before the Court are four Defendants’ motions to sever and transfer pursuant to Federal Rules of Civil Procedure 20 and 21, and 28 U.S.C. § 1404(a) (“Section 1404(a)”).
RELEVANT FACTS
Plaintiff is a limited liability corporation organized under the laws of Texas, with a principal place of business in Texas. (R. 30, Am. Compl. ¶ 1.) Plaintiff alleges that it “holds all right, title, and interest in and to” United States Patent No. 7,215,991 (“the '991 Patent”) and United States Patent No. 6,289,238 (“the '238 Patent”), “including, without limitation, the rights to damages for past and present infringement.” (Id. ¶¶ 14-15.) Both the '991 Patent and the '238 Patent (collectively, the “patents-in-suit”) are entitled ‘Wireless Medical Diagnosis and Monitoring Equipment.” (R. 30-1, U.S. Patent No. 7,215,-991 (filed Mar. 24, 2003) (“'991 Patent”); R. 30-2, U.S. Patent No. 6,289,238 (filed Aug. 24, 1999) (“'238 Patent”).) The United States Patent Office (“USPTO”) issued the '991 Patent on May 8, 2007. (R. 30-1, '991 Patent.) The '238 Patent issued on September 11, 2001. (R. 30-2, '238 Patent.) The patents-in-suit are both directed to a medical system for monitoring body functions. (R. 30-1, '991 Patent; R. 30-2, '238 Patent.)
Defendants Philips, Boston Scientific, Polar, and LifeWatch are Delaware corporations. (R. 30, Am. Compl. ¶¶ 2-5.) Defendant A & D is a California corporation. (Id. ¶ 6.) Plaintiff alleges that Defendants have infringed the patents-in-suit “in violation of 35 U.S.C. § 271 through the manufacture, use, offer for sale, and sale of a wireless medical diagnostic and monitoring system.” (Id. ¶¶ 20, 23, 26, 29, 32, 36, 39, 42, 45, 48.) By the Court’s count, Plaintiff identifies over seventy-six products and product families (“Accused Products”) that allegedly infringe the patents-in-suit. (Id.)
Plaintiff initiated this action on May 27, 2011. (R. 1, Compl.) On July 27, 2011, Plaintiff filed an amended complaint (“Amended Complaint”) for patent infringement and damages. (R. 30, Am. Compl.) On August 26, 2011, Philips, Boston Scientific, and A & D filed answers and counterclaims. (R. 55, Philips’ Answer; R. 61, Boston Scientific’s Answer; R. 66, A & D’s Answer.) Polar also filed its answer on August 26, 2011. (R. 65, Polar’s Answer.) On that same day, Philips, Boston Scientific, and A & D also filed motions to sever and transfer venue. (R. 53, Philips’ Mot. Sever; R. 62, Boston Scientific’s Mot. Change Venue; R. 68, A & D’s Mot. Sever.) On September 7, 2011, Polar also filed a motion to sever and transfer. (R. 86, Polar’s Mot. Sever).
Philips, Boston Scientific, A & D, and Polar each argue that joinder of Defendants is improper because Plaintiffs claims do not meet the requirements for joinder. (R. 53, Philips’ Mot. Sever at 1; R. 62, Boston Scientific’s Mot. Change Venue at 1; R. 68, A & D’s Mot. Sever at 1; R. 87, Polar’s Mem. at 1.) Defendants each seek a transfer to other venues that they claim are more convenient. (R. 53, Philips’ Mot. Sever at 1; R. 63, Boston Scientific’s Mem. at 1-2; R. 68, A & D’s Mot. Sever at 1-2; R. 87, Polar’s Mem. at 1, 4.) In response, Plaintiff argues that its case “should proceed with all Defendants together, at least through discovery and a joint Markman proceeding.” (R. 97, Pl.’s Resp. at 3.)
