IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 11-cv-01971-WJM-CBS

MILLENNIUM CRYOGENIC TECHNOLOGIES, LTD., a Canadian Corporation,

Plaintiff,

v.

WEATHERFORD ARTIFICIAL LIFT SYSTEMS, INC., a Delaware Corporation,

WEATHERFORD U.S., L.P., a Louisiana Limited Partnership,

WEATHERFORD INTERNATIONAL, INC., a Delaware Corporation,

WEATHERFORD INTERNATIONAL, LTD., a Swiss Joint-Stock Corporation,

Defendants.

_____________________________________________________________________

ORDER GRANTING DEFENDANTS’ MOTION TO TRANSFER VENUE

 UNDER 28 U.S.C. § 1404(A)

_____________________________________________________________________

In this civil action, Plaintiff Millennium Cryogenic Technologies, LTD. (“MCT”), a

Canadian corporation, brings claims for patent infringement and injunctive relief against

Defendants Weatherford Artificial Lift Systems, Inc., Weatherford U.S., L.P.,

Weatherford International, Inc., and Weatherford International, Ltd (collectively

“Weatherford”). (ECF No. 1.) 

Before the Court is Defendants’ Motion to Transfer Venue under 28 U.S.C. §

1404(a) to the District Court for the Southern District of Texas. (ECF No. 41.) For the

reasons set forth below, Defendants’ Motion to Transfer Venue is granted.

I. BACKGROUND

Plaintiff filed its Complaint on July 29, 2011. (ECF No. 1.) Plaintiff brings claims

for patent infringement and injunctive relief against Defendants alleging that they 

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infringed, induced, and/or contributed to the infringement of Plaintiff’s patent regarding

methods for renovating down hole drilling pipe. (Id. ¶ 9.) 

On November 30, 2011, Defendants filed a Motion to Transfer Venue under 28

U.S.C. § 1404(a) to the District Court for the Southern District of Texas. (Motion (ECF

No. 41.)) Plaintiff filed its Response in Opposition to Defendants’ Motion to Transfer

Venue on December 23, 2011 (Resp. (ECF No. 54)), and Defendants filed their Reply

Brief in Support of their Motion on January 3, 2012 (Reply (ECF No. 55)).

This Motion is now ripe for resolution. 

II. LEGAL STANDARD

“For the convenience of 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). The party seeking to transfer a case pursuant to

§ 1404(a) bears the burden of establishing that the existing forum is inconvenient. See

Chrysler Credit Corp. v. County Chrysler, Inc., 928 F.2d 1509, 1515 (10th Cir. 1991). In

ruling on a motion to transfer venue, district courts must assess two issues: (1) whether

the case might have been brought in the proposed transferee district, and (2) whether

the “competing equities” weigh in favor of adjudicating the case in the that district. See

Hustler Magazine, Inc. v. U.S. Dist. Court for the Dist. of Wyo., 790 F.2d 69, 71 (10th

Cir. 1986). The competing equities include the following factors:

(1) plaintiff’s choice of forum; (2) the accessibility of witnesses and other sources

of proof, including the availability of compulsory process to insure attendance of

witnesses; (3) the cost of making the necessary proof; (4) questions as to the

enforceability of a judgment if one is obtained; (5) relative advantages and

obstacles to a fair trial; (6) difficulties that may arise from congested dockets; (7)

the possibility of the existence of questions arising in the area of conflict of laws;

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(8) the advantage of having a local court determine questions of local law; and

(9) all other considerations of a practical nature that make a trial easy,

expeditious and economical.

Chrysler Credit Corp., 928 F.2d at 1516 (quoting Texas Gulf Sulphur Co. v. Ritter, 371

F.2d 145, 147 (10th Cir. 1967)). However, the decision to transfer venue lies in the sole

discretion of the district court and should be based on an “individualized, case-by-case

consideration of convenience and fairness.” Texas E. Transmission Corp. v. Marine

Office-Appleton & Cox Corp., 579 F.2d 561, 567 (10th Cir. 1978); Stewart Org. v. Ricoh

Corp., 487 U.S. 22, 29 (1988).

