UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, Plaintiff,

v. H&R BLOCK, INC., et al. , Defendants. Civil Action No. 11-00948 (BAH)

MEMORANDUM OPINION Counsel on opposite sides of this pending moti on both used the same terms to describe the merits of their respective positions as “not ev en a close call.” While this may be a sign that the case is closer than either side will let on, in this case, the C ourt finds that the weight of the argument is against the movants. The United States, through the Antitrust Division of the Department of Justice, brought this civil case to enjoin the proposed acquisition of a digital do-ityourself tax preparation company known as TaxA CT by H&R Block, another company that sells digital do-it-yourself tax prepara tion products. The defendants have moved to transfer this case from the District of Columbia to the United Stat es District Court for th e Western District of Missouri, where H&R Block is headquartered. For the reasons that follow, the Court denies the motion to transfer venue.
I. BACKGROUND The United States, through the Antitrust Divi sion of the Department of Justice (the “DOJ” or the “plaintiff”), filed this action on May 23, 2011. The DOJ seeks to enjoin Defendant H&R Block, Inc. from acquiring Defendant 2SS Ho ldings, Inc. (“TaxACT”), which sells digital do-it-yourself tax preparation products marketed under the brand name TaxACT. Compl. ¶ 10. H&R Block is a Missouri corporation hea dquartered in Kansas City, Missouri. Id. ¶ 9. 2SS2 Holdings, or TaxACT, is a Delaware corpora tion headquartered in Cedar Rapids, Iowa. Id. ¶ 10. Defendant TA IX, L.P. (“TA”), a Delaware limited partnership headquartered in Boston, Massachusetts owns a two-th irds interest in TaxACT. 1 Id. ¶ 11. According to the complaint, last year an es timated 35 to 40 million taxpayers filed their taxes using digital do-it-yourse lf tax preparation products (“ Digitial DIY Tax Preparation Products”). Id. ¶ 1. In the U.S. Digital DIY Tax Prep aration Product market , the three largest firms collectively have about 90% of the market share. Id. The leading company in the market is Intuit, Inc., the ma ker of “TurboTax.” Id. ¶ 3. H&R Block’s pr oposed acquisition of TaxACT, if allowed to proceed, would combine th e second- and third-larg est providers in the market – i.e., H&R Block and TaxACT, respectively. Id. The complaint alleges that TaxACT is a “m averick” competitor that has a history of “disrupting” the Digitial DIY Tax Preparation ma rket and has forced its competitors, including H&R Block and Intuit, “to offer free products an d increase the quality of their products for American taxpayers.” Id. ¶ 28. The first major instance of TaxACT’s maverick behavior alleged in the complaint occurred in 2004 in re lation to the Free File Alliance (“FFA”), a publicprivate partnership of digital DIY tax preparation companies a nd the Internal Revenue Service designed to offer qualified individua ls the ability to prepare and e-file free federal income tax

returns. Id. TaxACT aggressively pursued lower pr ices by introducing an offer through the FFA that was free to all individual U.S. taxpayers in 2004. Id. Other members of the FFA, including H&R Block and Intuit, then matched TaxACT’s offering, but lobbied the government to limit the number of taxpayers to whom FFA memb ers could offer free federal filing. Id. ¶ 29. In October