On October 3, 2011, LifeWatch filed a motion clarifying to the Court that “if this Court does not sever the claims against all of the parties, it should transfer the parties to the District of Massachusetts where all of the defendants have agreed in the alternative, to transfer, and where Life-Watch Services has consented to its transfer.” (R. 110, LifeWatch Consent Mot. at 2.)
DISCUSSION
I. Permissive joinder, misjoinder, and consolidation
Rule 20, which governs the permissive joinder of parties, provides that multiple defendants may be joined in one action where (1) “any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences;” and (2) “any question of law or fact common to all defendants will arise in the action.” Fed. R.Civ.P. 20(a)(2). Where parties fail to satisfy either of the requirements for permissive joinder, misjoinder occurs. Rule 21, governing misjoinder of parties, allows the Court to add or drop a party, or sever any claim against a party. Fed.R.Civ.P. 21. It is well-settled that a district court has “broad discretion whether to sever a claim under Rule 21.” Rice v. Sunrise Express,
If joinder is improper, the Court may consider the possibility of consolidation under Rule 42(a). See Rudd v. Lux Products Corp., No. 09-6957,
In assessing whether Plaintiff has met Rule 20(a)’s requirement that defendants may be joined where a right to relief arises out of the same transaction, occurrence, or series of transactions or occurrences, the prevailing view in this District, and indeed in the majority of district courts, is “that a party fails to satisfy Rule 20(a)’s requirement of a common transaction or occurrence where unrelated defendants, based on different acts, are alleged to have infringed the same patent.” Rudd,
Here, there are no allegations suggesting that Defendants were involved in any transaction, occurrence, or series of transactions or occurrences with each other. Plaintiff has not alleged that Defendants acted in concert or otherwise controlled or directed each others’ conduct, nor are there any allegations to suggest that any of the Defendants’ alleged infringement is in any way related. Defen
Seeking to avoid this result, Plaintiff relies on one unpublished order in Acco Brands USA, LLC v. PC Guardian Anto-Theft Prods., Inc., No. 05-7102 (N.D.Ill. July 27, 2007) (order denying motions to sever and transfer), to argue that “[i]n multi-defendant patent infringement actions with defendants moving to sever, similar to this lawsuit, judges in this District and elsewhere have ruled against severance.” (R. 97, Pl.’s Resp. at 7.) Plaintiff also relies on Alford Safety Services, Inc. v. Hot-Hed, Inc., No. 10-1319,
As Defendants note, however, the view Plaintiff urges the Court to adopt is clearly in the minority. Indeed, through the enactment of the Leahy-Smith America Invents Act, Congress abrogated the minority view and indicated that it favors the policy set forth in Rudd.
Additionally, Plaintiff does not dispute that merely alleging that multiple defendants have infringed the same patent is not sufficient to satisfy the common transaction or occurrence requirement absent additional commonalities. Plaintiff argues, however, that it has done more than “merely alleged” infringement and it identifies four “additional commonalities” that it claims support the notion that Defendants’ alleged acts of infringement arise out of a common transaction or occurrence. (R. 97, Pl.’s Resp. at 12-15.) According to Plaintiff, these four commonalities are: (1)
First, Plaintiff argues that all of Defendants’ “products provide individuals with a way of wirelessly monitoring a body function related to their health[,]” and asserts that Philips “exaggerates” the disparities between its products and other Defendants’ products, such as Polar’s equine monitoring products. (Id. at 13.) According to Plaintiff, each accused infringing product is identical in that each “has a sensor, detecting an electric, physical, chemical or biological quantity of a patient; converting the detected signal to a digital format; and wirelessly communicating that information to an evaluator station.” (Id. at 4.)