III. ANALYSIS

A. This Case Might Have Been Brought In The Southern District Of Texas

Plaintiff does not dispute that this case might have been brought in the Southern

District of Texas. (Resp. at 8.) Defendants’ United States operations related to this

action are located in Houston, Texas, which is in the Southern District of Texas.

(Motion at 5-6); 28 U.S.C. § 124(b). As the challenged actions here have a connection

to the transferee district, the Court finds that this case might have been brought in the

Southern District of Texas. 

B. The “Competing Equities” Factors 

1. Plaintiff’s Choice Of Forum

Plaintiff argues that its choice of this forum should be given considerable weight. 

(Resp. at 2-3). However, a plaintiff’s choice of forum is entitled to little weight when it is

neither their principal place of business nor the place where the operative facts giving

rise to the claims occurred. See Bailey v. Union Pac. R.R., 364 F. Supp. 2d 1227,

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1229-30 (D. Colo. 2005); Friends of the Norbeck v. U.S. Forest Serv., C.A., No.

10-cv-2164, 2010 WL 4137500, at *2 (D. Colo. Oct. 18, 2010). Moreover, a plaintiff’s

choice of forum should be given less weight if it is a foreign entity. See In re

Link_A_Media Devices Corp., Misc. No. 990, 2011 WL 6004566, at *2 (Fed. Cir. Dec. 2,

2011) (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 236 (1981) (stating that when a

plaintiff is foreign, the presumption of favor for its choice of forum is “much less

reasonable”)).

Here, Plaintiff conducts no business in Colorado; rather, its principal place of

business is in Canada. (Motion at 6.) In contrast, Defendants maintain offices and

conduct relevant operations in the Southern District of Texas. (Declaration of Wayne

Pilgrim, attached to Motion, Ex. A.) Moreover, all relevant witnesses and documents in

this case appear to be located in Canada and Texas, not Colorado. (Id., Pl’s Rule

26(a)(1) Disclosures, attached to Motion, Ex. C.) As such, the Court finds that Plaintiff’s

choice of forum should not be controlling. 

2. Witnesses And Sources Of Proof

The availability of witnesses is an important consideration in deciding a motion to

transfer. See Bailey, 364 F. Supp. 2d at 1230 (finding the convenience and availability

of the witnesses to be a compelling factor). Further, the availability of compulsory

process can be a key factor in transfer decisions where third party witnesses are

located in the transferee district. Id., see also Sackett v. Denver and Rio Grand

Western R.R. Co, 603 F. Supp. 260, 261 (D. Col. 1985) (transferring case to Utah

where witnesses were subject to subpoena). 

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 While Plaintiff identifies one expert witness, Dr. Glenn McIntosh, who testified

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on MCT’s behalf in a prior related Canadian lawsuit, Plaintiff also states that it “is not yet

representing that Dr. McIntosh will be retained in this case." (Resp. at 4.)

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It is undisputed that the fact witnesses and documents relevant here are located

in either Texas or Canada. (Motion, Exs. A, C.) Defendants’ United States operations

related to the allegations in this case are located at their Houston facility. (Id.) No

witnesses, documents or operations are located in Colorado. (Id.) In contrast, multiple

potential witnesses are located in the Southern District of Texas, including potential

third-party witnesses. (Id.) This Court may not be able to secure these third-party 1

witnesses’ attendance at trial. The Southern District of Texas, however, has the

availability of compulsory process to secure their attendance at trial. See In re

Volkswagen of America, Inc., 545 F.3d 304, 316 (5th Cir. 2008) (availability of

compulsory process weighs in favor of transfer). 

Plaintiff argues against transfer stating that while “the suit should be in Canada”

if that were possible, the case should stay in this District because of “the location of

[Plaintiff’s] United States counsel and relative geographic proximity to Edmonton,

Alberta Canada. Travel time to Denver is just over two hours while travel time to

Houston is not quite four hours . . .” (Resp. at 3.) The location and convenience of

Plaintiff’s counsel, however, are not relevant factors in deciding a motion to transfer. 