1 2nd Story Software, Inc. (“2SS”) is a wholly-owned subsidiary of 2SS Holdings, Inc., which is the entity being purchased by H&R Block. Declaration of Lance Dunn, dated May 27, 2011 (“Dunn Decl.”), ¶¶ 2, 4. Both 2SS and 2SS Holdings, Inc. share the same address in Cedar Rapids, Iowa.3 2005, the IRS did limit the type and number of cu stomers that could be offered a free product through the FFA. Id. The complaint goes on to allege other areas in which TaxACT has aggressively competed with H&R Block and Intuit by providing high-qual ity products and services at low cost. See id. ¶¶ 30-40. The DOJ alleges that the acquisition of TaxACT by H&R Block would reduce competition in the industry and make anticom petitive coordination between the two major remaining market participants – H&R Block and Intuit – substantially more likely. Id. ¶¶ 40-49. The DOJ alleges that therefore the proposed acquisi tion violates Section 7 of the Clayton Act, 15 U.S.C. § 18, and accordingly it seeks an in junction blocking H&R Block from acquiring
TaxACT. Id. ¶¶ 53-55. On May 27, 2011, four days after the DOJ f iled its complaint, Defendants H&R Block, TaxACT, and TA moved for an expe dited hearing and a transfer of venue from this Court to the United States District Court for the Western District of Missour i, the home district of H&R Block’s headquarters in Ka nsas City, Missouri. See Defs.’ Mot. for Expedited Hr’g, ECF No. 6; Mem. of Points and Authorities in Support of Defs.’ Mot. to Tr ansfer Venue (“Defs.’ Mem.”). The plaintiff opposes the transfer. On May 31, 2011, the Court granted the defenda nts’ motion for an expedited hearing on their motion to transfer venue. Minute Or der dated May 31, 2011. On June 3, 2011, the Court heard oral argument on the defendants’ motion, which is now before the Court.
II. DISCUSSION A. Legal Standard Under the federal venue transfer statute, 28 U.S.C. § 1404, a district court may transfer a case to another district “[f]or the convenience of parties and witnesses, in the interest of justice.”4 28 U.S.C. § 1404(a). The Court may only transfer a case to another district “where it might have been brought.” Id . This statute “vests discretion in the District Court to adjudicate motions for transfer on an ‘individualized, case-by-case consideration of convenience and fairness.’” Otter v. Salazar , 718 F. Supp. 2d 62, 63-64 (D.D.C. 2010) (quoting Stewart Org., Inc. v. Ricoh Corp ., 487 U.S. 22, 29 (1988)). Courts evaluate a seri es of public and privat e interest factors in determining whether to gran t a transfer of venue. Bederson v. United States , 756 F. Supp. 2d 38, 46 (D.D.C. 2010). “The private inte rest factors that are consider ed include: (1) the plaintiff’s choice of forum; (2) the defendant’s choice of forum; (3) where the claim arose; (4) the convenience of the parties; (5) the convenience of th e witnesses; and (6) the ease of access to the sources of proof.” Id. “The public interest factors . . . in clude: (1) the local interest in making local decisions regarding local c ontroversies; (2) the relative c ongestion of the transferee and transferor courts; and (3) the potential transferee cour t’s familiarity with the governing law.” Id. “[C]ourts have imposed a heavy burden on those who seek transfer and a court will not order transfer unless the bala nce is strongly in favor of the defendant.” United States v. Microsemi Corp. , No. 1:08cv1311, 2009 WL 577491, at *6 (E.D. Va. Mar. 4, 2009).
B. Application of the Transfer Criteria As a threshold issue, transfer of venue pursu ant to Section 1404(a) is only permissible if the receiving district is one where the case could have been brought in the first instance. The Clayton Act’s venue provision provides, in releva nt part, that “[a]ny suit, action, or proceeding under the antitrust laws against a corporation may be brought . . . in any district wherein it may be found or transacts business.” 15 U.S.C. § 22. A ll the parties agree, as does the Court, that the plaintiff could have brought this case in either the Western Distri ct of Missouri or in this District because the defendants, who sell tax preparati on products nationally, tran sact business in both5 districts. Since the suit could ha ve been brought in either district , the Court will now turn to an analysis of the relevant public and private interest factors. 1. Private Interest Factors As noted above, the private inte rest factors that courts typi cally consider are: (1) the plaintiff’s choice of forum; (2) the defendant’s choice of forum; (3) where the claim arose; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) the ease of access to the sources of proof. In this case, these factor s do not support transfer, particularly because of the substantial deference to which the plaintiff’s choice of forum is entitled.