What Plaintiff argues is simply that each Defendants’ Accused Products allegedly infringe the patents-in-suit. This argument is not persuasive because Plaintiff has failed to allege how any one Defendants’ alleged acts of infringement are in any way related to any other Defendants’ alleged acts of infringement. Plaintiff accuses over seventy-six products and product families that run the gamut from cardiac defibrillators, weight scales, ultrasound systems, and equine monitoring systems. (R. 30, Am. Compl. ¶¶ 9-13.) As in Rudd, the fact of the matter is that Defendants’ Accused Products are entirely different and unrelated products. See
Second, Plaintiff argues that through their membership in the “Continua Health Alliance” consortium, “Defendants cooperate on and apply standards-based protocols to facilitate interoperability.” (R. 97, Pl.’s Resp. at 13.) Plaintiff fails to cite any case law supporting its contention that membership in an industry association may constitute the “same transaction or occurrence.” Simply being a member of an industry organization does not indicate that Defendants have jointly designed, developed, manufactured, marketed, or sold their Accused Products.
Plaintiff further contends that because Defendants’ Accused Products all operate under the “Bluetooth” standard, this “will present identical discovery, require identical depositions, and involve identical proofs of infringement under the Bluetooth and related standards.” (Id. at 3, 13.) As Defendants point out, however, there are at least four versions of Bluetooth available and in 2011 more than three million Bluetooth devices were on the market. (R. 109, Polar’s Reply at 2; R. 109-3, Blue-tooth Definition from PC Magazine Encyclopedia; R. 112, A & D’s Reply at 3-4.) Therefore, Plaintiffs argument that because Defendants’ Accused Products all use Bluetooth, “identical discovery” issues will be present falls flat. Additionally, the alleged commonalities of Bluetooth and
Third, with respect to Boston Scientific and A & D, Plaintiff argues these Defendants “certainly meet the ‘same transaction/occurrenee’ ” requirement because “A & D sells at least one accused product to Boston Scientific.” (Id) In their briefs, Boston Scientific and A & D concede that A & D sells one of its six Accused Products to Boston Scientific. (R. 68, A & D’s Mot. Sever at 2; R. 63, Boston Scientific’s Mem. at 5-6, n. 5.) This product, however, is only one out of a total of sixteen Accused Products between them that allegedly infringe the patents-in-suit. Judicial economy and efficiency will therefore not be increased by maintaining them as joined Defendants and severance will avoid prejudice and confusion. See Rice,
Fourth, Plaintiff argues that Defendants’ “nearly-identical defenses” amount to the existence of a common transaction or occurrence and therefore supports joinder. (R. 97, Pl.’s Resp. at 14.) According to Plaintiff, “the existence of any common transactions or occurrences is sufficient to support joinder.” (Id at 15.) Plaintiff fails to cite any legal authority to support its argument, and other courts in this District have rejected similar arguments. See Rudd,
Finally, Plaintiff appears to request that even if the Court severs the cases, the derivative actions should be consolidated. (R. 97, Pl.’s Resp. at 15-16.) According to Plaintiff, “pretrial consolidation prevents ‘duplicative efforts by the Court and counsel’ because ‘the same patent is at issue in each of the actions,’ because the ‘same documents and technical drawings will [probably] be solicited from plaintiffs,’ and because the ‘defendants will likely want to depose the same persons.’” (Id. at 16) (quoting Magnavox,
II. Transfer
Defendants seek to have Plaintiffs cases against them transferred to venues that are more convenient to each Defendant. Philips argues that the case against it should be transferred to the Eastern Division of the District of Massachusetts. (R. 53, Philip’s Mot. Sever at 8.) Boston Scientific urges the Court to transfer the case against it to the District of Minnesota. (R. 63, Boston Scientific’s Mem. at 7.) A & D requests that the case against it be transferred to the Northern District of California. (R. 68, A & D’s Mot. Sever at 7.) Finally, Polar argues that Plaintiffs case against it should be transferred to the Eastern District of New York. (R. 87, Polar’s Mem. at 5.)