See Bailey, 364 F. Supp. 2d at 1230. Rather, the Court agrees with Defendants that

the four hour round-trip difference in travel time to Houston compared to Denver in the

event of trial is a de minimus inconvenience for Plaintiff.

As witnesses and documents in this case, including third parties, are located in

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the Southern District of Texas, while none are located in Colorado, the Courts finds that

the second factor weighs in favor of transfer.

3. The Cost Of Making The Necessary Proof

As noted above, it is undisputed that all current witnesses in this case reside in

either Canada and Texas. (Motion, Exs. A, C.) No witnesses are located in Colorado. 

(Id.) As such, potential witnesses located in Texas may incur significant expenses if

they have to travel to this District for trial. See In re Acer America Corp., 626 F.3d

1252, 1255 (Fed. Cir. 2010) (finding travel costs to weigh in favor of transfer).

Moreover, such costs may be particularly cumbersome for the third party witnesses to

the extent they are not reimbursed by the parties. See S.E.C. v. Rizvi, No. 09-cv-371,

2010 WL 2949311 at *10 (E.D. Tex. July 2, 2010) (granting transfer when it was more

or equally convenient for non-party witnesses). In contrast, all Canadian witnesses will

have to travel internationally to either District.

While Plaintiff argues against transfer by stating that Defendants are global

corporations with significant financial resources (Resp. at 8), the Court does not

consider Defendants’ financial resources to be a factor in its transfer determination. 

See In re Link_A_Media Devices Corp., 2011 WL 6004566 at *1 (rejecting argument

that transfer was improper because the defendant was “a global company” with

significant resources). Therefore, the Court finds that the third factor weighs in favor of

transfer.

4. All Other Factors And Considerations

Under the fourth factor, enforceability of a judgment, the Southern District of 

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Factors 5-8 are inapplicable to this case.

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Texas will have a potentially better ability of enforcing judgment against Defendants as

Weatherford has facilities located there. (Motion, Ex. A); see Bryant v. Allianz Life

Insur. Co. of North America, C.A. No. 09-cv- 02307, 2010 WL 3174749 at * 3 (D. Colo.

Aug. 10, 2010) (finding that the District of Minnesota had slightly better chance of

enforcing judgment over a Minnesota-headquartered company). 

As for the ninth factor, regarding “all other considerations of a practical nature

that make a trial easy, expeditious and economical,” while Plaintiff may have expended

significant time and money litigating before this Court (Resp. at 7), any motions, Orders

or discovery conducted to date may be used by the parties in the Southern District of

Texas. See Chrysler Credit Corp., 928 F.2d at 1516 (quoting Magnetic Eng’g & Mfg. v.

Dings Mfg., 178 F.2d 866, 868 (2d Cir. 1950) (L. Hand, J.)) (“[W]hen an action is

transferred, it remains what it was; all further proceedings in it are merely referred to

another tribunal, leaving untouched whatever has been already done.”). Thus,

resources will not be wasted in the event of transfer. To the contrary, transfer of this

case from Colorado to Texas may minimize unnecessary inconvenience and expense.

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Accordingly, the remaining factors, to the extent that they are applicable here,

favor transfer.

C. Summary Of Convenience And Interest Of Justice Factors

Based on the above analysis, the factors involving convenience of the witnesses

and the cost of making the required proof in this case favor transfer. The interests of

justice factors either support transfer or are irrelevant here. Aside from Plaintiff’s

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interest in its choice of forum, none of the factors the applicable case law directs this

Court to consider weigh in Plaintiff’s favor on the transfer question. As such, the Court

finds that the above factors favor transferring this case to the Southern District of

Texas, and Defendants’ Motion to Transfer Venue under 28 U.S.C. § 1404(a) is

granted.

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Defendants’ Motion to Transfer Venue under 28 U.S.C. § 1404(a) to the District

Court for the Southern District of Texas (ECF No. 41) is GRANTED; and

2. The Clerk is directed to transfer the case record to the District Court for the

Southern District of Texas. 

Dated this 23 day of March, 2012. rd

BY THE COURT:

 

William J. Martínez 

United States District Judge

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