a. The Parties’ Choice of Forum “[A] plaintiff’s choice of forum is ordinarily a ‘paramount considera tion’ that is entitled to ‘great deference’ in the transfer inquiry.” F.T.C. v. Cephalon, Inc. , 551 F. Supp. 2d 21, 26 (D.D.C. 2008) (quoting Thayer/Patricof Educ. Funding LLC v. Pryor Res. , 196 F. Supp. 2d 21, 31 (D.D.C. 2002)). Some courts have also found “that the government’s choice of venue in an antitrust case is ‘entitled to heightened respect.’” Id. (quoting United States v. Brown Univ. , 772 F. Supp. 241, 242 (E.D. Pa.1991)). Deference to th e plaintiff’s chosen forum is minimized, however, where that forum has no meani ngful connection to the controversy. See id. at 26-27; Schmidt v. Am. Inst. of Physics , 322 F. Supp. 2d 28, 33 (D.D.C. 2004) (“[D]eference is mitigated . . . where the plaintiff’s choi ce of forum has no meaningful ties to the controversy and no particular interest in the parties or subject matter.”) (internal quotation marks omitted). The defendants argue that the plaintiff’s choice of venue here is not entitled to the usual high level of deference because “this matter has no meaningful ties to Washington, D.C.” Defs.’ Mem. at 9. According to the defendants, the only connection between this forum and this case is that “the DOJ and its attorney s reside in Washington, D.C.” Id. The defendants contend that the6 Western District of Missouri is a more appropriate venue becaus e the “acquisition agreement that is being challenged in this action was negotiated, drafted, and executed in Missouri and Iowa,” at the headquarters of H&R Block and TaxACT , respectively. Defs.’ Mem. at 11. The plaintiff responds that this matter does have some meaningful connection to this district, not only because this district contains the DOJ’s headquarters and is where the investigation into the proposed transaction took place, but also because certain facts underlying the complaint took place here. See Pl.’s Mem. at 10. Specifica lly, the DOJ points to its allegations that the first major instance of TaxA CT’s maverick market activity that prompted a competitive reaction from H&R Block occurred through the Free File Alliance, the publicprivate partnership between the IRS, which is headquartered in Washington, D.C., and participating tax preparers. Id. at 11. The DOJ has alleged that TaxACT disrupted the FFA by making its free filing product offering availabl e to everyone, and that, in response, other members of the FFA, including H&R Block and Intu it, lobbied the government to restrict the availability of free federal e-filing. Id. (citing Compl. ¶ 28). Ultimately, in October 2005, the IRS did restrict the ava ilability of free product o fferings through the FFA. 2 Id. (citing Compl. ¶ 29). The DOJ alleges that the elimination of TaxA CT’s alleged maverick activities is a key motivation for H&R Block’s proposed acquisition of the company and that the interactions among the FFA, IRS, and the defendants relatin g to TaxACT’s activitie s within the FFA are likely to implicate disputed issu es of fact in this case. Id. at 4, 11, 17. The DOJ has represented to the Court that current or form er IRS employees based in or near this district would likely be called to testify about these issues. Id. at 17. The DOJ underscored this point at oral argument

2 While the IRS is headquartered in Washington, D.C., the FF A itself is headquartered in Clifton, Virginia, which is in a neighboring district. See Pl.’s Mem. at 11 n.6.7 by presenting the Court with a regulatory submi ssion from the defendants in which they asserted that “If anyone has been a maverick in on-line tax preparation, it is the IRS . . . through the introduction of free, online tax prep aration by the FFA—not TaxACT.” Given these factual allegations, the Court finds that it cannot conclude that this matter has “no meaningful ties” to this district. In F.T.C. v. Cephalon , a case relied upon heavily by the defendants, another court in this district granted a motion to transf er venue after finding that the case had no meaningful ties to this district. Cephalon, 551 F. Supp. 2d at 26-27. In Cephalon , however, the FTC did not “seriously contest that the District of Columbia ha[d] no meaningful connection to [the] action.” Id. at 27. That is not so here, wh ere the DOJ has identified at least some relevant factual issues that do relate to this district. See U.S. ex rel. We strick v. Second Chance Body Armor, Inc. , No. 04-280, 2011 WL 1048183, at *3 (D .D.C. Mar. 24, 2011) (“The [defendants] carry a weighty burden to demonstr ate that the plaintiffs ’ forum choice should be disturbed . . . Since there is at least some meaningful relationship between th e plaintiffs’ claims and the parties and this district, the [def endants] have not ca rried that burden.”). 3
Since the defendants have not established that this case has no meaningful ties to this district, the Court must follow the ordinary ru le and accord the plaintiff’s choice of forum substantial deference in the transfer inquiry.
b. Where the Claim Arose This case involves allegations that a propos ed business transaction would result in anticompetitive effects in violation of the antitr ust laws. Since the defe ndants sell online tax