Pursuant to Section 1404(a), a district court may transfer any civil action to any other district court where it may have been brought “[f]or the convenience of parties and witnesses, in the interest of justiee[.]” 28 U.S.C. § 1404(a). Any party may move for transfer of venue under Section 1404(a), and the moving party bears the burden of demonstrating “that the transferee forum is clearly more convenient.” Coffey v. Van Dorn Iron Works,
Transfer is appropriate under Section 1404(a) where: (1) venue is proper in both the transferor court and the transferee court; (2) the transferee district is more convenient for the parties and witnesses; and (3) transfer would serve the interests of justice. Pinpoint, Inc.,
For the reasons stated below, the Court concludes that Defendants have met their burden of showing that the transferee forums are more convenient under Section 1404(a).
A. Venue
There is no dispute that venue is proper in this District. (R. 97, Pl.’s Resp. at 17, n.9.) Plaintiff argues, however, that Defendants have not established that venue is proper as to all Defendants in any of the transferee forums. (Id.) Because the Court has concluded that it will sever the cases as to Philips, Boston Scientific, A & D, and Polar, each of these Defendants need only show “that the transferee court [has] jurisdiction over the defendants in the transferred complaint.” In re Genentech,
In patent infringement actions, “any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where
B. Convenience of parties and witnesses
The most important Section 1404(a) factor is whether the convenience of the parties and witnesses favors transfer. See, e.g., Simes v. Jackson Nat'l Life Ins. Co., No. 05-3816,
1. Plaintiff’s choice of forum
In general, a plaintiffs choice of forum is given considerable deference. In re Nat'l Presto Indus., Inc.,
Plaintiffs chosen forum, the Northern District of Illinois, is not Plaintiffs home forum. Plaintiff is a corporation organized under the laws of Texas with a principal place of business in Frisco, Texas. (R. 30, Am. Compl. ¶ 1.) Additionally, Defendants assert that all of the material events giving rise to this patent infringement action occurred outside of Illinois. While Defendants admit that they sell their Accused Products throughout the
Here, as in Anchor Wall Systems, the Northern District of Illinois has relatively weak connections with the operative facts giving rise to the litigation, as only a fraction of the Accused Products are sold in Illinois. Id. Rather, the majority of operative events surrounding the alleged infringement as to each Defendant occurs in other states. For instance, Philips asserts that the sale and marketing of some of its Accused Products is coordinated from its Andover, Massachusetts headquarters. (R. 53-1, Ecker Decl. ¶ 5.) Additionally, some of its Accused Products are also designed or manufactured in Andover, Massachusetts. (Id. ¶¶ 6-7.) Boston Scientific asserts that its Accused Products are designed, developed, tested, manufactured, and sold by its Cardiac Rhythm Management Group (“CRM Group”), which is headquartered in St. Paul, Minnesota. (R. 63-2, Cook Decl. ¶¶ 4-5, 8.) A & D asserts that it is involved in the development, importation, marketing, and sales of measurement devices, but that a substantial amount of research, development, and manufacturing for the A & D Accused Products occurs outside the United States, in Japan or China. (R. 69, Lau Decl. ¶¶ 3, 6.) Finally, Polar asserts that its only location is in New Hyde Park, New York, (R. 87, Polar Mem. at 3), and that while it does not design or manufacture any of its Accused Products, it is the exclusive distributor of the products of Polar Elecro Oy., (R. 87-7, Douglas Decl. ¶¶ 1, 6), of which it is a wholly owned subsidiary. (R. 87, Polar’s Mem. at 3.) Accordingly, in comparison to the proposed transferee venues, the Northern District of Illinois has relatively weak connections to the operative facts giving rise to the litigation.
Finally, Plaintiffs only apparent connection to the Northern District of Illinois is through its counsel, which is located in Illinois. It is well-settled, however, that consideration of the convenience of Plaintiffs counsel is not an appropriate factor to consider when evaluating transfer. Von Holdt,
Therefore, because Plaintiffs chosen forum is not its home forum and this District has relatively weak connections with the operative facts giving rise to the litigation, Plaintiffs choice of forum is entitled to little weight.
