the control of the parties. Spherion Corp. v. Cincinnati Financial Corp., 183 F. Supp. 2d 1052, 1058
(N.D. Ill. 2002) (Spherion).

Here, Listen.com’s sole office is located in San Francisco, California; and all of its
employees, including witnesses involved with the conception, design, development, and engineering
of the allegedly infringing technology, are located in San Francisco, California. Realnetworks’
witnesses involved with the conception, design, development, and engineering of the allegedly
infringing technology are located in Seattle, Washington. Furthermore, Plaintiff's witnesses
involved with the patents-in-suit are located in San Francisco, California. Neither party has
identified any witnesses that may be called to testify that are in the Northern District of Illinois. As
such, this factor weighs in favor of granting Defendants’ motion.

Regarding the ease of access of other evidence, evidence for this action is likely to be found
in the Northern District of California and Seattle, Washington. While modern technology has made
it easier and less expensive to transfer information than ever before, because most, ifnot all, of the
relevant evidence is located on the West Coast, this factor weighs in favor of Defendants’ motion.

The situs of the material events of the instant case is within both the Northern District of
Illinois and the Northern District of California. As such, this factor weighs neither in favor of or
against a transfer.

As to the relative convenience of the parties in litigating in the respective forums, as stated
above, most of the witnesses are located in the Northern District of California and the West Coast.
Accordingly, this factor weighs in favor of transferring venue.

The analysis of the interest of justice focuses on the efficient administration of the court

system, as opposed to the private considerations of the litigants. Amoco, 90 F.Supp.2d at 961. This



In the instant case, Plaintiff chose to bring suit in the Northern District of Iinois although
its principal place of business is in San Francisco, California. Defendants are incorporated in
Washington and Delaware and are located in Seattle, Washington and San Francisco, California.
The situs of the material events - the alleged infringement - occurred in this district as well as
throughout the United States. Because deference is granted to the Plaintiffs initial forum choice,
this factor weighs in favor of denying Defendants’ motion to transfer. However, because none of
the parties reside in the Northern District of Illinois and the situs of material events takes place
throughout the United States, including Illinois and California, Plaintiff's choice of forum is given
less deference.

The convenience of the witnesses who will testify at trial is one of the most important factors
when deciding on an appropriate forum. Law Bulletin, 992 F.Supp. at 1018. However, the
defendant will not be granted a transfer merely by presenting a long list of witnesses and claiming
their inconvenience. Law Bulletin, 992 F.Supp. at 1018. Courts go beyond simply looking at the
number of witnesses and weighing the quality and nature of their proposed testimony. Law Bulletin,
992 F.Supp. at 1018. The defendant is obligated to specify particular witnesses to be called and
explain the nature of their testimony. Heller, 883 F.2d at 1293. In order to overcome the deference
to the plaintiff's forum choice on the issue of witness convenience, the defendant must show that the
testimony of these particular witnesses is necessary to his case. General Portland Cement Co. v.
Perry, 204 F.2d 316, 319 (7th Cir. 1953) (General Portland). As a practical matter, it is usually
assumed that witnesses within the control of the parties will appear voluntarily. Therefore, more

attention should be given to the location of the non-party witnesses and those witnesses not within


includes considering: (i) the relative familiarity of the courts with the applicable law, (ii) the relation
of the respective forums with the issue in the case, and (iii) the relative congestion of the court
dockets. Amoco, 90 F.Supp.2d at 961; Georgouses, 963 F.Supp. at 730.

Both the Northern District of Illinois and the Northern District of California are familiar with
the substantive law. Accordingly, this factor weighs neither in favor of or against a transfer.

As discussed above, events bearing a relation to this cause of action took place in both the
Norther District of Illinois and the Northern District of California. Accordingly, this factor weighs
neither in favor of or against a transfer.

Lastly, Defendants attach documentation demonstrating that the median time to trial in the
Northern District of Illinois is slightly greater than that for the Northern District of California.
However, the median time from filing to disposition for all cases in the Northern District of Illinois
is slightly less than that of the Northern District of California. As such, this factor weighs neither
in favor of or against a transfer.

In sum, the above factors weigh in favor of granting Defendants’ Motion to Transfer Venue
to the Northern District of California. Defendants’ Motion to Transfer Venue to the Northern

District of California is granted.