3 In addition to the factual allegations linking this case to th is district, the DOJ also notes that this district, as the location of DOJ’s headquarters, is DOJ’s home district. See Pl.’s Mem. at 9. In United States v. Microsemi , a case relied upon by the defendants, a district court in the Eastern District of Virginia granted a motion to transfer venue in an antitrust case in part because DOJ had failed to file in its home district. See Microsemi , 2009 WL 577491, at *7 (“DOJ is not located in Virginia, but has its headquarters in Washington, DC. . .”). Unlike in Microsemi , in this case, the DOJ has filed in its home district.8 preparation software to taxpayers nationwide, any anticompetitive effects of the proposed transaction would be felt by consumer s across the country and not in a ny district in particular. In some antitrust cases, motions to transfer venue ha ve been granted, in part, because the market affected by alleged anticompetitive activity was located in a specific geographic area. See F.T.C. v. Lab. Corp. of America , No. 10 Civ. 2053, at Tr. 38 (D.D.C. Dec. 3, 2010). (hereinafter,

“ LabCorp ”) (identifying the relevant market that would suffer anticompetitive effects as located in southern California). Given the national market implicated by this case, no similar factor here weighs in favor of transfer to any particular district. To the extent that the DOJ’s claim can be sa id to arise from the conduct of the defendants in planning and negotiating the pr oposed acquisition, it appears th at those activities emanated from the defendants’ corporate headquarters in Kansas City, Mi ssouri and Cedar Rapids, Iowa. The Court does not find that fact sufficient to override the subs tantial deference to which the plaintiff’s choice of venue is en titled, however. In addition, since 28 U.S.C. § 1404 provides that the Court may transfer venue “[f]or the convenience of parties and witnesses, in the interest of justice,” the consideration of wh ere the claim arose is best viewed as a proxy for where the witnesses, parties, and evidence are likely to be located in a typical cas e. These factors are evaluated more directly below.