2. Situs of material events
Plaintiff contends that the situs of material events is in Illinois, because each of the Defendants have sold their Accused Products in Illinois. In patent infringement actions, however, “the situs of the injury is the location, or locations, at which the infringing activity directly impacts on the interests of the patentee.” Beverly Hills Fan Co. v. Royal Sovereign Corp.,
Furthermore, as discussed above, each Defendant designs, develops, manufactures, and coordinates the marketing and sale of their Accused Products in other states, or outside of the United States. First, with respect to Philips, this factor weighs in favor of transfer because its products are sold and marketed from And-over, Massachusetts, and some of its Accused Products are designed or manufactured in Andover, Massachusetts. (R. 53-1, Ecker Decl. ¶¶ 5-7.) Next, Boston Scientific’s design, development, testing, manufacturing, and marketing of the Accused Products occurs in Minnesota. (R. 63-2, Cook Decl. ¶¶4-5, 7-8, 11.) Accordingly, Minnesota is the situs of material events that are relevant to Plaintiffs infringement claims against Boston Scientific. Because the situs of material events is in Minnesota, this factor weighs in favor of transfer as to Boston Scientific. Third, A & D is a subsidiary of A & D Company Limited, a Japanese company that develops, designs, manufactures, produces, and sells measuring devices. (R. 69, Lau Decl. ¶ 4.) A & D asserts that it is involved in the “development, importation, marketing, and sales of measurement devices,” as opposed to the design and manufacturing of Accused Products. (Id. ¶ 3.) Therefore, A & D asserts that “all documents and physical evidence” relating to its Accused Products will “either be found outside the United States (either in Japan or China, where substantial research and development and all manufacturing for [its] Accused Products takes place) or at [its] headquarters” in Northern California. (Id.) The situs of material events for A & D therefore appears to be Northern California, and this factor weighs in- favor of transfer as to A & D. Finally, Polar is a wholly-owned subsidiary, and exclusive distributor of the products of Polar Electro Oy, a Finnish company. (R. 81, Polar’s Corp. Disc.; R. 87-7, Douglas Decl. ¶ 2.) Polar does not design or manufacture any products, and its only United States location is in New York. (R. 87-7, Douglas Decl. ¶ 6; R. 87, Polar’s Mem. at 3.) Accordingly, the situs of material events for Polar is New York, and this factor weighs in favor of transfer as to Polar. Therefore, the Court concludes that this factor weighs in favor of transfer as to each Defendant.
3. Access to sources of proof
To establish liability in a patent infringement .case, plaintiffs generally need to “discover primarily the design, development and engineering of the accused device.” Ambrose v. Steelcase, Inc., No. 02-2753,
Here, Philips maintains its headquarters and sales offices in Massachusetts, and therefore it asserts that many sales docu
Although Plaintiff argues that there are third party records, available only in hard copy format, that are located in Chicago, this argument is not persuasive. (R. 97, Pl.’s Resp. at 6.) The records Plaintiff refers to are records related to a prior litigation involving different parties. (R. 97, Pl.’s Resp. at 6, 20.) Assuming the documents from the prior litigation are relevant to the present case, Plaintiff itself recognizes that “documents now are easily scanned, stored, and electronically transmitted, [and] moving them no longer creates the onerous burden it may once have imposed.” Unomedical A/S v. Smiths Medical MD, Inc., No. 09-4375,
4. Convenience of the witnesses
The convenience of the witnesses is often considered the most important factor in the transfer analysis. See Schwarz v. Nat’l Van Lines, Inc.,
Defendants all assert that this factor weighs in favor of transfer. Philips asserts that those witnesses most knowledgeable about the operation, marketing, and sale of its Accused Products reside in Massachusetts, whereas no potential witnesses reside in Illinois. (R. 53-1, Ecker Deck ¶ 9-10, 16-17, 20.) Philips contends that while it maintains offices in Illinois, none of its Accused Products were developed or manufactured in Illinois. (Id. ¶ 19.) Boston Scientific asserts that “[t]he
Plaintiff argues that Defendants have improperly focused on the convenience to their employees, rather than on the convenience to non-party witnesses. (R. 97, Pl.’s Resp. at 20.) Plaintiff further asserts that it has identified numerous non-party witnesses it intends to call as witnesses, including the prosecuting attorneys for the patent-in-suit and Motorola employees who are “familiar with the facts surrounding the value of the patents to Motorola’s business and Motorola’s acquisition of them.” (Id. at 21-22, 6-7.) As an initial matter, the Court is hard-pressed to see how the testimony of Motorola employees is relevant to the current case. Motorola is not a party to this action and it no longer owns the patents-in-suit, rather Plaintiff now owns the patents-in-suit. (R. 30, Am. Compl. ¶ 14; R. 97, Pl.’s Resp. 5-6.) Furthermore, the prior litigation involved different Defendants and different Accused Products.