/
Dated: Addn 24 2003 Oy Varad

JOHW W. DARRAH
ited States District Judge



Minute Grder F

\?-

(06197)

United States District Court, Northern District of Illinois

> Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge ge than Assigned Judge
CASE NUMBER 03 CaeRBS 450. 5 DATE 10/23/2003
CASE Friskit Inc vs. Realnetworks Inc
TITLE é
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: ‘of the motion being presented.]
Q 3 .
DOCKET ENTRY:
(e9) Oo Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) o Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on set for __at
(5) ia} Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) Oo Trial[set for/re-set for] on at
(8) a {Bench/Jury trial] [Hearing] held/continued to at
(9) Qa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) (Local Rule 41.1 OFRCP41(a\(1) 0 FRCP41(a)(2).

do) ff [Other docket entry] Status hearing held. For the reasons stated in the attached memorandum

opinion and order, 28 U.S.C. 1404(a) MOTION by defendant to transfer action to the United States

District Court for the Northern District of California [8-1] is granted. Case closed and transferred to the

USS. District Court of California. Enter Memorandum Opinion and Order.
(11) @ [For further detail see order attached to the original minute order.]
V | Nonotices required, advised in open court,

No notices required. .
number of notices

Noti iled by judge's staff,
lotices mailed by judge’s sta OCT 24 2003

Notified counsel by telephone, dal dochetes

Docketing to mail notices.
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Copy to judge/magistrate judge.

date mailed notice

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

FRISKIT, INC., a Delaware corporation, )
)
Plaintiff, )
) No. 03 C 4505

v. )

>) Judge John W. Darrah
REALNETWORKS, INC., a Washington corporation; )
and LISTEN.COM, a California corporation, )
)
Defendants, )

oC j
MEMORANDUM OPINION AND ORDER "2 < 2003

Plaintiff, Friskit, Inc., filed a patent infringement suit against Defendants, Realnetworks, Inc.
and Listen.com. Currently before the Court is Defendants’ Motion to Transfer Venue to the
Northern District of California.

Friskit is a Delaware corporation, having its principal place of business in San Francisco,
California. Realnetworks, Inc. is a Washington corporation with its principal place of business in
Seattle, Washington. Listen.com is a California corporation with its principal place of business in
San Francisco, California.

Friskit is the owner of several patents relating to the media searches and playback systems
via the internet, Friskit alleges that Defendants have infringed these patents through the
manufacture, sale, and the offering for sale products, systems, and methods, including Realnetworks’
RealOne Player Plus player and subscription services and Listen.com’s Rhapsody service. Such
infringement is alleged to have occurred in this district as well as elsewhere within the United States.

In general, “(for the convenience of the parties and witnesses, in the interest of justice, 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). A transfer is proper if: (1) venue is proper in both the transferee and
transferor courts; (2) it is for the convenience of the parties or witnesses; and (3) it is in the interest
of justice. Law Bulletin Publishing Co. v. LRP Publications, Inc., 992 F.Supp. 1014, 1017 (N.D. Ill.
1998) (Law Bulletin). District courts have broad discretion to grant or deny motions to transfer, and
the burden is on the moving party to establish that the transfer is warranted. Heller Financial, Inc.
y. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir. 1989) (Heller).

Both parties concede that venue is proper in both the United States District Court for the
Northern District of Illinois and the United States District Court for the Northern District of
California.

‘When evaluating the relative convenience of the parties and witnesses, the court considers:
(i) the plaintiff's initial forum choice, (ii) the convenience of the witnesses, (iii) the relative ease of
access to other evidence, (iv) the situs of material events, and (v) the relative convenience of the
parties in litigating in the respective forums. Amoco Oil Co. v. Mobil Oil Corp., 90 F.Supp.2d 958,
960 (N.D. Ill. 2000) (Amoco); Georgouses v. Natec Resources, Inc., 963 F.Supp. 728, 730 (N.D. Ill.
1997) (Georgouses).

The plaintiff’s initial choice of forum is usually afforded substantial deference, particularly
when itis the plaintiff's home forum. Kamel v. Hill-Rom Company, Inc., 108 F.3d 799, 802 (7th Cir.
1997). However, there are other factors to consider; and the weight given to the plaintiff's choice
can vary, depending on the circumstances of each individual case. Georgouses, 963 F.Supp. at 730;
Law Bulletin, 992 F.Supp. at 1017. For example, where the plaintiff’s choice of forum is not the site
of material events, plaintiff's choice of forum is entitled less deference. See Heller Fin., Inc. v.

Riverdale Auto Parts, Inc., 713 F. Supp. 1125, 1129 (N.D. Ill. 1989).