c. Convenience of the Parties and Witnesses Courts recognize that litigating in a particular forum is likely to inconvenience one party or another unless all the parties re side in the chosen district. Second Chance Body Armor , 2011 WL 1048183, at *4. For the convenience of the part ies factor to weigh in favor of transfer, “litigating in the transferee dist rict must not merely shift inco nvenience to [another party], but rather should lead to an overall increase in convenience for the parties.” Id. In evaluating the9 convenience of the parties, courts therefore cons ider whether “litigating in a particular forum would cause a party to suffer a hardshi p, such as from significant expense.” Id. (citing Kotan v. Pizza Outlet, Inc ., 400 F. Supp. 2d 44, 50 (D.D.C. 2005)). Th e defendants have not identified a compelling hardship that would result from litigati ng in this district rather than the Western District of Missouri. The defendants express concern that requiring their employees to testify in Washington, D.C. “is likely to lead to a substantial disrupti on of the companies’ business” since the “primary executives responsible for developing and testin g the companies’ digita l tax products would be forced to spend much of their time traveling, absent from their offices, during the time period in which the companies are preparing for the next tax season.” Defs.’ Mem. at 13. While H&R Block employee-witnesses would be spared travel ti me were this case transferred to the Western District of Missouri, employee- witnesses for the other two defe ndants would still be burdened by having to travel to Kansas City, Missouri. As discussed below, the differences in both travel time and expense from Cedar Rapids, Iowa to Ka nsas City, Missouri or Washington, D.C. are insignificant. In practical terms, no matter wh ere this case is pending, employee-witnesses from all the defendants will be distracted with counsel consultations, and preparation for and participation in proceedings in this case, partic ularly if this matter continues on a fast-paced schedule. Moreover, the defendants are sophisticated companies that transact business with consumers throughout the country. Indeed, the nature of the propos ed acquisition i llustrates the defendants’ level of resources and sophistication. Under the Agreement and Plan of Merger, H&R Block would acquire TaxACT for $287.5 million in cash. Compl. ¶ 12. Further, that agreement contains a forum selection clause calli ng for any disputes over the merger agreement10 between the defendants to be litigated in Delaware, which is relatively close to this district. Pl.’s Mem. at 13-14. While the merger agreement’s Delawa re forum selection clause is not at issue in this case, the fact that the defendants negotiated a nd agreed to such a clause indicates their ability to avail themselves of legal protections offere d by different fora around the country – including fora remote from their home districts. It would undoubtedly be more convenient for H&R Block to litigate in its home district, but the same is true for the plaintiff, and a tr ansfer that would merely shift the inconvenience among the parties is not warranted. The convenience of witnesses is the single factor that weighs in favor of transfer here, but, on the facts of this case, the Court finds that it alone does not overcome the deference to which the plaintiff’s choice of venue is entitled. The majority of anticipated witnesses in th is case are current employees of H&R Block and TaxACT based in Kansas City, Missouri and Ce dar Rapids, Iowa. Defs.’ Mem. at 12. Some potential non-party witnesses ar e former H&R Block employees w ho also reside in the Kansas City area. Id. at 13. Other potential non-party witnesses include employees of the other major companies in the digital DIY tax preparation ma rket, such as Intuit, based in Mountain View, California; FreeTaxUSA, based in Provo, Utah; OnlineTaxPros, ba sed in Russellville, Arkansas; and TaxSlayer, based in Evans, Georgia. Id. ; Affidavit of Tony Gene Bowen, sworn to May 27, 2011 (“Bowen Aff.”), ¶ 10. Finally, some current and former IRS employees who are located in or near this district are also likely witnesses. Pl.’s Mem. at 17. When considering the convenience of the witne sses, courts typically give greater weight to the convenience of non-part y witnesses than to the conve nience of party witnesses. See
Microsemi , 2009 WL 577491, at *8. In this case, non-party witnesses are likely to come from11 around the country, including re tired H&R Block employees in Kansas City, retired IRS employees in this district, and employees from competitor companies based in California, Utah, Georgia, and Arkansas. While it might be inferred th at a witness would prefer to testify in his or her home district, the defendants have not demons trated that non-party witnesses located neither in this district nor in the Western District of Missouri would be more willing to testify in the Western District of Missouri than here. See Cephalon , 551 F. Supp. 2d at 28 (“Cephalon has not demonstrated that any of the third-party w itnesses employed by the generic manufacturers-who are located in neither forum-would be unwilling to testify here but willing to do so in the Eastern District of Pennsylvania.”) Party witnesses, who make up th e majority of the anticipated witnesses in this case, are likely to include H&R Block employees in Kans as City, TaxACT employees in Cedar Rapids, and current IRS employees from this district . Defs.’ Mem. at 12; Pl.’s Mem. at 17; see also Bowen Aff. ¶¶ 6-8; Dunn Decl. ¶ 12. As not ed above, however, the convenience of party witnesses is accorded less weight in the transfer analysis. See Microsemi , 2009 WL 577491, at *8; see also United States v. Brown Univ. , 772 F. Supp. 241, 243 (E.D. Pa. 1991) (“This factor does not warrant transfer when witnesses are em ployees of a party and their presence can be obtained by that party.”). In terms of witness travel time and expens e, the Court finds that while the Western District of Missouri is obviously more convenient for the witnesse s located there, the evidence does not show that the Western Di strict of Missouri is substantia lly more convenient than this district for the witnesses from Cedar Rapi ds, Iowa. The driving time from TaxACT’s headquarters in Cedar Rapids to the courthouse in Kansas City is approximat ely five and a half hours. Declaration of Lawrence E. Buterman, dated June 2, 2011 (“Buterman Decl.”), ¶ 16.12 Based on a discount airfare database search fo r September 2011 flights, the flying time from Cedar Rapids to Kansas City is approximately three and a half hours, including a layover. Id. ¶ 15. The flying time from Cedar Rapids to Washi ngton, D.C., is also approximately three and a half hours, including a layover. Id . The defendants suggest, however , that the complete travel time for air travel from Cedar Rapids to Washi ngton may be six or seven hours. Dunn Decl. ¶ 14. Based on the airfare database search, flying to Kansas City from Cedar Rapids was over $200 more costly than flying to Washington, D.C. Buterman Decl. ¶ 15. Considering all the evidence before the Court, the Court does not fi nd traveling from Cedar Rapids to Washington, D.C. to be substantially more inconven ient than traveling to Kansas City. Overall, the convenience of the witnesses factor favors transfer, since there appear to be several important party and non-pa rty witnesses located in the We stern District of Missouri. See Bowen Aff. ¶¶ 6-8. This fact alone, however, is not sufficient to oust the plaintiff’s chosen venue. Even in the Cephalon case where, unlike here, the court found that there were no meaningful ties with the plaintiff’ s selected district, the convenien ce of the witnesse s factor still did not compel a transfer. See Cephalon , 551 F. Supp. 2d at 28-29. To the contrary, the Cephalon court observed that “[t]aken al one, this factor would not wa rrant transferring the case,” and concluded merely that when “viewed collect ively it modestly aids Cephalon’s showing.” Id. Instead, the Cephalon court found the “most compelling point” in favor of transfer in that case to be “the risk of inconsistent judgm ents that would arise” absent tr ansfer due to th e existence of a related case pending in th e transferee district. Id. at 29. Indeed, the Cephalon court found the plaintiff to have been “rather openly shopping for a circu it split” with respect to one of the issues in that case. Id. at 30. Similarly, in LabCorp , another case relied upon by the defendants in which a court in this district granted a transfer, related litigation in the transferee district was13 likewise an important fact or favoring transfer. See LabCorp , No. 10 Civ. 2053, at Tr. 39-40. In this case, there are no comparable compelling factors favoring transfer. To sum up, the convenience of the witnesses f actor does slightly favor transfer, but not overwhelmingly so, because non-party witnesses, whose convenience carries the most weight in the analysis, are likely to be drawn from various districts around the coun try. In this case, the convenience of the witnesses factor alone is insufficient to warrant transfer, especially since the plaintiff’s choice of venue is entitled to defere nce and since the case lacks other factors that strongly favor a transfer.
d. Ease of Access to Sources of Proof In this digital age of easy and instantaneous electronic transfer of data, the Court does not find that the “ease of access to so urces of proof” factor should carry too much weight in the transfer analysis, particularly in a case such as this, where both sides are sophisticated litigants and have the necessary resources to manage and exchange documents electronically. See Nat’l R.R. Passenger Corp. v. R. & R. Visual, Inc. , No. 05-822, 2007 WL 2071652, at *6 (D.D.C. July 19, 2007) (“[T]echnological advances have significantly reduced the weight of the ease-ofaccess-to-proof factor.”). While many doc uments underlying the proposed acquisition undoubtedly originated in Kansas City and Cedar Rapids, they can easily be transmitted to this district and, indeed, the plainti ff points out that the defendants el ectronically produced all of the documents provided to the government during its regulatory investigation of the transaction. See Pl.’s Mem. at 18. Further, during discovery, the defendants are likely to seek the plaintiff’s documents, which are located in this district. See id. at 19. Accordingly, the Court gives little weight to this factor.14 2. Public Interest Factors The three public interest factors that courts typically consider on a motion to transfer venue are (1) the local interest in making local decisions regarding local controversies; (2) the potential transferee court’s familiarity with the governing law; and (3) the relative congestion of the transferee and transferor courts. In this case, none of these factor s clearly favor transfer. The local interest in making decisions regard ing local controversies is a neutral factor here because, as defendants concede, this case has national economic significance and does not present an essentially local matter. See Defs.’ Mem. at 19; see also Cephalon , 551 F. Supp. 2d at 31 (finding that the local interest factor was not applicable to a case of “nationwide significance, the resolution of which will have the same eff ect if rendered by this Court or the” transferee court). The potential transferee court’s familiarity wi th governing law is also a neutral factor here because this case presents issues of federa l antitrust law with which federal courts in both districts are presumed to have equal familiarity. See Demery v. Montgomery Cnty., MD , 602 F. Supp. 2d 206, 211 (D.D.C. 2009). The Court also finds that the relative congest ion of the transferee and transferor courts does not clearly weigh in favor of transfer. According to De cember 2010 statistics published by the Administrative Office of the United States C ourts, the District of Columbia has 267 cases pending per judge, a median time of 8 months from filing to di sposition in civil cases, and a median time of 39.7 months from f iling to trial. For the Western District of Missouri, the same statistics show 417 cases pending per judge, a median time of 7.9 months from filing to disposition in civil cases, and a median time of 36.2 months from filing to trial. 4 These statistics