With respect to the prosecuting attorneys, it is relevant that Defendants have raised defenses of laches, prosecution history estoppel, and unclean hands that will require them to discover material relating to the prosecution history of the patents-in-suit. (R. 55, Philips’ Answer; R. 61, Boston Scientific’s Answer; R. 66, A & D’s Answer; R. 65, Polar’s Answer.) That said, “the location of such non-party witnesses is an important factor only when court compulsion is necessary to get such witnesses to testify.” Semiconductor Energy Lab. Co., Ltd. v. Samsung Elees. Co., Ltd., No. 09-1,
Because Defendants’ witnesses are located in the transferee forums, the inventors are located outside of the United States in Germany, and the prosecuting attorneys’ testimony may be presented via deposition testimony, this factor is neutral as to whether transfer is appropriate in this case.
5. Convenience of the parties
In considering the convenience of the parties, a court should consider the parties’ respective residence and their ability to bear the expenses of litigating in a particular forum. Hanley v. Omarc, Inc.,
With respect to Boston Scientific and Philips, Plaintiff initially argues that they “have previously litigated numerous lawsuits in the Northern District of Illinois.” (R. 97, Pl.’s Resp. at 20.) The transfer analysis, however, is done on a case-by-case basis. Stewart Org., Inc. v. Ricoh Corp.,
Because this District is not particularly convenient for either party, this factor weighs in favor of transfer. Considering that Plaintiff is a Texas corporation with a principal place of business in Texas, this District does not appear to be a convenient forum for it. Additionally, as discussed above, each Defendants’ employees and relevant documentary evidence is located in the transferee forums. Further, where Plaintiff “must travel regardless of whether this court transfers venue,” but Defendants “must travel only if the case proceeds in [Illinois,]” Ambrose,
C. Interest of justice
Next, the Court must consider whether transfer is in the interest of justice. This inquiry “is a separate element of the transfer analysis that relates to the efficient administration of the court system.” Research Automation, Inc.,
1. Speed to Trial
Philips has requested that Plaintiffs case against it be transferred to the District of Massachusetts. In the Northern District of Illinois, the median time to civil disposition is 6.3 months, and the median time to trial is 26.3 months. (R. 53, Philips’ Mem. at 11; R. 63, Ex. C.) In the District of Massachusetts, those times are 8.8 months and 31.1 months, respectively. (Id.) While the time to disposition and trial in this District was slightly faster, the Court does not find that the slight disparity outweighs the other factors favoring transfer to the District of Massachusetts.
Boston Scientific requests that Plaintiffs suit against it be transferred to Minnesota. The median time to civil disposition in the District of Minnesota is 4.4 months, and the median time to trial is 22.4 months. (R. 63, Ex. B.) Because these times are slightly faster in the Dis
Because A & D fails to put forth any evidence regarding speed to trial in the Northern District of California, the Court finds that A & D fails to carry its burden on this factor, and that this factor therefore weighs against transfer as to A & D.
Polar requests that Plaintiffs case against it be transferred to the Eastern District of New York: In the Eastern District of New York, the median time to civil disposition is 8.8 months, and the median time to trial is 30.9 months. (R. 87-1, Moran Decl., Ex. E.) Again, while the median time to trial in this District was slightly faster, the Court does not find that the slight disparity outweighs the other factors favoring transfer to the Eastern District of New York.
