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September 18, 2003


The opinion of the court was delivered by: Suzanne Conlon, District Judge


Pinpoint Incorporated ("Pinpoint") sues, Inc. ("Amazon") and, LLC, Borders Group, Inc., Borders, Inc., BeMusic, Inc. (incorrectly identified as CDnow, Inc.),, Inc., Target Corporation, Toys "R" Us, Inc.,, Inc., Virgin Group Ltd. and Walden Book Company, Inc. (incorrectly identified as Walden Books, Inc.)(collectively, "co-defendants") for patent infringement pursuant to 35 U.S.C. § 271 etseq. Amazon counterclaims for a declaration of non-infringement and invalidity. Without citing a procedural basis for its motion, Amazon moves to sever and stay this action against its co-defendants. Once the action is severed, Amazon, a Delaware corporation with its principal place of business in Seattle, Washington, contends transfer of its case to the Western District of Washington pursuant to 28 U.S.C. § 14O4(a) (" § 14O4(a)") is appropriate.


I. Motion to Sever and Stay

Fed.R.Civ.P. 20(a) provides in relevant part: [ Page 2]

All persons . . . may be joined in one action as defendants if there is asserted against them, jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action.
Under Fed.R.Civ.P. 21, the court may sever any claim against a misjoined party. According to Amazon, Pinpoint's claims against its co-defendants should be severed and stayed because the co-defendants are only peripherally involved in this litigation as Amazon customers.

Although the complaint alleges that the co-defendants are Amazon customers, Pinpoint's complaint can be read to include the co-defendants' independent use of the personalization technology at issue. Specifically, Pinpoint alleges each co-defendant "makes, uses, offers to sell, and/or sells personalization technology." Compl. at ¶¶ 29, 31, 33, 35, 37, 39, 41, 43, 45. In addition, Pinpoint claims its pre-suit investigation revealed that defendant CDnow, Inc. began using personalization technology prior to its affiliation with Amazon. Affidavit of Daniel Henderson at ¶ 7. Amazon does not offer any evidence to the contrary. Nor does Amazon offer evidence that the indemnification agreements with its co-defendants cover independent infringement. Indeed, not one of the co-defendants joins in Amazon's motion, despite representation by the same counsel. Absent evidence that its co-defendants have not used the purportedly infringing technology outside of Amazon, Amazon's motion to sever and stay must be denied.

II. Motion to Transfer

Even if the co-defendants have not independently used the purportedly infringing technology, transfer to the Western District of Washington is inappropriate. To prevail on a motion to transfer under § 14O4(a), the movant must demonstrate: (1) venue is proper in both the transferor and transferee court; (2) transfer is for the convenience of the parties and witnesses; and (3) transfer is [ Page 3]

in the interests of justice. Pasulka v. Sykes, 131 F. Supp.2d 988, 994 (N.D. III. 2001), quoting TruServ Corp. v. Neff, 6 F. Supp.2d 790, 793 (N.D. III. 1998). The parties agree that venue is proper both in this court and the Western District of Washington. Therefore, Amazon's motion turns on whether transfer would be for the convenience of the parties and witnesses, and is in the interests of justice.

A. Convenience of the Parties

In determining the convenience of the parties and witnesses, the court considers: (1) the plaintiff's choice of forum; (2) the site of material events; (3) the availability of evidence in each forum; and (4) the convenience to the witnesses and parties of litigating in the respective forums. Confederation Des Brasseries de Belgique v. Coors Brewing Co., No. 99 C 7526, 2000 WL 88847, at *3 (N.D. III. Jan. 20, 2000). Amazon, as the moving party, bears the burden of showing that the Western District of Washington is clearly more convenient than the Northern District of Illinois. Source Services Corp. v. Technisource, Inc., No. 95 C 1420, 1995 WL 493499, at *2 (N.D. III Aug. 9, 1995). Venue should be transferred only if there is a clear balance of inconvenience in the transferor district over the transferee district. Tsaparikos v. Ford Motor Co., No. 02 C 6899, 2002 WL 31844949 (N.D. III Dec. 18, 2002).

A plaintiff's choice of forum is generally given substantial weight under § 14O4(a). Vandeveld v. Christoph, 877 F. Supp. 1160, 1167 (N.D. III. 1995). However, where the plaintiff's choice is not its resident forum, the chosen forum is entitled to less deference. Bryant v. ITT Corp., 48 F. Supp.2d 829, 832 (N.D. III. 1999). The Northern District of Illinois is not Pinpoint's resident forum. Therefore, its choice of forum is not given great deference and is only one of many factors the court considers. Plotkin v. IP Axess, Inc., 168 F. Supp.2d 899, 902 (N.D. III. 2001). [ Page 4]

The second factor does not favor either venue because "the material events of a patent infringement case do not revolve around a particular situs." Sitrick v. FreeHandSystems, Inc., No. 02 C 1568, 2003 WL 1581741, at *3 (N.D. III. March 27, 2003). In other words, the comparison involved in determining whether a patent has been infringed does not implicate specific location. Id. citing Medi USA, L.P. v. Jobst Institute, Inc., 791 F. Supp. 208, 210 (N.D. III. 1992). It is undisputed that Amazon's alleged infringement occurred in every district in the country. Motion at 7. Therefore, this factor is neutral. See Colida v. Kyocera Wireless Corp., 02 C ...

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