4 These statistics are based on the Federal Co urt Management Statistics for December 2010, available at http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics.aspx. See Signode v. Sigma Technologies15 do not indicate any substantial differences in disposition times between the districts and, if anything, show that the judges in the Western District of Miss ouri carry a signi ficantly larger number of pending cases per judge. In any event, these statistics provide, at best, only a rough measure of the relative congestion of the dockets in the two districts. Th ey do not, for example, reflect the differences in the caseloads carried by different individual judges in each distri ct. Any disparities between the lengths of time from filing to tr ial may also reflect differences other than congestion, such as differences in the types of cases that are likely to be tried in each di strict and the level of discovery and pre-trial motion pr actice required in those cases. Significantly, these statistics may also rapidly become outdated, particularly in this district where four new judges joined the Court during the first six months of 2011. Accordingly, the Court finds it appropriate to treat the relative congestion of the dockets in the two district s as a neutral factor in the transfer analysis.
III. CONCLUSION The defendants have not met their burden to sh ow that a transfer of this case to the Western District of Missouri is wa rranted in the interests of jus tice. Apart from the convenience of the witnesses factor, which tip s slightly in the defendants’ favor, none of the other factors typically considered by courts clearly favors transfer. Moreov er, the precedents upon which the defendants chiefly rely all involve circumstances favoring transfer that are absent here. For example, Cephalon and LabCorp involved pending litigation in the transferee district that created a risk of inconsis tent judgments, while in Microsemi , the government plaintiff filed