2. Court’s familiarity with applicable law
Because patent infringement is a question of federal law, both this Court and any transferee court are “equally well-equipped to accommodate patent infringement cases.” Cooper Bauck Corp.,
3. Desirability of resolving controversies in each locale and relation of each community
The Court finds that the third and fourth factors also favor transfer. “Where an accused product is distributed and sold throughout the United States, several states share an interest in redressing the alleged infringement.” Cooper Bauck,
On the other hand, many of Philips’ Accused Products were developed in Massachusetts and are manufactured, marketed, and sold in Massachusetts. (R. 53-1, Ecker Decl. ¶¶ 5-7, 13-14.) As to Philips, therefore, Massachusetts has a greater interest in Plaintiffs patent infringement suit against Philips, and this factor weighs in favor of transfer.
Boston Scientific’s Accused Products were manufactured, developed, and marketed in Minnesota. (R. 63-2, Cook Decl. ¶¶ 4-5, 7-8, 11.) As to Boston Scientific, therefore, Minnesota has a greater interest in Plaintiffs patent infringement suit against Boston Scientific, and this factor weighs in favor of transfer.
Because A & D is headquartered in Northern California, the Northern District of California has a greater interest in Plaintiffs patent infringement suit against A & D than the Northern District of Illinois. See Heil Co. v. Curotto Can Co., No. 02-782,
Therefore, after careful consideration and having weighed all the factors discussed above, the Court finds that Defendants have met their burden of demonstrating that their proposed transferee forums are clearly more convenient than the Northern District of Illinois.
Plaintiff has also filed a motion seeking to disqualify Winston & Strawn LLP, counsel for Boston Scientific. (R. 39, Pl.’s Mot. Disqualify; R. 41, Pl.’s Mem.) Plaintiff argues that one of Winston & Strawn’s attorneys previously represented Motorola, the former owner and a current licensee of the patents-in-suit, during prior litigation involving the patents-in-suit, and therefore a clear conflict exists. (R. 41, Pl.’s Mem. at 1-2.) In light of the Court’s decision to transfer Plaintiffs case against Boston Scientific to the District of Minnesota, the Court finds that the motion to disqualify may be moot. Therefore, the Court will deny the motion to disqualify without prejudice to its renewal in the District of Minnesota.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ motions to sever and transfer (R. 53; R. 62; R. 68; R. 86). The Clerk of the Court is directed to transfer the cases against Philips, Boston Scientific, A & D, and Polar in accordance with this decision. Specifically, the case against Philips is transferred to the Eastern Division of the District of Massachusetts. The case against Boston Scientific is transferred to the District of Minnesota. The case against A & D is transferred to the Northern District of California, and the case against Polar is transferred to the Eastern District of New York. The remaining parties, Body Science and Life-Watch, shall appear for a status hearing on March 27, 2012, at 9:45 a.m. to set a firm litigation schedule. The remaining parties should also exhaust any settlement possibilities.
Notes
. The moving Defendants are Philips, Boston Scientific, A & D, and Polar. For ease of reference, the Court refers to the moving Defendants throughout the opinion as "Defendants.”
. The Leahy-Smith America Invents Act ("the Act”) became effective on September 16, 2011. Although the Act does not apply to civil actions commenced prior to September 16, 2011, the Act includes a provision stating that "accused infringers may not be joined in one action as defendants ... or have their actions consolidated for trial, based solely on allegations that they each have infringed the patent or patents in suit.” 35 U.S.C. § 299(b).
. Plaintiff’s reliance on an order issued in Triangle Software, LLC v. Garmin Int'l, Inc., No. 10-1457, slip op. at 3 (E.D.Va. June 20, 2011), is unavailing. There, the court denied Volkswagen’s motion to sever because plaintiff had alleged in its complaint that two other defendants had induced Volkswagen to infringe. Id. Here, there are no such allegations in the Amended Complaint connecting Boston Scientific and A & D.