                         NOTE: This order is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                             Miscellaneous Docket No. 932

                   IN RE APPLE INC., SIRIUS XM RADIO INC.,
                 COBY ELECTRONICS CORP., and ARCHOS, INC.,

                                                                Petitioners.

       On Petition for Writ of Mandamus to the United States District Court for the
          Eastern District of Texas in case no. 09-CV-0111, Judge Ron Clark.


                      ON PETITION FOR WRIT OF MANDAMUS

Before MAYER, LOURIE and BRYSON, Circuit Judges.

Order for the court filed PER CURIAM.           Circuit Judge LOURIE dissents without
separate opinion.

                                        ORDER

      The four petitioners, defendants in a patent infringement action, seek a writ of

mandamus to direct the United States District Court for the Eastern District of Texas to

vacate its February 11, 2010, order denying the petitioners’ motion to transfer venue,

and to direct the court to transfer the case to the United States District Court for the

District of Massachusetts. The plaintiff in the infringement action, Personal Audio, LLC,

opposes.

      In its order denying the petitioners’ motion to transfer, the district court noted that

none of the defendants are headquartered in the transferee venue, that Personal Audio

is a Texas limited liability company, and that the originals of most of Personal Audio’s

documents are located in the Eastern District of Texas. Although the court noted that

Personal Audio became a Texas limited liability company only two months before the
underlying action was filed, it held that Personal Audio’s “presence in the Eastern

District of Texas is not a ‘fiction.’” Although the petitioners identified five non-party

witnesses who resided in Massachusetts, the court concluded that the convenience of

the witnesses did not weigh either in favor of or against transfer, particularly in light of

the availability of video depositions of non-party witnesses. The court acknowledged

that the Massachusetts court’s ability to subpoena potential witnesses favored transfer

because the identified witnesses resided within the District of Massachusetts or within

100 miles of that court. However, because Personal Audio, LLC, was filing in its home

venue, the court stated there was a local interest in adjudicating the dispute.            In

addition, the court added that it could likely hold a trial sooner than the Massachusetts

district court.   The court therefore concluded that the petitioners had not met their

burden of demonstrating that the District of Massachusetts was clearly more convenient

than the Eastern District of Texas for trial of the case, and it denied the motion to

transfer.

       Applying Fifth Circuit law in cases arising from district courts in that circuit, this

court has held that mandamus may be used to correct a patently erroneous denial of

transfer. That standard is an exacting one, requiring the petitioner to establish that the

district court’s decision amounted to a failure to meaningfully consider the merits of the

transfer motion.     See In re Nintendo Co., 589 F.3d 1194 (Fed. Cir. 2009); In re

Hoffmann-La Roche Inc., 587 F.3d 1333 (Fed. Cir. 2009); In re Genentech, Inc., 566

F.3d 1338 (Fed. Cir. 2009); In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir. 2008);

In re Volkswagen of Am., Inc., 545 F.3d 304 (5th Cir. 2008) (en banc). In this case, that

standard has not been met.




Misc. 932                                    2
      To be sure, the status of Personal Audio, LLC, as a Texas corporation is not

entitled to significant weight, inasmuch as the company’s presence in Texas appears to

be both recent and ephemeral—its office is apparently the office of its Texas litigation

counsel, and it appears not to have any employees in Texas.             Nonetheless, the

petitioners have not made a compelling showing that Massachusetts is a more

convenient forum, particularly in light of the fact that none of the defendants is

headquartered there. The district court also addressed and rejected the petitioners’

claim that Massachusetts would be a more convenient forum for prospective witnesses

in the case, and we are not prepared to hold that the court’s conclusion in that regard

was plainly incorrect.   In sum, the petitioners have failed to satisfy the demanding

standard required to justify the issuance of a writ of mandamus.

      Accordingly,

      IT IS ORDERED THAT:

      The petition for a writ of mandamus is denied.

                                                FOR THE COURT

      May 12, 2010                               /s/ Jan Horbaly
         Date                                   Jan Horbaly
                                                Clerk
cc:   Garland T. Stephens, Esq.
      David A. Jakopin, Esq.
      Joseph A. Calvaruso, Esq.
      Jonathan S. Caplan, Esq.
      Ronald J. Schutz, Esq.
      Clerk, United States District Court for the Eastern District of Texas
s19




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