Int’l, LLC , No. 09 C 7860 (N.D. Ill. Mar. 24, 2010) (taking ju dicial notice of the Admini strative Office of the United States Courts’ statistics). The defendants rely upon out dated March 31, 2010 statistics showing that, compared with the District of Columbia, the Western District of Missouri has a slightly shorter length of time from filing to disposition of civil cases (7.1 months versus 8.4 months) an d shorter length of time from filing to trial (17.0 versus 41.2 months). Defs.’ Mem. at 17 (citing Federal Court Management Statistics 2010, available at http://www.uscourts.gov/Viewer.asp x?doc= /uscourts/Statistics/ FederalJudicialCaseloadStatistics/2010/tables/C05Mar10.pdf).16 neither in its home district nor in the district preferred by the de fendants. Given the deference to which the plaintiff’s choice of venue is ordinar ily entitled, and which th e Court has found applies here, transfer would be inappropriate in this case. The defendants have not met their “heavy burden” to demonstrate that the balance of tr ansfer factors is str ongly in their favor. Microsemi , 2009 WL 577491, at *6. For the reasons stated above, in exercise of its discretion under 28 U.S.C. § 1404, the Court denies the defendants’ motion to transfer ve nue to the United States District Court for the Western District of Missouri.

DATED: June 6, 2011 /s/ 

# Beryl A. Howell BERYL A. HOWELL United States District Judge